CLAIM NO. E701626
STEPHEN D. CYPHERS, EMPLOYEE, CLAIMANT v. POWERHOUSE SEAFOOD, INC., EMPLOYER, RESPONDENT, ZENITH INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 7, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE THOMAS W. MICKEL, 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 2, 1998. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that he sustained compensable bilateral shoulder injuries on December 31, 1996. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the credible evidence that he sustained an injury arising out of and during the course of his employment with the respondent. Therefore, we find that the decision of the administrative law judge must be reversed.
[3] The claimant, a Certified Public Accountant, became employed by the respondent as a dishwasher in July of 1996. According to the office notes and correspondence of Dr. Joe Rouse, the claimant’s family doctor, the claimant presented to Dr. Rouse on two occasions with symptoms of muscle spasms in early 1997, on January 1, 1997, and on February 27, 1997. The claimant subsequently came under the care of Dr. John Park, an orthopedic surgeon. Dr. Park opined on September 18, 1997, that the claimant probably had a pre-existing shoulder condition which was markedly exacerbated by the claimant’s work status for the respondents requiring significant forward lifting and removing dish trays, et cetera. [4] In this regard, the claimant asserts in his brief on appeal to the Full Commission that he sustained a rotator cuff tear injury on or about December 31, 1996, as a result of “carrying pans, glasses or trash to reveling, upper-middle-class yuppies . . . the claimant was working harder that (sic) the other guys did, and hurt his shoulders, bilaterally.” [5] However, in assessing the weight to be accorded Dr. Parks’ causation opinion and the claimant’s assertion as to the cause of his bilateral shoulder symptoms, we initially note that the claimant did not report any alleged work-related injury to his co-workers or to his supervisor until after an incident on February 3, 1997, when the claimant was sent home for a day to “cool down” following a dispute at work. Notably, when the claimant did not return to work, the claimant was terminated and then reported an alleged work-related bilateral shoulder injury as of December 31, 1996. Likewise, we note that in his deposition testimony, the claimant acknowledged active participation in a number of sports during a relevant period proceeding his alleged work-related injury, but the claimant gave testimony at the hearing regarding these activities which was somewhat evasive and contradictory to his prior deposition testimony. [6] In short, the claimant’s assertion that he sustained awork-related injury is not corroborated by the contemporaneous medical records. Although the claimant did report an alleged work-related injury in February of 1997, this report of an alleged work-related injury did not occur until after a labor dispute which occurred more than four weeks after the claimant’s alleged work-related symptom onset on or about December 31, 1996. During that intervening period, the claimant did not report any alleged ongoing symptoms to co-workers, and did not report any ongoing symptoms as being work related. Although Dr. Park subsequently opined that the claimant’s shoulder symptoms in September of 1997 were work related, Dr. Park also acknowledged that the claimant’s bilateral acromioclavicular arthrosis in both shoulders “probably” pre-existed any alleged work-related injury, and Dr. Park also acknowledged that the claimant’s arthrosis was as severe as Dr. Park had seen in a young person “in quite awhile”. [7] After considering the nature of the condition diagnosed and treated by Dr. Park, and the circumstances surrounding the claimant’s report of an alleged injury purportedly caused by his employment, we find that the claimant has failed to prove by a preponderance of the credible evidence that his shoulder symptoms in any way arose out of and during the course of his employment with the respondents. [8] Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed. [9] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[10] Commissioner Humphrey dissents.