CLAIM NO. E612834
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 2, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appeared pro se.
Respondents represented by R. SCOTT MORGAN, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on October 13, 1997, finding that claimant sustained a compensable injury on August 21, 1996, and was entitled to an award of temporary total disability benefits from August 22, 1996, through November 18, 1996. Respondents now appeal from that opinion and order, contending that claimant has failed to meet her burden of proof and that her injury is not supported by “objective findings.” [3] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable aggravation of a pre-existing condition on August 21, 1996, and that she is entitled to an award of temporary total disability benefits from August 22, 1996, through November 18, 1996. The decision of the Administrative Law Judge is therefore affirmed. [4] Claimant worked as a housekeeper for respondent employer, and explained that while mopping a floor on August 21, 1996, she noticed that her back “felt like it had a pull in it.” Initially, claimant suspected a kidney problem because her stomach began hurting and she had previously heard that back pain can be associated with kidney malfunction. Dr. Jerry Morgan followed claimant for the effects of this event, and explained in a letter of May 21, 1997, that he eventually diagnosed a lumbosacral strain after claimant’s urinalysis results were normal. Within that same correspondence, Dr. Morgan also stated that “I feel definitely Mrs. Burlison had a (sic) aggravation of her degenerative and chronic back problems to the point it required treatment. I think her work was definitely involved.” X-rays performed on September 21, 1996, indicated that claimant did indeed possess some degree of pre-existing degeneration throughout her lumbar spine, as well as bulging discs at L3-4 and L4-5. [5] Because claimant asserts the occurrence of a compensable injury after July 1, 1993, the provisions of Act 796 of 1993 are controlling. Claimant must thus demonstrate that she has sustained “an accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death.” In addition, an injury will be considered “accidental” only if it is “caused by a specific incident and is identifiable by time and place of occurrence.” Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997). [6] Also, a compensable injury “must be established by medical evidence, supported by `objective findings.'” Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997). In turn, “objective findings are those findings which cannot come under the voluntary control of the patient . . . Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Ark. Code Ann. §§ 11-9-102(16)(A)(i) and (B) (Supp. 1997). A claimant’s burden of proof concerning these elements is to demonstrate them by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(5)(E)(i) (Supp. 1997). [7] An employer takes an employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable. Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992) (citing Nashville Livestock Comm’n v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990)). Based on Dr. Morgan’s comments of May 21, 1997, and on claimant’s own credible testimony, we specifically find that claimant sustained an accidental injury identifiable by time and place of occurrence and which arose out of and in the course of her employment on August 21, 1996. Again relying on Dr. Morgan’s opinion, we further find that this injury took the form of an aggravation of claimant’s pre-existing degenerative condition. [8] In light of the bulging discs discovered at the L3-4 and L4-5 levels, we are also persuaded that claimant’s injury has been established with medical evidence supported by “objective findings” (as noted above, claimant’s pre-existing degenerative condition has also been objectively confirmed). In addition, these findings demonstrate that claimant sustained an internal physical harm to her body, and her medical records make it clear that claimant did require “medical services” following her injury. Accordingly, we find that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable injury within the meaning of Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997) on August 21, 1996. [9] As a final matter, we note that respondents’ notice of appeal challenges the entirety of the Administrative Law Judge’s decision, but that respondents have not pursued the issue of temporary total disability in their brief to the Full Commission. Accordingly, after conducting our de novo review of the entire record, we affirm and adopt the findings of the Administrative Law Judge as they relate to the extent of benefits to which claimant is entitled. [10] Based on our de novo review of the entire record and for the reasons stated herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable aggravation of a pre-existing condition on August 21, 1996, and that she is entitled to an award of temporary total disability benefits from August 22, 1996, through November 18, 1996. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [11] 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 Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [12] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [13] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner MIKE WILSON, Commissioner