BIRDSONG v. ROCK PRODUCTS, INC., 1996 AWCC 124

CLAIM NOS. E315252 and E315253

MURPHY B. BIRDSONG, EMPLOYEE, CLAIMANT v. ROCK PRODUCTS, INC., EMPLOYER, RESPONDENT NO. 1 and U.S. FIRE INSURANCE CO., INSURANCE CARRIER, RESPONDENT NO. 2 and BITUMINOUS INSURANCE CO., INSURANCE CARRIER, RESPONDENT NO. 3.

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 21, 1996

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

Claimant represented by the HONORABLE G. WAYNE MOONEY, Attorney at Law, Harrisburg, Arkansas.

Respondent No. 1 and Respondent No. 2 represented by the HONORABLE GAIL PONDER GAINES, Attorney at Law, Little Rock, Arkansas.

Respondent No. 1 and Respondent No. 3 represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on June 29, 1995. In that opinion and order, the administrative law judge found that the claimant failed to prove that he sustained a compensable injury to his spine, arising out of and in the course of his employment with the respondent employer.

[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be affirmed, and we need not address respondent No. 2’s contention that the claim is barred by the Shippers doctrine. [4] The claimant operated a front-end loader to load unprocessed rock into a truck in the respondent employer’s crushed rock quarry operation. The claimant testified that on or near March 15, 1993, he was driving the loader into a pile of rock with the bucket down when the lip of the loader’s bucket struck a concealed ledge of solid rock on the quarry floor, which caused the loader to come to an abrupt stop. The claimant was wearing a waist-type seat belt when the incident occurred, and he testified that it initially felt like he pulled some muscles in his shoulder and neck. In addition, he developed an immediate headache. A coworker, Lonnie Dill, observed the incident, went over to check on the claimant, then went to the office to get some aspirin for the claimant’s headache. The claimant rested for approximately an hour to an hour and a half, then finished his shift operating the front-end loader. The claimant reported back to work the next morning, and continued to perform his regular duties until he terminated his employment in August of 1992, approximately five months later. [5] On August 2, 1992, eight days prior to terminating his employment with the respondent, the claimant presented to the Searcy Medical Center reporting breathing problems and also low back pain radiating into his right leg. The claimant testified that he could not recall whether he informed anyone at work that he was going to see a doctor on August 2, 1993, although the claimant testified that he had a conversation with Glen Warren, a supervisor, about going to the doctor at some point before he went. In addition, the claimant testified that at some point he told a co-worker, Jerry Vance, about experiencing right leg numbness at work. [6] With regard to his back and leg pain complaints, the claimant eventually came under the care of Dr. Ron Williams, a neurosurgeon. A MRI of the claimant’s lumbar spine performed on November 11, 1993, indicated a rounded mass approximately 11mm in diameter impinging on the claimant’s right L-5 nerve root. The radiology report of Dr. David Tamas indicates that, based on appearance and location, the mass is “most likely” a synovial cyst extending from the right L5-S1 facet joint, although an extruded disc fragment is also a diagnostic consideration. Dr. Williams ascertained that a myelogram procedure is necessary to determine the exact nature of the mass indicated by the MRI. [7] The claimant testified that he began to experience what he thought were “kidney pains” at some point after March 15, 1993, which, according to the claimant, were later diagnosed as back pain. The claimant testified that he also began to experience right ankle and right hip pain at some point after March 15, 1993. The claimant testified that he associates his pain with the front-end loader incident in March of 1993, but acknowledged that he did not file a workers’ compensation claim with the respondent employer prior to terminating his employment in August of 1993. In addition, the claimant testified that he has never received any treatment for low back problems prior to the front-end loader incident in March of 1993. [8] The respondents submitted into evidence a “Pre-employment Medical Health Questionnaire” dated July 12, 1990, which the claimant turned in prior to obtaining a job with the respondents. In that questionnaire, the claimant indicated that he had never been injured while working, had never filed a workers’ compensation claim, and had never received benefits for a physical disability. In addition, the claimant indicated that he had experienced no prior problems with his neck, shoulders, legs, arms, and back. However, the medical record establishes that the claimant sustained a work-related injury in 1985 while employed by the Heber Springs School District and subsequently underwent cervical fusion surgery in 1988 as a result of that injury. The claimant also admitted under cross examination that he received an impairment rating and a $10,000 settlement for his workers’ compensation claim. In addition, the claimant’s medical records established that the claimant reported problems in the left arm and right thigh, and also received substantial clinical and diagnostic testing for low back complaints during treatment for his 1985 work-related injury. In that regard, Dr. Robert Brewer diagnosed the claimant with posterior facet joint arthritis in the lumbar spine in May of 1988, based on clinical examination. Subsequent x-rays in February of 1989 indicated degenerative disk disease at the L4-5 and L5-S1 levels. A lumbar myelogram and post-myelogram CT also performed in February of 1989 indicated a bulging disc at the L5-S1 level, which corresponds with the same disc level presently under investigation. Additionally, the February, 1989 CT scan indicated L4-5 and L5-S1 articular facet joint hypertrophy on the right side. [9] Since the claimant did not miss enough time from work to be entitled to compensation until after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. NathanMcQuany v. Siemen’s Energy and Automation, Full Workers’ Compensation Commission, Oct. 13, 1995 (Claim No. E318760). Consequently, to establish the compensability of the claim, 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 Agra Frozen Foods, Full Workers’ Compensation Commission, Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence (one of the five categories of compensable injuries), the requirements of Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996) are controlling, and the following four requirements must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his 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] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra. [11] In the present claim, we find that the claimant failed to establish by a preponderance of the evidence that he sustained an injury to the lower back caused by a specific incident which is identifiable by time and place of occurrence. In this regard, the claimant relates his current lower back problems to the frontend loader incident which occurred around March 15, 1993. As discussed, however, the claimant’s only complaints at that time involved a headache and sore muscles in the neck and shoulder, and the claimant testified during deposition that his headache, neck, and shoulder pains had resolved by the next day. Although the claimant testified at the hearing that he began to experience back or leg pain perhaps one month after the March frontend loader incident, the claimant’s deposition testimony and medical records from the Searcy Medical Center on August 2, 1993, both indicate that the claimant did not begin to experience back or leg pain until May or June of 1993. Moreover, the testimony of co-workers William Ramer, William Vance, and Jerry Vance indicate that the claimant continued to work long hours performing heavy manual labor until he terminated his employment in August. Lonnie Dill, the co-worker who observed the frontend loader incident in March, was the only coworker who could recall the claimant ever commenting on having back or leg pain while working for the respondent employer, and Mr. Dill testified that he recalled the claimant saying that he was hurting down in his back when he first got out of the front-end loader. However, Mr. Dill’s testimony is contrary to the claimant’s own recollection that he only experienced a headache and neck and shoulder pain when the front-end loader incident occurred, and did not experience any back pain until one to three months later. [12] In short, the preponderance of the evidence establishes that the claimant experienced a minor jar while operating his frontend loader in March of 1993, and that his symptoms of headache and upper body muscle aches resolved the next day. In addition, the preponderance of the credible evidence establishes that the claimant did not experience any back or leg pain during the two to three month period after March 15, 1993. He continued to perform his regular duties until he terminated his employment in August without any indication to co-workers that he was experiencing low back or leg pain. In addition, the claimant did not seek medical attention until August and he did not report a work-related injury until after he terminated his employment in August approximately five months after the frontend loader incident. [13] In reaching our decision, we note that Dr. Williams testified that he placed no significance on the claimant’s failure to report any back or leg pain within hours, days, or even one month after his alleged injury. However, Dr. Williams also acknowledged that a damaged disk will usually cause some back pain, and that a ruptured disk or a facet joint cynovial cyst will both usually cause leg pain. Moreover, Dr. Williams also acknowledged that he could not state with any degree of medical certainty that the mass detected by MRI on November 11, 1993, was causally related to the frontend loader incident in March of 1993. Notably, the November 11, 1993, MRI report of Dr. David Tamas indicates that the mass detected in the claimant’s lumbar spine is “most likely” a facet joint synovial cyst and not an extruded disc fragment, based on its appearance and location. In that regard, Dr. Williams acknowledged that a synovial cyst is generally associated with a degenerative change in a joint, whereas a disc injury is more commonly associated with trauma. [14] Accordingly, after a de novo review of the entire record and for the reasons discussed herein, we find that the claimant failed to prove that he sustained an injury caused by a specific incident that is identifiable by time and place of occurrence. Consequently, we find that the claimant failed to satisfy the requirements necessary to establish an injury under Ark. Code Ann. § § 11-9-102(5)(A)(i). Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed. [15] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[16] Commissioner Humphrey dissents.