DUGAN v. WAL-MART STORES INC., 1999 AWCC 79

CLAIM NO. E714442

JAMES PHILLIP DUGAN, EMPLOYEE, CLAIMANT v. WAL-MART STORES, INC., EMPLOYER, RESPONDENT and COMPENSATION MANAGEMENT, INC., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 16, 1999

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

Claimant represented by JASON WATSON, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by ANGELA DOSS, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Reversed

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed on March 3, 1998, finding that claimant sustained a compensable injury on August 5, 1997, during the course and scope of his employment, and is entitled to benefits associated therewith. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed. [3] At the hearing held on February 11, 1998, claimant contended that he sustained an injury on August 5, 1997, when he was driving a yard truck, hit a pothole and his seat bottomed out. Conversely, respondent contended that claimant did not sustain a compensable injury. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent. [4] The claimant’s alleged injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796.Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and § 11-9-102(5)(E)(i) (Supp. 1997). He must also prove 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). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in §11-9-102(16).” [5] 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.Jerry D. Reed, supra. [6] The history as recorded by Dr. Moffitt in his August 6, 1997 correspondence, is most enlightening with regard to the cause of claimant’s injury. In this report, Dr. Moffitt noted:

Mr. Dugan is seen today with complaint of pain in his lower back and going down his right leg. He doesn’t know exactly what caused this. He said the pain occurred while he was sitting driving a yard truck. He did not have any injury. He did not have any accident. He says he thinks that earlier in the day he had hit a pothole, but doesn’t specifically remember hitting a pothole. He is wondering if this possibly caused his problem. . .

[7] This report is strikingly similar to the emergency room records prepared just hours after claimant left work on the evening of August 5, 1997. Under brief history the medical care providers in the emergency room recorded:

c/o R back pain radiating to R hip, states onset [about] 2200 tonight. [negative] injury

[8] However, in the Physician’s Report Form AR-3 apparently signed by Dr. Moffitt dated August 6, 1997, there is a brief description of an alleged incident as follows:

Pt. states he hit bump in yard truck — c/o low back pain or hip and leg pain.

[9] The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of workers’ compensation law. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). As our Supreme Court has stated:

The Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant’s injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as well as lay testimony and the testimony of the claimant himself. Further while medical opinions are admissible and frequently helpful in workers’ compensation cases, they are not conclusive.

[10] A.G. Weldon v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179 (1996). [11] When we weigh the medical evidence it is our opinion that the histories recorded in the emergency room report and in Dr. Moffitt’s August 6, 1997 correspondence, are entitled to great weight. Not only are the histories contained in these two reports consistent with each other, but they also appear to reflect claimant’s responses when asked direct questions regarding the cause of his pain. Admittedly, subsequent clinic notes dated almost one month after claimant’s alleged injury contain a detailed history of an injury after hitting a pothole; however it is our opinion that the histories recorded contemporaneously with claimant’s onset of pain and first initial treatment should be entitled to greater weight. We also acknowledge the existence of Form AR-3 signed by Dr. Moffitt which records a work-related accident from driving and hitting a bump. However, when we review both of the records prepared by Dr. Moffitt on August 6, 1997, we find that the record with greater detail to be more credible. [12] Given claimant’ history of degenerative disc disease and of a previously recorded disc protrusion at L4-5, it is not surprising that claimant would suffer an onset of lower back pain with no known trauma. The mere fact that this onset may have occurred while claimant was at work is not sufficient, in our opinion, to find that claimant sustained an injury in the course of his employment. This finding is supported by the Supervisor’s Investigation of Accident Report prepared by claimant’s supervisor on August 5, 1998, the date of claimant’s onset of pain. When asked to describe the apparent nature of claimant’s injury, claimant advised his supervisor that there was “nothing apparent” with regard to the onset of his pain. If claimant had experienced pain after hitting a pothole or a bump, one would expect claimant to so advise his supervisor. In our opinion, claimant appears to have later been searching for a cause of his pain after the fact and merely assumed that he must have hit a pothole in order for his pain to have developed during the evening. This explanation would be consistent with the history initially recorded by Dr. Moffitt and with the supervisor’s report, which does not contain any reference to any incident at work. To the contrary, the supervisor’s report indicates that the claimant experienced an onset of back pain from “nothing apparent.” However, it is not sufficient to prove that an injury, in fact, occurred during the course and scope of claimant’s employment when the claimant’s back pain started after “nothing apparent.” [13] Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury during the course and scope of his employment for which respondent is liable. Therefore, we would reverse the decision of the Administrative Law Judge. [14] IT IS SO ORDERED. [15] ___________________________________
ELDON COFFMAN, Chairman

___________________________________ MIKE WILSON, Commissioner

[16] Commissioner Humphrey dissents.

DISSENTING OPINION
[17] I must respectfully dissent from the opinion of the majority that claimant failed to meet his burden of proof.

[18] It is claimant’s testimony that he sustained a specific incident injury on August 5, 1997, when he hit a pothole. Striking the pothole caused claimant’s seat to “bottom out.” He experienced no immediate pain; however, after about five minutes he developed severe low back pain. Claimant stated he could hardly breathe. He reported the incident to Kim Patterson in loss prevention; however, claimant declined medical treatment. Claimant’s accident occurred near the end of his shift. Later that night, claimant sought treatment in the emergency room. The following day, he completed an accident report. He was ultimately sent to Dr. Moffitt, who excused claimant from work. Subsequently, claimant was treated by his family physician, Dr. Tucker. As a result of a referral from Dr. Tucker, claimant was treated by Dr. Raben. [19] The history which appears on the emergency room report fails to identify an injury. However, it states that claimant’s pain began at 11:00, which is the time that claimant’s shift ends. Dr. Moffitt sent respondents a letter dated August 6, 1997, which reflects that claimant’s complaints began while he was operating a yard truck. Nevertheless, the letter also indicates that claimant is unsure of the origin of his back pain. Moreover, Dr. Moffitt stated that claimant did not have an accident or injury. However, a Commission form, which Dr. Moffitt also completed on August 6th, reveals a history of hitting a bump while in a yard truck on August 5, 1997. [20] In my opinion, Dr. Moffitt’s letter dated August 6, 1997, is not fatal to claimant’s claim. As stated, Dr. Moffitt’s letter is inconsistent with the Commission form he completed. The Administrative Law Judge determined that claimant offered credible testimony. I agree. Further, the record contains a “Supervisor’s Investigation of Accident.” According to this document, claimant reported the occurrence of a “sharp pain” at 10:45 p.m. Although claimant failed to attribute the pain to hitting a pothole on August 5, 1997, he did so the following day. I do not consider this to be a significant temporal gap. [21] There are objective findings to support claimant’s claim. A MRI revealed the presence of small disc protrusions at L3-L4 and L4-L5. [22] The evidence demonstrates that claimant has established the requisite elements for a specific incident injury. [23] Based on the foregoing, I respectfully dissent. [24] ______________________________________ PAT WEST HUMPHREY, Commissioner