CLAIM NO. E712230
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 4, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MIKE ETOCH, Attorney at Law, Helena, Arkansas.
Respondents represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] The claimant appeals an opinion and order filed by the administrative law judge on February 27, 1998. In that opinion and order, the administrative law judge found that the claimant had not met his burden of proof establishing that he suffered a compensable, specific incident injury to his lower back on October 2, 1997. On appeal, the claimant asserts, in the alternative, that his back injury was not the result of a specific incident injury, but was the result of cumulative trauma sustained while carrying out job related duties. After conducting a de novo
review of the entire record, we find that the claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be affirmed. [3] At the hearing, much of the claimant’s testimony focused on an incident that allegedly occurred on October 2, 1997. At that time, the claimant was employed in the respondent’s plumbing business. According to the claimant’s testimony, he had been employed with the respondent for approximately 4 1/2 years. [4] According to the claimant’s testimony, on October 2, 1997, he and a co-employee had been dispatched to an area business to install a hot water heater. The claimant testified that, after he unhooked the old water heater, he lifted it from its present location so that the new hot water heater could be installed. The claimant testified that, while he was lifting the old water heater he felt a “pop” in his back and began to experience severe pain. The claimant testified that he advised his co-worker of this incident when it occurred. The claimant testified that he finished installing the new hot water heater and returned to his place of employment and completed the day’s work. The claimant then testified that the following morning he was in extreme pain and was forced to request that his wife take him to the emergency room for treatment. [5] The record contains an emergency room treatment note from the Helena Regional Medical Center dated October 3, 1997. Most of that progress note refers to complaints the claimant had regarding stomach pain, diarrhea, and vomiting. While the emergency room physician’s handwritten notes appear to make some reference to back pain, for the most part, they deal with the claimant’s stomach problems. The note does not make any mention of any alleged job-related injury or other incident. [6] The claimant was also seen by Dr. Scott Hall, the claimant’s family physician, later in the day of October 3, 1997. Dr. Hall’s treatment note also refers to the claimant having stomach virus symptoms. The note mentions the claimant’s back pain but, once again, does not contain any reference to any job-related injury or incident. [7] The record indicates that the claimant was next seen at the Northwest Mississippi Regional Medical Center on October 5, 1997. These treatment notes reflect that the claimant was complaining of lower back pain and make the first reference to a history of the claimant having sustained an injury while lifting a water heater. [8] As a result of a referral from the emergency room physician, the claimant was then seen by Dr. William Barr, a neurosurgeon. Dr. Barr noted a history of back pain occurring after picking up a water heater. Dr. Barr noted the presence of marked lumbosacral spasms and prescribed medication and rest. The claimant did see Dr. Barr subsequently, but Dr. Barr discontinued treatment of the claimant when the respondent’s insurance carrier would not authorize treatment. [9] In addition to his own testimony, the claimant also called as a witness his wife who corroborated the claimant’s complaints of severe back pain. Both Mrs. Batts and the claimant testified that he had not suffered any severe back problems prior to the incident on October 2, 1997. She also stated that, in her opinion, the claimant was in far more severe pain on the morning of October 3, 1997, than he had been at any time prior to that date. [10] The final witness called by the claimant to testify at the hearing was Mr. James Garrett. Mr. Garrett testified that he had accompanied the claimant on the hot water heater installation assignment. Mr. Garrett stated that he could not recall the claimant having suffered any injuries to his back during the installation of the hot water heater nor did he recall the claimant having made any statements to him regarding any back pain or related symptoms. In fact, Mr. Garrett stated that the claimant appeared to behave in a usual manner without any signs of discomfort whatsoever. [11] The record also establishes that the claimant had a long history of back problems prior to the incident of October 2, 1997. In fact, in a prior, unrelated claim, the claimant had settled a workers’ compensation claim involving a job related back injury in 1991. The record also contains medical reports and progress notes relating various back injuries the claimant had suffered prior to that time as well. During his testimony, the claimant also admitted that he had suffered occasional back problems since his Joint Petition hearing and had frequently sought medical treatment for occasional back pain. In fact, according to Dr. Hall’s progress notes, he had seen the claimant on numerous occasions during 1997 prior to the incident on October 2, 1997, most notably on September 29, 1997. In our opinion, it is highly significant that on this September 29, 1997, visit several days prior to the alleged lifting injury, Dr. Hall noted that the claimant was experiencing severe back pain with tenderness and swelling in the lumbar region. Dr. Hall noted that the back pain was so severe that the claimant had not been eating. It also appears from the progress note that Dr. Hall’s office had arranged for the claimant to be seen by Dr. Ketchum at the Arkansas Pain Clinic on November 13, 1997. Additionally, the note indicates that Dr. Hall’s office had attempted to arrange for the claimant to be seen by a neurosurgeon at UAMS but had been unable to arrange the appointment. These actions were alluded to in Dr. Hall’s progress note of October 3, 1997. [12] After a thorough review of the evidence in this case, we find that the claimant has failed to establish the occurrence of an alleged injury causally related to an incident identifiable by time and place of occurrence on October 2, 1997. In reaching that conclusion, we note that the claimant’s testimony is of doubtful credibility. The claimant was evasive regarding his past medical history and his statements that he had not suffered any severe back pain prior to the incident on October 2, 1997 are clearly not consistent with the medical records. Also, the claimant’s version of events regarding the incident with the water heater was disputed by Mr. Garrett, a witness who was called to testify by the claimant. We also find significant the lack of any reference to an alleged lifting incident in the claimant’s medical records from October 3, 1997. [13] We also find that the claimant has failed to establish by a preponderance of the credible evidence that any alleged cumulative work-related trauma to his back is the major cause of his disability or need for medical treatment, as he apparently asserts on appeal. In reaching that decision, we note that the claimant asserts on appeal that his present back condition is attributable, in part, to a lifting incident in June of 1996 and a crawling incident in January of 1997. However, we also note that the claimant has a long standing history of back problems. Specifically, not only has the claimant suffered significant past injuries to his back and spine prior to his employment with the respondent, but also, Dr. Barr has noted that the claimant suffers from congenital defects such as scoliosis, spondylolyses resulting from spina bifida oculta and a sixth lumbar vertebrae. [14] Moreover, no physician has opined that any alleged cumulative trauma arising out of the claimant’s employment with the respondent is the major cause of his disability or need for medical treatment at issue in this claim. In light of the claimant’s significant pre-employment back injury and congenital abnormalities, we find on this record that the claimant has failed to prove by a preponderance of the credible evidence that any alleged work-related trauma that he may have sustained arising out of his employment with the respondent is the major cause of his disability or need for medical treatment. [15] For the above reasons, we find that the claimant failed to offer sufficient evidence to meet his burden of proving, by a preponderance of the evidence, that he suffered a compensable injury either as a result of a specific incident on October 2, 1997, or as the result of cumulative trauma occurring prior to that time. Accordingly, we find that the decision of the administrative law judge must be, and hereby is affirmed. [16] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[17] Commissioner Humphrey dissents.