BURKHEART v. CORNING NURSING HOME, 1997 AWCC 378

CLAIM NO. E608440

SHAWN BURKHEART, EMPLOYEE, CLAIMANT v. CORNING NURSING HOME, EMPLOYER, RESPONDENT, SELF-INSURED EMPLOYER

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 24, 1997

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

Claimant represented by JIM BURTON, Attorney at Law, Jonesboro, Arkansas.

Respondent represented by NEAL HART, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed January 27, 1997, finding that claimant sustained a compensable injury arising out of and in the course of her employment with respondent during the latter part of July, 1995. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. Therefore, we reverse the decision of the Administrative Law Judge.

[3] Claimant contends that she sustained an injury to her left hand, wrist, and arm while working for respondent in either late July or early August, 1995. Conversely, respondents contend that claimant did not sustain a compensable injury as that term is defined by ACT 796 of 1993. After reviewing the record de novo, and without giving the benefit of the doubt to either party, we agree with respondent.

[4] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgraFrozen Foods, FC Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and §11-9-102(5)(E)(i) (Repl. 1996). She must also prove 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). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in §11-9-102(16).”

[5] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra.

[6] The specific incident in which claimant alleges to have sustained a work-related injury to her left wrist allegedly occurred when claimant was lifting a 50 pound pot of potatoes to place on the stove. Claimant is adamant that while lifting this pot of potatoes she felt a pop or unusual sensation in her left
arm. Claimant even testified that four or five days after the incident occurred she noticed that her left hand was darker in color. Although claimant alleges to have advised her co-workers of the alleged incident, claimant did not call her co-workers to testify on her behalf to corroborate her story.

[7] In our opinion, the medical evidence submitted at the hearing simply does not support claimant’s allegations of an injury to herleft hand in either July or August of 1995. The medical records of Dr. Page, Dr. Hazzard, and radiologist Edwin Byrd all indicate that claimant was being treated for symptoms to her right hand during the summer and fall of 1995. Had all medical records during this time frame indicated treatment to claimant’s left hand with the exception of only one medical care provider inadvertently stating that treatment was to claimant’s right hand, we might be persuaded by claimant’s argument that the medical care providers simply made a mistake in their records. However, this alleged mistake was not made once by one physician but, if claimant’s testimony is to be believed it, was made at least eight times throughout the medical records of Dr. Page, Dr. Hazzard, and radiologist Byrd. Moreover, when claimant first sought medical treatment for either of her hands, Dr. Page specifically noted “no hx of direct trauma.” In addition although claimant alleges that her hand had changed colors after the lifting incident Dr. Page reported “no color or temp change.” Finally, claimant adamantly maintained during questioning that she advised each of her medical care providers of the lifting incident at work, however nowhere in the medical records is there any report of the alleged incident. To the contrary, the medical reports are consistent with claimant denying a history of direct trauma.

[8] It was not until the fall of 1996, over one year after the alleged incident to claimant’s left hand that the medical records first document any treatment to claimant’s left upper extremity. Dr. Kip Owen in his August 29, 1996, medical report does not indicate problems with claimant’s hands but rather a complaint of left arm pain. Dr. Owen focused his examination of claimant on claimant’s shoulder and left upper extremity. He did not examine claimant’s left hand.

[9] Whether claimant is a poor historian unable to remember the exact date of her injury to her left hand is not the major issue in this case. Rather, the issue is whether claimant has proven by preponderance of the evidence that she sustained an injury to her left hand in July or August of 1995 which arose out of and during the course of her employment. After reviewing claimant’s testimony, and the medical records in this case we cannot find that claimant has met her burden of proof. The medical records prepared contemporaneously with claimant’s alleged injury do not support a finding that claimant actually injured her left hand. In fact, the medical records indicate that claimant sought treatment for her right hand for no known history of trauma and without providing any history of a lifting incident at work. In fact it is even questionable whether the first medical treatment sought occurred before or after claimant’s alleged incident. Without giving claimant the benefit of the doubt, and without assuming that the medical care providers particularly Dr. Page, Dr. Hazzard and radiologist Byrd each made the same mistake on at least eight different occasions noting treatment to claimant’s right hand, we cannot find that claimant actually sustained an injury to her left hand. Therefore, we reverse the decision of the Administrative Law Judge.

[10] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[11] Commissioner Humphrey dissents.