CROCKER v. WACO MANUFACTURING, INC., 1997 AWCC 94

CLAIM NO. E408153

DAVID R. CROCKER, EMPLOYEE, CLAIMANT v. WACO MANUFACTURING, INC., EMPLOYER, RESPONDENT and GRANITE STATE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 6, 1997

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

Claimant represented by ROLAND E. DARROW, Attorney at Law, Little Rock, Arkansas.

Respondents represented by FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned case on June 29, 1995, finding that claimant sustained a compensable injury on April 1, 1994, and was entitled to temporary total disability benefits from April 9, 1994, through the end of June, 1994.

[3] Respondents now appeal from that opinion and order, contending that claimant has failed to meet his burden of proof for establishing a compensable injury under the provisions of Act 796 of 1993. [4] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he did sustain a compensable injury on April 1, 1994. The decision of the Administrative Law Judge must therefore be affirmed. [5] Claimant contended at the hearing below that he sustained an injury to his right wrist while helping Mr. Chester Bellamy, the owner of a marina in Thomasville, Georgia, unload boats that claimant had just delivered. According to claimant, Mr. Bellamy:

. . . didn’t tell me he was going to turn it over and my hands up in the handle on the back of the boat when he flipped it. I couldn’t get my hand out fast enough and I called him a few names . . . When he flipped the boat over my hand was under the handle, it just — it locked it and turned it until it wouldn’t turn no more and I grabbed the boat and yanked it out of his hands.

[6] Mr. Bellamy, during his deposition, denied any specific recollection of claimant sustaining this injury or of himself being called any names. [7] Claimant eventually managed to see Dr. Aniel House, who referred him to Dr. Reed Kilgore. Dr. Kilgore ordered an arthrogram which, by the presence of leakage “between the mid-carpal row and the proximal carpal or the radial carpal joint,” suggested a “ligamentous disruption.” Dr. Kilgore managed claimant conservatively for some time without significant success, and eventually referred him to Dr. Ed Weber, a hand specialist. Dr. Weber diagnosed claimant with a “lunotriquetral tear of the right wrist,” and recommended surgical intervention in a December 30, 1994, letter to claimant’s attorney. [8] Claimant’s injury occurred after July 1, 1993, and Act 796 of 1993 is applicable to the facts of this case. To establish a compensable injury under that Act, claimant must demonstrate that he has sustained an “accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical service or results in disability or death.” In addition, an injury will be considered “accidental” only if it is “caused by a specific incident and is identifiable by time and place of occurrence.” Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996). [9] Also, a compensable injury “must be established by medical evidence, supported by `objective findings.'” Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996). In turn, “objective findings are those findings which cannot come under the voluntary control of the patient . . . Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Ark. Code Ann. § 11-9-102 (16) (Repl. 1996). A claimant’s burden of proof concerning these issues is to demonstrate them by a preponderance of the evidence. Ark. Code Ann. § 11-9-102 (5)(E)(i) (Repl. 1996). [10] Although respondents assert that claimant has failed to present any medical opinions “stated within a reasonable degree of medical certainty” to support his claim for compensability, we note from the outset that this case hinges primarily on matters of credibility. [11] Nevertheless, we would point out that this Commission has specifically recognized that medical opinions are not necessary to establish compensability. Instead, Ark. Code Ann. § 11-9-102 (16)(B) (Repl. 1996) requires only that if a medical opinion is offered, it must be stated with a reasonable degree of medical certainty. See KeithCrawford v. Pace Industries, Full Workers’ Compensation Commission, Opinion Filed August 10, 1995 (Claim No. E318131) (aff’d on other grounds; Crawford v. Pace, 55 Ark. App. 60, 929 S.W.2d 727 (1996)). Essentially, causal connection remains a matter of inference, and medical evidence is not required to establish it. See Osmose WoodPreserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992) and Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). [12] As for the merits of the case, we specifically find that claimant’s account of a wrist injury on April 1, 1994, is credible. From that account, we additionally find that claimant did sustain a compensable wrist injury as the result of a specific incident identifiable by time and place of occurrence, and that said injury arose out of and in the course of his employment. Claimant’s description of his injury is consistent and detailed, and we are not persuaded to find otherwise simply because Mr. Bellamy claims not to remember any such incident. Mr. Bellamy’s deposition was taken over a year after the injury occurred, and claimant has testified that Mr. Bellamy’s attention was occupied by several customers and other matters at the time the boats were being unloaded. In addition, because claimant essentially contends that Mr. Bellamy’s conduct led to his injury, the latter’s testimony is far from disinterested. [13] Respondents also contend that claimant’s credibility is impugned by his failure to notify an actual supervisor of his injury or to seek medical treatment any sooner than he did. However, the record reflects that claimant did inform respondent employer’s bookkeeper, whom he knew as “Jan,” of his injury on the Monday following his accident (which occurred on Friday). Claimant further testified that, after his wrist did not improve, the bookkeeper (the following Thursday) eventually told him he would have to fill out an accident report. From that point, it appears that any delay in claimant seeking medical treatment was occasioned by the bookkeeper’s absence and/or procrastination:

And then she told me that I’d have to come back because she was too busy, so we came back the next day and she was on secretaries leave or secretary day or whatever. So, we came back the following day and she was off. It took me about three to four days before I finally got the accident report.

[14] Later, claimant explained his understanding that “everything went through Jan. So, I figured Jan was who I was supposed to report it to.” Claimant also testified that he eventually received an appointment to see the company doctor, set up by the bookkeeper. Concerning his delay in seeking treatment, claimant stated that at first he thought his injury was “just a sprain” and that “I was waiting on her to tell me which doctor to go see.” We specifically find claimant’s testimony to be credible in its entirety, and are not persuaded otherwise by the procedure he used to report his injury or to obtain medical treatment. [15] Finally, we note that the presence of an injury to claimant’s wrist is established by “medical evidence supported by `objective findings,'” as per Dr. Kilgore’s arthrogram (which revealed “leakage” suggesting a “ligamentous disruption” in claimant’s wrist). [16] From claimant’s credible testimony and the medical evidence discussed above, we specifically find that he has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on April 1, 1994. Accordingly, the decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [17] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809
(Repl. 1996). [18] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996). [19] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[20] Commissioner Wilson dissents.

[21] DISSENTING OPINION
[22] I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury on April 1, 1994. Based upon my de novo review of the entire record, I find that claimant failed to meet his burden of proof.

[23] Claimant contends that he sustained an injury on April 1, 1994, during the course and scope of his employment while delivering boats to a marina in Thomasville, Georgia. Specifically, claimant contends that while unloading a boat the owner of the marina who was helping to unload the boats unexpectedly flipped the boat over causing claimant to twist his right wrist. According to claimant’s testimony he made an obvious scene when this occurred and in fact cursed the owner of the marina. Claimant testified that after the injury occurred claimant continued to drive the truck and deliver boats. After making his last delivery in Naples, Florida, claimant returned to Little Rock. Claimant arrived in Little Rock on Sunday, April 3, 1994. It is claimant’s testimony that on Monday morning, April 4, 1994, he reported his injury to Jan, a secretary in the Waco office. Claimant was aware of the company policy that required him to report all workers’ compensation injuries to a supervisor; however, claimant did not do so. Even after allegedly reporting the injury to the secretary, claimant did not seek medical attention. Instead, claimant returned the truck he had leased to a location in Nashville, Tennessee. Claimant returned to Little Rock on Thursday, April 7, 1994. Again, claimant did not seek medical attention. An accident report was not filled out and completed by claimant until April 29, 1994. This was the first date that Tom Cox, the Vice-President and Sales Manager of Waco Manufacturing, was aware of claimant’s alleged injury. Claimant first sought medical attention on May 2, 1994, when he saw a general practitioner, Dr. Aniel House. [24] Tom Cox, testified that claimant did not work for Waco Manufacturing after April 9, 1994, due to a lack of work. According to Mr. Cox, claimant was not laid off or fired but was simply not given work to do as there was no work available. Mr. Cox further testified that based upon his knowledge and investigation of claimant’s alleged injury, claimant did not report an injury to Ms. Jan Craig, Waco’s bookkeeper, or any other person at Waco Manufacturing until April 29, 1994, when the accident report was completed. [25] Mr. Chester David Bellamy, the owner of the marina in Thomasville, Georgia, also testified. Mr. Bellamy testified that although he remembered a delivery occurring in April of 1994 he did not specifically recall the claimant sustaining an injury. Mr. Bellamy also testified that he did not recall any of Waco’s drivers cursing him or ever accusing him of causing an injury. Mr. Bellamy stated that if anyone had gotten hurt in his presence or had cursed him he would have remembered. [26] 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) (1987) (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. CCavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowlerv. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). In my opinion, claimant has failed to prove by a preponderance of the evidence the compensability of his claim. [27] Claimant testified at the hearing that Mr. Bellamy should have remembered the alleged boat flipping incident since it was obvious claimant had injured himself when the boat was flipped. Claimant stated that he was “walking around” “shaking” and “holding” his hand after the incident occurred. Furthermore, the claimant testified that he cursed Mr. Bellamy. However, Mr. Bellamy’s testimony does not corroborate that of the claimant. Mr. Bellamy stated that if claimant had acted in such a manner he would have remembered it. While he did recall the delivery of the boats, he did not recall a driver getting injured or cursing him. In my opinion, the reason Mr. Bellamy did not recall the incident happening is because the incident never occurred. [28] Moreover, contrary to claimant’s testimony that he reported the alleged injury on Monday, April 4, 1994, the evidence does not support his testimony. Tom Cox testified that the first time claimant ever reported an injury was April 29, 1994. This is corroborated by the accident report which was filled out on that date. If claimant had reported an injury on April 4, 1994, one would expect an Employer’s First Notice of Injury Form to have been completed. No such form was completed on that date. The first form evidencing the date of any report of injury was not completed until April 29, 1994. [29] Finally, and most importantly, claimant did not seek medical attention until May 2, 1994, one month after the alleged incident occurred. If claimant had actually injured his hand on April 1, 1994, one would expect claimant to seek medical attention in a more timely fashion. Moreover, the history claimant provided to Dr. House reveals that claimant injured his hand when a friend dropped his end of a boat that claimant was unloading. This history is clearly inconsistent with claimant’s testimony that he injured his hand while working when a boat was twisted or flipped. [30] Accordingly, I find that claimant’s testimony regarding his alleged incident lacks credibility. A claimant’s testimony is never considered uncontroverted.Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). 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 AmericanFoundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). [31] Since I find claimant’s testimony to lack credibility, I cannot find that claimant has met his burden of proof. Therefore, I respectfully dissent from the majority opinion. [32] MIKE WILSON, Commissioner