BREWER v. PARAGOULD HOUSING AUTHORITY, 1996 AWCC 27

CLAIM NO. E417617

GERALD BREWER, EMPLOYEE, CLAIMANT v. PARAGOULD HOUSING AUTHORITY, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 22, 1996

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

Claimant represented by PHILLIPS WELLS, Attorney at Law, Jonesboro, Arkansas.

Respondent represented by WILLIAM M. GRIFFIN, III, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on June 13, 1995 finding that claimant sustained a compensable injury on October 26, 1994. After conducting a de novo review of the record, we reverse the decision of the Administrative Law Judge.

[3] Claimant contends that he injured himself while lifting a co-employee who was pretending to be shot during a skit for Drug Awareness Week. Claimant began to experience nausea. He missed work because he believed he had food poisoning or the flu. However, after his nausea subsided, the numbness in his hip, leg and foot became progressively worse. Claimant eventually went to Medi-Quick and was diagnosed with a herniated disc. Claimant was seen by Dr. Tyrer who performed surgery on March 4, 1995.

[4] Claimant contends that his back difficulties are causally related to the October 26, 1994 lifting incident. Respondent controverts this claim in it entirety.

[5] This claim is governed by Act 796 of 1993. The new workers’ compensation law in part provides:

(5)(A)(1) “Compensable Injury means:

(a) An accidental injury causing internal or external physical harm to the body, or accidental injury to prosthetic appliances, including eyeglasses, contact lenses or hearing aids, arising out of and in the course of employment
and which, requires medical services or results in disability or death. An injury is `accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence.
(2) A compensable injury must be established by medical evidence, supported by objective findings as defined in § 11-9-102.
(3) The burden of proof of a compensable injury shall be on the employee and shall be as follows:
(a) For injuries falling within the definition of compensable injury under paragraph 5 (A)(1)(a), the burden of proof shall be a preponderance of the evidence.
(16) `Objective findings’ are those findings which cannot come under the voluntary control of the patient. When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to, the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty[.] (Emphasis supplied.)

[6] Claimant has the burden of proving his claim by the preponderance of the evidence which means “evidence of greater convincing force.” A.C.A. § 11-9-102; Smith v. Magnet Cove BariumCorp., 212 Ark. 491, 206 S.W.2d 442 (1947).

[7] In applying the appropriate new law under Act 796 of 1993 to the evidence in this case, the provisions of the new law are to be “strictly” construed. A.C.A. § 11-9-704; § 11-9-717. Further, all
prior case law contrary to or in conflict with any provision of Act 796 of 1993 has been repealed, annulled and held for naught. See Section 35 of Act 796 of 1993.

[8] There is insufficient evidence to causally relate claimant’s low back herniation to the October 26, 1994 lifting incident. The evidence indicates that claimant and the doctors have guessed as to how and when claimant injured his back. Therefore, as stated, we reverse the decision of the Administrative Law Judge.

[9] Claimant failed to report the incident immediately. Obviously, the lifting incident was not significant enough for claimant to report a resulting back problem. Although claimant complained of nausea, there is insufficient evidence that the nausea is causally related to claimant’s back difficulties.

[10] During the lifting incident claimant did not grimace, clutch his back or flinch in any manner. Several witnesses who saw the skit testified claimant did not act injured. After his portion of the skit, claimant was seen giggling.

[11] Initially, claimant did not relate his back difficulties to the lifting incident. Even after he was diagnosed with a possible HNP, claimant did not connect it to the lifting incident. Claimant told Judy Maxwell, Assistant Director of respondent, that he had “no idea” of how he injured his back. It was not until after claimant discussed how to pay for back surgery with Teresa Russell, another employee of respondent, that he needed to fill out a workers’ compensation claim. This was more than a week after the skit.

[12] A claimant’s belief, no matter how sincere, is not a substitute for credible evidence. Keep in mind that claimant had spent the night sick. It is possible that claimant ruptured his disc during one of his vomiting spells. There is equal evidence supporting this scenario as there is supporting claimant’s version. Additionally, any causal connection set forth in the medical records is premised upon claimant’s version of the facts. This is simply insufficient.

[13] A preponderance of the evidence does not prove that claimant’s herniated disc is causally related to the lifting incident. Therefore, we reverse the decision of the Administrative Law Judge.

[14] IT IS SO ORDERED.

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

[15] Commissioner Humphrey dissents.