CLAIM NO. F400147
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 10, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE CAROL WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion that was filed on November 8, 2004. Specifically, the administrative law judge found, among other things, “The claimant has proven by a preponderance of the evidence that he sustained a right hand fracture on December 22, 2003, while working for the respondent. The claimant did not report a work related (sic) until December 26, 2003. The respondent should pay for medical treatment for this claimant’s right hand from December 26, 2003, through the treatment of Dr. Coker on January 21, 2004.” After reviewing the entire record de novo, the Full Commission finds that the claimant did not prove that he sustained a compensable injury, in the form of a right hand fracture on December 22, 2003, while working for the respondent. We therefore reverse the opinion of the administrative law judge.
I. History
The claimant, age 40, had worked for the respondent for a little over a year as of December 22, 2003, at which time the claimant alleges to have injured his right hand while breaking down corrugated syrup boxes.
A review of the medical evidence shows that the claimant did not seek medical treatment for his alleged injury until the next day, on December 23, 2003. At that time, the claimant sought treatment from Washington Regional Medical Center, in Fayetteville, where x-rays were taken of the claimant’s right hand, which revealed the following:
IMPRESSION:
Fracture of the midshaft of the right fifth metacarpal with mild displacement and moderate volar and lateral angulation.
On December 25, 2003, the claimant was seen again at Washington Regional Medical Center, under the care and treatment of Dr. Rebecca Barrett. According to medical notes from Dr. Barrett on that date, upon physical examination, she found the claimant to have swelling and bruising of his fifth metacarpal. Dr. Barrett’s final diagnosis was “right hand fracture/boxer’s fracture,” for which she recommended that the claimant seek follow-up treatment from Dr. Benefield at the Ozark Orthopedic Clinic. Subsequently, the claimant underwent treatment with Dr. Tom Patrick Coker due to his alleged work-related injury. On July 28, 2004, Dr. Coker essentially reported that he had treated the claimant on January 21, 2004 due to a boxer’s fracture that he had suffered on December 22, 2003, while trying to open a box at work. Dr. Coker further reported that he had not seen the claimant since that time and he did not anticipate any further medical treatment, nor did he anticipate that the claimant would have any permanent impairment.
Although the claimant maintains that he injured his right hand while working on December 22, 2003, as he broke down corrugated syrup boxes, the respondent has controverted the claim in its entirety. Therefore, a hearing before the Commission was held in this matter on September 7, 2004.
At the hearing, the claimant gave testimony. The claimant essentially testified that on December 22, 2003, he injured his right hand while breaking down a coke syrup box.
Specifically, on cross-examination, the claimant testified:
Q. Okay. And you’re saying you were injured on December 22nd. Is that right?
A. Yes.
Q. And you said it was between lunch and two. That — is that what you said today?
A. Yes.
Q. Do you remember telling me in your deposition that it was around ten o’clock?
A. Oh, well, yes I do. I apologize.
Q. So what time was it?
A. It was ten o’clock, yes.
Q. And tell us how you injured yourself, specifically.
A. I was breaking down a coke syrup box.
Q. Describe the box for me, if you will.
A. It was one of those heavy 200-pound boxes that are corrugated.
Q. And how were you breaking it down?
A. I was breaking it down with my fist, but —
Q. So you were punching it?
A. Yes, break it down because it was extra hard, thick.
Q. And where was the box when you were punching it?
A. In the back room.
Q. Was it on a table, a floor?
A. Floor.
Q. In your hands?
A. It was on the floor.
Q. So it was on the floor.
A. Yes.
Q. And so you were punching directly on the floor?
A. Yes.
Q. There was no space between the box and the floor?
A. A little bit, but not much.
According to the claimant, “he did not notice pain in his hand right off the bat,” but he noticed it the next day, as his hand was hurting a little bit more than usual. However, the claimant denied any visual effects, such as bruising or discoloration or anything of that nature on the day of the alleged incident.
Although the claimant worked the following day after the incident, which was December 23, 2003, he admitted to not reporting the incident to management until December 26, 2003, at which time he gave notice of his alleged injury to a manager, whom he referred to as Melanie. According to the claimant, he told Melanie that he had been to the doctor earlier in week and that he had a boxer’s fracture. Upon being questioned about the specifics of what he had told Melanie, the claimant testified that he told her that he had hurt his hand the other day while breaking down boxes.
The claimant further testified that he received additional treatment for his alleged injury at Washington Regional Medical Center on Christmas day under the care of Dr. Barrett. However, the claimant denied having reported to Dr. Barrett or telling anyone that he had injured his hand after becoming angry with his wife and hitting the wall. The claimant testified that he was off work for about a week due to his injury, however, he further testified that he was asking for payment of his medical bills only.
Jason Brent Kirkland, the general manager, at Burger King also gave testimony during the hearing. According to Mr. Kirkland, on the day of the alleged incident, he worked with the claimant, but he denied seeing the claimant hit the box. However, Mr. Kirkland did admit that the claimant was required as part of his job description to break down boxes, but he further testified that it would be ill-advised to break down the box or punch it down.
Prior to the hearing, a prehearing conference was held, and as a result, a Prehearing Order was entered in this matter on June 24, 2004. The following stipulations were submitted by the parties, and accepted by the administrative law judge:
1). The Arkansas Workers’ Compensation Commission has jurisdiction in this claim.
2). On December 23, 2003, the relationship of employee-employer-carrier existed between the parities.
3). The claimant is entitled to a weekly compensation rate of $152 for temporary total disability and permanent partial disability.
By agreement of the parties, they stipulated that the issues to be litigated at the hearing were limited to the following:
1). Compensability of the claimant’s right hand injury.
2). Related medical.
3). The respondent was not given notice of his injury until December 26, 2003.
At the hearing, the claimant contended that he is entitled to benefits for the injury to his right hand.
In contrast, the respondents contended that the claimant did not suffer an accidental injury under the Arkansas Workers’ Compensation Act.
After a hearing before the Commission, the administrative law judge found, among other things, “The claimant has proven by a preponderance of the evidence that he sustained a right hand fracture on December 22, 2003, while working for the respondent. The claimant did not report a work related (sic) until December 26, 2003. The respondent should pay for medical treatment for this claimant’s right hand from December 26, 2003, through the treatment of Dr. Coker on January 21, 2004.”
The respondent appeals to the Full Commission.
II. ADJUDICATION
The claimant contends that he sustained a compensable injury to his right hand while working for the respondent on December 22, 2003. Ark. Code Ann. § 11-9-102(4)(A) defines compensable injury as:
(i) 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 the time and place of occurrence[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). The claimant bears the burden of proof in establishing a compensable injury and must sustain that burden by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(E)(i).
Our review of the evidence demonstrates that the claimant did not sustain an injury to his right hand, in the form of a fracture/boxer’s fracture, while working for the respondent on December 22, 2003. The only evidence to support the claimant’s claim of an alleged compensable injury to his right hand on that date is the claimant’s own self-serving testimony.
Questions concerning the credibility of witnesses and the weight to be given their testimony are within the exclusive province of the Commission. White v. Gregg Agricultural Ent.,72 Ark. App. 309, 37 S.W.3d 649 (2001). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and determine the true facts. Id.
The Commission is not required to believe the testimony of the claimant or any witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.
In the present matter, we do not find the claimant to be a credible witness. Specifically, there is no plausible excuse for the claimant not having properly reported his alleged injury, as he waited some four days before reporting the alleged injury to the respondent/management. The evidence clearly demonstrates that the claimant had ample opportunity to report an injury on the day of the alleged injury and on the day following the alleged injury, but for unexplained reasons failed to do so. It is specifically noted that the claimant did not seek treatment for his alleged injury until the next day, and there is absolutely no mention of a work-related injury in the initial medical records from Washington Regional Medical Center. Moreover, we do not think that treating physicians, Dr. Barrett’s and Dr. Coker’s diagnosis (fracture/boxer’s fracture) of the claimant’s right hand is consistent with his report of the incident. It is also noted that the claimant gave inconsistent testimony as to the time that this alleged incident happened.
We recognize Dr. Coker’s opinion that the claimant suffered a boxer’s fracture on December 22, 2003, while working. However, the Full Commission is entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and medical evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). In the present matter, the Full Commission places minimal weight on Dr. Coker’s opinion concerning this matter because it was based on an inaccurate history provided him by the claimant.
With this in mind, considering the fact that the initial medicals do not corroborate the claimant’s testimony, the claimant gave conflicting testimony concerning the time that this alleged incident happened, he did not make a timely report to the respondent of the alleged injury, the claimant did not seek immediate treatment for his alleged injury, and because Dr. Barrett’s and Dr. Coker’s clinical diagnosis of a boxer’s fracture is not consistent with his report of the incident, the Full Commission finds that the claimant failed to prove by a preponderance of the credible evidence that his injury resulted in the course of and arose out of his employment with the respondent.
Therefore, based on our de novo review of the entire record, the Full Commission finds that the claimant did not prove by a preponderance of the credible evidence that he sustained a compensable injury, in the form of a right hand fracture on December 22, 2003, while working for the respondent. We therefore reverse the administrative law judge’s opinion, and we hereby dismiss this claim.
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.