CLAIM NO. F001514
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JUNE 4, 2001
Upon review before the FULL COMMISSION in Little Rock,
Pulaski County, Arkansas.
Claimant represented by FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by BRUCE ANIBLE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
ORDER
Claimant appeals an opinion and order filed by the administrative law judge on November 1, 2000. In that opinion and order, the administrative law judge determined that claimant failed to prove the occurrence of a compensable injury. Because the administrative law judge failed to make adequate findings, mischaracterized claimant’s deposition testimony, referred to proffered evidence and utilized an improper causation standard, his decision must be vacated and this case remanded for an opinion consistent with this order.
Claimant contends that she sustained a specific incident injury on January 24, 2000, as she lifted a tray of glasses from the dishwasher. Respondents assert that no objective findings exist, and that claimant’s injury is not work-related. With respect to the latter contention, respondents argue that claimant’s injuries occurred as she entered her locked home through a window before reporting to work on January 24, 2000.
The administrative law judge concluded that claimant sustained neither a specific incident injury nor a gradual onset injury. No rationale is furnished, and we are unable to discern whether the denial of benefits is predicated upon claimant’s lack of credibility, the absence of objective findings, or both. With respect to the objective findings requirement, the administrative law judge noted that the first medical report, dated February 11, 2000, diagnosed a muscle sprain but failed to document objective findings. Acknowledging that Dr. Bruton observed muscle spasms on February 25, 2000, and February 28, 2000, the administrative law judge added that: “There are no contemporaneous findings or observations to corroborate Claimant’s allegations.”
It appears that as a prerequisite to satisfying the objective findings requirement, the administrative law judge has interjected a time element. Thus, the first medical report is outcome determinative with respect to the satisfaction of the objective findings requirement. Since the definition contains no time element, we find that the administrative law judge’s interpretation of the objective findings requirement conflicts with a strict reading of the statute’s text.
It seems that the administrative law judge deemed claimant’s testimony unworthy of belief. His credibility assessment appears to be based, in part, upon claimant’s deposition testimony regarding the date of the accident. The administrative law judge concluded that claimant’s testimony was inconsistent with respect to whether she informed co-workers that she sustained the injury climbing through her apartment window. Inexplicably, claimant had difficulty comprehending straightforward questions posed by counsel for respondents. Nevertheless we find that the administrative law judge misinterpreted the evidence on this point.
Claimant’s deposition testimony revealed that she attributed her injuries to a work-related lifting incident. She also explained that Mr. Rabaza would testify that the injury occurred as she entered her apartment through a window, reiterating this theory throughout her deposition. However, claimant steadfastly maintained that she neither sustained an injury entering the apartment window nor related this incident to co-workers. To the contrary, claimant repeatedly characterized the window scenario as Mr. Rabaza’s fabrication. The administrative law judge may choose to believe the testimony of Mr. Rabaza on this point. However, a finding that claimant changed her testimony with respect to this matter is not supported by the record.
We also note that the administrative law judge relied on evidence he specifically excluded. Prior to the hearing, The following exchange occurred between claimant’s counsel and the administrative law judge:
Claimant’s Counsel: Your Honor, before he testifies, it’s my understanding that this is separate from the record in a way that there is no possibility for the Commission to take it as any semblance of evidentiary weight? Is that correct?
Administrative law judge: Yes. That’s the purpose for which it’s being offered in the event that — —
Claimant’s Counsel: Certainly we will, in order to make sure we don’t waive our objections to his testimony, I will tell you and announce now that I will not cross examine him.
Administrative law judge: Thank you.
At deposition, claimant’s counsel explained that claimant’s estranged spouse was charged with a drug offense. He added that claimant was initially charged, but the charges were dropped. However, the administrative law judge’s decision stated that: “Claimant admitted to being charged, then convicted on May 8, 1999, with conspiracy to deliver a controlled substance.” This evidence is from the proffered testimony of Mr. Cary Arnold, claimant’s estranged spouse. After ruling that Mr. Arnold’s testimony was inadmissible, it was error for the administrative law judge to consider it in reaching a decision in this case.
In his discussion regarding causation, the administrative law judge misinterprets Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). His opinion provides that: “Except in the most obvious cases, as in VanWagner, the existence of a causal relationship must be established by expert medical evidence.” (Emphasis original, citations omitted). The proposition that expert medical evidence is virtually required to prove causation is incorrect for it is the antithesis of VanWagner.
In VanWagner, the Supreme Court considered the proper role of medical evidence:
We find the court of appeal’s reasoning in Millican and Tilley persuasive. We therefore adopt the holding in Millican that objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the causal relationship between the injury and a work-related accident. The plethora of possible causes for work-related injuries includes many that can be established by common-sense observation and deduction. To require medical proof of causation in every case appears out of line with the general policy of economy and efficiency contained within the workers’ compensation law. To be sure, there will be circumstances where medical evidence will be necessary to establish that a particular injury resulted from a work-related incident but not in every case.
In Freeman v. ConAgra Frozen Foods, 344 Ark. 296
___, ___ S.W.3d ___ (2001), the Supreme Court dismissed the argument that subsequent case law nullified VanWagner. The court described its previous holding as follows:
In VanWagner, this court interpreted what is meant by Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999), when it says that a compensable injury must be established by medical evidence supported by “objective findings.” “[O]bjective findings” are defined in part as medical opinions stated within a reasonable degree of medical certainty. See Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999). This court held that objective medical evidence was not essential to establish a causal relationship between the injury and the work-related accident in all cases. This court went on to say that in some circumstances, medical evidence will be necessary to establish a causal connection, but not in every case.
Under these circumstances, we remand this cause to the administrative law judge to prepare a substituted opinion consistent with this opinion. The administrative law judge is directed to make findings of fact and conclusions of law following his full examination of the relevant evidence presented in this case as well as the applicable law.
IT IS SO ORDERED.
______________________________ SHELBY W. TURNER, Commissioner
______________________________ MIKE WILSON, Commissioner
Chairman Coffman concurs.
I concur in a remand to the Administrative Law Judge to consider all of the evidence in the record, not to consider any evidence excluded from the record , and for additional findings thereafter.
The dissenting opinion proposes denying the claimant’s claim on allegations that the claimant did not report any work-related injury when it allegedly occurred, and on allegations that the claimant actually hurt herself entering her home through a window. I point out, however, that there are conflicting accounts as to “what happened” in the record, and the Administrative Law Judge who heard the live testimony and observed the demeanor of the witnesses, has not as yet made any explicit finding as to which witness’s testimony that he finds credible. I believe that a remand for an explicit credibility finding is in order prior to our addressing the evidence as to “what happened.” Therefore, I believe that the dissenting opinion’s analysis and conclusions on the credibility issue as presented in this case are currently premature. For reasons discussed in the principal opinion, I also concur in a remand for more explicit findings on the objective findings and causation issues.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
I respectfully dissent from the majority opinion vacating and remanding this matter to the Administrative Law Judge. In my opinion, a remand is not necessary. Accordingly, I would affirm the decision of the Law Judge denying claimant’s claim, because claimant did not report her injury when it happened and because she did report injuring herself on the date of her alleged injury while entering her home through a window.
Claimant presented to the Baxter County Regional Emergency Room on February 11, 2000, stating that she was injured at work on January 24, carrying a heavy tray. She complained of pain in her back. She was given Flexeril and lifting restrictions. Another record indicates claimant had a “piercing” pain in her shoulder area.
On February 25, 2000, claimant presented to Dr. Bruton with a history of lifting a tray at work and feeling a sudden pain. She reported difficulty with back pain ever since. Muscle relaxers prescribed by ER doctor for a pulled muscle made her agitated. He examined her left shoulder and noted fair ROM and no palpable defect. He noted pain in the rhomboid major muscle group medially on the left. He prescribed Vioxx, for her thoracic back strain and probable ligamentous tear injury.
On February 28, 2000, claimant reported to Dr. Bruton with continued complaints of pain in the scapular area. Her Vioxx medication made her drowsy and upset her stomach. She was scheduled to return to work that night and wanted an x-ray and something else for pain. The x-ray was normal. He gave her Ultram and advised her to use her back.
Dr. Bruton prepared a return to work certificate stating that she was under his care from February 25 to March 1, 2000, and could return to full duty on March 1.
Dr. Bruton prepared a statement on April 10, 2000, stating that “it is my opinion based upon a reasonable degree of medical certainty there are objective findings of muscle spasms.” A handwritten addendum to that statement reads: “There was evidence of muscle spasms when seen on 2/25 and 2/28. I can not determine whether this condition has continued.”
In claimant’s deposition, she stated that she did not climb into the window to get her keys. Claimant stated that she did not tell her co-employees or her supervisor that she had climbed in the window or that she had hurt herself. She stated that she had an extra key which she used to let herself back inside to get her regular keys. Claimant stated that she did not injure herself at that time. Claimant stated that that was what Dino said, but it was not what happened. Claimant stated that Dino asked her why she was late and she told him she got locked out of her house. Claimant stated that she got a “humongous” pain in the left side of her back by her shoulder after picking up the dishwasher tray, and she “thought I was going to get well and I didn’t say nothing to Dino. I went home.” Claimant did not tell anyone at work about this pain. Claimant called Dino Tuesday morning to tell him she hurt her back and he told her she was lying. Claimant did not go the doctor right away because she did not have insurance or the money. Claimant went back to work in March for another restaurant. Claimant stated that she started work for Dino’s on January 10 and worked approximately 3 weeks.
Claimant testified that she was hired at respondent’s restaurant on January 17, and she worked four days. She testified that she did not tell Dino Rabaza, the owner of the restaurant where she was employed, that she hurt herself before coming to work that day. She denied that she was late the day she was injured. She stated that she called Dino the day after she hurt herself and he “denied me.” Claimant testified that she did not tell Heather Stainbrook or any other co-workers that she hurt herself at home prior to her alleged injury.
Rabaza testified that claimant was late on the day of the alleged injury. Claimant explained to Rabaza that she forgot her keys in the apartment and had to climb through the window and she hurt herself. That night when claimant left, he said he would see her the next night. She did not complain of a work-related injury. The next day claimant told Rabaza that she was not coming back to work. When he asked her why, she told him she hurt herself “lifting that rack of glasses.” He stated that:
She said she wanted to go to the doctor. I said, well, you didn’t fill out a report and you didn’t tell me anything last night. So she insisted she wanted to go to the doctor, so I give her the name of the insurance, Thompson Insurance. She handles my insurance. This something you, she asked me, what are you going to do about it, me. I say I’m not going to do anything about it. You get in touch with my insurance.
Respondent proffered the testimony of Cary Arnold, which the Judge did not allow as evidence because he was first listed as a witness on September 20, after the Amended Pre-Hearing Order of September 6. I note that the Judge’s order instructs the parties to update the pre-hearing filings as to witnesses and documentary evidence, and that any evidence disclosed less than seven days prior to the hearing will be excluded. The Judge excluded Arnold’s testimony because it was not disclosed at the pre-hearing conference, despite the language of the order, and despite the fact that the witness was disclosed fourteen days prior to the hearing.
Claimant described an injury to her supervisor the day of her alleged injury. Her supervisor testified that she said she hurt herself climbing through her window to get her keys. She explained what happened as an excuse for being late. Claimant did not report an injury involving a tray of dishes that night, even though claimant and her supervisor spoke at the end of the work day. Claimant stated at deposition that she was late because her keys were locked in her apartment and that she used her spare key to go in and get them. At the hearing she testified that she was not late and that she did not have a conversation with Dino Rabaza about her keys or at all the day of her alleged injury. This inconsistency makes it difficult to credit her story, and I find that claimant has failed to prove by a preponderance of the evidence that she suffered an injury at work. After my de novo
review of the evidence I would affirm the decision of the Administrative Law Judge. I would note that in reviewing the record, I did not read or consider the proffered testimony, nor did I consider the description of what Stainbrook would have testified had she shown up.
Therefore, I respectfully dissent from the majority opinion vacating and remanding this case. In my opinion, a remand is not necessary.
_______________________________ MIKE WILSON, Commissioner