BARTER v. SUBWAY SANDWICHES, 1996 AWCC 314

CLAIM NO. E410462

DEBORAH BARTER, EMPLOYEE, CLAIMANT v. SUBWAY SANDWICHES, EMPLOYER, RESPONDENT and NATIONWIDE INSURANCE CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 17, 1996

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

Claimant represented by HAL DAVIS, Attorney at Law, Fort Smith, Arkansas.

Respondent represented by TERRY SMITH, JR., Attorney at Law, West Memphis, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed March 21, 1996 finding that the claimant sustained a compensable injury on June 13, 1994. Based upon our de novo review of the entire record, we find that the claimant has failed to meet her burden of proof that she sustained a compensable injury. Therefore, we reverse the decision of the Administrative Law Judge.

[3] Claimant, a sandwich preparer for respondent, contends that she sustained an injury on June 13, 1994 to both knees while squatting to service a soft drink machine. Respondent initially accepted the claim as compensable and paid temporary total disability benefits (although at an incorrect rate) and medical benefits. At some point later, respondent controverted the claim. At the hearing held on February 26, 1996, claimant contended that she sustained a gradual onset injury to both knees. However, the Administrative Law Judge found that the claimant proved by a preponderance of the evidence that she sustained a specific incident on June 13, 1994 when claimant developed pain in her knees.

Claimant described the incident as follows:

I got down with a coke box and I was changing, I couldn’t get up, I had a shearing pain in my knee and one of the customers asked me what was wrong. I just couldn’t get up, it took me a little longer to get up, then I went right back to work.

[4] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods,
FC Opinion filed Feb. 2, 1995 (E317744). The claimant alleges that she sustained a gradual onset injury, yet the Administrative Law Judge found that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence. In order to prevail on the specific incident claim, claimant must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102 (5)(A)(i) and § 11-9-102 (5)(E)(i) (Repl. 1996). She must also prove 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). Finally, Ark. Code Ann. § 11-9-102 (5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in § 11-9-102 (16).”

[5] For a gradual onset injury, claimant must meet all the requirements set forth above with the exception of proving a specific incident. However, since claimant’s injury is not to her spine, she must prove by a preponderance of the evidence that it was caused by rapid repetitive motion and that the resultant condition of the gradual onset injury is the major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102 (5)(A)(ii)(a) and (E)(ii).

[6] If a claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed,
supra.

[7] Regardless of whether the claimant sustained a specific incident or a gradual onset injury Ark. Code Ann. § 11-9-102 (A)(D) requires that a claimant must establish the compensability of her claim by medical evidence supported by objective findings.

[8] The record clearly reveals the claimant has failed to meet the objective findings requirement for a specific incident. Claimant did not seek medical treatment for her alleged compensable injury until several days after the June 13, 1994 incident. When the claimant finally sought medical treatment, she did not advise the medical care providers of an incident at work. Moreover, there is no evidence in the medical records that the claimant sustained a traumatic injury to either of her knees. Rather, the MRI results reveal that the claimant was suffering from patellar bursitis and internal derangement and degenerative joint disease in the left knee as well as mild edematous changes in the prepatellar subcutaneous tissues consistent with prepatellar bursitis in the right knee. These objective findings indicate that the claimant was suffering from pre-existing conditions in both knees. They do not indicate a recent traumatic injury. Consequently, the medical evidence simply does not establish a compensable specific incident injury by objective medical findings. Accordingly, we find that the claimant has failed to meet the objective medical findings requirement for proving a compensable specific incident injury. All objective findings herein prove a pre-existing condition, not a specific incident.

[9] Moreover, even if we were to assume that the objective findings support a work-related gradual onset incident, which we do not find, the claimant has failed to prove the requirement for a gradual onset injury. While the objective findings might support a finding of a gradual onset injury, claimant did not present evidence of rapid, repetitive motion or that the resultant condition of the alleged compensable injury is the major cause of the disability or need for treatment. Both these elements must be proven in order to prove a compensable gradual onset injury. Although claimant contended and presented evidence that the job required a lot of stooping, bending, squatting and lifting, we cannot find that the activities arose to the level of rapid, repetitive motion. The record is simply void of any evidence that such activities were performed at a high rate of speed involving the exact or almost exact same movement again and again over extended periods of time.Throckmorton v. J J Metals, FC Opinion, August 14, 1995 (E405313) Therefore, we find that the claimant has, likewise, failed to prove a gradual onset injury.

[10] Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury. Therefore we find that the decision of the Administrative Law Judge must be and hereby is, reversed.

[11] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman ALICE L. HOLCOMB, Commissioner

[12] Commissioner Humphrey dissents.

[13] DISSENTING OPINION
[14] I must respectfully dissent from the majority opinion finding that claimant failed to prove, by a preponderance of the evidence, that she sustained a compensable injury.

[15] The Administrative Law Judge found that claimant had proven that she sustained a compensable injury to her knees as the result of a “specific incident” while engaged in her employment duties. However, the Administrative Law Judge also found that claimant failed to prove that she was entitled to 10% and 7% permanent anatomical impairment ratings to the right and left knees respectively. Claimant appealed the latter finding, and respondents did not cross-appeal the former. Indeed, respondents introduced and concluded their brief with express assertion that the Administrative Law Judge’s opinion should be “affirmed in full.” Nevertheless, the majority has determined that claimant failed to prove the initial compensability of her injury.

[16] It is not the responsibility of this Commission to develop a party’s case where it has chosen not to, nor should we effect a cross-appeal where none has been filed. Had respondents wished to cross-appeal the Administrative Law Judge’s finding of general compensability, or to even raise the issue in their brief, one presumes that they were adequately equipped to do so.

[17] In addition, litigants may choose to act or not to act upon a given matter or issue for a variety of tactical, strategic, and even non-legal reasons. We should not interfere with this process of attorney-client interaction by raising and deciding issues that neither party has asked us to examine.

[18] For the reasons set forth above, I must respectfully dissent from the majority opinion.

[19] PAT WEST HUMPHREY, Commissioner