CLAIM NO. F103344
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 22, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE FREDERICK SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an Administrative Law Judge’s opinion filed April 9, 2002. The Administrative Law Judge found that the claimant failed to prove he sustained a compensable injury. After reviewing the entire recor de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Calvin Junior Brooks, age 36, contended that he injured his back on or about January 22, 2001. Mr. Brooks testified, “I was lifting pallets and I got to hurting in the back.” The respondents’ attorney cross-examined the claimant:
Q. And your testimony is today that you hurt your back lifting 10 or 15 empty pallets?
A. Empty pallets, yes, sir. . . .
Q. And I think you testified at your deposition it took you about 10 minutes to move the pallets?
A. Ten to — yeah, about 10 minutes, I’d say.
Somewhere around there.
Q. Okay. And your back started hurting after you moved the pallets?
A. Right after I got done with the pallets.
Q. So you didn’t, you didn’t really have any pain while you were doing it, but —
A. I, just as soon as I got done with them, my back started hurting.
George Johnson was working with the claimant on the date of alleged injury but was not a team leader or supervisor. Mr. Johnson testified, “I recall him coming up and telling me that he hurt himself. . . .He told me he was picking up and lifting pallets.” The claimant testified that he reported the injury to a team leader, Gary Langston. There was no corroborating testimony to this effect.
The claimant received emergency medical treatment on January 22, 2001, complaining of back pain “since late Friday.” The emergency department record indicated that the injury was “Industrial,” and that the claimant was injured at “Work.” The claimant was diagnosed with “Back pain.” Dr. A. Meryl Grasse excused the claimant from work on January 22-24, 2001, then light duty for one week. The claimant testified that he brought the physician’s off-work slip to the employer. However, after the claimant reported he could not tolerate standing at work, the doctor excused the claimant from work “until further notice.”
A CT of the lumbar and thoracic spine was taken on January 25, 2001, with the following impression:
Minimal degenerative changes, but no evidence for central canal stenosis or neuroforaminal stenosis. No herniated nucleus pulposus is noted in the lumbar spine. . . .
No definite compression fracture or herniated nucleus pulposus is appreciated. What is visualized of the cord reveals no gross abnormalities. No central canal stenosis or neuroforaminal stenosis is noted.
A neurologist, Dr. Bruce D. Robbins, wrote to Dr. Louis Campos on February 2, 2001:
Calvin’s nerve conduction studies are within normal limits except for prolonged F-waves. This is suggestive of proximal slowing. Both the peroneal and tibial nerves are checked with innervates primarily from L5 and S1. The EMG needle examination does show neurogenic changes in muscles innervated from L5 and S1. I suspect at least part of the patient’s problem is coming from his low back. Since the tensor fasciae latae shows abnormalities as well which is innervated by the superior gluteal nerve.
Dr. Campos released the claimant to restricted work on February 21, 2001. Dr. Campos diagnosed “Back pain, Rt leg pain.” The impression from a radiology report dated February 23, 2001 was “Unremarkable MRI of the thoracic and lumbar spine.”
The claimant reported an injury on March 6, 2001; the accident was described: “Lifting pallets to move out of his way on the finish line.” The claimant testified that this accident description was incorrect — “I didn’t hurt myself lifting pallets the second time. I hurt it the first time lifting pallets.”
The claimant reported to a medical provider on March 7, 2001 that he was hurt while working for the respondent-employer the previous January. It was noted that the claimant “really wants to work.” The claimant was placed on “lighter” duty for two weeks.
The claimant was returned to “normal” work duty on April 12, 2001. However, Dr. Campos returned the claimant to light duty on April 17, 2001. The respondent-employer informed the claimant on April 19, 2001, “At this time we do not have a long term light duty position. Calvin may return to work in his regular position when he is released by his doctor.”
Mr. Brooks claimed entitlement to worker’s compensation. The claimant contended that he sustained a compensable injury on January 19, 2001. The claimant contended that he was entitled to temporary total disability compensation and reasonably necessary medical treatment. The respondents controverted the claim, contending that the claimant did not sustain a compensable injury. The respondents also contended that the claimant did not give notice of his injury pursuant to Ark. Code Ann. § 11-9-701.
On November 1, 2001, Dr. Campos signed a statement drafted by the claimant’s attorney:
This man, who is illiterate, was injured at work, had objective signs of injury, including muscle spasms, and has been totally temporarily disabled since the last time he worked at Stone County Ironworks.
My belief as his doctor is that he should be seen by Dr. Wayne Bruffet at Arkansas Spine Center for further treatment, but apparently the insurance company is refusing the referral. I feel this is reasonable and necessary medical treatment.
Dr. Adam C. Gray provided a second opinion on November 19, 2001:
He reports injury first occurred on 01/19/01 while lifting pallets. He had sharp pain in his back at that time and subsequently developed muscle fasciculations and pain going down the lateral right leg in to his right calf. . . .
Exam of the back shows very minimal right paralumbar spasm with an area of tenderness which is only somewhat focal.
Dr. Gray assessed “Back pain which patient reports is due to injury at work,” and he recommended additional diagnostic testing. Dr. Mohammad K. Ismail reported on December 3, 2001:
Patient (sic) old EMG showed dennervation in L5-S1 innervated muscles which is not presented on today’s study, it may be possible that these finding (sic) represent old radiculopathy at L5-S1 distribution. However no active dennervation noted on this study, but none the less there is obvious neuropathy of left sciatic nerve.
After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove he sustained a compensable injury. The Administrative Law Judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.
II. ADJUDICATION
The claimant contends that he sustained an injury on January 19, 2001 as a result of a specific incident, identifiable by time and place of occurrence. The claimant bears the burden of proving by a preponderance of the evidence that he sustained a compensable injury. See, Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002); Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). Ark. Code Ann. §11-9-102(4)(A) defines “Compensable injury”:
(i) An accidental injury causing internal or external physical harm to the body or accidentalinjury 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[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D).
In the present matter, the claimant contends that he sustained a “specific-incident” injury to his back, pursuant to Ark. Code Ann. §11-9-102(4)(A)(i). The preponderance of evidence indicates, however, that there was not a specific incident identifiable by time and place of occurrence. The claimant testified that his back began hurting on January 19, 2001, “Right after I got done with the pallets.” The respondents’ cross-examination of the claimant clearly showed that there was not a specific incident identifiable by time and place of occurrence. Nor do the medical records show a specific incident.
The Arkansas General Assembly has directed the Commission to strictly construe our workers’ compensation law. See, Ark. Code Ann. §11-9-704(c)(2). In order to prove compensability pursuant to Ark. Code Ann. § 11-9-102(4)(A)(i), there must be a particular, specific incident. Edens v. Superior Marble Glass, 346 Ark. 487, 58 S.W.3d 369
(2001); Hapney v. Rheem Manufacturing Company, 342 Ark. 11, 26 S.W.3d 777
(2000). Hurting at the end of a long work day is not a specific incident. Howard v. Wal-Mart, Workers’ Compensation Commission E814194
(Nov. 3, 1999). Nor does a generic description of work-related duties suffice to find a specific incident. White v. Lawrence MemorialHospital, Workers’ Compensation Commission E714906 (June 17, 1999); Wardv. PSC, Inc., Workers’ Compensation Commission E500617 (Oct. 31, 1996). From the record and pleadings before us, we find that the instant claimant failed to prove by a preponderance of the evidence that he sustained an injury resulting from a specific incident identifiable by time and place of occurrence.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove he sustained a compensable injury. We therefore affirm the opinion of the Administrative Law Judge, and this claim is denied and dismissed.
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I must respectfully dissent from the majority opinion affirming the Administrative Law Judge’s April 9, 2002 ruling that claimant failed to prove a compensable specific incident back injury. Upon my de novo review of the record, I would reverse this decision.
Claimant contends that he injured his back at work on January 19, 2001; that he properly and timely reported that injury; that additional medical care is reasonable and necessary; that he is entitled to temporary and total disability benefits from January 22, 2001 to a date to be determined; and that he is entitled to a change of physician.
Born May, 17, 1967, claimant is a functionally illiterate high-school graduate. He described the events of January 19, 2001 as follows:
I was lifting pallets and I got to hurting in the back. And I started walking up the aisle a way there, and I was, I was gonna go tell Michael Glenn, but I didn’t see Michael Glenn. So I went to Gary Langston. Gary Langson was working, probably, two to three aisles down on the left hand side. And I was talking to Gary. And when I got done talking to Gary, I walked over to [co-worker] George Johnson.” (Transcript, p. 18).
Claimant said he first notified Langston, team leader, of his pain and then spoke with Johnson about the back brace Johnson was wearing. Claimant finished his shift and went home, but sought medical care after having pain over the weekend.
A January 22, 2001 emergency room report noted back pain “since late Friday.” Dr. Louis Campos provided follow-up care on January 23, 2001 and January 32, 2001, and referred claimant to Dr. Bruce Robbins, a neurologist. Dr. Robbins performed nerve conduction studies, reporting on February 2, 2001, “prolonged F-waves” suggesting proximal slowing and changes in muscle innervated from L5, S1, “I suspect at least part of the patient’s problem is coming from the low back. Since the tensor fasciae latea shows abnormalities as well which is innervated by the superior gluteal nerve.” Dr. Robbins noted a referral in claimant’s chart to the Arkansas Spine Center on February 27, 2001.
Respondents returned claimant to light duty work, but claimant continued to have back problems. After about two months, claimant’s pain became more severe. On March 6, 2001, claimant complained of intense back pain while he was working and notified supervisor Larry Stapelton who had him sign a prepared written report. Claimant stated, “He done had, he done had the form filled out when I walked in the office. He, I believe he was just fixin’ to call Karen [Bernstein] at the time.” Claimant said he returned to the office after realizing the report he signed was inaccurate, but respondents would not correct his statement:
I walked back out and probably, he asked me to look at that and I looked it (sic) and gave it back to him after I signed it. And I went, I went back out there and I got to thinking about, `cause I remembered the work jack. It was on that deal, it said jack. And I remembered that, just as plain as day. And I called him back in the office and I also called the woman that don’t work there no more. She was the plant manager. I called them back in the office, and I said, we got a problem here. And he said, well, why is that. Larry said that. And I said, well, because this happened the first time. I said, I didn’t do the same thing twice in a row. I was lifting pallets the first time. I said, the second, this is wrong, y’all made this wrong. And she said, well, I don’t care, you signed it. And that was the second time.
What do you mean, you had it wrong? What were they saying that had it wrong?
I told me (sic) that I hurt it in a different way, but they were saying that I hurt myself by lifting pallets the second time. I didn’t hurt myself lifting pallets the second time. I hurt it the first time lifting pallets.
Okay. And you hurt it the second time doing what?
***
They put me on, putting these little feet on. I was doing a bunch f this right here (demonstrating) all day long. I was standing, more or less, and my back hot to hurting real bad.
Okay. So you really didn’t have, you had already had pain in the back from the first injury?
yes, sir.
And this just made it worse; right?
Yes, sir. (Transcript, p. 24-25).
Dr. Burnette, company physician, treated claimant on March 7, 2001 and diagnosed, “somatization of low back pain due to anxiety and depression” and returned claimant to light duty work. Dissatisfied with Dr. Burnette’s assessment of “psychological pain,” claimant treated with Dr. Campos the following day.
Dr. Burnette returned claimant to full duty on April 12, 2001, although claimant never returned to his care. Dr. Campos opined claimant’s injury to be work related, citing objective findings of such on November 11, 2001:
This man, who is illiterate, was injured at work, had objective signs of injury, including muscle spasms, and has been totally temporarily disabled since the last time he worked at Stone County Ironworks.
My belief as his doctor is that he should be seen by Dr. Wayne Bruffet at Arkansas Spine Clinic for further treatment, but apparently the insurance company is refusing the referral. I feel this is reasonable and necessary medical treatment.
Respondent terminated claimant’s employment without approving this treatment and maintains that claimant initially failed to notify them of a work-related injury, despite testimony to the contrary. In fact, Bernstein testified that she was unaware of claimant’s injury until March 2, 2001.
Consequently, Johnson recalled claimant saying he hurt his back lifting pallets on January 19, 2001, but said he did not work in a position where he could have witnessed the accident. He advised claimant to report the injury to his immediate supervisor, “He said, I was lifting pallets and I twisted and I think I hurt my back. I said, well, you just need to report it to your supervisor. There’s nothing I can do for you or do about it unless you report it to your supervisor. That’s all I could tell him.” (Transcript, p. 13). Johnson stated claimant complained about his back subsequent to the injury and that he observed the claimant walking funny at times.
Other conflicting evidence involves claimant’s testimony that he provided a recorded telephonic statement to respondent-carrier which they deny.
And you seem convinced that someone from CNA took a recorded statement from you?
I know they did.
Q: And that statement was, the statement you think was taken was something was done over the phone?
Yes, sir.
Okay. Does the name Sandra Aaron ring a bell? Is that who called you?
A: I don’t know the woman’s name exactly.
Q: Okay. But she was, did she call you or did you call her?
A: I believe Karen’s the one that done the calling. Talked to her.
Q: Okay. You talked to Sandra on the phone?
A: yes.
Q: And your impression is that Sandra was recording it?
A: She said she was.
Q: Okay.
A: And I believe, Ms. Bernstein was standing right there beside me, too.
Q: All right. And did you tell Ms. Aaron that you weren’t sure how you hurt your back?
A: I don’t recall that.
Q: Did you tell her that you didn’t report it on the day that you said you hurt it?
A: I was being told, practically told what to say to her at that time.
Q: Okay. And who was telling you?
A: Ms. Bernstein.
On cross examination, Bernstein acknowledged the recorded conversation between claimant and respondent-carrier, but could not account for the absence of the documentary evidence.
The Administrative Judge dismissed the claim, finding no “objective evidence” of acute injury based on a damaged No. 6 nerve claimant sustained 10 years earlier. However, the medical records support claimant’s contention that he was basically asymptomatic prior to his January 19, 2001 work-related injury. In fact, Dr. Campos was aware of claimant’s history of leg pain and, nevertheless, opined (both in writing and by deposition) that claimant’s current leg complaints resulted from his work activity on January 19, 2001.
I find significant claimant’s emergency room report which noted work-related pain and find that claimant presented credible testimony of how his accident occurred and when his pain began. Conversely, I find that respondents have not been forthright regarding claimant’s notification of injury and have, regrettably, taken advantage of claimant’s limited articulation and analytical abilities. For these reasons, I would reverse the Administrative Law Judge’s opinion and award benefits. Therefore, I respectfully dissent.
_______________________________ SHELBY W. TURNER, Commissioner