CLAIM NO. F004447
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 22, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MIKE J. ETOCH, JR., Attorney at Law, Helena, Arkansas.
Respondents represented by the HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed December 12, 2000. The administrative law judge found that the preponderance of evidence reflects that the claimant sustained a compensable back injury on April 29, 2000. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that the employer-employee relationship existed at all relevant times. Patricia Bagley testified that she injured her back on April 29, 2000, while emptying a five-gallon bucket of water:
A. . . . So I went to empty it, and I got it out from under the counter. And the sink thing where you empty it was in the back room. So I got it out from under the counter, and I carried it back there. And as I was lifting it up to pour it into the sink is when I felt my back go.
Another employee was present in the store, but she did not witness the specific incident. The claimant testified that she did not report the injury to her co-worker, because “I really thought that I what I felt, it would subside, to tell you the truth.” The claimant finished her shift, went home, and took an Ibuprofen. The claimant testified that she woke up early the next morning and could not move her legs, and that she called her apartment manager. The apartment manager, Barbara Sanders, testified that the claimant “told me that she had hurt her back and was lifting a bucket at work.” The claimant was transported to the hospital by ambulance.
The claimant was treated at Helena Regional Medical Center on April 30, 2000. According to the Emergency Department Nurse’s Notes, the claimant complained of “pain in shoulders since around 3 a.m. Stated did not fall but work @ store @ night was doing heavy lifting. Very sore when she got home. Took Ibuprofen didn’t get any better. Upper
lower back hurts also.” A physician wrote that the claimant “lifted cases of beer at work last night.” The claimant was diagnosed with “lumbar strain.” The claimant was discharged and given medication for muscle spasm.
Catherine Garcia, the store manager, called the claimant the following Monday and essentially terminated her employment. The store manager testified regarding the claimant’s reaction:
Q. And what did she say about that?
A. All she said was, “Okay.”
Q. Now, did you hear from her later on that day?
A. Yes, around 4:00 that afternoon she called me back.
Q. And what was the substance of that conversation?
A. To tell me that she had hurt her back Saturday night. . . .
Q. Did you ask her why she didn’t tell you she had hurt her back when you called her at 11:00?
A. I did.
Q. And what did she tell you?
A. She said she forgot. . . .
BY JUDGE CURDIE:
Q. Did she tell you how she hurt her back?
A. She told me she had hurt it emptying the overflow bucket.
Q. And that was during the second call?
A. The second call, uh-huh.
The claimant presented to Dr. John L. Wilson on May 1, 2000:
This nice lady comes in today. She injured herself this last Saturday while gainfully employed by the Cracker Barrel Convenience Store. She relates she picked up a five gallon pail of water and had pain in her back. She did not think too much about this. She continued to work that evening but the next morning could not get out of bed. She went to the emergency room and received a shot and was placed on Flexeril and Darvocet. Ms. Bagley has been working for her current employer for three weeks. She denies prior difficulty with her back at any time.
Examination reveals an obese lady with marked restriction of motion of the lumbar spine. . . . X-rays reveal degenerative changes in multiple areas with some narrowing at 4-5 and 5-1, with some traction osteophytes.
Ms. Bagley has a lumbosacral strain superimposed over degenerative disc disease. . . . She cannot work. . . .
A licensed massage therapist began reporting “muscle spasm” on May 3, 2000 and following.
Ms. Bagley claimed entitlement to worker’s compensation. The claimant contended that she sustained a compensable back injury on April 29, 2000. The claimant contended that she was entitled to medical treatment and temporary total disability compensation from April 30, 2000 through July 24, 2000. The respondents controverted the claim. After a hearing before the Commission, the administrative law judge found that the claimant sustained a compensable back injury. The administrative law judge awarded temporary total disability and medical treatment through July 24, 2000. The respondents appeal to the Full Commission.
II. ADJUDICATION
A claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that the injury caused physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, the Full Commission affirms the administrative law judge’s finding that the claimant proved by a preponderance of the evidence that she sustained a compensable back injury on April 29, 2000. The respondents argue on appeal that the claimant is not credible. The respondents cite the store manager’s testimony that the claimant was seen in the parking lot on the date of the alleged injury, and that the store was in disarray inside. The respondents point to the first medical report after the injury, where there was no express mention of the specific incident involving the five-gallon bucket. The respondents also note that the claimant initially forgot to inform Ms. Garcia when they spoke the following Monday.
It is exclusively the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). The administrative law judge found in the present matter that the claimant appeared to be a credible witness. The Full Commission is not bound by this finding. See, Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983). However, we are not required to ignore the observations of the administrative law judge. See, Wade v. Mr.Cavanaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). In addition to finding the claimant to be a credible witness, the administrative law judge correctly noted that there is no record of prior back problems. The administrative law judge found:
[T]he totality of the evidence indicates by a preponderance that she suffered a back injury which arose out of and in the course of her employment. While it is true that she did not report the injury immediately when it happened, it is clear that within twelve hours after she stated the incident occurred, she was going to the emergency room in an ambulance. Her statements to her friend and apartment manager, Ms. Sanders, and to Dr. Wilson were consistent. The emergency department record . . . indicates that she told the people in the emergency room that she had “lifted cases of beer at work last night.” The testimony and record in this case indicates that she lifted cases of beer AND lifted the pail of water on the same night. No other explanation other than the work-related injury was presented concerning the cause of her back problems. She proved the injury was work-related, by a preponderance of the evidence.
The Full Commission affirms the opinion of the administrative law judge. The claimant, who the Commission finds to be credible, testified that she injured her back after lifting a bucket of water at work on April 29, 2000. The Dissenting Opinion cites the “contradictory” testimony of Phillip Garcia, the store manager’s husband, who said that he also emptied the bucket on April 29, 2000. 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 deemed worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). We note that neither the claimant’s accidental injury nor Mr. Garcia’s emptying of the bucket were witnessed. The claimant’s apartment manager did corroborate the claimant’s testimony. Although there is no specific mention of the lifting incident in the emergency room record, the nurse’s notes do indicate “heavy lifting” at work. The claimant reported the specific incident to her store manager the following Monday. In addition, the claimant told Dr. Wilson on May 1, 2000 that she had hurt her back lifting a five-gallon pail of water. Dr. Wilson diagnosed “lumbosacral strain superimposed over degenerative disc disease” and took the claimant off work. A physical therapist observed muscle spasm beginning May 3, 2000. After the employee claimed entitlement to worker’s compensation, Ms. Garcia performed an experiment for counsel and contended that 12-24 hours would elapse between required emptying times for the overflow bucket. Nevertheless, compensability of this claim does not depend on the volume of water present in the bucket at the time of the specific lifting incident of April 29, 2000. We further note the store manager’s testimony that she had expressly and repeatedly instructed her employees, including the claimant, to ensure that the “overflow bucket” did not in fact overflow. This circumstance is consistent with the claimant’s testimony that she emptied the bucket as part of her work duties on April 29, 2000.
Consequently, the Full Commission finds that the claimant sustained an accidental injury caused by a specific incident occurring April 29, 2000. The claimant proved by a preponderance of the evidence that she sustained physical injury to her body, which arose out of and in the course of her employment with the respondents. The injury required medical services and was established by medical evidence, supported by objective findings. The claimant proved that she was entitled to medical treatment that was reasonable, necessary, and related to her compensable injury. The Full Commission finds that the claimant remained within her healing period and totally incapacitated to earn wages from April 30, 2000 until July 24, 2000, when she was released by her treating physician.
III. CONCLUSION
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a compensable back injury on April 29, 2000, for which she is entitled to reasonable and necessary medical treatment. We find that the claimant proved that she was entitled to temporary total disability compensation form April 30, 2000 to July 24, 2000. We therefore affirm the administrative law judge’s opinion in its entirety.
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 (Repl. 1996).
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 (Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION MIKE WILSON, Commissioner.
I respectfully dissent from the majority’s opinion finding that the claimant proved by a preponderance of the evidence that she sustained a compensable back injury on April 29, 2000. Based upon my de novo review of the record, the claimant has failed to meet her burden of proof.
In my opinion, the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury on April 29, 2000 at approximately 7:30 p.m. The claimant testified that she injured her back while lifting a five-gallon bucket. However, the testimony of Cathy Garcia and her husband, Phillip Garcia, directly contradicts the claimant’s testimony. Mr. and Mrs. Garcia testified they went by the store at approximately 7:15 and found the claimant in the parking lot talking to her boyfriend. When they entered the store, they found it in total disarray. There was water on the floor and all the beer coolers and Pepsi coolers were empty. Mr. and Mrs. Garcia cleaned up the store. Before leaving, Mr. Garcia emptied the overflow bucket. This is the same overflow bucket that the claimant contended she was emptying when she injured herself. Mrs. Garcia testified that it took approximately 12 to 24 hours for the overflow bucket to refill. Therefore, it is impossible for the claimant to have emptied a full overflow bucket between 7:30 and midnight when she got off work.
Further, the evidence shows that Mrs. Garcia called the claimant on May 1, 2000, and told her that she had been taken off the schedule for not following company policy. The claimant did not notify her of an injury at that time although the claimant had been to the emergency room the prior morning. It was not until around 4:00 that same day that the claimant called Mrs. Garcia and informed her that she had injured her back on Saturday night while lifting an overflow bucket. When Mrs. Garcia questioned the claimant why she had not reported the injury when she talked to her that morning, the claimant stated that she simply forgot.
I find that the claimant’s testimony regarding how the alleged injury occurred is simply not credible. Therefore, I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury on April 29, 2000.
________________________________ MIKE WILSON, Commissioner