CLAIM NO. E603267
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 10, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by NOYL HOUSTON, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by LEE J. MULDROW, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed September 30, 1996 and an Amended Opinion filed October 9, 1996 finding that claimant sustained a compensable injury on January 18, 1996; is entitled to temporary total disability benefits from February 6, 1996, through May 20, 1996; and, permanent partial disability benefits from May 21, 1996, continuing through the end of claimant’s healing period. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof.
(1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663
(1987). [4] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgraFrozen Foods, FC Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. [5] § 11-9-102(5)(A)(i) and § 11-9-102(5)(E)(i) (Repl. 1996). He must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(5)(A)(i). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in [6] § 11-9-102(16).” [7] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra. [8] Based upon our de novo review of the entire record, and without giving the benefit of the doubt to either party, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury. We place greater emphasis on the medical reports in this case than on the lay witness testimony. The medical reports indicate that between January 18 and February 13, claimant was seen by Dr. Michael Ungerank, a chiropractor, Dr. Chanh Van Huynh, Dr. Mark Brown and Dr. Richard Kyle. A thorough review of the medical records from each of these medical care providers fails to reveal a history of a work-related injury. Claimant merely reported to these medical care providers pain in his right leg. The mere fact that the onset of this pain coincides with the date claimant alleges to have sustained a work-related injury is not significant of itself. It is in a claimant’s financial interest to claim an injury date close in time to his recorded pain complaint. However, there is no independent corroboration that any injury actually occurred on that date. It was not until after claimant was advised of the severity of his condition which required surgical intervention that claimant finally reported to his medical care providers that he sustained a work-related injury. In this case, we do not place any weight on the history provided after the severity of the condition was known. [9] In relying upon the medical records, we note that claimant experienced similar symptoms in his low back, right leg and hip during the three to four years prior to his alleged compensable injury. [10] Accordingly, based upon our de novo review of the entire record, we find that claimant has failed to prove that he sustained a compensable injury. In our opinion, the history claimant provided to the first several medical care providers regarding the onset of his pain is entitled to greater weight. At no time, did claimant advise these medical care providers of a work-related injury. In fact, claimant even reported that he has had similar pain in the past. Claimant did not present a history of a work-related injury until after the severity of his problem was known. Moreover, claimant did not present any credible evidence that the alleged injury occurred. All evidence regarding an injury is based simply upon hearsay statements from the claimant. Accordingly, we find that claimant has failed to present sufficient credible evidence to rise to the level of a preponderance of the evidence to establish the compensability of his claim. Therefore, we reverse the decision of the Administrative Law Judge. [11] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents.[13] DISSENTING OPINION
[14] I must respectfully dissent from the majority opinion finding that claimant failed to prove that he sustained a compensable injury on January 18, 1996.
[16] Claimant’s co-worker, Mr. Edwin Wright, did not actually see claimant sustain the above-described injury, but he did witness the events immediately following it:I was setting up what we call a one-ten blitz, and I was pulling a bolster plate out. I turned to my right to set it down on a conveyor, and when I did, something tingled in my leg, and it got this funny feeling and this burning, you know, sort of burning and tingling went down it, and I went back on my tool box and was rubbing it, you know. I thought it was just, you know, a catch or something in it, and Ed come over and asked me what had gone on, and I told him.
[17] Mr. Wright went on to explain that he encouraged claimant to report the incident to Ms. Betty Smith, respondent employer’s shop supervisor. Claimant himself stated that he did inform Ms. Smith that he had developed a “tingle” in his leg while trying to lift, but also told her that “I don’t think it’s nothing, but, you know . . . I thought I had better tell you.” According to claimant, Ms. Smith voiced an intent to make a note of the injury upon returning to her office, and instructed claimant to inform her if his situation worsened and “she would fill out an accident report.” While Mr. Wright did not hear the substance of claimant’s conversation with Ms. Smith, he did observe the two talking shortly after the injury. [18] Another co-worker, Mr. Marvin Crouse, testified that claimant “walked very normal” during the earlier portion of January 18, 1996, but that later that day “I seen him walking, coming out, he had a noticeable limp.” When Mr. Crouse asked claimant what had happened, claimant replied that he “had hurt hisself (sic) changing over the hundred-and-ten-ton press, and his leg was feeling funny.” Ms. Pat Halsell, yet another co-worker, also testified to observing claimant have difficulty in the days following January 18, 1996, and she received much the same explanation as had Messrs. Wright and Crouse: “Yeah, and I asked him what he was doing, and he told me . . . Taking off a big old thing off the blitz, a square thing. I don’t know what it’s called.” [19] Ms. Smith indicated that she did not know claimant might have a leg problem until January 28, 1996, when she observed him “rubbing his leg,” and inquired if claimant had injured himself. Ms. Smith asserted that claimant denied any injury at that time, and that the matter did not resurface until February 13, 1996 (there is some indication in the record that the phone conversation described below actually occurred on or about February 5, 1996):Well, on about January 18th, he was changing over the hundred-and-ten-ton-blitz, and he was taking out the bolster plate or whatever, but I didn’t see him exactly at the same time he done it — took it out. I was operating the machine next to it. And he leaned back on his tool box, and I walked over there and shut the machine down and walked over there where he was at and asked him, I told him, I said, “Well, you messed up, didn’t you?” or whatever, you know, and he said, “Well,” he said, he just didn’t think so, he had a tingling in his leg, and so I went ahead, you know, and put the block in there for him when he got ready for that, but he leaned back on the tool box, and like I say, he said he had — he didn’t think he hurt hisself (sic) too bad or whatever, he just had a tingling in his right leg.
Q. And what did he tell you on February the 13th of this year?
A. This was a phone call. He called me and told me that it looked liked a good possibility that he would be having back surgery, that the doctors had determined that it was a back injury.
Q. Okay. Did he ask you at that time whether you had made an entry on your calendar?
A. Yes, sir he did.
Q. And what did he say, as best you can recall?
A. He told me that it looked pretty certain that he would be having back surgery, and he asked me if I had — said, “Remember when I told you that I hurt my back, and you said you would make a note on the calendar?” and at this time, I told him, “No, I don’t remember.”
Q. You don’t remember that conversation?
A. No, sir, I do not.
[20] Claimant had attempted to continue working in spite of his difficulty, but by early February found it necessary to seek medical attention. A lumbar CT scan performed on February 7, 1996, yielded significant findings: “large HNP L5-S1 with mass effect on the root sleeve in the lateral recess region. Also there is HNP L4-5 into the neuroforamen on the right. There is a smaller abnormality than the disc herniation at L5-S1 but still may potentially be a painful lesion.” Conservative measures afforded claimant no significant relief, and he underwent a right-side L5-S1 decompressive lumbar hemilaminectomy and L5-S1 discectomy on March 11, 1996, performed by Dr. Richard S. Kyle. Claimant received permission to return to light duty as early as April 29, 1996, although he testified that no such duty was available. Upon claimant’s request, Dr. Kyle increased claimant’s allowable weight restriction to fifty pounds for five hours per day effective May 14, 1996, through September 27, 1996. [21] I am first of all persuaded that claimant’s testimony is entirely credible in and of itself and is also corroborated to a large extent by the additional credible testimony of Messrs. Wright and Crouse and Ms. Halsell. In my opinion, claimant’s credible account of the onset of his symptoms establishes that he sustained an accidental injury as the result of a specific incident identifiable by time and place of occurrence and arising out of his employment duties on January 18, 1996, when he attempted to remove a bolster plate from a “one-ten blitz.” In addition, from the presence of the L5-S1 disc herniation, I would find that claimant sustained an obvious “internal physical harm” to his body and has established a compensable injury with medical evidence supported by “objective findings.” Finally, given his eventual lumbar surgery, it is clear that claimant’s injury required him to seek “medical services” and resulted in a period of disability. I would thus find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on January 18, 1996. [22] Based on the foregoing, I must respectfully dissent. [23] PAT WEST HUMPHREY, Commissioner