CLAIM NO. E404946
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 14, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE TODD WILLIAMS, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE GLENN W. JONES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on March 14, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a compensable back injury. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury.
[4] If the employee fails to establish by a preponderance of the evidence any of these requirements, he fails to establish the compensability of the claim, and compensation must be denied. [5] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that his back problems are causally related to his employment with the respondent employer. Furthermore, even if we were to conclude that the claimant’s employment contributed to his condition to some extent, we find that the employment was not the major cause of the disability or need for treatment. [6] The claimant was twenty-two years old at the time of the hearing, and the claimant was employed by the respondent employer from December 17, 1993 through December 24, 1993, to sort mail flown into Blytheville during the Christmas season. His duties required him to lift and throw mail bags weighing anywhere from 1 pound to 90 pounds. He also handled trays and flats filled with mail. According to his testimony, he noticed after the first day or two that his back was hurting when he went to his motel room after work each day. He attributed the problems to the physical labor that he was doing, and he tried to alleviate the pain by putting “Icey-Hot” on his back and by taking hot baths. Despite the severity of the problems described by the claimant, he continued working, and he did not report the problems to the respondent employer. [7] According to the claimant’s testimony, he first began to experience leg symptoms when he was driving back to his home after his employment with the respondent employer had ended on December 24, 1993. He also testified that he was in such extreme pain when he arrived home that he spent most of the night lying on the floor trying to alleviate the pain. In addition, he testified that these problems persisted and gradually worsened. As a result of these problems, he sought treatment from Dr. Kenneth Tonymon, a neurosurgeon, on January 24, 1994. Diagnostic testing ordered by Dr. Tonymon revealed a small herniated nucleus pulposus at L4-L5. However, the claimant’s symptoms did not correlate with these findings, so Dr. Tonymon concluded that surgery was not indicated. Instead, he referred the claimant to Dr. Marck Hackbarth, an anesthesiologist specializing in pain control. The claimant also sought treatment from Dr. Zachary Mason, a neurosurgeon, on March 8, 1994. Dr. Mason’s reports indicate that the claimant’s symptoms had changed since Dr. Tonymon’s evaluation, and, at the time of Dr. Mason’s examination, the symptoms were consistent with the diagnostic findings. Consequently, Dr. Mason concluded that surgery was warranted, and he performed a lumbar laminectomy and discectomy on March 16, 1994. [8] In concluding that the claimant failed to prove that his back problems are causally related to his employment with the respondent employer, we note that the claimant has made numerous inconsistent and admittedly false statements regarding the onset of his back pain and his past history of back problems. In this regard, the evidence establishes that the claimant has a long history of low back problems, he first began experiencing low back pain in 1987, when he was fifteen years old. He obtained treatment for these problems from a chiropractor and he continued to receive periodic chiropractic treatment into 1993 for low back problems as well as problems with other areas of his spine. Moreover, the chiropractor’s reports document a specific injury to the claimant’s thoracic spine when he was playing basketball. More significantly, the chiropractor’s reports document the occurrence of specific injury to the claimant’s lumbar spine in February of 1993, while the claimant was lifting weights. The claimant admitted that he injured his low back in February of 1993 lifting weights, and he admitted the prior history of back problems. However, the claimant attempted to diminish the significance of these problems, and he denied the basketball injury. The claimant’s mother also testified that the claimant had experienced back problems in the past, but she also tried to diminish the significance of these problems. The claimant’s wife denied any knowledge of any prior back problems, including the February of 1993 weight lifting incident, and she denied any knowledge that he had received chiropractic treatment. [9] The claimant’s admission of prior back problems, including at least one specific injury in February of 1993, is inconsistent to his responses to interrogatories propounded by the respondents. In these responses, he stated that he had never sustained any type of injury prior to his employment with the respondent employer. Furthermore, in these responses, he made the following statements:(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102
(5)(A)(ii) (Cumm Supp. 1993); Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Cumm. Supp. 1993));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body (see, Ark. Code Ann. § 11-9-102 (5)(A)(ii) (Cumm. Supp. 1993));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102
(16), establishing the injury (see,
Ark. Code Ann. § 11-9-102 (5)(D) (Cumm. Supp. 1993));
(4) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment (see, Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Cumm. Supp. 1993)).
[10] Moreover, the history which the claimant initially related to his medical care providers is not consistent with his contention that his problems began during the eight days that he worked for the respondent employer. In this regard, Dr. Tonymon testified that the first procedure he routinely uses in evaluating to diagnosis the complaints of any patient is to obtain a thorough history of the patients problems. Dr. Tonymon’s testimony and records also indicate that he adhered to this procedure when he first examined the claimant, and, according to his testimony and records, the claimant “stated that he developed severe low back pain and some lower extremity pain in the summer of 1993.” Dr. Tonymon’s records also indicate that the claimant “stated that he had had intermittent back problems and at that time did not relate any particular incident or injury.” Notably, the claimant was working long hours on his family’s farm during the summer of 1993, and his duties on the farm consisted of heavy manual labor, including activities such as maintenance of heavy equipment, loading seed bags weighing 50 to 60 pounds, and repairing rice levies with a shovel. Also worthy of note, the claimant began working on his family’s farm when he was approximately 13 or 14 years old, only shortly before he first began experiencing back problems requiring chiropractic treatments. In any event, the claimant testified that he talked to his insurance agent prior to seeing Dr. Tonymon, and he testified that his agent advised him not to claim a work related injury because he would have difficulty proving a compensable injury since his condition was not caused by a specific incident and because acknowledging a work related injury would delay the receipt benefits under his private health insurance plan. Although this testimony and other testimony by the claimant suggests that he intentionally withheld pertinent information regarding the history of his problems from Dr. Tonymon, the claimant subsequently testified that he did tell Dr. Tonymon about the work and the onset of leg pain while driving home from Blytheville. [11] Dr. Hackbarth’s initial office note of February 3, 1993, does contain the following statement:I have never had any physical problems prior to this job. I have never been treated for back problems.
[12] However, even this statement suggests that the claimant was experiencing pain prior to his employment with the respondent employer, contrary to his contention in this claim and consistent with the statements he made to Dr. Tonymon regarding the onset of pain during the Summer of 1993. [13] The claimant also failed to related his problems to his employment when he first sought treatment from Dr. Mason on March 8, 1993. On a patient questionnaire completed and signed by the claimant, he indicated that the condition was not the result of an injury at work. Instead, he stated that it was the result of “other injury.” In addition, when asked to give the date and a brief description of the injury, the claimant stated “no date, just an ongoing situation.” On April 4, 1993, after the claimant had undergone surgery, the claimant described his work for the respondent employer to Dr. Mason in detail, and he told Dr. Mason that he had never had any problems with his back prior to the lifting episode, which was patently false in light of his admissions at the hearing in the matter. Dr. Mason acknowledged that he was not aware of the claimant’s prior back problems or the chiropractic treatment that he received. Based on this erroneous history, Dr. Mason has opined that the claimant’s employment activities are the cause of the herniated nucleus pulposus. With regard to the addendum to Dr. Mason’s records which sets forth this amended history, Dr. Mason testified that the claimant came to him and asked that this information be included in his records because he had decided that he was going to file a workers’ compensation claim. [14] The testimony of the claimant’s supervisor during his eight days of employment, Barbara Cuba, is also inconsistent with a conclusion that the claimant’s problems began during the time period. Although the claimant and his cousin both testified that they were not advised regarding the procedure for reporting injuries, Ms. Cuba testified that she held daily meeting with all employees, and she testified that all employees were advised that any injuries, regardless of how small, were to be reported. Ms. Cuba also testified that the claimant was frequently in her office asking to take time off, to begin work late, or to leave early, and she testified that he frequently complained that he was having to perform duties that he was not hired to perform. However, she testified that he never mentioned any back problems. [15] As discussed, Dr. Mason has opined that the claimant sustained the herniated disc as a result of the lifting the claimant did while employed by the respondent employer. However, this opinion is based solely on his conclusion that such lifting is sufficient to cause such a herniation and on his acceptance of the claimant’s amended history. On the other hand, Dr. Tonymon has opined that the herniation was not caused by the lifting done by the claimant while employed by the respondent employer. While Dr. Tonymon acknowledges that such a herniation “possibly” could be caused by such lifting, his opinion is based on the fact that the claimant gave him a history of problems beginning in 1993 and the fact that the claimant failed to give any emphasis to the lifting in December. [16] In short, other than the testimony of the claimant and his family, there is no evidence suggesting that the claimant related his back problems to his employment with the respondent employer until after the March 16, 1994, surgery. Instead, the evidence shows that the claimant was uncertain of the cause of the problems and that he placed minimal emphasis on the effect of his employment with the respondent employer on his back condition prior to the surgery. In this regard, we recognize that the claimant contends that he called the home office of the respondent employer prior to the surgery and at the time that he first sought treatment, and the claimant has submitted copies of telephone bills showing that calls were made to the city where the home office is located. However, this telephone statement reveals nothing about the subject matter of the conversations. Furthermore, Ms. Cuba denied any knowledge of an employee of the respondent employer with the name of the employee the claimant contends he talked to. [17] Moreover, due to the claimant’s inconsistent statements and to his admitted attempts to conceal his past history of back problems, we find that his testimony lacks credibility and that it is not entitled to any weight. Likewise, we find that the testimony of the claimant’s family is entitled to minimal weight. Clearly, these witnesses are interested in the success of the claimant due to the close family ties. Furthermore, the credibility of their testimony is diminished by inconsistent and contradictory statements. For example, the claimant’s mother and his wife both testified that the claimant told them during the eight days that he was in Blytheville that he was experiencing leg problems. However, this statement is inconsistent with the claimant’s own statement and the statement of his cousin regarding the onset of his leg problems. As another example, the claimant’s wife testified that she was present when the claimant was examined by Dr. Tonymon and that she heard the claimant relate his problems to Dr. Tonymon. However, the claimant’s mother testified that his wife was unable to go due to complications she was experiencing with a pregnancy, and Dr. Tonymon’s reports makes no mention of the wife being present. [18] Consequently, we find that the claimant failed to prove by a preponderance of the evidence of the credible evidence that his back problems are causally related to his short employment with the respondent employer. Moreover, even if we were to conclude that the employment contributed to the back problems to some extent, which we do not find, we would find that the claimant failed to prove by a preponderance of the evidence that the employment was the major cause of the disability or need for treatment. In this regard, the medical evidence show that disc fragments revealed degenerative disc disease which exceeded that normally found in a man of the claimant’s age, and the evidence establishes that the claimant has a long history of prior back problems. Considering this disc disease and history of back problems, Dr. Tonymon and Dr. Mason both indicated that the claimant was highly susceptible to a herniation, and they indicated that almost any activity possibly could have resulted in the herniation. Moreover, the evidence shows that the claimant engaged in other very physical activities, such as farming and weight lifting on a daily basis. Therefore, we find that the claimant failed to satisfy the requirements necessary to establish a compensable injury under the Arkansas Workers’ Compensation Law, as amended by Act 796 of 1993. [19] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable back injury. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed. This claim is denied and dismissed. [20] IT IS SO ORDERED.The patient states that the pain became progressively worse since December of 1993 after lifting heavy bags, there was no precipitating event but the patient states that after he lifted bags at work each day his pain in the evening became progressively worse as each day of work continued.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[21] Commissioner Humphrey dissents.