CLAIM NO. E410415
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 2, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by WILLIAM HILL, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by KEITH McPHERSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[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 March 17, 1995 finding that claimant failed to prove by a preponderance of the credible evidence that he sustained a compensable knee and thumb injury on July 14, 1994.
(5)(A)(1) “Compensable Injury means:
[4] 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 Barium Corp., 212 Ark. 491, 206 S.W.2d 442(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.)
(1947). [5] 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. Further, all prior case law contrary to or in conflict with any provision of Act 796 of 1993 has been repealed, annulled and held for naught. See Section 35 of Act 796 of 1993. [6] The primary evidence claimant offers to establish this claim is his own testimony. Claimant’s testimony is inconsistent and, thus, his credibility is diminished. Since this is his primary evidence, his lack of credibility prevents him from establishing by a preponderance of the credible evidence that he sustained a work-related injury. [7] Claimant’s testimony is inconsistent as to his alleged injuries. For example, claimant testified that on Monday, July 18, 1994, approximately four days after the injury, his right knee and thumb were sore and swollen. On cross-examination, claimant acknowledged that on Tuesday, July 19th, he went to see Dr. Alberty who noted that there was no swelling. Also, the July 19, 1994 record does not mention a right thumb injury. Claimant argues that a co-worker, Michael Jones, could have corroborated his testimony. However, claimant did not present this witness. Additionally, respondent’s witness, Mr. Bill Sooter, specifically states that he did not observe claimant’s accident. [8] Claimant has a litigious nature. At least four civil lawsuits have been filed on claimant’s behalf in the past two years. [9] Based upon a review of the record, we find that claimant has failed to offer sufficient credible evidence that he sustained work-related injuries. [10] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[11] Commissioner Humphrey dissents.