ATWOOD v. SERVICE CHEVROLET, 1997 AWCC 73

CLAIM NO. E507975

DOUGLAS ATWOOD, EMPLOYEE, CLAIMANT v. SERVICE CHEVROLET, EMPLOYER, RESPONDENT and SISCO, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 5, 1997

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE DAVID SMITH, Attorney at Law, Benton, Arkansas.

Respondents represented by the HONORABLE WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on March 21, 1996. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury arising out of and during the course of his employment with the respondent on January 30, 1995. In addition, the administrative law judge reserved the issue of permanent disability pending additional treatment to ascertain whether the claimant’s vision can be improved. After conducting a de novo review of the entire record, we find that the claimant established each of the elements necessary to establish a compensable chemical injury to his left eye under the requirements of Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996). In addition, we find that the administrative law judge properly reserved the issue of permanent disability pending additional medical treatment to ascertain whether the claimant’s vision can be improved with a corrective lens. Therefore, we find that the administrative law judge’s decision must be affirmed.

[3] The claimant was employed by the respondents to detail cars. The claimant testified that on January 30, 1995, he was spraying Wheel Brite cleaner on the wheel of a car when a drop of the cleaner splashed into his left eye. The claimant testified that he washed his eye out with water but did not report the incident.

[4] According to the claimant, he began to experience difficulties with his left eye approximately one week later which persisted until he reported the problems to his employer. The claimant testified that his initial symptoms included matting of the left eye and watering of the eye in the morning. The claimant testified that he also experienced redness and swelling of the eye.

[5] Mr. John McDonald, the service manager for the respondent employer, testified that the claimant informed Mr. McDonald that the claimant had gotten spray tire cleaner in his eye, and that his eye was burning, sometime after January 30, 1995. Mr. McDonald testified that he advised the claimant to go to the office and fill out a workers’ compensation report and to go see his doctor. Ms. Trudy Lowery, the respondents’ business manager signed an Employer’s First Report of Industrial Injury on February 20, 1995, suggesting that the claimant first reported the alleged incident approximately three weeks after the incident occurred.

[6] The claimant testified that he presented to his family physician, Dr. Dan Dillard, and that Dr. Dillard referred the claimant to Dr. Susan Blair, an ophthalmologist, on May 12, 1995. Dr. Blair prescribed a non-steroidal anti-inflammatory eye drop and indicated in her reports that the redness, pain, and swelling in the claimant’s left eye improved. Visual acuity testing indicated that the claimant’s vision was 20/20 in the right eye and 20/40 in the left eye. With manifest refraction, visual acuity at distance in the claimant’s left eye could be improved to 20/30. Dr. Blair referred the claimant for a corneal topography at UAMS which confirmed an irregular astigmatism in the cornea of the claimant’s left eye as compared to a normal topography of the claimant’s right eye.

[7] Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirement for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v.Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102 (5) (A) (i) (Repl. 1996) are controlling, and the following requirements must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102
(5) (A) (i) (Repl. 1996); Ark. Code Ann. § 11-9-102 (5) (E) (i) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401 (a) (1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102 (5) (A) (i) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102
(16), establishing the injury (see, Ark. Code Ann. § 11-9-102 (5) (D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102 (5) (A) (i) (Repl. 1996)).

[8] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra.

[9] In the present claim, we find that the claimant proved by a preponderance of the evidence in the record each of the requirements necessary to establish a compensable injury. In this regard, objective medical findings, including Dr. Blair’s observations of redness and swelling in the claimant’s left eye, as well as the abnormalities indicated by corneal topography, clearly show the presence of physical harm which required medical services.

[10] In addition, we find that the preponderance of the evidence establishes that the claimant sustained his left eye injury as a result of a specific incident that occurred on January 30, 1995, and which arose out of and in the course of his employment. In this regard, the evidence indicates that the claimant has consistently related his left eye problems to a chemical injury sustained on January 30, 1995, which he flushed with water on that date, but which subsequently became irritated approximately one week later, and which, according to Dr. Blair’s reports, remained irritated when he first presented to her on May 12, 1995. Both the claimant and Dr. Blair have indicated that wheel cleaner is an acidic solution, and Dr. Blair opined in a letter dated August 4, 1995, to the claimant’s attorney that an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like that present in the claimant’s left eye.

[11] The claimant also seeks permanent disability compensation for the decreased visual acuity caused by his left eye irregular corneal astigmatism. However, the administrative law judge reserved the issue pending additional medical treatment. Initially, we note that the claimant has not appealed the administrative law judge’s decision reserving the permanent disability issue, and the respondents’ brief does not specifically address the administrative law judge’s reservation of permanent disability in the event that the Full Commission finds the claimant’s injury compensable.

[12] We find that the administrative law judge correctly reserved the permanent disability issue. In assessing the degree of permanent partial visual impairment, Ark. Code Ann. § 11-9-521 (c)(2) provides:

In all cases of permanent loss of vision, the use of corrective lenses may be taken into consideration in evaluating the extent of loss of vision.

[13] In the present case, Dr. Blair determined that the claimant’s uncorrected visual acuity is 20/40. Although the claimant testified that Dr. Blair has nothing left to offer the claimant to improve his left eye vision, Dr. Blair’s August 4, 1995, letter to the claimant’s attorney indicates that the claimant’s visual acuity may be subject to improvement by use of a hard contact lens over the cornea. According to Dr. Blair, the claimant has not yet received this medical treatment which may improve his degree of permanent visual impairment. The administrative law judge reserved the permanent disability issue because Dr. Blair has not yet determined the degree of correctable impairment and because the respondents have controverted all medical treatment. We therefore find that the administrative law judge properly reserved the permanent disability issue.See, Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996).

[14] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved all of the requirements necessary to establish a compensable injury under Ark. Code Ann. § 11-9-102
(5)(A)(i) (Repl. 1996). In addition, we find that, under the facts of this case, the administrative law judge appropriately reserved the issue of permanent partial disability. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed.

[15] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (b) (Repl. 1996).

[16] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[17] Commissioner Wilson dissents.

[18] DISSENTING OPINION
[19] I respectfully dissent from the majority’s opinion Based upon my de novo review of the entire record, I find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury to his left eye.

[20] Claimant contends that he splattered “Wheel Bright” in his eye on January 30, 1995 during the course and scope of his employment. While it is possible that claimant may have splattered such chemical in his eye, I find it highly unlikely that such chemical caused claimant’s underlying condition. Claimant did not notice any problem with his eye after he flushed the cleaner out with water. Moreover, claimant did not report the injury until approximately three weeks after the alleged incident. Finally, there are no medical records introduced by claimant to show that claimant actually sought medical attention prior to May 12, 1995. Given the delay in reporting the injury and seeking medical attention it is hard for me to believe that an incident which occurred on January 30, 1995 actually caused the severity of claimant’s problems.

[21] Moreover, claimant’s own Ophthalmologist, Dr. Susan Blair, stated in her August 4, 1995 correspondence that “an ophthalmologic exam before and immediately after the injury would be needed to clearly associate the injury with this.” To find that the claim is compensable without knowing the chemical makeup of the solution or corroborating evidence that the solution can cause a condition such as claimant is resorting to speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co.v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). ArkansasMethodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125
(1993). I can place no weight on Dr. Blair’s unsubstantiated statement in her August 4, 1995 correspondence that an acidic solution may cause an irregular corneal astigmatism. Without evidence regarding the solution makeup of the cleaner used by claimant and without the ophthalmologic examination before and after the injury, I cannot find that claimant’s condition is causally related to his work. Therefore, I respectfully dissent from the majority opinion.

[22] MIKE WILSON, Commissioner