CLAIM NO. F002323
Before the Arkansas Workers’ Compensation Commission
OPINION FILED March 12, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on August 16, 2000. In that opinion and order, the administrative law judge held that claimant sustained a specific incident injury to his low back on June 24, 1998. Moreover, it was determined that claimant proved entitlement to all reasonable and necessary medical benefits. Based on our de novo review of the entire record, we find that claimant proved by a preponderance of the credible evidence the occurrence of an accidental injury to his low back on June 24, 1998, for which he is entitled to receive reasonable and necessary medical benefits. Therefore, we find that the decision of the administrative law judge must be affirmed.
At the hearing, respondents advanced an alternative argument predicated upon the notice defense. Judging by their brief and appeal notice, it appears that respondents have abandoned this issue. Therefore, the notice defense will not be considered.
Since graduating from high school, claimant has worked for respondents on an intermittent basis. He stated that his duties entailed installing and remodeling room additions, including garden, glass and screen rooms. Claimant testified that on June 24, 1998, he was struck on top of the head by a 4 x 12 piece of sheetrock. This incident was witnessed by Markham L. Johnson. Claimant explained that he was standing on a walkboard between two ladders in order to hang sheetrock. He stated that he reached down to get some screws from his pouch. As he did this, the sheetrock fell on his head “and hunched [claimant] over on the walkboard.” Claimant stated that in addition to feeling the blow “all the way to [his] toes,” he experienced a twinge throughout his spine.
Claimant testified that he did not believe he had sustained a serious injury; therefore, he failed to report the accident on June 24, 1998. The following morning he had severe back pain, and his right leg was not functioning properly. Claimant stated that he called the employer at about 7:00 a.m. Although he is not positive, it is claimant’s recollection that he spoke with Mr. Terry Davis. He testified that he reported the sheetrock incident, and indicated that he could not work. Claimant stated that he also described his symptoms, and requested medical treatment. He testified that respondents accommodated his request, and scheduled an appointment for him with Dr. F. J. Kirksey, a chiropractic physician. Claimant stated that he had previously received treatment from Dr. Kirksey at the direction of respondents
Claimant stated that as a result of the chiropractic adjustments performed by Dr. Kirksey, some of the pressure dissipated. Nevertheless, his symptoms persisted. Claimant elaborated, stating that because his calf muscle failed to function properly, he had difficulty moving his foot. Moreover, he was experiencing numbness in his leg and foot. Concerned with these symptoms, claimant scheduled an appointment with his family physician. He stated that Dr. Rheeta Stecker was unavailable. However, Dr. Michael Mullins assumed responsibility for treating her patients. He prescribed medication and restricted claimant to light duty. Ultimately, Dr. Stecker evaluated claimant, and referred him to Dr. Alan Gocio.
Claimant stated that Dr. Gocio ordered an MRI. Based on the test results, he recommended surgery. Claimant was reluctant to pursue this course of treatment; therefore, a regimen of physical therapy was prescribed. Dr. Gocio has left Arkansas, and claimant is currently being treated by Dr. Heard.
On cross-examination, claimant stated that he informed Dr. Mullins’ nurse that his injury was work-related. He testified that she insisted upon proof of secondary insurance. Therefore, claimant furnished his group health card. He stated that when he inquired about workers’ compensation coverage, Dr. Mullins’ nurse advised him to discuss it with his employer.
Claimant testified that he could not explain why the sheetrock incident is absent from the initial medical reports. Claimant conceded that he did not mention the incident to Dr. Stecker. However, he believed that it was unnecessary since he had furnished a history to Dr. Mullins. Claimant stated that he assumed Dr. Stecker would review the chart note prepared by Dr. Mullins.
Claimant testified that following his accident, a meeting was held for employees to fully explain the procedure for reporting work-related injuries. Although he knew that injuries should be reported, the specifics were not articulated by management until after his injury. According to his testimony, claimant mentioned the incident to Mr. Jim Tucker, Co-Owner. He explained that Tucker was out of the office briefly in June because of surgery. However, claimant stated that he informed him of the accident upon his return. It is claimant’s testimony that he also advised co-workers of the sheetrock accident.
Upon questioning by the administrative law judge, claimant stated that the paperwork documenting the accident was not completed by respondents until he indicated he would retain counsel to handle the matter. This occurred on October 2, 1998.
Markham L. Johnson testified in claimant’s behalf. He stated that he worked with claimant on an occasional basis for three years. Mr. Johnson testified that claimant did not complain of any physical problems until after the accident. Then, he mentioned leg and back pain. Mr. Johnson indicated that he has inspected claimant’s leg, and offered the following description: “[i]t looks like worms are in it all the time. It moves around and won’t stop.”
Mr. Johnson estimated that the sheetrock which struck claimant’s head weighed 70-80 pounds. With respect to his recollection of the accident, the following exchange occurred between claimant’s counsel and Mr. Johnson:
Q. Do you recall an incident where a piece of sheetrock fell on Kenneth Book’s head?
A. Yes. We was working in Hot Springs Village, and it was a fairly tall ceiling. We was up on saw horses with a walkboard. And it was a bigger piece of sheetrock, a twelve foot piece. We had it floating up on the ceiling.
He put, I believe, two to three screws in it, which is sufficient to hold it. He reached down to get another screw, and it whacked him on top of the head.
Q. How big a piece of sheetrock are we talking about?
A. A four by twelve foot piece.
Q. Four feet by twelve feet, and how thick?
A. I believe it was five-eights or a half inch.
Q. Do you have any idea how much that piece of sheetrock would weigh?
A. At least seventy to eighty pounds.
Q. Do you recall if Kenneth was, if he felt immediate pain?
A. He said at the time that he felt it all the way to his toes. Well, I even laughed at the time, which I know it’s not funny now, but he felt it all the way to his toes.
Respondents offered the testimony of Tonya Fryar, Office Manager. She testified that her administrative duties included processing workers’ compensation claims. Ms. Fryar stated that she was unaware of claimant’s injury until about October 1, 1998. At that time, claimant called and asked whether she had completed the necessary paperwork for a workers’ compensation claim. Fryar testified that previously, claimant asked about the group health provider’s failure to pay his medical bills.
Ms. Fryar conceded on cross-examination that when chiropractic care is warranted, respondent employer sends injured workers to Dr. Kirksey for treatment. She acknowledged that it was possible that claimant spoke with Terry Davis regarding the sheetrock incident.
Terry Davis also testified in behalf of respondents. He stated that he works in the office. Davis testified that his primary duty is to answer the telephone. He stated that he has no recollection of claimant reporting an injury in June of 1998. He testified that he directs calls relating to workers’ compensation to Ms. Fryar. He stated that he reports for work at 7:30 a.m., and Ms. Fryar does not arrive until 8:00 a.m.
Jim Tucker testified as well. He stated that on June 25, 1998, he had throat surgery. Mr. Tucker testified that he was out of the office for one week as a result of the surgery. Upon his return, he had a conversation with claimant regarding the sheetrock incident. Mr. Tucker was unable to provide the precise date of their conversation. However, he thought that it had occurred following his surgery. Mr. Tucker stated that claimant expressed puzzlement because his medical expenses were not being paid by the workers’ compensation carrier or the group health carrier.
Mr. Tucker testified that after an employee reports an injury to his supervisor, Ms. Fryar is informed so that a doctor’s appointment may be scheduled and the appropriate forms completed. He stated that an employee may not see the doctor unless Ms. Fryar has made the necessary arrangements.
The medical evidence showed that claimant was initially treated by Dr. Kirksey on June 25, 1998; however, his handwritten notes are illegible. Dr. Mullins examined claimant on June 26, 1998. According to his chart note, the injury occurred four days earlier, but claimant did not know the origin of the back injury. Dr. Stecker examined claimant on July 2, 1998. Her chart note does not include a patient history.
Dr. Stecker referred claimant to Dr. Allan Gocio. The record showed that he ordered an MRI, which was done at Hot Springs MRI Center on July 13, 1998. It was interpreted by Dr. Mark Russell, and he offered the following impression: “Herniated nucleus pulposus to the right at L5-S1 with a possible free fragment.” The report also referenced nerve root involvement.
Claimant was evaluated at Healthsouth on July 21, 1998, by Lee Sowerbutts, M.S.P.T., as a result of a referral by Dr. Gocio. According to the report generated by the evaluation, claimant’s presentation was consistent with a disc herniation. Sowerbutts documented the following patient history:
Patient reports that he hurt his lower back about 1 month ago. He does not remember a specific event that triggered his pain, but states that a piece of sheetrock landed directly on his head about one month ago. He states that he is unable to stand on his right foot due to muscular weakness . . .
Although unable to account for the medical histories contained in the chart notes, claimant insisted that he always attributed his symptoms to the sheetrock incident. In this regard, the following exchange occurred between counsel for respondents and claimant at the hearing:
Q. Did you sit down with Dr. Stecker and try to figure out how you might have hurt your back?
A. I was a hundred percent sure. I mean, like when the sheetrock him me on the head, I felt the twinge go down my foot, all of my foot problems, I knew what happened. I knew it was my back. There wasn’t no question. There wasn’t no trying to figure nothing out. . . .
* * *
It’s not just a coincidence that when it hit me I felt this weird spasm down my leg and then all of a sudden the next day my leg is messed up. I mean, it doesn’t take a genius to figure out, hey, it must have been when the sheetrock hit me in the head.
The resolution of this case turns primarily upon credibility. It is axiomatic that determining the credibility of witnesses and the weight to be given their testimony is within our exclusive province. Graham v.Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998). InPatterson v. Frito-Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999), the Court of Appeals addressed the scope of our review. The court observed:
The Commission is limited to reviewing the record and, thus, the demeanor of the witnesses is not an issue. The Commission must glean from the record an indicia of credibility. Because it is limited to the record, the Commission must be able to clearly state the reasons for its determination of credibility, especially when that determination is contrary to the findings of the ALJ who actually observed the witnesses . . .
It is apparent that claimant is a poor historian, for there is no reference to the sheetrock incident until July 21, 1998. Yet, the medical records revealed that claimant consistently described the same symptoms to medical providers. Moreover, the evidence also suggests that claimant had difficulty articulating his medical history to providers. In this regard, he furnished the physical therapist a history of a low back problem, which started one month earlier. With respect to the origin of his complaints, he concurrently described a specific incident involving sheetrock occurring one month earlier and informed the therapist that he could not identify a trigger.
In assessing claimant’s credibility, we have also considered the strongly corroborative testimony of Mr. Johnson. The detail with which Mr. Johnson testified lends credence to his account, and bolsters claimant’s claim of a work-related injury occurring on June 24, 1998.
Moreover, we note that the administrative law judge observed the demeanor of the witnesses at the hearing. As a result of this scrutiny, he remarked that claimant could have furnished a better history to providers following the injury. Nevertheless, the administrative law judge concluded that claimant’s account was credible. Clearly, we are not bound by this determination. However, we are not required to ignore the observations of the administrative law judge. See, Wade v. Mr.Cavanaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). In our opinion, claimant’s credibility is not tarnished by the existence of some degree of inconsistency within the patient histories. We find that claimant is a credible witness.
We recognize that respondents contend that the testimony in its totality militates against a finding that claimant’s account is credible. To support their position, respondents rely, in part, upon claimant’s failure to report his accident promptly. However, we disagree with this premise. In our opinion, claimant reported the sheetrock incident in June of 1998.
In this regard, the evidence demonstrated that claimant attempted to report the accident on more than one occasion. Claimant was evaluated by the company physician on June 25, 1998, and this corroborates his account of an injury report on that date. According to the testimony of Mr. Tucker, medical treatment at the direction of a company physician must be arranged by the employer. Claimant stated that the appointment was scheduled by respondents after he called and reported the injury. There is no evidence to the contrary. Although claimant consulted his personal physician, he did so after his symptoms increased.
Moreover, Mr. Tucker acknowledged that he discussed the incident with claimant. Although uncertain of the discussion date, he indicated it occurred following his surgery, which occurred on June 25, 1998. This is consistent with claimant’s testimony.
Respondents also point to the absence of any reference to the sheetrock incident in the early medical reports to support their position. In this regard, their appeal brief stated:
. . . The histories given by claimant to his physicians are the key to this case. In order to find that claimant, in fact, reported a work-related injury to his doctors, the Commission must find that at least three medical service providers took pains to falsify their records to conceal the history given to them by claimant. What is more, the Commission must find that the same providers included in the office notes gratuitous references to claimant’s major medical carrier. Then, the Commission must find that Ms. Fryar, who routinely files workers’ compensation claims, would construct and testify to an elaborate false account to protect Cenark’s workers’ compensation carrier. The conjunction of these circumstances is so unlikely that there must be another explanation, and that explanation is that claimant’s testimony about the origin of his back condition is inaccurate.
We decline the invitation to adopt the interpretation of the evidence advocated by respondents. In doing so, we reject the suggestion that a finding of compensability is contingent upon the existence of a conspiracy.
In our opinion, claimant has proved the occurrence of an accidental injury by a preponderance of the credible evidence. With respect to causation, we specifically find that he proved a causal link between his work-related accident on June 24, 1998, and the disc herniation discovered the following month. The evidence showed that the claimant was struck on the head by a piece of sheetrock which weighed at least seventy pounds. He testified that he experienced the impact throughout his spine and in his toes. There is no evidence that claimant’s head was protected when he received the blow.
There is a close temporal relationship between the incident and the development of claimant’s symptoms. He was unable to work the following day, and sought medical treatment. On June 26, 1998, claimant reported low back pain and radicular symptoms in his lower right extremity. The medical reports demonstrated that his complaints remained consistent. An MRI done on July 13, 1998, showed a disc herniation at L5, S1, to the right. The following week, a physical therapist opined that claimant exhibited signs and symptoms consistent with the MRI findings. There is no evidence that claimant had radicular symptoms prior to June 24, 1998. To the contrary, he testified that he had no problems with his leg until after the sheetrock incident.
Moreover, claimant was not in an upright position when the sheetrock fell. He testified that he was reaching over to secure more screws from his pouch. Claimant stated that the weight of the sheetrock caused a change in his body position.
In reaching our decision, we note that respondents contend that claimant is unable to satisfy the causation element. In this regard, they rely on Wal-Mart Stores, Inc. v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522
(1999), and assert that although not a statutory prerequisite, a medical opinion on causation is necessary under these facts. They theorize that an opinion is unnecessary “when the physical conditions complained of could easily be related to the accident in question.” This case is distinguishable, the argument goes, because “it finds claimant contending that a blow to the head caused a herniated disc 2 ½ to 3 feet (and 24 discs) away from the site of the injury.” We are not persuaded. The argument advanced by respondents ignores the close temporal relationship between the accident and the onset of symptoms. Also, there is no evidence that claimant was wearing protective head gear to minimize the effects of the blow.
Claimant contends that he is entitled to medical treatment. An employer must furnish reasonably necessary medical treatment in a timely fashion.See, Ark. Code Ann. § 11-9-508 (a) (Repl. 1996). Determining what constitutes reasonable and necessary medical treatment is a fact question for the Commission to resolve. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998).
An MRI on July 13, 1998, showed a disc herniation at L5-S1 as well as “. . . a possible small free fragment.” Claimant testified that Dr. Gocio recommended surgery; however, he opted to pursue conservative treatment. Thus, physical therapy was prescribed. Claimant stated that this form of treatment provided only temporary relief. Currently, Dr. Heard is treating claimant. He testified that he remains symptomatic. In this regard, claimant stated that his leg constantly twitches. In addition to numbness, claimant described the sensation of “pins and needles” in his foot. A preponderance of the credible evidence showed that claimant is entitled to reasonably necessary medical treatment.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that claimant has proven by a preponderance of the evidence that he sustained an accidental injury on June 24, 1998. Moreover, claimant is entitled to receive all reasonably necessary medical benefits. Accordingly, the decision of the Administrative Law Judge must be affirmed.
All accrued benefits shall be paid in a lump sum without discount and 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). For prevailing on appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 pursuant to Ark. Code Ann. §11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ SHELBY W. TURNER, Commissioner
______________________________ MIKE WILSON, Commissioner
ELDON F. COFFMAN, Chairman concurs.
I concur in the principal opinion’s finding that a preponderance of the evidence establishes that the claimant sustained a low-back injury when a large piece of sheetrock struck him on the head on June 24, 1998. I concur in the award of benefits. I write separately only to address the respondent’s assertion that the most plausible explanation of this case is that the claimant’s testimony about the origin of his back condition is inaccurate, that in order to find that the claimant reported a work-related injury to his doctors, the Commission must find that at least three medical providers took pains to falsify their records to conceal the history given to them by the claimant, that the Commission must find that Ms. Fryar would construct and testify to an elaborate false account to protect the respondent’s workers’ compensation carrier, and the dissent’s assertion that the only evidence showing a causal connection between the claimant’s back problems and the sheetrock incident on June 24, 1998 is the claimant’s testimony.
As an initial matter, I point out that the ultimate issue in this case on appeal is whether or not the claimant sustained a low-back injury on June 24, 1998, and not the extent to which the claimant reported that specific injury to his treating physicians immediately thereafter. For the following reasons, I find that a preponderance of the evidence establishes that the claimant sustained additional low-back injury arising out of the sheetrock incident on June 24, 1998, in excess of the low-back injury which he was already experiencing as a result of an incident at work moving a ladder approximately one month before in May of 1998.
The claimant hurt his lower back in May of 1998 in an incident at work while moving a ladder. The claimant was treated thereafter by the company chiropractor on at least two occasions on May 15, 1998 and on May 22, 1998 and perhaps again on June 5, 1998, prior to the sheetrock incident that occurred at work on June 24, 1998. On June 24, 1998, a four-foot by twelve-foot piece of sheetrock weighing approximately 70 to 80 pounds came loose and hit the claimant on the head while working. In addition, a co-worker observed the claimant having apparent back problems later that day. The claimant returned to the company chiropractor the next day, June 25, 1998, with low-back complaints. Through a series of referrals, the claimant was ultimately diagnosed with a herniated disc at the L5-S1 level of the low back on July 13, 1998.
There are, of course, three feasible scenarios for the origin of the herniated disc at L5-S1 identified on July 13, 1998. The first scenario is that all of the claimant’s low-back problems arise out of the ladder incident that occurred at work in May of 1998. The second scenario is that some of the claimant’s low-back complaints arose out of the incident that occurred in May of 1998, and then the sheetrock incident that occurred on June 24, 1998 made the claimant’s symptoms much worse, consistent with the herniated disc identified on July 13, 1998. The third scenario is that the claimant’s low-back injury arising out of the May, 1998 ladder incident resolved, and that the claimant’s current low-back injury occurred prior to the sheetrock incident at work on June 24, 1998. The respondent and the dissent seem to suggest that the preponderance of the evidence in this case supports the third scenario. I disagree. I have the following observations regarding each scenario.
In my opinion, it appears at least medically feasible that all of the claimant’s current problems could have arisen out of his low-back injury sustained in May of 1998 when the claimant moved a ladder at work. However, the biggest problem with this scenario is the subsequent trauma the claimant sustained when the sheetrock fell on him on June 24, 1998, and the evidence that the claimant experienced much more severe symptoms immediately following that incident. In this regard, I note that the claimant’s co-worker has corroborated that the claimant appeared to be in a much worse condition immediately following that incident, and the claimant described at the hearing that when the sheetrock hit him he felt a twinge go down his foot, he felt a weird spasm down his leg, and then all of a sudden, the next day, his leg was “all messed up.” After considering the nature and the degree of the trauma sustained by the claimant in the sheetrock incident on June 24, 1998, and after considering the nature and extent of the new symptoms that the claimant experienced following that incident, I find that the preponderance of the evidence fails to establish that all of the claimant’s low-back injury pre-existed the sheetrock incident on June 24, 1998 and arose out of the ladder incident that occurred in May of 1998. To the contrary, I find that the preponderance of the evidence indicates that the trauma sustained on June 24, 1998 appears under these circumstances to be the major cause of the claimant’s current problems and new symptoms that started after the June 24, 1998 incident.
To the extent that the respondent seems to suggest that the claimant’s low-back problems arising out of the May, 1998 ladder incident resolved, and that all of the claimant’s current problems actually arose after that incident but prior to the June 24, 1998 sheetrock incident, I again point out that the biggest problem with this scenario is also the credible evidence that the claimant’s symptoms changed drastically at the time of the sheetrock incident. Implied in the respondent’s suggestion that the claimant’s current problems arose after the May, 1998 ladder incident but prior to the June 1998 sheetrock incident, seems to be a suggestion that the claimant staged the June 24, 1998 sheetrock incident and then feigned the significant symptoms that he displayed at the time of and immediately following that incident. However, I am not persuaded by the suggestion that the claimant staged an accident on June 24, 1998, to generate the mere appearance of having sustained a new low-back injury. I point out that no purpose would be served in staging a new injury on June 24, 1998, since the medical reports indicate that the claimant was already
being treated by the company chiropractor for a work-related low-back injury sustained only one month before in June of 1998. Further, if the claimant were going to stage an accident on June 24, 1998, obviously the claimant would have perpetuated this type of alleged ruse by clearly informing each and every doctor thereafter that his back problems arose out of the allegedly staged accident. Moreover, I am not persuaded that this case involves any of the conspiracy theories suggested by the respondent. In addition, I point out that even the respondent’s theory as to “what happened” would seem to confirm that the claimant in this case was an obvious poor historian in what and how he reported the origin of his problems to his doctors, regardless of whether the claimant sustained a new injury on June 24, 1998, or faked a new injury on June 24, 1998.
Finally, I note that the respondent argued to the Administrative Law Judge in a post-hearing brief that the doctors’ reports in this case suggest that the claimant did not really sustain any injury as a result of the sheetrock incident at issue in this case. The Administrative Law Judge, who heard the live testimony and observed the demeanor of the witnesses, concluded that the issues in this case turn primarily on issues of credibility, and the Administrative Law Judge found the claimant to be credible in his explanation of the way he sustained an injury on June 24, 1998, and on his attempts to report that injury to someone in a supervisory position. With regard to the medical reports, the Administrative Law Judge has concluded that the claimant was a poor historian, and while it would have been more helpful if the claimant had been more precise in the history given to the chiropractor, the general practitioners, and Dr. Gocio early on, the claimant’s inability to be more precise is not fatal to his claim. I have no dispute with these credibility observations made by the Administrative Law Judge. In addition, I again point out that at the time the claimant first presented to the company chiropractor following the June 24, 1998 sheetrock incident, the claimant had already been treated at least twice, and perhaps three times, by the company chiropractor following the May 1998 ladder incident at work. For my part, I do not consider it particularly significant that the early medical reports after the June 24, 1998 injury fail to mention the sheetrock incident, where, as here, the claimant was already having some degree of intermittent low-back problems from the very recent work-related ladder incident. I might have been persuaded by the lack of reference to the sheetrock incident in the contemporaneous medical reports were it not for the co-worker’s corroborating testimony and the medical evidence of the recent ladder injury at work. Under these circumstances, however, the record is abundantly clear that the claimant was, and had good reason to be, a relatively poor historian to his physicians immediately after his second work-related back injury in less than two months.
In short, in considering all of the scenarios as to “what happened” in this case, it appears to me that the respondent’s theory seems to be the least plausible alternative. While it seems at least feasible to me that all of the claimant’s problems could have arisen out of the May 1998 ladder incident at work, I agree with the Administrative Law Judge that this case turns on credibility, and having found that the claimant sustained significant new symptoms following the incident on June 24, 1998, when he was struck in the head by a large piece of sheetrock, I concur that a preponderance of the evidence establishes that the claimant sustained a new injury arising out of that June 24, 1998 incident. Finally, to the extent that the dissent states that the only evidence that we have showing a causal connection between the claimant’s back problems and the sheetrock incident is the claimant’s testimony, I note that at least one medical report makes reference to the sheetrock incident, and that the claimant’s hearing testimony regarding both the occurrence of the sheetrock incident and his increased symptoms following the sheetrock incident are corroborated by the testimony of others. Therefore, the dissent’s assertion in this regard is not correct.
_________________________________ ELDON F. COFFMAN, Chairman
MIKE WILSON, Commissioner dissents.
I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury on June 24, 1998, and awarding medical benefits. Based upon my de novo review of the record, I would reverse the decision of the Administrative Law Judge.
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, F.C. 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) (Supp. 1999). 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).” 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.
The only evidence that we have showing a causal connection between the claimant’s back problems and the sheetrock incident is the claimant’s testimony. The medical evidence shows that the claimant failed to advise Nurse Jones, Dr. Mullins, or Dr. Stecker on subsequent visits, about the incident. In addition, the claimant testified that he told everybody at work that he had sustained a job related accident. However, the medical records show that while he was silent about any work related injury, he did advise his physicians that his major medical carrier was QualChoice. The claimant also called Tonya Fryar, the respondent employer’s Office Manager, and asked her why QualChoice had not paid his medical bills.
Ms. Fryar testified that Cenark’s policy was that employees should give notice of work related injury to her so that she could fill out the necessary paperwork. Ms. Fryar testified that the claimant did not notify her of an injury in order for her to fill out the appropriate paperwork until sometime in October. Ms. Fryar testified that sometime in September of 1998, the claimant brought her a stack of medical bills and asked her if she could see why QualChoice was not paying the bills. It was in October of 1998 that the claimant telephoned her and asked her if she had filed the bills with the workers’ compensation carrier. When she inquired what bills he was referring to, the claimant merely told her the papers that he brought her. It was then that she completed a Form 1. It was also at this time that the claimant informed her of the sheetrock incident.
When all this evidence is considered together, it is patently obvious that the claimant did not report a work related injury in June of 1998, though he may have told one or more co-workers that he had back pain. The histories given by the claimant to his physician are key. At least three medical provider’s records fail to contain a history of the alleged incident. In order for me to find that the claimant sustained a compensable injury on June 24, 1998, requires an extraordinary amount of speculation and conjecture on my part. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v.Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v.Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas MethodistHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
Therefore, based upon all the evidence, I find that the claimant has failed to meet his burden of proof that he sustained a compensable injury of June 24, 1998.
Therefore, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner