CLAIM NO. E810382
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 29, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by RONALD M. CHAUFTY, Attorney at Law, Texarkana, Texas.
Respondent represented by NEAL L. HART, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on February 25, 1999, finding that claimant sustained a compensable injury on April 21, 1998, for which she is entitled to benefits. Based upon our de novo review of the entire record, we find that claimant has failed to prove that she sustained a compensable injury by the credible evidence of record. [3] At the hearing held on November 25, 1998, claimant contended that she sustained a compensable injury on April 21, 1998, for which she is entitled to disability and medical benefits. Conversely, respondent contended that claimant did not sustain a specific work-related injury on that date, that there were no credible objective medical findings to support an alleged injury, and, in the alternative, that if the injury were compensable that the medical treatment provided by Dr. Primeaux was not reasonable nor necessary medical treatment. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent. Specifically, we find that claimant has failed to prove by a preponderance of the evidence that she sustained a work-related injury on April 21, 1998. [4] At the hearing, claimant described an injury occurring on April 21, 1998, to her back when she slipped on a wet slippery floor in the large walk-in cooler and, in an effort to keep from falling, she pulled herself forward with the weight of the box she was carrying and felt something snap in her back. According to claimant, she reported the injury to Mr. Eakley, her supervisor and co-worker. With regard to reporting the incident claimant testified:
Q. So is it your testimony that you reported to him that you did injure your back?
A. Well, that is what I said to him. I guess that is what you would call it, reporting it. That is all I said to him at that time.
Q. Do you recall what he said to you?
[5] Dr. C. A. Primeaux, a chiropractic physician, first saw the claimant for this alleged injury on May 20, 1998. Dr. Primeaux’s office notes which are apparently prepared contemporaneously with claimant’s visits do not document a history of a work-related injury. However, his office notes do state: “DOA 4/21/98.” In correspondence addressed to respondent’s attorney dated several months later, Dr. Primeaux set forth a history of a work-related injury as apparently relayed to him by the claimant. Specifically, Dr. Primeaux’s October 20, 1998 correspondence states:A. At that particular time we were just discussing the floor needing to be cleaned. He said, yes, that he needed to get in there and work on it.
Q. Did he say whether he would report the injury to any of his supervisors?
A. No. At that time we didn’t discuss that. We discussed that the next day.
DESCRIPTION OF INJURY/ONSET:
[6] Although claimant began seeking medical treatment from Dr. Primeaux on May 20, 1998, claimant testified that she did not ask Mr. Eakley to advise the store manager of the work-related incident until June, after Dr. Primeaux had her off work for one week. Claimant described reporting the incident to the store manager as follows:Ms. Anderson reported that she was involved in a work related, overuse Injury injury on the above date. She stated “On the morning of April 21, 1998 while lifting a case (40 lbs.) of chicken parts in the walk-in cooler at Sav-a-Lot in Hope, Ar. I slipped on a wet floor and snapped backwards, hurting my back.
A. When I took the note to him I explained to him that — well, what I said was, I am sure that Robin has already spoken to you about this and you know why I was off, that I had been hurt all this time and working — and trying to keep working, and I needed the doctor to be able for me to do that.
Q. What was Mr. Rogers’ response?
A. Actually nothing. He took the note from me.
Q. Did he say whether Robin had ever — I say Robin because his last name is too hard for me to say. Did he say whether Robin, your supervisor, had ever told him anything prior to your being off in June that you had been injured?
A. No, sir.
[7] Robin Eakley, the market manager for the Save-A-Lot, testified on behalf of respondent. Mr. Eakley, was not the meat market manager at the time of claimant’s injury, but he was acting in that capacity on April 21, 1998. Mr. Eakley was specifically asked if claimant ever informed him of a work-related injury occurring after slipping but not falling in the cooler to which he responded with an unequivocal “No, sir.” Under cross-examination, Mr. Eakley was asked at what point he first realized that claimant had sustained an on-the-job injury to which he responded:[8] When questioned by the Administrative Law Judge, Mr. Eakley testified that the first time he learned that claimant was alleging a work-related injury was after she had last worked for respondent in August of 1998. According to Mr. Eakley, it was in August that she first brought a doctor’s note to the store manager claiming that she had sustained a work-related injury. [9] 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, Full Commission 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) (Supp. 1997). 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).” 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. [10] First, we are not inclined to believe the claimant’s testimony of a work-related incident occurring on April 21, 1998. Claimant did not seek medical treatment for over a month and did not officially report an injury until June if the claimant’s testimony is believed, or August if Mr. Eakley’s testimony is believed. Claimant testified that she sustained an injury to her back when she slipped in the walk-in cooler on a wet floor surface. According to claimant, she reported this incident to her acting supervisor, Robin Eakley. However, Eakley’s testimony does not confirm claimant’s account. A review of claimant’s testimony regarding the alleged reporting incident to Mr. Eakley indicates that she advised him that the floor was slippery. An employee’s comment to a supervisor regarding a slippery floor is not the equivalent of reporting an injury occurring after slipping on a wet surface. [11] It is noted that Dr. Primeaux’s correspondence to respondents’ counsel does contain a history of a work-related incident; however, this correspondence was not authored until October, more than five months after claimant first sought Dr. Primeaux’s care. A review of Dr. Primeaux’s office notes only disclosed generic complaints of pain and records the type of treatment provided. It was not until after litigation ensued with regard to claimant’s alleged work-related injury that a history of a work-related injury was first recorded by Dr. Primeaux. In fact, the history of an injury is first contained in correspondence written by Dr. Primeaux to respondents’ attorneys. Consequently, it is our opinion that the history recorded five months after first obtaining treatment and after litigation ensued with regard to claimant’s workers’ compensation claim is suspect. We are not privy to the reasons Dr. Primeaux corresponded with respondents’ attorneys. Dr. Primeaux’s letter states that he was responding to respondent’s attorney’s request for information. Was he asked by claimant to verify a work-related history? Was he just recently provided a work-related history by the claimant? Was he responding to a general inquiry by respondent? Claimant carries the burden of proof in establishing the compensability of her claim by a preponderance of the evidence. In our opinion, the history of a work-related incident contained in Dr. Primeaux’s October 20, 1998 correspondent to respondents’ counsel does not carry her burden of corroborating a work-related injury. Furthermore, we do not find the notation on Dr. Primeaux’s office note of “DOA 4/21/98” indicative of a work-related injury occurring on that date. Although the date of the accident contained in Dr. Primeaux’s records corresponds with claimant’s testimony of a work-related injury occurring on April 21, 1998, the generic “DOA” may refer to any type of accident, not just a work-related injury. Furthermore, a review of Mr. Eakley’s testimony unequivocally reveals that he at no time prior to claimant’s last day of work in August of 1998, was informed by the claimant of a work-related injury having occurred in April of 1998. Although Mr. Eakley was aware of claimant obtaining chiropractic treatment, Mr. Eakley testified that he was advised by claimant that she needed chiropractic treatment for a rib which was popping out. Mr. Eakley further testified that claimant did not relate the rib popping out to her work. Mr. Eakley stated that if he had been aware of an injury occurring to claimant, he would have reported it to his manager. Mr. Eakley further testified that claimant never developed any physical complaints while working for respondent except for complaining of her rib popping out which required chiropractic treatment. [12] Accordingly, when we weigh the evidence of record, we are unable to find that claimant has proven by a preponderance of the evidence that she, in fact, sustained an injury on April 21, 1998. Claimant has presented no credible corroborating evidence of an injury having occurred at that time. The one person to whom claimant alleges that she reported the injury unequivocally testified that claimant did not report the injury as alleged. Therefore, we find that claimant has failed to meet her burden of proof establishing a compensable injury by a preponderance of the evidence. Consequently, we find that the decision of the Administrative Law Judge must be reversed. [13] IT IS SO ORDERED. [14] _______________________________I don’t know that she was hurt on the job. She said that she went to the doctor and her rib had popped out, or something to that effect. To my knowledge, that is all that I know, that her rib was popping out.
MIKE WILSON, Commissioner [15] Chairman Coffman concurs. [16] Commissioner Humphrey dissents. [17] DISSENTING OPINION
[18] I must respectfully dissent from the majority opinion in this case. In my opinion, claimant has proved by a preponderance of the evidence that she sustained a specific incident injury on April 21, 1998. [19] Claimant worked in respondent employer’s meat department. She injured her back on April 21, 1998, lifting a case of chicken. Claimant offered the following description of the incident:
[20] Claimant stated that she experienced pain, and felt a snapping sensation between her shoulder blades. Thereafter, she developed numbness in her left arm and both hands. [21] Claimant insists that she immediately reported the incident to Mr. Robin Eakley, acting department manager. She advised Eakley that someone should clean the floor of the cooler, which contained water and blood, before a more serious injury occurred. Claimant again discussed the incident with Eakley on April 22, 1998. She stated he asked whether he should report the incident to his superiors. Claimant did not want the incident to be filed as a workers’ compensation injury; therefore, she advised Eakley against reporting the incident. She explained that she was concerned that respondent employer needed someone capable of working daily. Claimant testified that she chose to take care of the medical expenses on her own. However, in June of 1998, after missing one week of work, claimant stated that she asked Eakley to report the incident as a workers’ compensation injury. [22] Claimant continued to perform her employment duties, and first obtained medical treatment on May 20, 1998, from Dr. Primeaux, a chiropractic physician. Dr. Primeaux’s progress notes show that from May 20, 1998, through August 11, 1998, claimant received eighteen chiropractic treatments. At times, claimant left work and went to the doctor’s office. She stated she returned to work following treatment. Claimant had her supervisor’s permission to obtain medical care during the work day. [23] One day in June of 1998, claimant stated she was unable to report for work. Claimant called in sick on this day, which was Monday. She stated she was scheduled to be off Tuesday and Wednesday. Respondent employer excused her from work Thursday. She stated that she saw Dr. Primeaux each of those days. However, Monday, claimant’s mother took her to the doctor. Claimant explained that she was unable to go to the doctor’s office on her own. In order to return to work, claimant was required to give respondent employer a doctor’s note. [24] Robin Eakley, Meat Department Manager testified in behalf of respondents. He stated that claimant did not report a work-related injury. Eakley indicated that he was unaware of claimant’s physical problems until June of 1998, when claimant provided Kevin Rogers, Store Manager, with a doctor’s note. [25] A notation on Dr. Primeaux’s chart notes, which referenced an accident date of April 21, 1998, corroborates claimant’s account of a work-related injury. Moreover, in a letter to counsel for respondents dated October 20, 1998, Dr. Primeaux detailed the manner in which claimant described her work-related accident occurring on April 21, 1998. This evidence is, however, dismissed by the majority. They reason that Dr. Primeaux’s contemporaneous chart notes, which offer an accident date but fail to provide the details of a work-related injury, are more persuasive. This is so even though the letter to counsel for respondents was written only five months after claimant’s initial treatment. In my view, the notation of the accident date supports claimant’s testimony, and there is no basis to discount this evidence. I find that the logic employed by the majority is flawed. This line of reasoning would only be persuasive in the absence of Dr. Primeaux’s contemporaneous notation: “DOA 4/21/98.” [26] The reference to the accident in Dr. Primeaux’s early chart notes, and his account of the incident in the letter to counsel for respondent are consistent with claimant’s hearing testimony. However, the record is not free of inconsistencies. Robin Eakley’s testimony that claimant never reported the cooler incident is inexplicable. Nevertheless, claimant’s credible testimony detailed description of the manner in which the injury occurred, and the medical records support a finding that claimant sustained a specific incident injury on April 21, 1998. [27] I would award claimant all appropriate benefits. [28] Based on the foregoing, I respectfully dissent. [29] ________________________________ PAT WEST HUMPHREY, CommissionerI walked into a large walk-in cooler and picked up a case of chicken, which that weighs forty pounds. The floor was slippery, wet, and when I picked it up and turned to walk away, I slipped and to keep from falling backwards I pulled myself forward with the weight of the chicken and I snapped my back.