CLAIM NO. E606126
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 8, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JOHN BARTTELT, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed October 31, 1996 finding that claimant has failed to prove by a preponderance of the credible evidence of record that he sustained a compensable injury on April 17, 1996. Based upon our de novo review of the entire record, we find that the claimant is not a credible witness and that the testimony does not support a claim of a specific incident injury on that date.
[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,. . . attempting to dislodge the racks because they are down inside of the tanks. And this chrome was black. You can’t really see what you’re doing down in there. You just have to get a hold of them and kind of work them around because they get tangled up. I was attempting to work it out so that I could pull it out, and I got it up so high, but there was another rack hooked to it, and the weight of it kind of threw me off and jerked me down, jerked my left — I had a hold of it with my left hand. It jerked me down against the tank, which I hit my rib cage on the tank and it jerked my left upper extremity.
FC Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he 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). He 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] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed,
supra. [6] Based upon our de novo review of the entire record, we find that the credible evidence of record fails to establish that a specific incident occurred as alleged by the claimant. Not only did claimant not report a work-related injury on the date it allegedly occurred, but claimant has also provided at least four variations of how the accident occurred. If the accident actually occurred claimant need not vary his story regarding the accident. As set forth above, claimant’s hearing testimony is that he injured himself while attempting to dislodge racks which had tangled inside of the tank, the weight of the rack threw claimant off and jerked him down against the tank. However, when claimant filed his claim for compensation on May 25, 1996, just a little over one month after the alleged incident claimant contended that his feet slipped off of the pipe he was standing on causing the weight of the rack to jerk claimant against the tank. When claimant reported to Dr. Michael Bolt on May 29, 1996, claimant reported a history of injuring his rib cage as “he had been lifting extended over some racks and felt something pop in the rib cage area.” And on July 22, 1996, Dr. Adalberto Fonticiella recorded a history of the racks slipping while claimant was holding them “causing the patient to also slip forward.” It is important to note that Dr. Fonticiella noted “the patient was not clear as to how he did that but subsequently hit his left lateral rib cage.” If the injury actually occurred as claimed by claimant, one would expect a bit more continuity among the various stories claimant has told in just the six months after the alleged incident occurred. The only continuity involves the rack but at times claimant alleged to have slipped, or been pulled toward the tank by the weight of the racks, or lost his balance while standing on a pipe, or overextended while holding on to the racks. Such inconsistency in the claimant’s testimony and in the history claimant provided to his physicians makes it extremely difficult to believe claimant’s testimony. [7] In addition to the numerous variations regarding the alleged injury, it is important to note that claimant did not report his injury when it occurred in accordance with company policy. Claimant contends that he did report the injury on the day following the incident, however, respondent contends that the injury was not reported until the following week. Be that as it may, company policy and notices posted throughout the plant advised all employees to immediately report injuries. Claimant did not follow this procedure. In our opinion, the reason claimant did not follow this procedure is because an injury did not occur at work. [8] We have upheld a denial of benefits in similar cases. In Dunaway v. Southern Steel and Wire, FC Opinion April 3, 1995, (Claim No. E400785) we found that “claimant was inconsistent in her hearing testimony, was not straightforward in her relaying her history to her treating physicians, and consistently failed to disclose appropriate information in her interrogatories.” Again, in ScottRutherford v. Riceland Foods, FC Opinion February 13, 1997, (Claim No. E514515) we denied benefits and found that the claimant’s “actions and statements were not consistent with his contention of a work-related injury.” Likewise, in the instant matter, we find that the claimant’s actions in failing to report a work-related injury and his inconsistent statements regarding how the alleged injury occurred weigh heavily against a finding of compensability. Accordingly, based upon our de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a specific incident injury. Therefore, we affirm the decision of the Administrative Law Judge and deny and dismiss this claim. [9] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[10] Commissioner Humphrey dissents.