CLAIM NO. E504125
CURTIS BRIDGES, EMPLOYEE, CLAIMANT v. GEORGIA-PACIFIC CORPORATION, SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 21, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GENE E. McKISSIC, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by MARK ALAN PEOPLES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed November 25, 1996 finding that the claimant has failed to prove by clear and convincing evidence that his respiratory condition is causally connected to his employment. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof.
[3] The hearing occurred and an opinion was signed in the case now before the Full Commission after we expressed our displeasure over the practice of having one of the parties draft the opinion for the Administrative Law Judge.Lee Bennett v. City of Benton, FC Opinion filed August 14, 1996 (
E500506). There is nothing in the record, nor in the Workers’ Compensation file to indicate that the Administrative Law Judge made specific findings of fact and advised the parties of those findings prior to signing the opinion prepared by one of the parties in this case.
[4] The claimant in this matter contends that during his employment with respondent he developed an occupational asthmatic disease. Claimant has been an employee of respondent for twenty-five years. Claimant’s primary duties are that of loading wood into a dryer. Claimant claims that his symptoms which are asthmatic in nature exist all year long, but are worse in the winter and summer.
[5] In occupational disease claims, a claimant must establish a causal connection between his occupation or employment and the occupational disease by clear and convincing evidence. Ark. Code Ann. §
11-9-601 (e)(1). The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles,
41 Ark. App. 47,
849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc.v. Servold,
265 Ark. 352,
578 S.W.2d 224 (1979). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. §
11-9-704; Wade v. Mr. CCavenaugh’s,
298 Ark. 363,
768 S.W.2d 521 (1989); and Fowlerv. McHenry,
22 Ark. App. 196,
737 S.W.2d 663 (1987). Clear and convincing evidence is defined as proof so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, Rossv. Moore,
25 Ark. App. 325,
758 S.W.2d 423 (1988); it is that degree of proof which will produce in the trier of fact a firm conviction as to the allegations sought to be established. Taylor v. Hill,
10 Ark. App. 45,
661 S.W.2d 412 (1983).
[6] The most compelling evidence claimant presented is a medical record from Dr. J. Clyde Campbell which states: “possible contribution from industrial bronchitis” and “suspect that his occupational exposure may be aggravating underlying allergy . . .” In our opinion, Dr. Campbell’s medical reports are equivocal. Terminology such as “possible” and “suspect” do not rise to the level of clear and convincing evidence. Dr. Campbell’s opinion is not proof so clear, direct, weighty and convincing as to enable us to render an opinion in claimant’s favor without hesitation. We cannot reach a firm conviction based upon such evidence.
[7] The record does show that claimant suffers from acute allergic rhinitis. However, the rhinitis has not been causally connected to claimant’s work by clear and convincing evidence. There are numerous possible sources that could cause claimant’s allergic rhinitis. Claimant has been a smoker for approximately 20 years and although claimant testified that he quit smoking in 1994 the medical records indicate this may not be the case. Claimant has had asthma since childhood and suffers from emphysema.
[8] After carefully conducting a de novo review of the entire record, and without giving the benefit of the doubt to either party, we cannot find that claimant has met his burden of proof by clear and convincing evidence. It is simply too speculative to find a causal connection between claimant’s condition and his employment. Therefore, we find that the decision of the Administrative Law Judge should be, and hereby is, affirmed and this case denied and dismissed.
[9] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[10] Commissioner Humphrey dissents.
[11] DISSENTING OPINION
[12] I respectfully dissent from the majority’s opinion that Mr. Bridges did not prove that his respiratory condition is job-related. The majority admits that he suffers from acute allergic rhinitis. But, they find that claimant did not prove by clear and convincing evidence the causal connection to his job. They ignore the import of witness testimony about the dust and mold claimant encountered for more than 20 years while performing his job as green-end lift driver. And they ignore the doctor’s opinion that the respiratory problems Mr. Bridges suffers is secondary to dust and mold. I would reverse the Administrative Law Judge.
[13] PAT WEST HUMPHREY, Commissioner
