CLAIM NO. E314552
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 23, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by EVERETT MARTINDALE, Attorney at Law, Little Rock, Arkansas.
Respondent represented by KEITH M. McPHERSON RALPH R. WILSON, Attorneys 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 May 23, 1995 finding that claimant sustained a compensable injury on August 13, 1993. After conducting a de novo review of the record, we find that a preponderance of the credible evidence does not indicate claimant’s back difficulties are causally connected to the August 13, 1993 work-related incident. Therefore, we reverse the decision of the Administrative Law Judge.
(5)(A)(1) “Compensable Injury means:
[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. [8] After reviewing the record in this case, we find that claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable injury on August 13, 1993. Therefore, we reverse the decision of the Administrative Law Judge. [9] Claimant is a 47 year old female. She is approximately 4’4″ tall and weighs 210 pounds. Prior to August 1993, claimant was at home taking care of her son, Shannon, who was born with noncontourtic hyperglycemia. She cared for her son for ten years. He died in August, 1993. Before the birth of her son, claimant worked from June, 1977 through December, 1980 at the Drew County Day Care Center. Eventually, she was transferred to a position at the Arkansas Human Development Center. She worked there through March, 1982. Claimant was hired by respondent on August 6, 1993, approximately two weeks before the alleged incident. [10] Claimant’s credibility is questionable. Claimant contends that during the ten years she cared for Shannon she did not at any time try to lift him or pull him by herself. She states this despite the requirement that Shannon be turned every two hours. She stated that she was told by the physicians at Children’s Hospital not to lift Shannon because of her height. In this claim she maintains that she injured herself at the nursing home while attempting to lift or pull a grown man back into bed. This is inconsistent with her “alleged” restriction. Further detracting from claimant’s credibility is testimony offered by Dr. Maxwell that claimant frequently had to lift Shannon. [11] Claimant also failed to be straightforward about her motor vehicle accidents. She specifically stated on more than one occasion that she had not been involved in any motor vehicle accidents within the past ten years. She did not recant her denial until after being presented with the automobile accident reports. For the foregoing reasons, we cannot give great weight to claimant’s credibility. [12] We are persuaded that claimant’s back difficulties are related to her congenital spinal stenosis. [13] Dr. P.B. Simpson, the physician who eventually performed surgery for claimant’s spinal stenosis, testified that spinal canal narrowing is a common trait in achondroplastic dwarfs. Dr. Simpson’s evidence is extremely enlightening. He further states that it is not unusual for a person at the age of 45 to have back difficulties, including bulges. Additionally, he was unable to say with any reasonable degree of medical certainty as to whether or not the mild changes shown in claimant’s tests are related to her work-related injury. This testimony is detrimental to claimant’s case. Additionally, Dr. Simpson was not aware of claimant’s three prior automobile accidents including the rear end collision in August of 1993. [14] Lastly, claimant by her own testimony indicated that the lifting incident in August of 1993 was insignificant. Although claimant reported the incident, she testified that she felt that the injury was minor. [15] Any difficulties from which claimant suffers are not the result of the August 13, 1993 incident. Claimant has a congenital back deformity which was aggravated by the motor vehicle accidents. The lifting incident on August 13, 1993 was extremely minor and did not result in internal or external physical harm which required the medical treatment. Thus, as stated, we reverse the decision of the Administrative Law Judge. [16] IT IS SO ORDERED.(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.)
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[17] Commissioner Humphrey dissents.