ANDERSON v. DOUGLAS LOMASON COMPANY, 1998 AWCC 378

CLAIM NO. E700104

ALICE ANDERSON, EMPLOYEE, CLAIMANT v. DOUGLAS LOMASON COMPANY, EMPLOYER, RESPONDENT and MICHIGAN MUTUAL INSURANCE, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 12, 1998

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

Claimant represented by JAMES MILLER, Attorney at Law, Forrest City, Arkansas.

Respondent represented by DAVID SHELTON, Attorney at Law, Arkansas.

Decision of Administrative Law Judge: Reversed

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed February 23, 1998, finding that claimant sustained a gradual onset injury that is the major cause of claimant’s condition and is supported by objective and measurable medical findings. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. Therefore, we find that the decision of the Administrative Law Judge should be, and hereby is, reversed.

[3] At the hearing held on November 12, 1997, claimant contended that she sustained a compensable injury on or about November 13, 1996, for which she is entitled to temporary total disability benefits from January 2, 1997 through June 30, 1997. Conversely, respondent defended the claim on the grounds that claimant cannot prove that she sustained a specific incident injury as that term is defined by the statute. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent.

[4] On direct examination at the hearing, claimant was asked how she injured her back to which she responded:

A. Loading and stocking that we had to do prior to starting to work. We had big boxes about this size (indicating), and it was deep that we got springs out of that were just springs that you put into the back of the seat. And we would load those into little cubby holes on each side of our machine in order to meet our production where we would get those and hook it into the back, and we would have the mats that we brought and stacked around our machine so that we didn’t have to go each time we got a stack, we called them, and put them upon our rack. So we just took one off and put it on the machine. We would take a seat off and put it on here. There’s stooping, bending, twisting, turning. The seats were either behind us if they were plentiful that day before the work started. If it wasn’t, we took it off the conveyor, and we would put it on, we would push buttons to check it out, and then we stacked it into the seat, put our labels on them. We labeled with our number each time we finished a seat.
However, at her deposition which was taken on June 6, 1997, claimant responded as follows when asked how she injured her back:
Working on the dock with the springs skin that we use to put in the back of the mat table comes in a big box. The box was real low and I had put my basket in there to fill it up and lift up to come up and I couldn’t come up and I went over in it. Into the box and it just burned and stung and it took me a few minutes before I could get myself straightened back out.

[5] It is claimant’s testimony that on November 13, 1996, she reported to her supervisor, Charles Reed, that she was experiencing pain in her back. Mr. Reed obtained a doctor’s pass for the claimant and she was seen by Dr. Morgan Collins on the following day. A medical record dated November 13, 1996, was introduced into evidence as Joint Exhibit No. 1 Page 2. This record describes an injury “bending and moving seats injured legs, back-numbness and pain in R leg.” The medical record indicates that this injury was reported to Betty Rollins. After careful consideration of the handwritten notes we find that the relevant physical findings noted by the physician were “Central spine [without] paravertebral muscle spasm. [Negative] straight leg raising. Small bruised area R hip. Intact neurovascular status.” X-rays of claimant’s lumbar spine were obtained which proved negative for fractures or dislocation. On that date, claimant was diagnosed with muscular skeletal pain [illegible] blunt injury R hip. Claimant was advised to avoid heavy lifting, pulling, or bending but was released to return to work the following day. Claimant returned to Dr. Collins’ office on November 26, 1996. The medical record on that date repeated the history and diagnosis from the previous office visit. Specifically, the medical record stated:

Patient was seen 11/13/96 from D L stating that she was bending and moving seats, injured leg and back, and having numbness and pain in the right leg. She was treated with musculoskeletal pain with blunt injury to the right hip. She was given Naprosen and told to avoid heavy lifting, etc. Today she returns in tears with pain in the front hip, stating it hurts down her legs. Feels like there is a knot that goes all the way down her leg.

[6] Upon examination, Dr. Collins noted point tenderness over the bursa with no particular pain or tenderness to movement of the hip joint itself. Dr. Collins injected claimant’s hip with Marocain. On December 2, 1996, claimant returned to Dr. Collins’ office with continued complaints of pain. At that time, claimant was seen by Dr. Shakeb Hashmi who then referred claimant to Dr. Ramone Lopez “For rt. hip osteoarthritis.” Claimant was seen by Dr. Lopez on December 3, 1996. Dr. Lopez recorded the following history:

She is 44 years old and complains of pain on her right gluteal region with radiation posterior laterally down to her right foot and numbness of the same distribution. She states that she had a back injury last year while lifting and since then she has had intermittent problems with her back but the symptoms have been much worse in the last three to four weeks. She was treated by Dr. Collins with Lodine and according to her didn’t seem to help much. She also took Ultram and Prednisone also without improvement. . . .

[7] After performing an examination of the claimant, Dr. Lopez surmised that claimant has lumbar radiculopathy probably secondary to herniated or bulging disc at the L5-S1 level to the right. Claimant was prescribed a lumbar corset and was injected with medication. On December 18, 1996, one day after claimant was laid off from respondent, she presented to Dr. Rodney Field upon referral from Dr. Lopez. At that time, claimant provided Dr. Field with the following history:

Patient was lifting in November of 1996 and developed pain in her right sacroiliac area primarily in the right lateral thigh and pain in the lateral aspect of the fibula from the knee to the ankle. There is tingling in this area. There is pain in the back and pain in the right sciatic notch, but it is not mechanical. The symptoms on the right are constant. She has both pain and numbness. Twisting and bending of the back may cause pain in the right fibula area. There is no weakness and no trouble controlling the bowels or bladder. She has consulted Dr. Morgan Collins and Dr. Lopez. She has had trochanteric bursa injections because she has found tenderness in the trochanteric bursa, oral cortisone and non-steroidal anti-inflammatory pills.

[8] 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. Reed v. ConAgra Frozen Foods, F.C. Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See 1997). He must also prove that the injury was caused by a specific incident and is identifiable by time and place of establish a compensable injury “by medical evidence supported by

[9] 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, supra.

[10] This case is troubling because claimant contended that she sustained an injury on or about November 13, 1996, but her testimony is inconsistent with regard to whether she sustained a specific incident injury or gradual onset injury on that date. At her deposition, claimant described a specific incident in which she believes she sustained her injury. Based partially upon this deposition testimony respondent controverted the claim on the grounds that claimant did not sustain an injury as a result of a specific incident identifiable by time and place of occurrence. At the hearing, however, claimant’s testimony describing her injury was not of a succinct injury but rather of an injury while working which involved “stooping, bending, twisting, and turning.” Claimant’s inconsistent description of how she sustained an injury casts grave doubt over claimant’s credibility. The findings of the Administrative Law Judge on issue of credibility are not binding on the Commission. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983); Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. RicelandFoods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).

[11] A thorough review of the record reveals that claimant’s testimony should be entitled to little weight. For instance, during her deposition claimant was asked “Had you had any prior back problems prior to November of 1996?” To which she responded “Only strain from working, but nothing that I had to go to the doctor with.” However, at the hearing it was revealed that claimant had in fact filed a previous workers’ compensation claim while working for Rail Top Manufacturing Company in which she claimed a back injury. Claimant attempted to minimize her deposition testimony by claiming at the hearing she thought counsel for respondent had asked her if she had ever received workers’ compensation benefits for a back injury. While other questions at the deposition focused on claimant’s prior workers’ compensation claims, the question set forth above specifically asked if she had experienced any prior back problems. Claimant’s response of only sustaining strains which did not require medical attention was not accurate. As revealed at the hearing, claimant incurred a substantial medical bill for treatment she received as a result of that prior back injury which resulted in a hearing to attempt to get that doctor’s bill paid. Obviously, claimant was less than truthful in denying any previous back problems beyond mere strains.

[12] Furthermore, when asked if claimant recalled the specific date on which she sustained her injury, claimant volunteered in her deposition, “Well my calendar that I had all of it wrote down I don’t have anymore.” Claimant explained that she did not have the calendar on which the date was written down on because “My house burned.” As shown through claimant’s attendance records which were introduced into evidence as Joint Exhibit No. 1, Page 9 claimant missed work in October of 1996 because her house burned. Either we are to believe that claimant’s house burned again sometime after November of 1996 when she allegedly sustained her injury, that the alleged injury occurred prior to October 11, 1996, when the records reflect that her house burned, or that claimant conveniently used the house fire as an excuse to not produce documents reflecting the date on which an injury occurred since there was never an injury to begin with. Finally, we find it interesting to note that when claimant first reported to the doctor on November 13, 1996, she was diagnosed with a bruise from a blunt trauma. Even assuming claimant’s testimony in her deposition regarding a specific incident to be true, a finding which we do not make, we cannot find that the incident as described in her deposition would result in a blunt trauma to her right hip area. According to claimant’s deposition testimony she had bent over to put her basket in and fill it when she could not come up and she went over into the box. This would indicate a forward movement into the box. The medical records reveal a blunt trauma to the right hip, in the gluteal area which would be on the posterior or back side of the body. Consequently, there was nothing about claimant’s description of a work-related injury which would account for a blunt injury to claimant’s right hip. Claimant obviously sustained an injury to her right hip as evidenced by the bruise, but there is nothing in the record to account for this injury occurring at work. Furthermore, if a specific incident occurred at work, resulting in this bruise, one would expect claimant to describe a trauma to her right hip and relate her back problems to this injury rather than describe a gradual injury from twisting and bending.

[13] We also feel compelled to address the history obtained by Dr. Lopez of “a back injury last year.” Unlike the dissent’s assessment that this is an error on Dr. Lopez’s part, we find that when the history as obtained by Dr. Lopez is read in its entirety, there has been no error. This history states in pertinent part:

She states that she had a back injury last year while lifting and since then she has had intermittent problems with her back but the symptoms have been much worse in the last three to four weeks.

[14] The dissent assumes that the doctor erred and should have recorded that an injury occurred last month. We find such an assumption inconsistent with the remainder of the history of symptoms becoming much worse in the last three to four weeks. Assuming an error, three to four weeks would place the intermittent symptoms becoming much worse at the time of the initial injury. This is illogical. Obviously, it is important for a claimant to provide an accurate history to his treating physician in order to obtain appropriate medical care, and we find under the circumstances that the history recorded by Dr. Lopez should be accorded significant weight.

[15] Due to claimant’s inconsistent statements and her clear attempt to conceal her past history of back problems, we find that claimant’s testimony lacks credibility and is not entitled to any weight. Consequently, we find that claimant has failed to prove by a preponderance of the credible evidence that her alleged back problems are causally related to her employment.

[16] Moreover, even if we were to conclude that claimant’s employment in some way contributed to her back problems, a finding which we do not make, we still find that claimant has failed to prove by a preponderance of the evidence that she sustained a specific incident as her testimony in this regard lacks credibility. Rather the medical evidence reflects that claimant experienced a gradual increase of pain. This does not mean, however, that claimant has proven the compensability of her claim. For a gradual onset injury, a claimant bears the burden of proving that the compensable injury was the major cause of her disability or need for treatment. In this regard, the medical evidence shows that claimant clearly sustained a blunt trauma to her right hip which has not been linked to claimant’s employment by a preponderance of the evidence. In our opinion, this blunt trauma or claimant’s underlying degenerative disc disease account for claimant’s disability or need for medical treatment. Both Dr. Rodney Fields and Dr. Jim Moore determined that claimant’s bulging discs resulted from degenerative changes and not a specific work-related or gradual onset injury. Therefore, we find that claimant has failed to satisfy the major cause requirement to establish a compensable gradual onset injury.

[17] Accordingly, we find that the decision of the Administrative Law Judge must be, and hereby is, reversed.

[18] IT IS SO ORDERED.

[19] _______________________________
ELDON F. COFFMAN, Chairman

_______________________________ MIKE WILSON, Commissioner

[20] Commissioner Humphrey dissents.

[21] DISSENTING OPINION
[22] I respectfully dissent from the majority’s opinion. Upon a review of the record I find that we should affirm the judge’s ruling. Claimant has established by a preponderance of the evidence that she sustained a compensable back injury, not identifiable by time and place of occurrence, which is the major cause of her condition.

[23] Claimant is a fifty-five year old woman who has been employed by respondent in a variety of assembly line type positions since January of 1994. At the time of her hire, claimant was subjected to a detailed physical examination by respondent’s company doctor, Morgan Collins. Dr. Collins reported at that time that claimant was “normal” in the areas of activity, posture, scoliosis, forward bending, backward bending and lateral bending, among others.

[24] On or about November 13th, 1996, while working on building automobile seats at a station which required repeated stooping and lifting, claimant reported to her supervisors, Betty Rollins and Charles Reed, that she had injured her back. Mr. Reed issued claimant a sick pass to see the company doctor. Claimant was able to continue working and completed her shift. The following day Ms. Anderson was seen by Dr. Collins, the doctor who had performed the pre-employment physical examination. This time he diagnosed her, as reported in the medical chart from November 26th, with musculoskeletal pain. The attribution of this injury to a blunt injury seems to have sprung from the company doctor and is not supported by the history given to Dr. Collins.[1] Ms. Anderson was able to return to work that day.

[25] The medical records submitted as Joint Exhibit 1 also contain a “Work Related Injury Report” prepared on November 13th, 1996. This report reflects that claimant exhibited “central spine paravertebral muscle spasm”[2] and soft tissue swelling. Claimant was ordered to avoid lifting anything heavier than 50 pounds. Claimant returned to see Dr. Collins on November 26th, 1996 and received three injections which gave her “rather dramatic relief of her discomfort.” Dr. Collins prescribed medication and the continued use of wet heat for the treatment of claimant’s injury. On November 27th, an ultrasound was performed on Ms. Anderson.

[26] On December 2nd, 1996 claimant was seen by Dr. Shakel Hashni who referred her to Dr. Ramon E. Lopez of the Forrest City Orthopaedic Center. On December 3rd, three to four weeks after the injury, Dr. Lopez still observed moderate paravertebral muscle spasm when examining the claimant, an objective finding which is not addressed in the majority opinion. His impression was that she had lumbar radiculopathy secondary to herniated or bulging disk at L5-S1 on the right. Claimant was fitted with a lumbar corset, received two injections and another prescription. Claimant was directed to come in daily for magnatherm treatments and advised that she could continue to work with the lumbar corset.

[27] Dr. Lopez’ report contains reference to “a back injury last year.” Claimant denies making that statement and there is no evidence or testimony to corroborate this. Because no testimony was taken from Dr. Lopez it is impossible to determine the source of this statement. I would also like to point out that the record in question is an unsigned letter, which is typical of a “dictated but not read” document. In all likelihood Dr. Lopez referred to the injury suffered the previous month, which predates the date of this record by the noted three weeks and would be consistent with the other evidence and testimony on this subject.

[28] On December 9th, 1996, Dr. Lopez referred claimant to Dr. James R. Feild of the Mid-South Neurological Clinic in Cordova, Tennessee. Ms. Anderson was seen by Dr. Feild on December 18th, 1996. Dr. Feild’s impression of claimant was that she suffered from “lumbar disc syndrome, right.” Dr. Feild had an MRI done and the official report was “L5-S1: Minimal diffuse bulge. L4-5: Dehydration change involving L4-5 disc. Diffuse bulge of +1 to +2. L3-4: Minimal diffuse bulge. L2-3: Normal. L1-2: Normal.” Dr. Feild took claimant off work for two weeks and opined that she had a lumbar strain which should respond to bedrest.

[29] After claimant had reported her injury and begun her course of treatment, she was laid off by respondent on December 17th, 1996. In spite of the curious timing, this lay off does not appear to have been done in retaliation for claimant’s filing of a worker’s compensation claim.

[30] On January 2, 1997 claimant returned to see Dr. Feild for her regularly scheduled follow up. Because claimant’s condition had not improved, Dr. Feild scheduled her for a myelogram and an EMG and kept her off of work until these procedures were completed. The precertification company canceled these procedures and the prescribed treatment because Ms. Anderson did not meet their criteria for further testing. Although Dr. Feild reported that this testing was necessary to determine the duration of treatment and claimant’s prognosis, the clerk at the precertification company disagreed. Dr. Feild stated that “patient cannot return to work until tests, EMG and myelogram, are done.” Dr. Feild wrote to the Respondent/Insurer that:

[31] This patient is being abused for the sake of the net cash flow for either Amerisure Insurance Company or the precert company as represented by Julie Krugger. She has basically been denied medical care. . . . I am amazed. I also regard it as an insult that you send this patient over here for me to examine so you can decide what should be done. As far as I am concerned you can examine the patient yourself. I gave her a note to remain off work until she has adequate medical care.

[32] Subsequently it was arranged for her to be seen at the Campbell Clinic in March of 1997. Upon discovering that claimant was coming in for a second opinion that clinic refused to treat Ms. Anderson. Eventually, a EMG was apparently performed by the Campbell Clinic. Left with no treating physician, claimant, pursuant to an agreement with respondent, was seen by Dr. Jim Moore in April of 1997 for a neurosurgical evaluation.

[33] Dr. Moore agreed with Dr. Feild’s recommendation that a myelogram be performed. Dr. Moore also stated that it would be appropriate for Ms. Anderson to be seen by Dr. Feild again. Upon review of the EMG from the Campbell Clinic Dr. Moore noted nerve irritation at C6-7. Dr. Moore recognized that claimant required further treatment of a non-surgical nature and continued claimant’s off-work status. After performing the long awaited myelogram Dr. Moore noted “evidence of bulging at L3-4 and L4-5 rather minimally, perhaps some compromise at the L4 nerve left-sided.” Dr. Moore diagnosed claimant with a soft tissue injury and recommended that claimant undergo a Functional Capacity Evaluation, a program of back strengthening and work hardening. After completing this course of treatment Dr. Moore released claimant to return to work on June 30, 1997.

[34] The Administrative Law Judge found that claimant suffered a work-related back injury, not identifiable by time and place of occurrence, which is the major cause of her condition. In order to establish this claim, Ms. Anderson must prove, by a preponderance of the evidence, the following elements; that she sustained internal or external damage to her body as the result of an injury that arose out of and in the course of her employment; the compensability of the claim with medical evidence, supported by objective findings; and that her injury is the major cause of her disability or need for treatment. Schultz v. J. C. Penney Co.,Inc., Full Commission Opinion filed January 22, 1997 (E511252).

[35] It is clear, and there are objective findings to support the conclusion that, claimant suffered an injury to her back. Dr. Collins, the company doctor, diagnosed her with muscle spasms and swelling and in turn started her on a course of treatment ultimately extending over eight months and involving at least five different physicians. All of the subsequent physicians recommended some course of treatment for claimant’s injury. Therefore, Ms. Anderson suffered the requisite damage to her body.

[36] Relying on the pre-employment physical examination performed by Dr. Collins, I conclude that claimant suffered her back injury sometime after she began working for respondent. None of the symptoms of back injury which were noted by Dr. Collins in November of 1996 were present at the time of that pre-employment physical examination. Claimant reported her injury to respondent on or about November 13th, 1996. It is not clear whether or not she specifically stated it was work-related and the well-trained supervisors did not ask about that potentially damaging information. What is clear is that respondent, including their doctor, treated this as a work-related injury from the instant that it was first reported. At the time of her injury claimant was engaged in work activities involving bending and lifting which are consistent with her injury and the medical reports are consistent with this conclusion.

[37] As to the issue of Temporary Total Disability Benefits (TTD), the question of when a claimant is entitled to TTD is governed by the case of Arkansas State Highway Commission v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981) which provides that temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. We are to determine whether or not a claimant has suffered a total incapacity to earn wages by reference to medical evidence, age, education, experience, and other matters reasonably expected to affect the claimant’s earning power.

[38] In this case, claimant was awarded TTD benefits for the period from January 2, 1997, through June 30, 1997. All available medical evidence leads me to the conclusion that Ms. Anderson was totally disabled during this period. She was initially taken off work by Dr. Feild on December 18th, 1996, this status was continued by Dr. Moore and she was not allowed to return to work until June 30th, 1997. This delay is primarily attributable to respondent’s refusal to authorize the needed diagnostic procedures which ultimately allowed Dr. Moore to formulate the treatment plan which returned claimant to the workforce. Once claimant was able to receive the needed medical care, her TTD status was resolved in a comparatively short time. Had Dr. Feild been allowed to conduct those procedures in January 1997, as he recommended, this matter would have been resolved months earlier at much less cost and much less pain to claimant.

[39] As to the decision of the majority to attack the credibility of the claimant, I do not agree with their conclusion. I do not believe that the cited hearing and deposition testimony supports the conclusion that claimant’s testimony should be given little weight. Specifically the description given at her deposition of reaching down low into a big box is in my mind essentially the same as the description given at the hearing of reaching deep into big boxes. I also accord little significance to the allegation that in answer to a series of questions by respondent’s counsel, claimant did not recall at her deposition a back strain that she suffered in July of 1982, more than fifteen years in the past. The critical exchange was as follows;

Q. Are you saying that you have never recorded any type of workers comp back injuring (sic) prior to November 1996 at Douglas and Lomason company?

A. No, Sir.

In addition to this admission claimant also testified about this matter on direct examination at the hearing.

[40] Because claimant has established that she suffered a compensable injury and she is entitled to the requested TTD benefits, I find that we should affirm the Opinion of the Administrative Law Judge in its entirety.

[41] ___________________________________ PAT WEST HUMPHREY, Commissioner