BURT v. UNISERVE SOUTH, INC., 1997 AWCC 320

CLAIM NO. E413481

GERALD BURT, EMPLOYEE, CLAIMANT v. UNISERVE SOUTH, INC., EMPLOYER, RESPONDENT and INSURANCE COMPANY STATE OF PENNSYLVANIA, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 13, 1997

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by GREG GILES, Attorney at Law, Texarkana, Arkansas.

Respondents represented by JAMES W. TILLEY and JULIA BUSFIELD, Attorneys at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Respondent appeals the December 9, 1996 opinion of the Administrative Law Judge finding that claimant sustained a compensable injury.

[3] Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Jordan v. TysonFoods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility are matters within the exclusive province of the Workers’ Compensation Commission. James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). After our de novo review of the entire record, we find that claimant has proven by a preponderance of the evidence that he sustained a work-related aggravation of a preexisting lower back condition and that the injury was identifiable by time and place of occurrence.

[4] In August 1989, claimant sustained a work-related lower back injury while employed with a different employer. Conservative treatment was initiated, with claimant remaining off work for about one year. Claimant’s condition resolved sufficiently to allow a return to fairly heavy employment. Claimant went to work with the present employer in September 1992. Claimant testified that he was essentially pain free and does not recall having any significant lower back pain as a result of a motor vehicle accident sometime in October 1992. However, it appears that this incident was relative minor as far as his preexisting condition was concerned.

[5] Claimant was a truck driver for the employer. Claimant testified that on or about September 2, 1994, he was pulling a lever on the slider of the axle, when he experienced lower back and leg pain, which was much more severe than anything he had ever experienced before. The pain resolved somewhat leading claimant to believe he had merely pulled a muscle and that his injury was not serious. He continued to drive the truck but his condition worsened as a result of this activity. Claimant was able to reach his residence, but when he woke up the next morning, he had lost the feeling in his lower extremity and was experiencing severe lumbar pain. Claimant was almost immediately hospitalized and a diskectomy at L4-L5 and L5-S1 was performed on September 9, 1994 by Dr. Scott Blumenthal. The surgery was a success and claimant quickly returned to regular duty.

[6] Respondent focuses on seemingly inconsistent histories contained in the documentary evidence. However, claimant presented credible testimony that pulling the lever precipitated his disability. He explained that such histories as riding for a prolonged period in the truck, stepping off the trailer, and tripping over a cord, were merely subsequent incidents that caused him increased pain. Based on claimant’s credible testimony, we find that claimant has proven by a preponderance of the evidence that he sustained an accidental injury identifiable by time and place of occurrence.

[7] Even though claimant experienced insignificant low back discomfort in October 1992, he was virtually asymptomatic following resolution of 1989 injury. Claimant’s current disability and need for treatment are clearly causally related by the September 1994 accident. Therefore, we find that claimant sustained an aggravation of his preexisting condition.

[8] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that he sustained a compensable injury. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.

[9] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[10] Commissioner Wilson dissents.

[11] DISSENTING OPINION
[12] I respectfully dissent from the majority’s opinion finding that claimant sustained a compensable injury. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof.

[13] Claimant contends that he sustained a compensable injury on September 2, 1994, when he pulled a lever on his truck to slide the truck axle when he felt a sharp pain in his back. It is claimant’s testimony that he originally thought he merely pulled a muscle but as he continued to drive his truck the pain became progressively worse. Claimant reported to the Wadley Regional Hospital in Texarkana on September 4, 1994, where he provided a history of “c/o back pain x 2 days, prolonged sitting, nothing stops the pain, color good, skin [illegible], febrile fully amb.” A second history provided during that emergency room visit likewise provides:

On 9-2-94 the patient was driving a truck and began to have pain in his low back but had become severe by the following day and now is disabling to him. The patient did have back pain but the last episode was in 1989.

[14] In addition, claimant presented to the Presbyterian Hospital on September 6, 1994, where he eventually underwent surgery on his low back. Claimant again provided a history as follows:

Patient was driving his eighteen wheeler — when he started feeling his right leg numb. He had to stop several times. He went to the ER yesterday and was given an injection. He was also given Cadoprofen 75mg QID, Norflex BID. Patient states he has gotten worse his father gave him two Tylenol 3 one hour apart and patient states this didn’t relieve any of the pain. He has also been taking Doan’s . . .

[15] And a history as follows:

This is a 27 year old white male who presented to the office today complaining of severe low back pain with posterior right thigh pain all the way down to his foot. The patient states he is unable to get into any comfortable position and has not been able to sleep. Patient states that he is a truck driver and was only a long trip on 9-1-94 and started having lower extremity pain and by the end of the day he was having low back pain . . .

[16] On September 6, 1994, claimant provided a recorded statement which was introduced by respondent. When asked what happened claimant stated:

Well see, that’s what I don’t know. I’ve been — I know it happened somewhere around Denver, on the way back home from picking a load up in, not in Denver, it was — well, anyway, I picked up a load up there around — just north of Denver, going to San Antonio. They told me to go ahead and bring it on the yard, so — but anyway, on the way home is when it started hurting. I was having severe leg pains and I pulled over and got in the back to get me a couple hours sleep. I figured that might help. I got up and it was even worse. I did the same thing and three hours later, I figured I better just risk it and get my tail to the house before I get much worse than what I already was. So I got home and I went ahead and went to the emergency room and the doctor did some x-rays on me. He said that he didn’t see anything broken or anything, but he said you can’t see nothing on x-rays when they come through the back anyway. I know that because my father’s got bad back problems and _____ in my family just about. But anyway, they give me some stuff to kill the — to release the strain and stop the muscle spasm — gave me a pain killer — a shot — and told me to see a specialist, you know, some time pretty quick. So I got up the next morning and I couldn’t move at all. I was in severe pain. The only doctor that I had ever — could ever trust — was my dad’s because ______. Then I figured I’d come out here make sure that I get the best opinion of what needs to be done before I get anything done.

[17] When asked again during the recorded statement when he first felt the pain, claimant stated “About the 1st or 2nd, when I really started noticing it. That’s why I figured that was when it had happened was when I was on the road and in Denver reloading just north of Denver.” When asked if he attributed the onset of pain to anything in particular claimant stated:

Well, I just — I was sitting there — the only thing I can figure is maybe I hurt it by — when I get up in the trailer to put a load back on — when I go to climb down off the truck, I have to squat my knees where I’m just about sitting on the ____ of the trailer, and I stick my hand down and just kind of hop off . . . ok, well, that’s about the biggest impact that I ever did — when I got down out of the truck. And, anyway, so I went out to the sleeper, but I had woke up — I had falled inside the truck tried to answer the computer on the wake-up message, and I figured that’s the only two times that I know of that it probably happened . . . Right. And it just — like I said — it didn’t happen instantly. Ok? It just gradually got worse and it got to the point where I just couldn’t handle it. Man, I was losing it.

[18] Claimant testified at the hearing that he injured his back when he lifted a lever to slide the axles on his trailer. However, when claimant first reported to the emergency room to seek treatment for his back, he provided a history to at least two separate medical care personnel of no specific incident and a gradual onset of back pain over the past two days. Moreover, when claimant provided a recorded statement to respondent prior to filing a Workers’ Compensation claim claimant stated that he did not know what happened and there was no specific incident to which he could attribute the onset of his pain. This information is wholly inconsistent with claimant’s AR-N and claimant’s hearing testimony.

[19] In order to find that the claimant has proven a compensable injury, all of claimant’s previous inconsistent statements regarding the onset of his symptoms must be ignored. This I cannot do.

[20] I find that claimant has simply failed to prove by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment on September 2, 1994, as he alleges. Other than the claimant’s own inconsistent testimony, there is no evidence to support his contention that he sustained an injury on that date. Furthermore, claimant’s actions and statements to others are not consistent with his contentions of a specific incident on September 2, 1994. Claimant did not report a specific incident when he presented to the emergency room at Wadley Hospital or at the Presbyterian Hospital. Moreover, claimant did not report a specific incident when he provided a recorded statement to respondent on September 6, 1994. Consequently, in my opinion, any conclusion that claimant injured his back at work on September 2, 1994, as a result of a specific incident will be based on speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).

[21] It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). In short, I simply find claimant’s testimony lacks credibility. His testimony is replete with and contradictions. Claimant has told at least three or four different versions of how his back pain originated. The only consistency among these versions is in claimants original history provided to the hospitals that claimant simply had a gradual onset of pain over the past two days with no known specific incident. Claimant’s testimony which I find to not be credible, is the only evidence of a causal connection between his back difficulties and his alleged specific incident injury. Consequently, I find that claimant has failed to prove by a preponderance of the credible evidence that his back problems are causally related to his employment with respondent. It is important to note that claimant had a pre-existing back problem for which he has sought treatment over the past couple of years, despite claimant’s testimony denying any treatment since 1989. In light of claimant’s previous back problems, and in light of the lack of credible evidence establishing a specific incident I cannot find that claimant has met his burden of proof. Therefore, I respectfully dissent from the majority opinion.

[22] MIKE WILSON, Commissioner