CLAIM NO. E415988
MICHAEL ALLEN, EMPLOYEE, CLAIMANT v. PLANTERS COTTON OIL MILLS, INC., SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 27, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GENE B. McKISSIC, Attorney at Law, Pine Bluff, Arkansas.
Respondent represented by GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals and claimant cross-appeals from a decision of the Administrative Law Judge filed April 4, 1996 finding that the claimant has proven by a preponderance of the evidence that he sustained a compensable injury on October 9, 1994. Based upon our de novo review of the entire record, we find that the claimant has failed to meet his burden of proof.
[3] The claimant originally sustained a compensable injury to his lower back in June of 1992. As a result of that injury, the claimant underwent a lumbar laminectomy, diskectomy at L5-S1 as well as a lumber laminectomy at L4-L5. After surgery, the claimant was assessed as having 15% permanent impairment rating to the body as a whole. The claimant eventually returned to work at respondent as a refinery operator and settled his 1992 claim by joint petition.
[4] The claimant contends that on October 9, 1994 he sustained an additional injury to his back when he fell from a ladder. Claimant was initially seen and treated by the Jefferson Regional Medical Center. Through a chain of referrals, the claimant came under the care of Dr. P.B. Simpson. Dr. Simpson was originally of the opinion that the claimant was not a surgical candidate. At the request of respondent, the claimant underwent an independent medical examination by Dr. Jim J. Moore. Dr. Moore reviewed the diagnostic tests to include a myelogram and CT scan. Dr. Moore disagreed with Dr. Simpson that surgery was not warranted. Dr. Moore stated that the cause of claimant’s problem was more likely a recurrent disc than the result of scar tissue from the original surgery. Based upon this opinion, Dr. Simpson scheduled the claimant for surgery on January 17, 1995. Dr. Simpson’s post-operative report conclusively showed a diagnosis of scar, L5-S1, left side. Dr. Simpson’s report further stated that there was not a disc fragment or any significant herniated disc. On July 6, 1995, Dr. Simpson responded to correspondence from the respondent’s attorney stating that there was no evidence of a recurrent disc and that the surgery was secondary to scaring around the nerve.
[5] Since the claimant’s alleged injury occurred in October of 1994, this claim is governed by
Act 796 of 1993. We have held that in order to establish the compensability of a claim, a claimant must satisfy the requirements for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements to all categories or injuries. See Jerry D.Reed v. ConAgra Frozen Foods, FC Opinion filed Feb. 2, 1995 (
E317744). 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. Therefore, requirements of Ark. Code Ann. §
11-9-102 (5)(A)(i) (Repl. 1996) are controlling.
[6] When considering the compensability of an alleged specific incident arising under
Act 796 of 1993, the claimant must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external physical harm to the body which arose out of and in the course of employment. Ark. Code Ann. §
11-9-102 (5)(A)(i) (Repl. 1996). Act 796 defines an injury as “accidental only if it is caused by a specific incident and is identifiable by time and place of occurrence.” Ark. Code Ann. §
11-9-102 (5)(A)(i) (Repl. 1996).
[7] Furthermore, the claimant must present evidence of the compensable injury established by medical evidence, supported by “objective findings” as defined in §
11-9-102 (16). Ark. Code Ann. §
11-9-102 (5)(D) (Repl. 1996). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. §
11-9-102 (16)(A)(i) (Repl. 1996).
[8] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury he fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed v.ConAgra Frozen Foods, FC Opinion filed Feb. 2, 1995 (
E317744).
[9] While the claimant may have proven a specific incident occurred on October 9, 1994 when he fell from the ladder, the record clearly shows that the claimant has failed to prove by a preponderance of the evidence a compensable injury established by medical evidence supported by objective findings. As noted above, if a claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of an injury, he fails to meet his burden of proof and compensation must be denied.
[10] The record clearly shows the claimant has preexisting back problems well before the October 9, 1994 incident. The claimant underwent a laminectomy diskectomy at two levels in 1992. As a result of surgery, the claimant was assigned a 15% physical impairment rating to the body as a whole. This impairment rating obviously indicates that the claimant was not 100% following surgery. As a result of the October 9, 1994 incident, the only finding made by claimant’s medical care providers was that of complaints of pain and muscle spasms. All medical evidence supported by objective findings indicated that the pain and spasms originated from scarring as a result of the claimant’s 1992 surgery, not from the specific incident of October 9, 1994. Moreover, all objective tests as well as the exploratory surgery revealed that the claimant did not have a recurrent disc as a result of the October 1994 incident. Claimant has failed to present any evidence to persuade us that there is an objective basis associated with the October incident for his subjective complaints of pain. Thus, we find that the claimant has failed to prove by a preponderance of the evidence that the alleged fall caused internal or external physical harm to the body as well as proof by a preponderance of the medical evidence establishing a compensable specific incident injury supported by objective findings. Accordingly, we find that the claimant has failed to meet his burden of proof establishing the compensability of his injury. The overwhelming evidence of record clearly shows that the claimant’s condition was caused from scarring, not from his alleged fall. Consequently, we find that the decision of the Administrative Law Judge must be and hereby is reversed.
[11] IT IS SO ORDERED
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents.
