CLAIM NO. E407210
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 16, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by SCOTT HUNTER, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by WILLIAM J. STANLEY and W. TERRY SMITH, JR., Attorneys at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals an opinion of the Administrative Law Judge finding that claimant is entitled to additional benefits.
Q. Okay. Did anything unusual happen to you?
A. Well, as I was told to unload this big rack of scrap material and, of course. . .
Q. What kind of material?
A. It’s plastic.
Q. Plastic?
A. Big, big globs of plastic.
Q. Okay.
A. And them being stacked the way they was, you know, they wasn’t too stable. You, you hit one, and it’d fall off or it was just a job you had to keep, keep alert, and what I done is I had reached up to get one of these big globs to put it on the saw. When I did, the, another one started down at me, and there I had two pieces of material right there, and one hit me on the shoulder. When it did, I had the other one in my hand.
Q. Let me interrupt you a minute.
A. Okay.
Q. Which shoulder did it hit you on?
A. Right.
Q. Your right shoulder?
A. It was my right shoulder.
Q. Okay. Go ahead.
A. And then, you know, I went to the floor, and then, when my back popped, you know, and I didn’t know, you know, what to do.
Q. Did you actually feel your back pop?
A. Yes, sir.
Q. Did you experience pain?
A. Extremely.
Q. Okay. In what part of your back?
[5] Respondent accepted an injury to claimant’s lower back and apparently paid appropriate benefits. Respondent controverted claimant’s entitlement to benefits for any difficulties related to his cervical spine and right upper extremity. Although the documentary evidence appears to be somewhat inconsistent with claimant’s history of the mechanics of the injury, we note, as did Dr. Terence P. Braden, that claimant “is a very poor historian.” However, we find that claimant’s testimony was, in fact, credible. [6] There is no evidence that claimant had sustained injuries to his lower back, neck or right upper extremity either before or after the work-related accident on May 3, 1994. Claimant testified that he initially felt symptoms only in the lower back. Several weeks after the compensable injury, claimant began to have pain in his neck and right shoulder, as well as numbness in the right upper extremity. Claimant thought the symptoms were just an extension of his back difficulties. Claimant added that he became aware of his additional problems after the lower back pain abated. Claimant acknowledged that he has good days and bad days and at times can be fairly active. Claimant stated that his neck and right upper extremity symptoms appeared to worsen during physical therapy. KaSandra Brewington, claimant’s wife, presented testimony that was generally corroborative of claimant’s testimony. [7] Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that his cervical and right upper extremity difficulties are causally related to the compensable injury. [8] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that his cervical and right upper extremity difficulties are causally related to the compensable injury. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [9] IT IS SO ORDERED.A. My lower, they said lower lumbar, is what they stated it as.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[10] Commissioner Holcomb dissents.[11] DISSENTING OPINION
[12] I respectfully dissent from the majority’s opinion. In my opinion, there is insufficient evidence that claimant sustained a cervical and right upper extremity injury in conjunction with his low back injury that occurred on May 3, 1994. Claimant has given inconsistent histories to his treating physicians and in his deposition testimony. Furthermore, there is a five month gap between the date of injury and claimant’s first complaints of cervical and right upper extremity. Additionally, claimant magnifies his symptoms as related to his alleged injury. Claimant first saw Dr. Tonymon on May 18, 1994. The history claimant gave Dr. Tonymon is different from that in his deposition testimony. Furthermore, I find it significant, that claimant gave different histories to Dr. Braden and Mr. Jim Keller, a functional capacity evaluator, relating to the alleged upper body injuries. However, what is significant is that claimant sustained a low back injury. Claimant was treated for his injury. Eventually, on October 5, 1994, claimant began to complain of cervical and right extremity injuries.