CLAIM NO. E510102
JOHNNY F. CARTER, EMPLOYEE, CLAIMANT v. GEORGIA-PACIFIC CORP., SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 8, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Respondent represented by MARK ALAN PEOPLES and JAMES M. GARY, Attorneys at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Respondent appeals a January 30, 1996 opinion of the Administrative Law Judge finding that claimant is entitled to benefits for an injury to his left knee.
[3] Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Jordan v. Tyson Foods, Inc.,
51 Ark. App. 100,
911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission.Grimes v. North American Foundry,
42 Ark. App. 137,
856 S.W.2d 309 (1993); 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 met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
[4] The only issue on appeal is whether claimant’s left knee difficulties are causally related to his employment. Claimant was the only witness to testify at the hearing and we find his testimony to be entirely credible.
[5] Claimant has been an employee with this employer for approximately 33 years. His duties involved working on boilers. On or about September 24, 1994, claimant slipped on a wet floor and twisted his left knee. He immediately notified his foreman of the injury. Claimant did not seek medical treatment for approximately six weeks because he thought he had merely sprained his knee and would eventually get over it. Claimant testified that he was “trying not to have to go [to a physician] where it would be against the company.” Claimant testified that he initially used over-the-counter pain medications. However, his pain continued to worsen over time with increased activity such as climbing stairs or ladders and walking rapidly. In April 1996, claimant experienced a considerable increase in his symptoms while walking rapidly during a treadmill stress test. As result of his knee difficulties, claimant was temporarily and totally disabled from April 27 through May 27, 1995.
[6] Claimant denied ever having any prior difficulties with his left knee. However, records prepared by Dr. Toon in 1980 indicate that claimant complained of lower back pain radiating down the left leg and into the knee. Reports in November and December of 1984 document problems with his left knee. Claimant explained that he has never had left knee problems prior to the compensable injury. He added that he had been to Dr. Toon in 1991 for right knee pain after a cow ran into him. Claimant testified that he cannot explain why Dr. Toon documented left knee pain but insisted that a mistake had been made. Regardless of whether Dr. Toon’s reports are entirely accurate, we find that based on claimant’s credible testimony, he has proven by a preponderance of the evidence that in September 1994, he sustained an injury arising out of and in the course of his employment.
[7] Respondent alternatively contends that claimant’s increased knee difficulties following the treadmill stress test constitute an aggravation or an independent intervening cause of his condition, thereby absolving them of any additional liability for compensation benefits. We find that respondent’s argument is without merit.
[8] The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or was it precipitated by an independent intervening cause. Bearden Lumber Co. v. Bond,
7 Ark. App. 65,
644 S.W.2d 321 (1983). Where “there is a causal connection between the primary injury and the subsequent disability . . . there is no independent intervening cause less the subsequent disability is triggered by an activity on the part of the claimant which is unreasonable under the circumstances.” Guidry v. J R Eades Construction Co.,
11 Ark. App. 219,
669 S.W.2d 483 (1984).
[9] Claimant presented credible testimony that he did not reinjure his left knee during the treadmill stress test. He was already experiencing pain; the pain simply increased the faster he walked on the treadmill. Further, in a report dated June 28, 1995, Dr. Toon opined that the September 1994 compensable injury caused claimant’s period of temporary total disability in April and May of 1995. Therefore, we find that claimant experienced a mere recurrence of his preexisting condition and respondent remains liable for benefits.
[10] Finally, respondent argues that claimant was not performing employment services while walking on the treadmill and should be denied benefits pursuant to Ark. Code Ann. §
11-9-102 (5)(B)(ii) (Repl. 1996). The short answer to this argument is that since claimant’s condition represents a recurrence of his preexisting condition, he did not necessarily have to be performing employment services in order to continue his entitlement to additional benefits.
[11] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that he is entitled to compensation. 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 legal 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.
[12] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[13] Commissioner Wilson dissents.
[14] DISSENTING OPINION
[15] I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury to his left knee thereby entitling him to temporary total disability benefits from April 27, 1995, through May 27, 1995. Based upon my de novo review, I find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury arising out of and in the course of his employment as required by Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996).
[16] The claimant is employed by the respondent as a B Operator and he has worked for the respondent since 1964. His job duties require him to work on boilers. The claimant testified that on September 24, 1994, he was in the process of procuring a water sample when he slipped and turned his left knee. The claimant testified that there was algae in the water causing it to be slippery. The claimant stated that he felt immediate pain and notified his supervisor of the incident. There were no witnesses to the alleged incident. The claimant did not seek medical attention and he continued to perform his regular work duties. The claimant testified that he felt that he had only sustained a strain and that it would get better. The claimant testified that he sought treatment for his left knee from Dr. Toon and he received medication. He additionally testified that he was provided light duty work by the respondent’s supervisory personnel.
[17] On April 27, 1995, the claimant sought medical attention from Dr. D. L. Toon for a heart condition. The claimant was walking on a treadmill when he began experiencing pain in his left knee. The claimant testified that as the treadmill speeded up, his left knee became progressively worse. The claimant was taken off work by Dr. Toon who also referred the claimant to Dr. Myron Bailey, an orthopedic physician. The claimant returned to work on May 27, 1995, and continues to work for the respondent. The claimant testified that, although he has returned to his regular employment duties as a B Operator, he is assisted by co-workers with respect to activities involving climbing stairs and ladders. He stated that he continues to have problems with his left knee.
[18] 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));
[19] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v.Comles,
41 Ark. App. 47,
849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K.Processing, Inc. v. Servold,
265 Ark. 352,
578 S.W.2d 224
(1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. §
11-9-704 (c)(2) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. §
11-9-704; Wade v. Mr. C Cavenaugh’s,
298 Ark. 363,
768 S.W.2d 521 (1989); and Fowler v. McHenry,
22 Ark. App. 196,
737 S.W.2d 663 (1987).
[20] 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.
[21] I find that the claimant failed to prove by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment. The claimant’s testimony is the only evidence presented that supports his contention that the cause of his knee swelling on April 27, 1995, was the alleged incident on September 24, 1994.
[22] The claimant denied having ever injured his left knee or having received medical treatment for his left knee before September 24, 1994. However, the chart notes of Dr. Toon indicate that the claimant complained of pain in his left knee as early as August 25, 1980. The claimant additionally sought treatment from Dr. Toon for problems associated with his left knee on September 4, 1980, November 28, 1984, December 5, 1984, and December 13, 1984. The claimant emphatically denied having any problems with his left knee prior to September 24, 1994. However, he admitted that he had problems previously with his right knee. When the claimant was questioned about the discrepancy in his testimony and Dr. Toon’s records, he stated that Dr. Toon “must have been mistaken” when he wrote “L” for left on the chart. (Tr. 15).
[23] Decisions as to the credibility of the witnesses are solely within the trier of fact. Blevins v. SafewayStores,
25 Ark. App. 297,
757 S.W.2d 569 (1988). 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 my opinion, the claimant’s testimony lacks credibility. He testified that the doctor made a mistake when he wrote down left knee instead of right knee. However, I am hard pressed to believe that Dr. Toon would make that mistake five times in four years. The medical evidence simply does not support the claimant’s contention that he did not have problems with his left knee prior to September 24, 1994. The records of Dr. Bailey, from whom the claimant sought treatment from after the April 27, 1995 incident, indicate that the claimant injured his knee on the treadmill. The evidence simply does not support the claimant’s contention that the treadmill incident on April 27, 1995, is causally related to the alleged work-related incident on September 24, 1994. Accordingly, I find that the claimant failed to prove by a preponderance of the evidence that he sustained a work-related injury on September 24, 1994.
[24] The respondent also argues that if the Commission found that the claimant sustained a work-related injury on September 24, 1994, the benefits he currently seeks are not causally related to that injury. The claimant continued to perform his regular job duties for approximately seven months following the alleged injury. Dr. Toon’s chart notes do not indicate that the claimant was experiencing problems with his left knee after September 24, 1994. The claimant stated that he sought treatment from Dr. Toon before the treadmill incident. However, Dr. Toon’s records indicate that the claimant did not seek treatment from Dr. Toon until April 21, 1995, and this was only to get a prescription for blood pressure medication refilled. The claimant had a history of medical problems with his left and right knees. The claimant denies injuring his knee on the treadmill. However, his credibility is unreliable and insufficient to sustain his burden of proof.
[25] In my opinion, the incident which triggered the claimant’s disability is not related to his work with the respondent and the evidence does not establish a causal connection between the claimant’s work and his claim for benefits. The evidence clearly shows that the claimant was performing an activity that was not related to his employment with the respondent. Ark. Code Ann. §
11-9-102
(5)(B) (Repl. 1996) specifically excludes injuries that occur at a time when employment services are not being performed. The claimant was seeing Dr. Toon on April 27, 1994, for a heart condition. The treadmill test was being performed in conjunction with his heart problems. The claimant admitted that his heart condition was not in any way related to his work for the respondent. Accordingly, I find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Therefore, I respectfully dissent from the majority opinion.
[26] MIKE WILSON, Commissioner
