CLAIM NO. E510863
THOMAS DAVIS, EMPLOYEE, CLAIMANT v. INSTRUMENT CONTROL SERVICE, INC., EMPLOYER, RESPONDENT and CONTINENTAL INSURANCE CO., INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 11, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICKEY BUCHANAN, Attorney at Law, Ashdown, Arkansas.
Respondents represented by the HONORABLE SCOTT HARDIN, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion filed on April 3, 1996, by the Administrative Law Judge. In that opinion, the Administrative Law Judge found that the claimant sustained a compensable injury and was entitled to temporary total disability benefits. After conducting a de novo review of the entire record, we find that the Administrative Law Judge’s decision must be affirmed in part and reversed in part.
[3] The parties stipulated that an employee/employer relationship existed on June 13, 1995, when the claimant was employed by the respondents as an instrument fitter. On the morning of June 13, 1995, he was working on a “catwalk, ” i.e., a metal grating with rails, used for access to various work areas. The claimant testified that he fell as he was attempting to walk down steps on a ladder leading to a lower level of the catwalk. “And as I fell,” he stated, “I turned around to catch myself, you know. As I was falling, I just kind of flipped myself around and I caught my arm, my left arm on the catwalks, the railing, you know, that’s the guardrail there.” [4] A co-worker witnessed this fall and testified that the claimant fell straight down off the ladder, a distance of about three feet. The co-worker denied the claimant’s account of “flipping” himself in mid-air; however, he stated the claimant may have hit his arm during the fall. Further, the co-worker testified that, after the fall, the claimant “was bowed double holding his shoulder, or holding his arm like he had hurt it on his way down.” [5] The claimant contended that he sustained a compensable injury on June 13, 1995, and that he was entitled to temporary total disability benefits from that date through a date yet to be determined, in addition to attendant medical benefits and attorney’s fees. Respondents controverted the claim in its entirety. In an opinion filed April 3, 1996, the Administrative Law Judge found that the claimant sustained a compensable injury and was entitled to temporary total disability benefits from July 27, 1995 through February 25, 1996, for which respondents were liable. The Administrative Law Judge also ordered the respondents to pay all reasonable and necessary medical benefits incurred by the claimant in addition to the maximum statutory attorney’s fee. [6] Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by
Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirement for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v.Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No.
E317744). Since 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, the requirements of Ark. Code Ann. §
11-9-102 (5)(A)(i) (Repl. 1996) are controlling, and 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 (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996); Ark. Code Ann. § 11-9-102 (5)(E)(i) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102 (5) (A)(i) (Repl. 1996));
(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) (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 (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996)).
[7] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra. [8] The claimant was treated by a physician on the date of the incident, June 13, 1995. The diagnosis was left shoulder sprain. The physician noted that the claimant had had previous surgery on his left shoulder. The doctor wrote that the claimant could not pick up his left arm, and that he had pain and swelling in his left anterior deltoid. On June 14, 1995, the doctor ordered light duty for the claimant, with re-evaluation in five days. [9] Dr. Hamlin re-evaluated the claimant on June 19, 1995. Dr. Hamlin stated that the claimant appeared to be in severe pain or severe apprehension, although “There is really minimal discomfort with passive motion of his shoulder.” Dr. Hamlin kept the claimant on light duty for ten days. Dr. Hilborn examined the claimant on June 22, 1995 and diagnosed “left shoulder contusion and sprain.” X-rays taken were found to be within normal limits. Dr. Hilborn prescribed physical therapy for two weeks, three times per week, for “left shoulder instability.” [10] According to the record, the claimant attended ten physical therapy sessions. The first session began July 5, 1995, with the claimant complaining of pain in his left shoulder. Physical therapy proceeded well, with no new complaints of pain. On July 7, 1995, the therapist noted that the claimant was able to achieve approximately 100 percent shoulder abduction and 90 percent of shoulder external rotation. Dr. Hilborn subsequently eased the claimant’ s work restrictions on July 11, assessing a 25-pound weight limit. [11] The claimant did not attend a scheduled therapy on July 18, 1995; he returned on July 19, 1995 complaining of increased shoulder pain. He attributed the new pain to “sand exercises,” part of the therapy. However, two witnesses testified that the claimant told them he had recently participated in “team roping.” On July 25, Dr. Hilborn advised him not to use his left arm. A left shoulder arthrography taken July 27 showed no evidence of a rotator cuff tear. On August 7, a MRI of the left shoulder was performed for comparison with the arthrogram:
The lateral skull and other x-rays are unremarkable except there is extension of the joint space on the arthrogram. This is also evident with fluid in the joint. There is no evidence of any rotator cuff tear. The tendonous insertions appear intact. There is mild to moderate bony extension inferiorly along the inferior margin of the acromion. This creates compression along the rotator cuff tendon. There is a minimal amount of increase signal in this area. Otherwise, the bony signal is within normal limits. No fractures are identified. The vasculature and surrounding anatomy all appear within normal limits.
[12] The impression of the MRI was impingement and mild distention of the joint. In correspondence dated August 8, 1995, Dr. Hilborn opined, “I feel the patient has left shoulder instability and is a candidate for anterior reconstruction of the shoulder with a capsular shift.” The doctor stated he would not perform the surgery until same was authorized by the Workers’ Compensation Commission. [13] The respondents set up surveillance of the claimant in video taken August 17, 1995. Said surveillance shows a jovial claimant with both arms on the side of a truck, his shirt off, not favoring his left shoulder and showing no sign of pain. He scratches his right shoulder with his left arm and freely uses both arms to put on a shirt while removing and replacing a baseball cap. The video demonstrates the claimant lifting his left arm above his head, with no effort or signs of pain, to adjust his cap. He then gets into his vehicle and drives away, turning the steering wheel with his left arm. Finally, the movie shows the claimant opening a convenience store door with his left arm, in no apparent pain. [14] The claimant saw Dr. Hilborn one week later, August 25, 1995. The doctor reported that, “The patient continues to have significant pain in the left shoulder only in motion.” [15] We find that the claimant has proven by a preponderance of the credible evidence that he sustained a compensable injury on June 13, 1995. Objective medical evidence showed that he sustained a left shoulder sprain, for which the claimant underwent conservative treatment. The evidence indicated that a specific incident caused this injury, which arose out of and in the course of employment. We find that the claimant has met the four criteria of Reed v. Con Agra
to establish compensability. We therefore affirm this portion of the ALJ’s opinion. [16] In their appeal brief, the respondents contend that the Administrative Law Judge did not consider the videotape evidence in reaching his decision. Therefore, state respondents, the Administrative Law Judge did not consider the record as a whole, as required by Ark. Code Ann. §
11-9-704 (c) (2) (Repl. 1996). We find that the weight of this evidence goes to whether or not the claimant is entitled to temporary total disability benefits, rather than compensability. The Administrative Law Judge found that the claimant was entitled to TTD benefits from July 27, 1995 through February 25, 1996. We reverse this portion of the Administrative Law Judge’s opinion. [17] An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Departmentv. Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. §
11-9-102 (13) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v.Parker,
4 Ark. App. 124,
628 S.W.2d 582 (1982). [18] On June 13, 1995, the claimant was diagnosed as having a left shoulder sprain, for which the doctor ordered light duty the next day. On July 7, 1995, a physical therapist noted that the claimant was able to achieve approximately 100 percent shoulder abduction and 90 percent of shoulder external rotation. The doctor subsequently eased the claimant’s work restrictions on July 11, assessing a 25-pound weight limit. [19] On July 25, 1995, Dr. Hilborn advised the claimant not to use his left arm. This advice came after the claimant complained of increased shoulder pain; although he attributed the pain to his physical therapy, two witnesses testified that the claimant had participated in “team roping.” Additionally, the physical therapist stated that the claimant’s range of motion was not affected by his new complaints of pain. The Administrative Law Judge assessed TTD benefits from July 27, 1995 through February 25, 1996. The claimant was laid off from his employment on July 26, 1995 and began training for his new job on February 26, 1996. [20] We find that the claimant has failed to prove he was within his healing period and totally incapacitated to earn wages following his June 13, 1995 injury. The doctor directed light duty for the claimant the day after the workplace injury. Although his job duties were changed, the claimant continued to work. The claimant’s light duty was considered a temporary status so that he could be rehabilitated and returned to his original position. He testified that his wages were never decreased during this time. [21] The claimant’s supervisor testified that he was a good employee and eligible for rehire. The claimant was laid off, along with many others, because that phase of his job was winding down; the company no longer needed the services of an instrument fitter. The claimant was not terminated because of his injury. The claimant testified that he tried to find other work after being laid off on July 26, 1995. He stated that one potential employer in his field would not hire him because of his shoulder. However, there is no evidence that the claimant diligently attempted to secure further employment until his new job in February, 1996. [22] In addition, the surveillance videotape recorded on August 17, 1995, clearly indicates that the claimant was not suffering from any detriment to his ability to function as a result of his injury, and the claimant’s report of significant pain with shoulder motion to Dr. Hilborn is not consistent with his painless mobility indicated on tapes. Therefore, we reverse the Administrative Law Judge’s finding that the claimant was entitled to temporary disability compensation from July 27, 1995 through February 25, 1996. [23] Accordingly, based on our
de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury, but failed to prove by a preponderance of the credible evidence that he was entitled to any temporary total disability benefits. Therefore, we affirm the Administrative Law Judge’s finding that the claimant sustained a compensable injury but reverse the Administrative Law Judge’s finding that the claimant was entitled to temporary total disability benefits. [24] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[25] Commissioner Humphrey concurs in part and dissents in part.
[26] CONCURRING AND DISSENTING OPINION
[27] I concur with the majority in affirming that part of the Administrative Law Judge’s finding that the claimant sustained a compensable injury on June 13, 1995, while employed by the respondent. However, I must respectfully dissent from the reversal of the Administrative Law Judge’s finding that the claimant was entitled to temporary total disability and would affirm the Administrative Law Judge’s award of temporary total disability benefits from July 27, 1995, through February 25, 1996.
[28] The claimant in this case sustained a compensable injury on June 13, 1995, to his left shoulder when he fell from a catwalk, as the majority opinion and the Administrative Law Judge correctly held. While it is true that the claimant was returned to light duty on June 14, 1995, the testimony was clear that the claimant did not perform any type of work while on light duty. Phillip Turner, a former co-worker of the claimant, testified that the claimant merely had to “show up” in order to be paid for work. The evidence indicated that the claimant simply sat in a chair at work during his light duty status until he was laid off on July 26, 1995. [29] After the claimants initial treatment, Dr. Richard Hilborn diagnosed the claimant with a left shoulder contusion and sprain. He prescribed two weeks of physical therapy for the claimant’s left shoulder injury, the notes indicating the claimant complained of pain at each visit. As the majority opinion points out, an MRI was performed on August 7, 1995, which clearly set forth objective findings to support the fact that the claimant remained within his healing period after being laid off July 16, 1995. The MRI revealed: an extension of the joint space with fluid in the joint; mild to moderate bony extension inferiorly along the inferior margin of the acromion which creates compression along the rotator cuff tendon; and there was an increase signal in the area. [30] In his medical report dated August 8, 1995, Dr. Hilborn opined that the claimant’s left shoulder was unstable based on the MRI and that the claimant was “a candidate for anterior reconstruction of the shoulder with a capsular shift.” Dr. Hilborn’s note of September 26, 1995, clearly indicated that the claimant was in need of surgery, but the respondent had not yet given authorization for the surgery. The record also indicates that on December 6, 1995, Dr. Hilborn opined that the claimant’s shoulder remained unstable and that the claimant was still in need of surgery. However, the record indicates that the doctor was still awaiting approval from the respondent to authorize the surgery. [31] The record clearly contains objective medical evidence that the claimant sustained an injury to his left shoulder which required surgery. I would also take this opportunity to point out that the claimant sought to introduce new and additional evidence before the Commission which would have supported his claim that he remained within his healing period and was entitled to temporary total disability benefits. The Commission denied the claimant’s motion to present additional evidence, a decision from which I dissented. The claimant in this case clearly remained within his healing period from the time he was laid off on July 26, 1995, through February 25, 1996. While it is true that the claimant returned to work after his injury, the record indicates that the claimant performed no job duties at that time and simply sat in a chair to earn his wages. The objective medical evidence and the doctors’ opinions indicated that the claimant was in need of surgery to stabilize his shoulder. The claimant was not “as far restored as the permanent character of his injury” would permit, and the “underlying condition causing the disability” was not stable. Palazzolo v.Nelms Chevrolet,
46 Ark. App. 130,
877 S.W.2d 938 (1994); Arkansas Highway Transp. Dep’t v. McWilliams,
41 Ark. App. 1,
7,
846 S.W.2d 670,
674 (1993). Only the surgery that the doctors recommended, and the respondent refused to pay for, would have improved his condition. The claimant was still in need of treatment and his injury had not yet stabilized due to not receiving treatment. The claimant clearly remained within his healing period and was entitled to temporary total disability benefits for the time in question. [32] Based on the foregoing, I concur in part and respectfully dissent in part from the majority opinion. [33] PAT WEST HUMPHREY, Commissioner [34] Commissioner Wilson concurs in part and dissents in part.
[35] CONCURRING AND DISSENTING OPINION
[36] I concur with the majority’s reversal of the Administrative Law Judge’s finding that the claimant was entitled to temporary total disability benefits from July 27, 1995 through February 25, 1996. However, I must dissent from the majority’s opinion affirming the Administrative Law Judge’s finding that the claimant sustained a compensable injury on June 13, 1995. Accordingly, I would reverse the Administrative Law Judge.
[37] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringer 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). [38] My review of the evidence indicates that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury on June 13, 1995. It is without question that the claimant fell when he slipped off a rung of ladder onto a catwalk. However, a review of the evidence shows that the claimant’s testimony lacks consistency and credibility. I find the claimant’s testimony to be totally lacking credibility. Decisions as to the credibility of the witnesses are solely within the trier of fact. Blevins v. Safeway Stores,
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 AmericanFoundry,
42 Ark. App. 137,
856 S.W.2d 309 (1993). 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). The record is replete with inconsistencies in the claimant’s testimony. A review of the evidence clearly indicates the claimant’s complete lack of credibility. [39] The claimant testified that he was descending the ladder and was facing the ladder when he slipped and fell backward twisting to his right in midair landing face first. Claimant stated that he struck the handrail with his left arm between the elbow and shoulder. The claimant also testified that he was laying facedown with his head between the top and bottom handrails on the catwalk with his left arm draped over the handrail of the catwalk. However, the testimony of Mr. Mark Fielding, a co-worker who witnessed the accident, is contrary to the claimant’s testimony. Mr. Fielding testified that the claimant did not twist in mid-air or fall in a swan dive but rather the claimant slipped, hesitated and fell straight down. Mr. Fielding further testified that he could not remember if it was his right or left arm that caught the ladder causing him to hesitate. Also, according to Mr. Feilding, the claimant was approximately four to four and a half feet off the catwalk when he slipped and fell. Mr. Fielding further testified that he did not remember the claimant facing face down on the catwalk but that he was on his knees doubled over with his shoulder. [40] Before the claimant’s alleged injury, the claimant enjoyed team roping and rodeo events. Team roping requires the rider to use his right arm to throw the rope and use his left arm to hold the reins to control his horse. There is additional evidence that the injury about which the claimant now complains probably occurred as the result of a team roping accident after the June 13, 1995 fall. Rick Lee, the claimant’s supervisor, and Mark Fielding, both testified that the claimant told them at different times that he had been team roping after the fall. It is also of significant note that the medical records show that the claimant was making good progress on July 7, 1995 but that he missed his appointment on July 18, 1995 and that on July 19, 1995 he went to therapy complaining of severe pain. This was only eight days after the claimant told Mr. Lee that he was doing better because he had been team roping. [41] My review of the evidence shows that the claimant did not sustain a compensable injury on June 13, 1995 when he fell from the ladder. Therefore, I would reverse the decision of the Administrative Law Judge. Accordingly, I dissent from the majority’s opinion. [42] MIKE WILSON, Commissioner