ARNOLD v. WILLIAMETTE INDUSTRIES, INC., 1996 AWCC 260

CLAIM NO. E505279

TOMMY ARNOLD, EMPLOYEE, CLAIMANT v. WILLIAMETTE INDUSTRIES, INC., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 28, 1996

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

Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondent appeals the decision of the Administrative Law Judge dated January 31, 1996. In that opinion and order, the Administrative Law Judge found that the claimant established by a preponderance of the evidence that he had suffered a compensable back injury on March 27, 1995. Consequently, the Administrative Law Judge awarded medical and temporary total disability benefits. It was stipulated that temporary total disability benefits were to be considered only from the date of the alleged injury until November 15, 1995, the date a permanent partial disability rating of 5% was assigned to the claimant by his physician. After carefully conducting a de novo review of the entire record in this matter, we affirm the decision of the Administrative Law Judge.

[3] The claimant has been an employee of the respondent since 1986. During that time, he has worked in various positions in its manufacturing operation. According to the claimant, on March 27, 1995, he and co-worker Teddy Smith were “throwing boards off” the assembly line. This position required the claimant and his co-worker to make a quick visual inspection of 4’x 8′ x 3/4″ sheets of laminated wood, to pull them off a conveyor belt, and to stack them in either a “bad” stack or a “good” stack before the next sheet came down the line. According to the testimony, placing a sheet in the “bad” stack required a little extra effort due to the location of the stack. According to the claimant, just prior to the end of a run in which the majority of the boards had been classified as “bad,” he injured his back when his co-worker dropped or set down his end of the board prior to the claimant’s being prepared for it. The claimant testified that he was approximately a foot taller than his co-worker and he therefore had to bend a little in order for him and Mr. Smith to lift the boards off and stack them together. According to the claimant, when the other end of the board was dropped unexpectedly, he “went down with the board” and injured his back. The claimant stated he immediately told his co-worker that he had hurt his back. Mr. Smith, however, denied this and stated he did not know the claimant was alleging an injury until some three days later. The claimant worked for about five more minutes to complete the run and then he went to the office of his foreman, Mike Rhodes.

[4] According to the claimant, when he went into Mr. Rhodes’ office, he informed Mr. Rhodes that his back was hurt from throwing the boards and that he needed to make an appointment to see his chiropractor, Dr. Shock. Mr. Rhodes testified that the claimant came into his office and began looking in the phone book for the phone number of his chiropractor. According to Mr. Rhodes, he asked the claimant what was wrong and the claimant stated that his “back was hurting from throwing them boards off.” At that point Mr. Rhodes then told the claimant to go ahead and take the rest of the day off. The claimant stated he left and went to his chiropractor. Evidence submitted by the respondent indicates, however, that the claimant came back and worked a night shift in the plant that evening.

[5] The next day the claimant reported to work and apparently worked a full shift. However, the evidence also indicates that the claimant complained of continued pain in his back and went to see Dr. Shock again after getting off work that day. On the 29th of March the claimant again came into work. According to the claimant, on that day his job involved loading large barrels into the back of a truck. According to the claimant, he informed his immediate supervisor that he could not lift the barrels due to the pain in his back. The claimant stated that the supervisor put him in the back of the truck where all he had to do was roll the barrels down to the front end of the truck after they had been lifted and loaded by others. Malcolm Smith, another of the claimant’s co-workers, testified that he recalled the claimant being involved in the loading of the barrels and that the claimant had made some complaints about pain in his back.

[6] On March 30 a meeting was held between the claimant, Mr. Rhodes and several other supervisory personnel at the plant. As a result of the meeting, the claimant’s injury was initially accepted as compensable and he was directed to seek treatment from the company’s physician, Dr. White. Dr. White first saw the claimant on Friday, March 31, 1995, and diagnosed a back strain. The claimant was taken off work and given anti-inflammatory medication and muscle relaxers and told to relax over the weekend and return the following Monday. On Monday, when the claimant returned to Dr. White, his back was still causing him a great deal of pain. At that point, Dr. White ordered a MRI be performed. The MRI was completed the next day and it revealed a herniated disk with nerve root compression at the L5-S1 level in the claimant’s spine. Dr. White then referred the claimant to Dr. Giles, a neurosurgeon for further treatment.

[7] Dr. Giles first saw the claimant on April 10. At that time, Dr. Giles ordered the claimant into a two-week physical therapy program. He also noted that surgery would have to be performed if the conservative measures did not produce results shortly. Finally, in July of 1995, Dr. Giles performed a lumbar laminotomy and foraminotomy with discogenic removal to correct the claimant’s problems. In discussing the claimant’s condition and need for the surgery, Dr. Giles wrote:

According to the records . . . [the claimant] had not been treated [by his chiropractor] in almost a year until he was treated on March 27, and March 28, 1995.
Even though he had complaints of back and leg pain in the past, without a history of being treated for more than a year it would be within a reasonable degree of medical certainty that the injury of March 27, 1995, was responsible for the onset of his present injury resulting in discongenic displacement.

[8] While the respondent had initially accepted the claim as compensable, at some point prior to the surgery, the respondent reversed its position and controverted the matter in its entirety. The respondent disputes that an actual injury occurred on March 27, 1995, by pointing to the fact that the claimant had been seeing Dr. Shock since 1986 for complaints of back and hip pain. The respondent also argues that the encounter between the claimant and foreman Rhodes on the alleged date of injury was not in fact a report of an injury, but was merely the claimant doing what he had often done in the past; use the phone to schedule an appointment with his chiropractor. The respondent also points to the testimony of Teddy Smith and Malcolm Smith to support its position. As noted, Teddy Smith denied that the claimant indicated he had injured himself on the day in question. Also, both of them stated that the claimant told Teddy Smith not to “mess him up” in his claim after the meeting on March 30. Additionally, all of the witnesses for the respondent, even Mr. Rhodes, state that the claimant did not say that he had suffered an injury to his back while on the job until the March 30 meeting. Finally, the respondent questions the credibility of the claimant. The respondent points to the fact that in his deposition the claimant denied having ever injured his hip yet employment records indicate that he called in once in 1986 and reported he would miss work because he had injured his hip while deer hunting. Additionally, Dr. Shock’s notes indicate that each time he had treated the claimant he had complained of pain in his left hip and his back.

[9] Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirement for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that he sustained an injury as the result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996) are controlling, and the following requirements must be satisfied:

[10] 1. Proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (See, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996); Ark. Code Ann. § 11-9-102 (5)(E)(i) (Repl. 1996); See Also, Ark. Code Ann. § 11-9-401 (a)(1) (Repl. 1996)).

[11] 2. Proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (See, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996)).

[12] 3. Medical evidence of the injury supported by objective findings in accordance with the terms of Ark. Code Ann. § 11-9-102
(16) which establish the existence of the injury or disability. (See, Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996)).

[13] 4. Proof by a preponderance of the evidence that the injury was occasioned by a specific incident which is identifiable by and time and place of occurrence (See, Ark. Code Ann. § 11-9-102
(5)(A)(i) (Repl. 1996)).

[14] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied.Reed, supra.

[15] The claimant has consistently maintained that the injury to his back occurred on March 27, 1995, as he was helping Teddy Smith “throw boards off.” That this is the date the injury occurred is borne out by the testimony of the claimant’s foreman, Mr. Rhodes. As noted, Mr. Rhodes acknowledged that on the day in question the claimant told him that “his back was hurting from throwing them boards off” and that he needed to go see his chiropractor. Additionally, there is the supporting testimony of Malcolm Smith that two days after the alleged incident the claimant was complaining that his back was bothering him. The respondent seems to be arguing that the claimant did not specifically state he had injured his back at that time and this fact coupled with his history of treatment for back aches by a chiropractor establishes that the claimant did not injure his back at that time. We find this argument to be without merit. The distinction the respondent would have us draw between a report of a specific back injury and a general complaint of back pain is artificial. The fact remains that the claimant immediately reported an onset of symptoms arising out of the performance of his employment duties and a need for medical care as a result of the symptoms. Likewise, the respondent did not offer any evidence to indicate the claimant had injured his back elsewhere. Additionally, as noted above, it had been almost a year since the claimant had sought treatment from Dr. Shock for a sore back. Furthermore, the records from Dr. Shock’s office indicate that in the approximately nine years prior to the incident in question, the claimant had sought treatment for his back on only ten occasions. Other than the two visits associated with this claim, the records do not reveal any continuous course of treatment by Dr. Shock. Rather, they show ten isolated visits. These visits were as much as three years apart and only two visits were less than thirty days apart. The respondent also points out that Dr. Shock’s notes of March 27 and 28 do not indicate that the claimant stated he had injured his back at work. However, the notes from Dr. Shock do not give a history for the claimant for any of his visits. They merely state the claimant is complaining of back and left hip pain and note the type of treatment rendered. In regards to the complaints of hip pain, the claimant testified that Dr. Shock told him that there was a problem with his hip on each of his visits, but denied having told Dr. Shock that his hip was bothering him. Other than the notes of Dr. Shock, the only evidence the claimant had ever complained of a problem in his left hip is the note from nine years earlier indicating he had called in and stated he had hurt his hip while hunting and wouldn’t be in to work one day. Also in this regard, there is the above-quoted note from Dr. Giles which states clearly the claimant’s injury was, to a reasonable degree of medical certainty, the result of the March 27 incident. Also, none of the witnesses stated that the claimant had been making complaints about his back in the weeks prior to the date in question.

[16] Based on the above, we find that the claimant’s testimony is credible and that he has shown by a preponderance of the evidence that he suffered an injury arising out of the course of his employment on March 27, 1995. Furthermore, we find that the existence of the claimant’s injury is shown by medical evidence which is supported by objective medical findings. As noted, the MRI performed on the claimant eight days after the incident revealed a herniated disk at the L5-S1 level of his spine. It was stipulated that if the claim were found to be compensable, the claimant would be entitled to temporary total disability benefits from the date of the injury until November 15, 1995, and that the issue of temporary total disability benefits beyond that date would be held in abeyance. As noted, the respondents did initially accept the claim as compensable and the claimant did receive some benefits. Also, it was stipulated that the claimant had received benefits from a group disability plan he belonged to and that the respondents would be entitled to offset the amount of any award of temporary total disability benefits by those sums. Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has established by a preponderance of the evidence that he suffered a compensable injury on March 27, 1995. Therefore, we find that the claimant is entitled to medical benefits for treatment of the injury and temporary total disability benefits in accordance with the stipulation of the parties. The respondent is entitled to offset payment of the award to the claimant by the sums he received from the disability plan and those benefits he may have initially received. Finally, the claimant’s attorney is to be allowed the maximum statutory fee on the controverted amount in accordance with Ark. Code Ann. § 11-9-715 andColeman vs. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990). The respondent is hereby ordered and directed to comply with the order found in the administrative law judge’s January 31, 1996, opinion and order.

[17] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (1987). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (b) (1987).

[18] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[19] Commissioner Holcomb dissents.