CARRINGTON v. EARTH GRAINS OF LITTLE ROCK, 1997 AWCC 200

CLAIM NOS. E510014, E510015 E510016

ROBERT CARRINGTON, EMPLOYEE, CLAIMANT v. EARTH GRAINS OF LITTLE ROCK, EMPLOYER, RESPONDENT and CIGNA INSURANCE COMPANY, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 28, 1997

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

Claimant represented by DONALD RYAN, Attorney at Law, Little Rock, Arkansas.

Respondent represented by MICHAEL R. MAYTON, Attorney at Law, West Memphis, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed March 22, 1996 finding that the claimant sustained a compensable injury on July 8, 1994, on July 22, 1994 and on June 14, 1995. Based upon our denovo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on July 8, 1994, on July 22, 1994, and on June 14, 1995. In accordance therewith, we find that the respondent is not responsible for the hospital and medical expenses associated with the claimant’s back problems. Therefore, we hereby reverse the decision of the Administrative Law Judge.

[3] The claimant was employed by the respondent for sixteen years, the first fourteen of which he was employed as a maintenance person. The claimant was primarily engaged in preventative maintenance and the repair of machinery, such as ovens, flour systems, mixers, wrapping machines, conveyors and proofers. In December of 1993, the claimant was promoted to Assistant Chief Engineer, which was a managerial position.

[4] The claimant alleges he hurt his back on July 8, 1994, while he was disconnecting and removing a compressor with the help of two other employees. The claimant did not file a workers’ compensation claim although he knew how to file a claim and had received training on filing workers’ compensation claims. On July 13, 1994, the claimant received treatment from Dr. John D’Onofrio, a chiropractor. While at Dr. D’Onofrio’s office, the claimant completed and signed a health information form. On this form, the claimant stated that he had received previous chiropractic care and he indicated that he wanted to see Dr. D’Onofrio for back pain. The claimant also stated on the form that he had been suffering from back pain for 1 1/2 years and that the pain had been constant. The claimant also indicated on the form that he had suffered from similar conditions in the past and that all activities aggravated his condition. Furthermore, the form asked the claimant how long it had been since he really felt good to which the claimant replied two weeks. This would indicate that he started hurting on June 30, 1994, not on July 8, 1994. The claimant additionally indicated that he was involved in an automobile accident during the year preceding July 13, 1994.

[5] The claimant returned to work on July 20, 1994 after getting married and going on vacation. Upon his return to work, the claimant was assigned the task of organizing the maintenance shop and sorting through equipment the respondent received from Indianapolis. The claimant spent the next three work days on these tasks with the help of at least one other employee. The claimant testified that he was experiencing bad back pain by the end of his shift on Friday, July 22, 1994. The claimant visited the emergency room at St. Vincent Infirmary on July 23, 1994 due to the severity of his back pain. However, the claimant did not, once again, file a workers’ compensation claim.

[6] The medical records of the claimant’s July 23, 1994 emergency room visit reflect that the claimant told the admitting physician, Dr. Robert Porter, that his back pain started one week before. This indicates a date of July 16, 1994, not July 22, 1994. The medical records also indicate that the claimant had sought treatment from a chiropractor on July 22, 1994, and that the pain worsened after the chiropractic treatment. The records also indicate that the claimant denied that his back pain was the result of an injury. The claimant testified that he did not tell his medical providers that he suffered a work-related injury.

[7] Dr. Porter diagnosed the claimant with a herniated disc at L5-S1 and on August 18, 1994, Dr. Porter operated on the claimant. An MRI also revealed a small bulging at the L4-5 level to the right, but only the herniation at L5-S1 was symptomatic.

[8] The claimant continued to receive full pay while he was off work. The claimant returned to work on September 19, 1994 and the respondents provided light duty work which incorporated the claimant’s work restrictions prescribed by Dr. Porter.

[9] The claimant noticed modest improvement following the August, 1994 surgery. However, in April of 1995 he experienced a recurrence of back pain and on April 10, 1995, Dr. Berry Thompson diagnosed the claimant with a recurrent herniated disc at L5-S1. Dr. Thompson performed a re-exploration of L5-S1 and a discectomy at L5-S1 on April 21, 1995. This surgery completely eliminated the claimant’s back pain and on May 22, 1995, the claimant returned to light duty work for the respondent. The respondent again paid the claimant full wages while he was off work.

[10] The claimant testified that he did not report the alleged injuries of July 8, 1994 and July 22, 1994 to the respondent because he thought doing so would violate his probation. The claimant was under the impression that all new managers were subject to a probationary period. The claimant testified that he had only been a manager for seven months at the time of the alleged injuries and he was aware of the fact that there had been a substantial amount of “bogus” workers’ compensation claims filed with the respondent during the preceding year. He stated that he was concerned that he would be fired if he filed a workers’ compensation claim. However, the claimant testified that he was never told not to file a workers’ compensation claim. Bill White, the claimant’s supervisor, testified that the respondent’s policy is for an employee who is hurt to promptly file a workers’ compensation claim. Mr. White stated: “We have training. We have specific training for the management group that not only emphasize that point. But also showed you the nuts and bolts. How to do it exactly.”

[11] With reference to the probationary period the claimant referred to, Mr. White was asked: “If you get to be manager like he [the claimant] did in December of ’93. You’re a supervisor. Is there any kind of a watch period there that you got — like if you don’t cut it in six months you’re back to regular work?” Mr. White responded: “No. We do not allow people to step back. The union won’t allow them to step back.” Mr. White additionally testified that he never told the claimant he would be fired if he filed a workers’ compensation claim.

[12] Moreover, Mr. White further testified that the claimant’s concern that he would lose his job if he filed a workers’ compensation claim was unjustified. The claimant was a valued employee. The respondent initiated a big lay-off at some point after the claimant’s second surgery and the claimant was retained in spite of the fact he was off work for several months as a result of the two back surgeries. The evidence shows that the claimant was paid full salary while he was off work recuperating and that he was provided light duty work upon his return to work.

[13] On June 14, 1995, while replacing a glycol compressor with Harold Lincoln, the claimant alleged he reinjured his back. Mr. Lincoln testified that the claimant did not do a whole lot of physical heavy work on that day. On June 15, 1995, the claimant filed a workers’ compensation claim with respect to the alleged June 14, 1995 injury. Shortly thereafter, he filed claims with respect to the alleged injures he sustained in July of 1994.

[14] On June 19, 1995, the claimant sought treatment from Dr. Thompson for the alleged pain he was suffering as a result of the June 14, 1995 incident. Dr. Thompson took the claimant off work for a week and then returned him to light duty. Again, the claimant was paid full salary while he was off recuperating and was provided light duty work upon his return.

[15] The claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence. Therefore, the requirements of Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996) are controlling. The following requirements must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment. (Ark. Code Ann. § 11-9-102
(5)(A)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-401 (a)(1));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body. (Ark. Code Ann. § 11-9-102 (5)(A)(ii) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102
(16) (Repl. 1996), establishing the injury (Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (Ark. Code Ann. § 11-9-102
(5)(i) (Repl. 1996));

[16] 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. Based upon our denovo review, we find that the claimant failed to prove by a preponderance of the evidence that he sustained an injury which was caused by a specific incident and is identifiable by time and place of occurrence.

[17] The evidence simply does not support the claimant’s contention that his injury was work related. The claimant communicated to Dr. D’Onofrio on July 13, 1994 that his back condition arose 1 and 1/2 years earlier. This indicates he injured his back in January of 1993, not July 8, 1994 as he alleges. Evidence was also presented that the claimant had an automobile accident sometime in 1993. The claimant was also off work during this time for vacation and his honeymoon. Furthermore, the claimant continued working after the alleged injury and he failed to report an injury as being work related.

[18] With respect to the alleged injury of July 22, 1994 the claimant told his treating physician that the pain began a week earlier. This would indicate that the claimant injured himself on July 16, 1994. The claimant did not work on July 16, 1994, as he was on vacation. This would suggest that the claimant injured his back while he was on vacation.

[19] It is apparent that the pain the claimant experienced was worsened by chiropractic treatment the claimant received on July 22, 1994 and not by the claimant’s work activities from July 20, 1994 through July 23, 1994. The claimant specifically told Dr. Porter that his pain had been aggravated by chiropractic treatment and not by work activities. The claimant never told his treating physician that his injuries were caused by his work activities. In fact, the claimant denied that his back pain was the result of a work-related injury. Furthermore, the claimant, as a manager, was trained to file workers’ compensation claims, but he failed to do so until June 15, 1995. It is also of note that the claimant was paid his full salary by the respondents while he was off work due to the back problems and his health insurance covered the costs associated therewith.

[20] The claimant also alleges that he injured his back on June 14, 1995. Mr. Lincoln, a co-worker, testified that the claimant did not engage in much physical work that day. Additionally, there is no objective evidence that the claimant was injured on June 14, 1995, only subjective evidence consisting of the claimant’s complaints of pain and the results of tests that the claimant could manipulate. Objective studies, such as X-rays and MRI’s were not performed. In a medical record dated June 19, 1995, Dr. Thompson writes:

The weakness of the extensor hallucis longus is an L5 nerve root finding usually and this is the level above where he had his previous problem. This is of some concern at this point, but we do not think it is, at this point, definite enough to consider reevaluating him.

[21] On July 14, 1995, Dr. Thompson wrote: “As he is feeling better, I did not recommend any additional diagnostic studies today to assess whether or not the L4-5 disc is worse than it has been as I do not think we would recommend additional surgery at this time.” Accordingly, we find that the claimant has failed to prove that his alleged injury on June 14, 1995 is supported by objective medical evidence and that the medical opinions are not stated within a reasonable degree of medical certainty as required by Ark. Code Ann. § 11-9-102 (16) (Repl. 1996).

[22] Therefore, based upon our de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on July 8, 1994, on July 22, 1994, and on June 14, 1994. The opinion of the Administrative Law Judge is reversed and the claim is hereby denied and dismissed.

[23] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[24] Commissioner Humphrey dissents.

[25] DISSENTING OPINION
[26] I respectfully dissent from the majority’s opinion finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury as defined by Act 796 of 1993. I would affirm the decision of the Administrative Law Judge finding that the claimant sustained a compensable injury on July 8, 1994, a recurrence on July 22, 1994, and an aggravation of both the prior injury and a non-symptomatic herniated disc on June 14, 1995. I would find that the respondents are responsible for the hospital and medical expenses associated with the claimant’s compensable back injury.

[27] A de novo review of the evidence indicates that the claimant has shown by a preponderance of the credible evidence that he sustained a compensable injury which was caused by a specific incident and is identifiable by time and place of occurrence.

[28] The claimant was employed by the respondent employer as an Assistant Chief Engineer. Although this position was a “managerial” position, the claimant continued to perform job duties similar to those he performed before being promoted to his “managerial” position. He continued to perform preventative maintenance and repair of heavy machinery. Testimony of co-workers, his father and his wife corroborates the testimony of the claimant regarding the job duties being performed on the specific injury dates and that he told them he had injured his back. Furthermore, his actions and statements to co-workers are consistent with his contention that he sustained work-related injuries on the specific dates indicated. See Crawford v. Pace Industries,55 Ark. App. 60 (1996). Corroborating testimony establishes that the claimant’s testimony was credible, and he has proven by a preponderance of the evidence that his accidental injury arose out of and during the course of his employment and was caused by a specific incident that was identifiable by time and place of occurrence.

[29] Medical records made at the emergency room on July 23, 1994 state that the claimant indicated he denied suffering an injury and that his pain started approximately one week prior to his emergency room treatment. More than likely the claimant was referring to July 8, 1994 as when his pain had started, because it is easy to become confused about how much time has elapsed. Also, the fact that he thought that he had pulled a muscle explains why he denied any injury. It is common for someone to think of an injury as some sort of accident and not merely a muscle strain or sprain.

[30] The record also reflects that the claimant was involved in an automobile accident sometime in 1993. However, the record contains no indication that the claimant experienced back pain associated with this accident or that he had trouble performing his job following the car accident. In fact, the record indicates that the claimant injured his neck and shoulder in the car accident.

[31] Therefore, I would find that the claimant has proven by a preponderance of the evidence that the injury caused physical harm to the body, and that the medical evidence is supported by objective findings. Objective findings are defined in Ark. Code Ann. § 11-9-102 (16) (Repl. 1996) as “those findings which cannot come under the voluntary control of the patient.” An MRI and x-rays conducted prior to his August 16, 1994 surgery supported the diagnosis of a herniated disc at L5-S1 and a bulge at L4-5. An MRI conducted prior to his April 21, 1995 surgery supported the diagnosis of a recurrent herniated disc. X-rays and MRIs meet the statutory requirements of objective findings since they cannot come under the voluntary control of the patient. See Crawford v. Pace Industries, 55 Ark. App. 60
(1996).

[32] The Arkansas Court of appeals held in McDonaldEquip. Co. v. Turner, 26, Ark. App. 264, 766 S.W.2d 936
(1989), “when the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable.” A recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. See Pinkston v. General TireRubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990). I would find that the July 22 claim and the April 21, 1995 surgery were a recurrence of the compensable injury the claimant sustained on July 8, 1994. The claimant was never symptom free after the initial injury until after the April 21, 1995 surgery.

[33] Dr. Thompson, also noted that the June 14, 1995 work incident had worsened the claimant’s symptoms related to his other herniated disc and was a continuing and ongoing problem relating back to his initial symptoms when he was treated by Dr. Porter. Therefore, I would find that the June 14, 1995 claim was an aggravation. An aggravation occurs if the second period of disability is the result of a second incident which contributes independently to the injury, the injury is a new one for which the employer becomes liable. Bearden Lumber Co. v. Bond, 7 Ark. App. 65
(1983). The evidence also shows that the claimant experienced more and more pain as a result of the work related injuries of July 8, 1994 and June 14, 1995.

[34] Ark. Code Ann. § 11-9-701 (a)(1)(3) and (b)(1)(A) provide,

Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer on a form prescribed or approved by the Workers’ Compensation Commission and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to receipt of the employee’s report of injury.

* * *

Failure to give the notice shall not bar any claim: If the employer had knowledge of the injury or death;

[35] The claimant did not file a workers’ compensation claim until after the June 14, 1995 aggravation. The claimant testified that he did not report his injuries because he thought he was on probation as a manager. He had only been a manager for seven months at the time of the injuries. He also testified that he was aware of the fact that there had been a substantial amount of “bogus” workers’ compensation claims filed with the respondent during the preceding year. He stated that he was concerned that he would be fired if he filed a workers’ compensation claim. Testimony from the claimant’s father substantiates his testimony. The claimant received full salary while he was off work recuperating. Although the claimant did not file a workers’ compensation claim, he did tell co-workers and his supervisor that he had hurt himself following both the July 8, 1994, and the June 14, 1995 incidents. On both occasions the claimant was working with coworkers and he relayed to them that he had hurt his back. On July 8, 1994 the claimant told Harold Lincoln, who was also in management that he had injured himself. His direct supervisor also visited him while he was in the hospital recuperating from back surgery. In regards to the June 14, 1995 incident he again told his supervisor he had injured himself. The supervisor testified that until the claimant actually told him that he had injured his back any knowledge he had of his or any other employee’s injury was considered to be indirect. Therefore, I would find that the employer had knowledge of the injury, which is an exception to the notice requirement.

[36] Based upon my de novo review of the entire record and without giving the benefit of the doubt to either party, I would specifically find that the claimant has met his burden of proof. Therefore, I respectfully dissent.

[37] PAT WEST HUMPHREY, Commissioner