CLAIM NO. E913518
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 5, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RONALD D. KELSAY, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the administrative law judge: Affirmed.
OPINION AND ORDER
Respondents appeal an administrative law judge’s award of benefits for claimant’s injuries as arising out of and within the course of her employment and identifiable by time and place of occurrence. Respondents were ordered to pay claimant temporary total disability benefits and all reasonable related medical, hospital, nursing and other apparatus expenses, included travel, arising from claimant’s compensable injury. Based on our de novo
review of the entire record, we find that claimant did prove by a preponderance of the credible evidence that she sustained an injury arising out of and within the course of her employment with respondent Amfuel on October 12, 1999. Accordingly, the administrative law judge’s ruling is hereby affirmed.
For the claimant to establish a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the following requirements of Ark. Code Ann. § 11-9-102 (5)(A)(i) (Supp. 1999), must be established: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (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 disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place or occurrence. If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of a claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
Claimant, an eighteen-year employee of respondent Amfuel, testified that she injured her back on October 12, 1999, while working in the receiving dock in respondent’s cooler. There, she lifted heavy fabric (approximately 50 to 70 pounds) and other materials above her head and placed them on shelves in the cooler. She also stated that she was required to push tables in and up the hallway. Claimant stated that the cooler was very cold and that she began experiencing spasms in her feet and pain in her back as a result of performing these employment duties.
Claimant testified that she arrived at work at 7 a.m. and began working in the cooler at about 8:30 a.m. or 9 a.m.
I had three and a half tables of fabric to put up that day and I went straight to it. I pushed about two tables into the cooler. They were loaded up with fabric. I started putting it up, lifting it above my head and putting it up and I got real, real cold. I stepped outside to thaw up because my feet was having spasms.
(Record, p. 10). Claimant further testified that she lifted three big rolls of fabric that were bundled together and threw them on the shelf above her head. Respondent Amfuel did not provide claimant with a box or ladder to assist her with this job. (Record, p. 11). It also should be noted that Jerome Box, claimant’s supervisor, brought the rolls by forklift and claimant was required to lift and shelve by hand the same rolls Mr. Box left on a pallet. (Record, p. 79).
Claimant stated that she informed Sandra Sherman, a co-worker, of her back pain and of the foot spasms when the accident occurred. Claimant stated that the next day she called Avis Hughes, her supervisor, and took a vacation day “to keep confusion down. The pain was in my lower back, here, and there was tingling going all the way down my leg (indicating). My toes were numb and I didn’t have any feelings in my toes. A sharp pain would hit every so often in my back.” (Record, p. 15).
When claimant later informed her employer that she needed workers’ compensation, she was discouraged from filing the claim and told to state that she had not suffered a work-related injury on the accident report form she received from the personnel department.
On August 18, 1999, claimant called Alissa Crank, assistant director of personnel, and asked for a workers’compensation application. Ms. Crank then asked her why she needed it. Claimant explained that she was off work because of her blood pressure as well as the pain that she was experiencing in her low back. (Record, p. 19). Ms. Crank instead faxed claimant an Accident and Sickness Status Report, informing her that the reason being was because it would take forever for claimant to draw workers’ compensation benefits. When claimant began filling out the accident report, she called Ms. Crank to ask for additional instructions. Ms. Crank told her to indicate that her injury wasnot the result of a work-related accident. (Record, p. 104). Against claimant’s better judgement, she trusted the respondent.
I trusted her judgment on telling me what to do right, because she was in personnel. We always go to personnel for advice and for whenever we need help on stuff. Normally when something happens at Amfuel we usually go to personnel. We normally go through her first and she deliver — and takes care of everything else.
(Record, p. 20, 46). It is apparent from claimant’s testimony that she relied on the respondent on that day as she had in previous times. She filled out the forms supplied by the respondent so that she could get benefits,
That got me sick pay. It’s my understanding, what I thought was that she knew what she was telling me to do, so I trusted her judgment, because I have been to Alissa on several occasions for things and she has helped me out in telling me what to do. I thought maybe, well, the next step is to fill out the workman’s comp since she said it was going to take so long.
(Record, p. 42, 43). Claimant further testified that about two weeks prior to filling out the Accident and Sickness Status Report she went back to the respondent and asked for a workers’ compensation form. This time Ms. Crank told claimant that her supervisor probably would not sign it anyway, so claimant was discouraged and did not fill out the form. (Record, p. 44, 45, 105). Ms Crank testified that her words “may have discouraged” the claimant from filing the workers’ compensation forms. (Record, p. 111).
Respondents argue that since claimant’s Accident and Sickness Status Report failed to include a description of the accident or indicate that the injury was work related, this is indicative a non-work-related injury. Notably, these responses (or lack thereof) were made at respondent’s instruction. Respondent should be estopped from later arguing that this fact supports a conclusion that claimant did not sustain a compensable injury when claimant was merely following the respondent’s instruction with regard to her injury.
Respondents also argue that claimant’s complaints of tension, stress and arm pain and tingling predates her injury, precluding a compensable injury. Notably, claimant was treated for a herniated disc, not arm pain. On October 14, 1999, two days after her accident, claimant presented to Dr. Antoon, who noted claimant’s complaints of left leg pain. Claimant contends that she also reported her back and foot pain as well as her problems with anxiety and hypertension to Dr. Antoon at the same time.
Also, despite respondent’s argument that claimant presented contradictory evidence on the issue of whether she sustained any back injury prior to the October 12, 1999, accident, this is not substantiated by the record. While it is true that Dr. Antoon diagnosed claimant with lumbar strain on July 22, 1998, claimant testified at the hearing that she never previously suffered from low back pain prior to the October 12, 1999, accident. Claimant further stated that any treatment she received for her back had never been directed toward her low back. In fact, the medical records of July 22, 1998, recommended treatment of a hysterectomy — a procedure used to remove a woman’s reproductive organs — not to treat back pain.
Claimant was diagnosed with a herniated lumbar disc through an MRI and NCV nerve condition studies and received surgery for this condition on March 30, 2000. Prior to surgery and subsequent to claimant’s work-related injury on October 12, 1999, claimant received treatment for her back injury in the form of steroid injections, other medications and therapy.
The dissent argues that claimant does not present as a credible witness. One reason for this contention is that claimant had a “decidedly difficult” relationship with her supervisor; however, we find that the personal or professional relationship between claimant and her supervisors has no bearing on whether claimant sustained a compensable injury. Personality conflicts are, unfortunately, prevalent in many workplaces. This is not indicative of a predisposition to lie about an injury. If this argument contained any merit, then one might assume that the testimonies of claimant’s supervisor and her personnel director were also perjuries. The record confirms that two weeks earlier, claimant had reported her supervisor’s behavior toward her — a report that culminated into a meeting similar to the one in which the claimant had with respondent the day claimant’s blood pressure became elevated. Based on the above-mentioned argument it could be concluded that the testimony of the claimant, her supervisor and the assistant personnel director, should be discarded because of biases each may have held against the other. Since this is not practical, we find that claimant’s credibility is superior to that of her supervisors.
Accordingly, based on our de novo review of the entire record, and for the reasons stated herein, we find that claimant did in fact prove by a preponderance of the credible evidence that she sustained a compensable injury arising out of and in the course of her employment with the respondent on October 12, 1999.
Claimant is therefore entitled to temporary total disability benefits and respondents are liable to claimant for all reasonably related medical, hospital, nursing, and other apparatus expenses, arising from her compensable injury.
All accrued benefits shall be paid in a lump sum without discount with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
IT IS SO ORDERED.
______________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
MIKE WILSON, Commissioner
I concur in the principal opinion’s findings and award of benefits. I write separately to express my observations on the credibility issues addressed in the principal opinion and the dissenting opinion.
The primary issue is whether or not a claimant has established by a preponderance of the evidence that she sustained a compensable injury. This issue turns primarily on credibility, and the administrative law judge who heard the live testimony and observed the demeanor of the witnesses, clearly found credible the claimant’s version of “what happened” in this case. In a clear analysis, the administrative law judge has found the claimant’s testimony to be credible, has found that the claimant’s testimony is corroborated by some of the other witnesses and documents in the record, and has found that the claimant’s testimony establishes that the following events occurred.
The claimant experienced pain in her back and spasms as a result of a bundle lifting incident on October 12, 1999 at work. The claimant’s symptoms continued to progress, including a limp. The claimant later underwent objective diagnostic studies indicating the presence of a herniated disc in her lower back.
The occurrence of a new injury as a result of the bundle lifting incident is supported not only by the claimant’s testimony, but the medical record which indicates that, although the claimant had at times experienced back pain prior to October of 1999, (a) she had never lost time from work due to back pain prior to October 12, 1999, (b) over one year had lapsed between her prior medical treatment in July of 1998 and the incident in October of 1999, (c) the claimant experienced a different pain and first began to experience spasms down her leg only after the incident in October of 1999, (d) the claimant’s testimony regarding her back and leg pain in October of 1999 following the incident in the cooler is corroborated by an eighteen year employee of the respondent, Ms. Sandra Sherman, (e) the occurrence of a new injury is also corroborated by the fact that the claimant did not report for work the day following the October 12, 1999 incident, she did not engage in any activities during the “vacation” day taken on October 13, 1999, but instead took medication for pain and spasms that she was experiencing.
Although Dr. Antoon’s records from October 14, 1999, the first time the claimant sought treatment following the incident on October 12, 1999, do not contain any notation of a work-related injury, the administrative law judge found credible the claimant’s testimony that when she first presented to Dr. Antoon on October 14, 1999, she felt that she was having a stroke. Therefore, Dr. Antoon’s records focus on the claimant’s chief complaint of hypertension, elevated blood pressure, and anxiety, rather than on the claimant’s back and leg symptoms.
The administrative law judge found credible the claimant’s testimony that the claimant placed the respondents on notice at least by October 18, 1999 that the claimant desired to file a workers’ compensation claim. The administrative law judge found credible the claimant’s testimony that she had experienced back pain and leg spasms, numbness along with upper shoulder and neck pain, elevated blood pressure, hypertension, anxiety/stress, and that the claimant initially attempted to include all of her complaints which she attributed to her employment with respondents and disputes with her supervisor, as work-related injuries. The administrative law judge is persuaded that the claimant did, in fact, relay to the personnel manager that the claimant desired to file a workers’ compensation claim relative to all of these symptoms, and that the personnel manager informed the claimant that it was unlikely that her stress complaint would be accepted by the workers’ compensation carrier and, therefore, the claimant was furnished sickness and accident forms and filed a claim against the healthcare provider for respondent, rather than filing a claim for workers’ compensation initially. The administrative law judge is further persuaded that the respondents were further alerted and placed on notice of the claimant’s desire to file a workers’ compensation claim on or about October 26, 1999, when she requested workers’ compensation forms from the company’s personnel manager. When the personnel manager furnished workers’ compensation documents to the claimant, the personnel manager informed the claimant that one of the forms would require the signature of the claimant’s supervisor, and that the supervisor would most likely not sign the form. The administrative law judge notes that all of this notice was provided prior to the claimant undergoing an MRI on October 30, 1999, which disclosed her herniated lumbar disc.
Because this case turns primarily on credibility, and since I am not persuaded by the dissent’s implied argument that the credibility findings of the administrative law judge should be rejected, I concur in the finding that the claimant has established by a preponderance of the evidence that she sustained her low back injury in the manner that she asserts. Compare,Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130
(1990); McDonald v. True Value Hardware, Full Workers’ Compensation Commission, Opinion filed Jan. 14, 2000 (W.C.C. No. E900406)[Chairman Coffman concurring].
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
I must respectfully dissent from the majority opinion, because I find that claimant failed to prove by a preponderance of the evidence the elements of a claim of compensability due to her questionable credibility, inconsistencies in the evidence and, more importantly, her failure to report her injury to respondent and the absence of any reference of the alleged incident in Dr. Antoon’s medical records. I find that claimant failed to prove that she sustained an injury to her back on October 12, 1999 while working for respondent.
First, despite claimant’s statements to the contrary, Dr. Antoon diagnosed claimant with a lumbar strain on July 22, 1998, due to her complaints of back pain. He noted positive straight leg raises and deep tendon reflexes. Lumbar spasms were observed. I cannot credit claimant’s blanket denial that Dr. Antoon wrote down the wrong observations, complaints and diagnosis. Furthermore, on February 9, 2000, Dr. Dixon recorded claimant’s history, including the onset of lower back pain in April of 1998, which claimant did not deny in her testimony. In light of these records, it is clear that claimant is not credible in stating she never had lower back pain prior to October 12, 1999. I find that in fact claimant did suffer lower back pain prior to this date.
Similarly, her complaints of tension, stress, and arm pain and tingling also predated her alleged injury date. On March 11, 1999, claimant complained about her nerves. She was diagnosed with tension headaches and adjustment disorder. On May 25, 1999, claimant complained of tingling up her right arm and down her left arm, and shoulder pain. She was diagnosed with bilateral tendinitis.
The medical records also indicate that claimant did not report a back injury, work related or not, to Dr. Antoon at any time. Claimant presented with some complaints of pain which eventually led to the discovery of a herniated disc. However, Dr. Antoon’s progress notes never mention a date of onset, the circumstances of onset, or whether there was any type of incident or accident related to her complaints. In fact, I infer that claimant’s leg pain of October 14, and her lumbo-sacral pain and radiculopathy were not sufficient to prevent her from working, since Dr. Antoon limited his reasons for not working to hypertension on October 14, despite the stress and myositis diagnoses, and to hypertension on October 18, and to hypertension and adjustment disorder on October 26, despite an additional diagnosis of lumbar strain.
An Accident and Sickness Status Report, signed by claimant, dated October 18, 1999, does not give any information in the section regarding a description of an accident. Claimant checked “no” in response to the question “is sickness or injury due in any way to employment?” Dr. Antoon completed a portion of the form indicating that “hypertension” caused claimant’s absence from work, and that the job related reasons for her inability to work from October 14, 1999 to October 22, 1999 were “[elevated] stress c supervisor causing [elevated] BP new meds added.”
On October 30, 1999, an MRI showed degenerative disc disease at L4-5 and a minimal central posterior herniation at L4-5. I have no doubt that claimant did indeed have a herniated nucleus pulposus, an objective injury. However, the absence of any mention of the mechanism or circumstance of the injury throughout Dr. Antoon’s treatment of claimant prevents me from crediting claimant’s explanation. Claimant’s testimony that she did report her injury as a specific incident on October 12 is contradicted by the testimony of the other witnesses, excluding that of her personal friend, Sandra Sherman. Sherman was not an employee to whom reports of injury were to be made, and she did not testify that claimant reported the incident to a supervisor or to personnel. In light of the absence of any other evidence in the record, documentary or testimonial, I cannot credit claimant’s statements that she reported her injury. Indeed the first mention of the circumstances of the alleged injury arise in February 2000 when claimant is aware that she has a serious injury for which Dr. Antoon has referred her to a specialist.
Furthermore, claimant has been an employee of respondent for over 18 years. She has had a previous workers’ compensation injury which she reported and which was handled without incident. Claimant did not report her injury on October 12 when it allegedly occurred, which is the company procedure. Her explanation for her failure to report was that she did not know what was wrong and that she did not receive monthly instruction on company policies. However, she was able to relate her back pain to her work activities when she allegedly complained of her pain to Sandra Sherman. Certainly, many years ago when she had symptoms which she reported in her first claim, she did not know that the diagnosis would be carpal tunnel syndrome. Furthermore, she stated that respondent did go over policies on a yearly basis.
Claimant avoided following the incident reporting policy, or even a common sense approach, when she left on October 12 and when she called in a vacation day on October 13. Alissa Crank indicated that injury or sicknesses could be reported as work related or not work related and that there was a benefits plan for each type. Claimant did not try to take advantage of either one by following the established policies. It does not make sense for claimant to cheat herself out of a day of vacation if she was sick or injured, especially if her relationship with her supervisor was sour. Certainly illness would appear more legitimate than a vacation, especially if there is an injury.
There are dramatic contradictions in the testimony of claimant and her supervisor and the personnel director. Regardless of this testimony, the documentary evidence makes clear that claimant did not report an incident occurring on October 12 to her treating physician, at any time during his treatment of claimant.
Claimant did not prove that she reported the injury. She has likewise failed to prove that the injury, as she alleges occurred on October 12, 1999, at work, occurred at all. Claimant has a history of lower back pain, predating the alleged incident. Claimant never described the alleged incident to her treating physician, Dr. Antoon. Claimant has a history of hypertension, stress related difficulties, and adjustment disorder, all of which Dr. Antoon identified as the cause of her inability to work. Adjustment disorder is defined by the Online Medical Dictionary as
Maladaptive reactions to identifiable psychosocial stressors occurring within a short time after onset of the stressor. They are manifested by either impairment in social or occupational functioning or by symptoms (depression, anxiety, etc.) that are in excess of a normal and expected reaction to the stressor.
Claimant’s relationship with her supervisor, Avis Hughes, is decidedly difficult, and despite her attempts to soften her words, claimant was vituperative regarding Hughes. The combination of these facts weighs against a finding of compensability. Claimant has not proven by a preponderance of the evidence that she suffered an injury at work on October 12, 1999 that resulted in her need for treatment.
After my de novo review of the evidence, I find that claimant has failed to prove by a preponderance of the evidence that she is entitled to benefits because she has failed to prove that her herniated disc was caused by any event at her employment. I would reverse the decision of the Administrative Law Judge, and therefore I must respectfully dissent from the majority decision.
__________________________________ MIKE WILSON, Commissioner