CLAIM NO. E605780
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 3, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LANA PARKS DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion filed February 19, 1997 by an administrative law judge. The administrative law judge found that the claimant proved she sustained a compensable cervical spine injury on April 14, 1996. After reviewing the entire recordde novo, we reverse the decision of the Administrative Law Judge.
[4] The claimant contends that she sustained an injury after July 1, 1993. Therefore, Arkansas Workers’ Compensation Law, as amended by Act 796 of 1993, controls this claim. To establish compensability, 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 AgraFrozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must satisfy the following requirements of Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996):I stepped up on the bumper, raised the hood up. I had already checked the water. I pulled the dip stick out, and I lost my balance and fell forward. . .I mean, fell backwards and landed on my back and kind of knocked the wind out of me. My husband came out of the house. I was laying there with the dip stick in my hand. He put the dip stick back in and finished checking the oil, and that’s about what happened.
[5] If the claimant fails to establish, by a preponderance of the evidence, any of these requirements, she fails to establish compensability of the claim. We must then deny compensation.Reed, supra. [6] Initially, we note that the claimant testified there were no witnesses to the alleged incident, although she testified that her husband came out of the house after she fell. However, the claimant did not call her husband to testify at the hearing. Therefore, the occurrence of the alleged incident depends primarily on the weight to be accorded claimant’s testimony regarding same. The Workers’ Compensation Commission determines credibility of witnesses and weight given to their testimony.Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). [7] According to the record, the claimant completed her morning bus route on Monday, April 15, 1996, then reported the alleged incident to the school district’s transportation director. Respondents referred the claimant for medical treatment; however, respondents controverted the claim after further investigation, including surveillance conducted April 26, 1996. [8] In assessing the weight to be accorded claimant’s testimony, we first note a Joint Petition from a prior claim, submitted of record. According to the Joint Petition, the claimant purportedly sustained a previous work-related injury in September 1992, while employed with another respondent. The claimant asserted that she sprained her left ankle after falling off a porch. Conservative treatment of this injury was essentially unsuccessful, and Dr. Lawrence Ault directed MMPI testing to determine if personality characteristics affected the claimant’s response to treatment. The claimant avoided this testing, however, averring that she had only a seventh grade education and could not read well enough to take the test. Dr. John Slater eventually assigned a 50% permanent partial impairment rating to the lower extremity as a whole as a result of the injury. The claimant obtained a $16,500 settlement from this claim, but never sought further treatment. [9] In applying for employment with the school district, claimant said she had a tenth grade education; at hearing, she testified to an eighth grade education. The claimant also underreported the previous number of jobs she had held, and did not report the employer against whom she had previously filed a workers’ compensation claim. The claimant was dismissed from employment in the school cafeteria for failing to appear for work and alleged problems with co-workers. Further, claimant admitted under cross examination that she had been charged with writing “hot checks,” at about the time of the January, 1997 administrative hearing:(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her 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));
(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));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996)).
[10] The Commission previously cited such an incident in impugning the claimant’s credibility in Rutherford v. Riceland Foods, FC Opinion filed February 13, 1997 (E514515). [11] Respondents surveilled the claimant at her home on April 26, 1996, nearly two weeks after the alleged fall from the school bus. Claimant is seen energetically mowing, vigorously raking leaves, placing leaves in an incinerator with a pitchfork, bending at the waste, and walking to her mailbox. Her ambulation is normal with no signs of pain. Claimant’s lively yardwork took place three days after Dr. Casper advised her to remain off work, presumably for complaints of pain. In addition, a MRI showing degenerative disease and disc bulging was taken that day, April 26, 1996. We note that, in November, 1996, Dr. Jacek Malik opined that the claimant’s degenerative condition was aggravated and became symptomatic following the alleged specific incident. When considering the claimant’s activities shown on the surveillance videotape, however, we find that Dr. Malik’s opinion is entitled to little weight. [12] We find that, according to the record as discussed supra, this claimant is not credible. Consequently, we find that the claimant’s uncorroborated testimony fails to establish that a specific incident occurred. If the claimant fails to prove, by a preponderance of the evidence, a specific incident, her entire claim fails. Moreover, the proffered surveillance videotape belies the contention that a specific incident aggravated her previous condition. [13] Accordingly, based on our de novo review of the entire claim, we find that the claimant failed to prove that she sustained a compensable injury as a result of the alleged specific incident. Therefore, we reverse the opinion of the Administrative Law Judge, and deny and dismiss this claim. [14] IT IS SO ORDERED.I was charged with a hot check felony because my checks wasn’t direct deposited, and I had some hot checks I had wrote to buy groceries, yes, sir.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents.