BARRENTINE v. DODGE STORE (BLYTHEVILLE), 1997 AWCC 205

CLAIM NO. E602103

SHERRY F. BARRENTINE, EMPLOYEE, CLAIMANT v. DODGE STORE (BLYTHEVILLE), EMPLOYER, RESPONDENT and NATIONAL UNION FIRE OF PITTSBURG, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 30, 1997

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

Claimant represented by the HONORABLE MARC I. BARETZ, Attorney at Law, West Memphis, Arkansas.

Respondents represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] In an opinion dated August 30, 1996, the administrative law judge held that the claimant was entitled to benefits based upon a job-related injury that occurred on January 27, 1996. From that decision, the respondents have appealed. Based upon our de novo review of the record, we find that the administrative law judge’s decision must be reversed.

[3] The claimant in this case was employed at the respondents’ convenience store located in Blytheville. The claimant alleges that she began suffering the onset of symptoms on January 27, 1996, while at work. The claimant described these symptoms as a cramping or aching pain in her hip. Various co-workers of the claimant testified that she mentioned her hip was hurting but that she had not related it to any specific job injury or accident. In an office note dated February 7, 1996, Dr. R. C. Cole, the claimant’s treating physician, indicated that the claimant said that she did not believe that the injury occurred at work. The note states “She does lifting at work but doesn’t feel like it started there.” A CT scan performed on February 12, 1996, indicated that the claimant had a bulging disc protrusion on the left aspect of the L5-S1. [4] The administrative law judge’s decision in this case is reversed. The claimant simply failed to meet her burden of proof. The most consistent aspect of the claimant’s testimony was her repeated statements that she was not sure how or when she was injured. Her only certainty in the matter was that she began suffering pain in her hip while at work on January 24. However, the claimant admits that she did not connect this injury with work until sometime later. The claimant was not able to relate any specific job activity that caused the onset of her hip pain. She did testify that shortly before experiencing the pain, she stocked the soft drink cooler. However, the claimant admitted that she did not recall feeling any sudden onset of pain or other reason to suspect that her injury had occurred while stocking the cooler. The claimant’s contention is apparently that since the pain and discomfort began at work, and had not been bothering her prior to that time, some job related activity must have caused the injury. [5] Ark. Code Ann. § 11-9-102, subsection (5)(a)(2)(b) provides that a back injury can be compensable even if there is not a specific date and time of occurrence. However, in this case, the claimant testified that her job duties included stocking shelves, running the cash register, occasional light cooking, and similar activities. Both the claimant and her co-workers indicated that there was some lifting involved but that none of it was particularly heavy. At the time of her alleged injury, the claimant was in her fifth day of employment with the respondent. The employment related tasks performed by the claimant were not of sufficient duration or sufficiently repetitious, or strenuous enough to have caused a cumulative trauma injury. Likewise, the claimant does not relate any specific incident or activity that would have caused the injury she claims to have suffered. [6] The record does not contain any evidence that the claimant suffered a job related injury. For us to find that her injury is compensable, we would be forced to resort to speculation and conjecture. This is something we are not permitted to do. [7] For the reasons above, the administrative law judge’s decision is reversed. The claimant’s claim for benefits is hereby denied and dismissed. [8] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[9] Commissioner Humphrey dissents.

[10] DISSENTING OPINION
[11] I must respectfully dissent from the majority opinion finding that the claimant has failed to prove, by a preponderance of the credible evidence, that she sustained a work related injury, and that she is not entitled to temporary total disability benefits in relation to her back condition.

[12] This claim has been denied primarily because the claimant is unable to identify the exact time that her injury took place. However, Ark. Code Ann. § 11-9-102
(5)(A)(ii)(b) (Repl. 1996) specifically covers this type of injury. That subsection provides that a back injury which “is not caused by a specific incident or is not identifiable by time and place of occurrence” can still be compensable. While the claimant did testify that she was not sure how her injury took place, or the exact moment in which it occurred, the testimony was clear that her pain arose within the course and scope of her employment. [13] The claimant presented unrebutted testimony that she had never had any previous type of back problems prior to this injury. The claimant’s husband corroborated her testimony in regards to not having any prior back problems, and the testimony indicated that the claimant had not even seen a physician in the two or three year period prior to her injury in question. Claimant did not seek any medical treatment for her back and hip problems until February 7, 1996, when she was first seen by Dr. C. R. Cole, her family practitioner. The respondent produced no evidence of any type of previous back problems to contradict the claimant’s credible testimony. See, Kathy Thornburg v. TysonFoods, Full Workers’ Compensation Commission, Op. Del. April 18, 1997 (Claim No. E515860.) [14] The evidence in this case indicates that on January 27, 1996, the claimant was stocking the “coolers” at the respondents store when her “hip started hurting.” The claimant testified that:

It was just like having a cramp in your hip. It was like, you know, you had pulled a muscle or something. It wasn’t nothing severe. You know, it didn’t knock me down on my knees or anything. . . .

[15] After the pain arose, the claimant informed her shift supervisor, Jo Chisholm, that her hip was hurting. When questioned as to what had occurred and why her hip was hurting, the claimant gave an open and honest answer, “I’m not sure why.” Jo Chisholm corroborated the claimant’s testimony that she complained of hip and leg pain on the night in question. Ms. Chisholm also testified that the claimant’s complaints occurred prior to the claimant’s move from her residence, testimony which contradicted the respondent’s theory that the claimant’s injury occurred during the alleged move. Wanda Luckey, another one of the claimant’s coworkers, testified that the claimant did complain of hip pain, and that “the other girls” had also informed Ms. Luckey that the claimant’s back was hurting. [16] While the respondent points to testimony which indicated that the claimant was not sure how her injury occurred, the claimant always contended that her pain began while at work performing her job duties. The claimant’s duties included stocking the shelves and coolers, cleaning, and working the cash register. Testimony indicated that the stocking duties included bending and lifting cases of various products from the floor up to a basket. The claimant should not be penalized for being honest in stating that she did not know exactly how her injury occurred, or the exact moment in which the injury took place. The claimant is not a physician who can recognize the pain and symptoms associated with a back injury, and she should not be required to diagnose such a condition at the precise moment of the injury. The statute in question does not require such a stiff burden when seeking compensation for a gradual onset back injury. [17] The objective medical evidence in this case is clear that the claimant had a back injury. Dr. George Lerman, a radiologist, stated in his report of February 8, 1996, that the claimant’s CT scan revealed that the claimant had a bulging disc “with protrusion left aspect L5-S1.” Neurologist, Dr. Allen S. Boyd, Jr., stated in his note of February 26, 1996, that the claimant “had some sort of on-the-job injury,” clearly indicating that the claimant was contending that her back condition occurred at work. Dr. Boyd went on to recommend that an MRI be performed to confirm the extent of the claimant’s condition and to evaluate the possibility of surgery. Based on the evidence presented, I believe that the claimant proved by a preponderance of the credible evidence that she sustained a gradual onset back injury and I would affirm the Administrative Law Judge’s decision. The claimant was a credible witness who was honest in all respects and she should not be penalized for her honesty. Because I would find that the claimant sustained a compensable injury, I would also affirm the Administrative Law Judge’s award of temporary total disability benefits as well as all other benefits awarded below. [18] For the foregoing reasons, I respectfully dissent. [19] PAT WEST HUMPHREY, Commissioner