CLAIM NO. E310714
LORIE BRITAIN, EMPLOYEE, CLAIMANT, v. SOUTHERN HOSPITALITY d/b/a QUALITY INN, EMPLOYER, RESPONDENT, and UNION STANDARD INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 16, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD C. PULLEN, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on January 13, 1994. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. Consequently, the administrative law judge awarded the claimant additional temporary total disability compensation, and he found that the respondents are liable for related medical expenses.
[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed. However, we find that the respondents are liable for all medical provided at their direction during the time that they accepted the compensability of this claim.
[4] The claimant performed maid and laundry services for the respondent employer. On July 3, 1993, she was removing wet towels from a washer when she felt a jerk in her back, and she began to experience low back and right leg pain. She reported this to a co-worker, Darlene. This incident occurred in the morning, and the claimant worked the remainder of the day, although she continued to experience problems.
[5] The claimant sought treatment at the emergency room that night. The emergency room physician diagnosed a back strain, and he referred the claimant to Dr. Arthur. However, the adjustor for the respondent carrier advised the claimant not to see Dr. Arthur. Instead, the adjustor advised the claimant to return to the emergency room to get a referral to another physician. The claimant did return to the emergency room on July 7, 1993. The report of that visit indicates that she was continuing to complain of low back pain which radiated into her right leg, but the only finding revealed by the physical examination was tenderness in the lumbar area.
[6] The claimant was referred to Dr. Bruce Smith, an orthopedic surgeon. She had previously sustained a work-related back injury in March of 1990, while employed by a different employer, and, Dr. Smith was her primary treating physician for that injury. As a result of that injury, Dr. Smith performed a lumbar laminectomy at L5-S1 on May 16, 1991. He ultimately released her with a 10% permanent physical impairment rating, and he advised her to avoid lifting greater than thirty pounds and to avoid repeated bending or stooping. On October 28, 1991, the administrative law judge entered an order approving a joint petition for final settlement of this claim. The claimant returned to work following her recovery from this injury, and she testified that she did not experience any subsequent problems as a result of that injury or the surgery.
[7] Dr. Smith first examined the claimant for the July 3, 1993, injury on July 22, 1993. His physical examination revealed a good range of motion and a negative straight leg raising maneuver. In addition, the examination did not reveal any reflex or sensory deficit. Consequently, Dr. Smith opined that the claimant sustained a mild sprain, and he released her to return to work at that time. The claimant did return to work for two to three hours, but she continued to experience problems with her low back and leg. Consequently, she called Dr. Smith, and he advised her to stay off work until a MRI could be performed. A MRI was performed on August 11, 1993. The MRI revealed post-surgical scarring at L5-S1 on the right, but no recurrent disc or nerve impingement was seen. Consequently, Dr. Smith saw her again on August 12, 1993, and he again released her to return to work at that time. His report of that visit does not report any findings.
[8] This claim is controlled by the provisions of
Act 796 of 1993. Under these provisions, the claimant has the burden of establishing a compensable injury by a preponderance of the evidence. Ark. Code Ann. §
11-9-102 (5)(E) (Cumm. Supp. 1993). In addition, any “compensable injury must be established by medical evidence, supported by `objective findings’ as defined in §
11-9-102 (16).” Ark. Code Ann. §
11-9-102 (5)(D) (Cumm. Supp. 1993). “Objective findings” are defined as “those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. §
11-9-102 (16) (Cumm. Supp. 1993).
[9] Under the facts of the present claim, we find that the claimant failed to establish a compensable injury with medical evidence supported by objective findings, as defined by Ark. Code Ann. §
11-9-102 (16). As discussed, the medical evidence indicates that the claimant was examined on four occasions as a result of the July 3, 1993, incident, and the only positive finding resulting from either of these examinations was the finding of lumbar tenderness by the emergency room physicians. However, there is no evidence in the present claim showing that this finding of tenderness satisfies the statutory definition of an objective finding. The MRI showed evidence of the previous surgery, including scarring, but there is no evidence indicating that the problems caused by the July 3, 1993, incident were in any way attributable to these findings. Therefore, we find that the administrative law judge’s finding in this regard must be reversed.
[10] However, we note that the respondents are seeking to avoid liability for medical treatment which was provided to the claimant at their direction during the time that they accepted the compensability of the claim. In this regard, the respondents initially accepted the compensability of this claim, and they accepted responsibility for the medical services provided to the claimant by and at the direction of Dr. Smith. Consequently, we find that they cannot now deny liability for those services, including liability for the expenses for the MRI.
[11] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury, as that term is defined by
Act 796 of 1993. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, reversed. However, we find that the respondents are liable for medical services provided to the claimant during the time that they accepted the compensability of this claim.
[12] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[13] Commissioner Humphrey dissents.
[14] DISSENTING OPINION
[15] I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. This case illustrates the difficulties many claimants will experience as a result of Act 796 of 1993, which will either specifically eliminate certain injuries or erect insurmountable evidentiary hurdles that claimants will not be able to meet the burden of proof.
[16] It is undisputed that claimant was involved in a work-related accident. Respondent accepted the injury as compensable and ordered claimant to see a physician it chose. Claimant submitted to all diagnostic tests and treatment ordered by this physician. However, once respondent determined that the treating physician’s examination and the diagnostic tests failed to reveal objective findings, as restrictively defined by
Act 796 of 1993, respondent not only controverted any future medical treatment for this work-related injury but any medical treatment and periods of temporary total disability that had not been paid prior to the decision to controvert the claim. Claimant’s condition has been diagnosed as a mild sprain. Musculoskeletal injuries will rarely be evidenced by findings other than tenderness to palpation. There injuries can be genuinely disabling even in the absence of “objective findings.” Claimants now have the difficult, if not impossible, burden of proving entitlement to compensation for most any soft issue injury.
[17] I agree with the opinion of the majority finding that respondent is liable for all medical treatment provided during the time the injury was accepted as compensable by respondent. However, in my opinion, respondent should likewise be liable for any temporary disability benefits during this period of time. There is no justification for awarding medical treatment but denying temporary total disability in circumstances such as those presented in the present case.
[18] PAT WEST HUMPHREY, Commissioner
