CLAIM NO. E806504
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 18, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KENNETH A. OLSEN, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE ROBERT H. MONTGOMERY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] The claimant has appealed the December 23, 1998, decision of an administrative law judge finding that the claimant was unable to prove that his injury occurred in the course and scope of his employment. After conducting a de novo review of all of the evidence contained in the record, we find that, for the reasons set out below, that the claim for benefits asserted herein must be denied in all respects. [3] The claimant has alleged that he suffered a compensable injury to his low back on September 25, 1997. At the time this injury occurred, the claimant was employed as a laborer with the respondent employer’s tree removal service. The claimant contends that he is entitled to appropriate medical and disability benefits as a result of his injury. The respondent denies that the claimant suffered any injury while acting in the course and scope of his employment or that he is entitled to any benefits whatsoever. The claimant also argues that, if the claim is not found to be compensable, the respondent should nonetheless be ordered to pay for the medical treatment the claimant received at the respondent’s direction. [4] In essence, the claimant testified that a few minutes after he and a co-worker had moved a large tree limb or trunk, he began experiencing severe pain in his lower back. He testified that his foreman (who is also a co-owner of the business) noticed him in pain and inquired as to what his problem was. The claimant stated that he advised his employer that he had injured himself moving the tree limb and that he needed to go home and get off his feet. According to the claimant, he was advised to do so. [5] On the following day, which was apparently a Friday, he called his employer and spoke to another co-owner of the business and advised her that he would not be in that day because of his injury. The claimant then testified that, after being off work for several days, he returned to work even though his back was still bothering him. He stated that after working for a few days, the pain became too severe and he had to stop working. Eventually, he, or someone on his behalf, once again called his employer and inquired as to whether he should go to his own physician or to a physician chosen by the employer. The claimant was apparently advised to seek treatment from Dr. Bruce White, the employer’s company physician. The claimant was hospitalized either by Dr. White or by the emergency room staff on or about October 8, 1997. Dr. White visited the claimant in the hospital and directed that he be released the following day, October 9, 1997. The record contains the result of a MRI scan performed on the claimant on October 8, 1997, indicating that he had a small disc herniation at L4-L5. After being released from the hospital, the claimant saw Dr. White at his office on October 16, 1997. In a treatment note of that date, Dr. White noted the presence of the small disc herniation but observed that the claimant’s condition had improved considerably and that he was in no apparent distress, could move easily and freely, and that his back strain had apparently resolved. [6] The claimant was released to return to work on October 20, 1997, with no restrictions. However, the claimant apparently made no attempt to return to work or otherwise contact his employer following the release. At the time of the hearing, which was in November of 1998, the claimant testified that he had not been able to work at any time since his hospitalization in October of 1997 because of severe and chronic back pain. [7] During his testimony, the claimant was very vague and uncertain on any particular dates or specifics of his injury or treatment. For example, the claimant stated that his injury had occurred on “the 8th” with no reference to the month it occurred. However, we note that in the Prehearing Order, and prior to the hearing, it was stipulated that the injury had occurred on September 25, 1997. Also, the claimant testified that he was hospitalized for at least three days, even though the medical records clearly indicate that the claimant was only hospitalized overnight. He also stated that after his initial injury, he was only able to return to work for about three days. However, he also stated that he returned to work on the Monday following his injury, which would have been the 29th of September. The claimant continued to work until he was hospitalized on October 8, 1997, a period of ten days. [8] The respondent called two witnesses to testify at the hearing. The first of the two witnesses was Mr. Willard Tackett, who identified himself as a co-owner of the respondent employer. Mr. Tackett stated that, to the best of his knowledge, the claimant and a co-worker did in fact move a tree limb or tree trunk to a location near a truck to be loaded into it. He also stated that, a few minutes after moving the limb, he observed the claimant on one knee, holding his lower back. He stated that the claimant told him that he had injured himself moving the tree limb. Mr. Tackett testified that he directed the claimant to go home if he did not think that he could continue working. Mr. Tackett was adamant that this incident occurred on September 25, 1997, and he stated that he could remember this date because it was his birthday. [9] Mr. Tackett also testified that the claimant returned to work a few days later and performed his job without any apparent distress or complaints. According to Mr. Tackett, the claimant disappeared during a lunch break on Wednesday, October 8, and did not return to work. Mr. Tackett further testified that he attempted to contact the claimant by calling his mother at her place of employment and advised her that the claimant was terminated for having left the job site. He stated that he was advised at that time that the claimant was hospitalized and that was his first notice that the claimant was seeking medical treatment for his back injury. [10] The other witness the respondent called to testify was Ms. Wanda Crites, who testified that she was Mr. Tackett’s mother and a co-owner of the business. She testified that she recalled the claimant coming to pick up his check on the Friday following his injury, September 25, 1997, (Ms. Crites stated that the injury had occurred on a Wednesday, and that the claimant had been off Thursday and returned on Friday. However, September 25, 1997 was, in fact, a Thursday). Ms. Crites was somewhat vague as to whether she had discussed the claimant’s injury, but she did state that she had asked him how he was doing and he stated that he would be back on Monday. Ms. Crites went on to state that she spoke to the claimant’s mother on the Wednesday of the week following the claimant’s return to work (presumably October 8, 1997), and she was advised by his mother that his back was causing him severe problems. Ms. Crites indicated in her testimony that she told the claimant’s mother to take the claimant to Dr. White, the company physician. She also stated that she went to the hospital to see the claimant after he had been hospitalized. She further testified that she eventually contacted her insurance agent who apparently notified the respondent carrier of the injury. [11] The administrative law judge held that the claimant’s testimony was not sufficiently credible to establish the occurrence of a compensable injury. In reaching that decision, the administrative law judge noted that there were several inconsistencies and contradictions in the claimant’s testimony. He also noted that the claimant returned to work after the September 25, 1997 injury and worked without there being any physical problems. The claimant has appealed the administrative law judge’s decision in all respects. [12] Because of the claimant’s inability to remember details and the fact that he had returned to work with no apparent problems for almost ten days before his hospitalization, it is certainly understandable how the administrative law judge would have arrived at his determination. While it is plausible that the claimant could have injured his back on September 25, 1997, and that the symptoms of his disc herniation did not manifest themselves until October 8, 1997, considering the vague and questionable nature of the claimant’s testimony and his lack of credibility, we concur with the administrative law judge’s finding that a holding to that effect would require a resort to speculation and conjecture. We therefore affirm the administrative law judge and find that the claimant did not establish the occurrence of a compensable injury. [13] The claimant has argued in his brief that even if the claim is not compensable, the respondent should still be obligated to pay for the medical treatment the claimant received from Dr. White based upon the referral from the respondent employer. In making this assertion, the claimant is relying upon the doctrine set out by the Court of Appeals in Southern Hospitalities v. Britain, 54 Ark. App. 318, 925 S.W.2d 810
(1996). [14] Our review of the administrative law judge’s decision and the hearing transcript in this case indicates that the claimant did not raise any estoppel theory at the hearing before the administrative law judge. All legal and factual issues should be developed at the hearing before the administrative law judge.See, Ester v. National Home Centers, Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998). Under similar circumstances, this Commission has previously declined to consider an estoppel theory raised for the first time on appeal before the Full Commission. See, Lawrence v. Sunbeam OutdoorProducts, Full Workers’ Compensation Commission Opinion filed June 3, 1998, (WCC No. E704127). In the present case, as inLawrence, we find that the claimant’s estoppel theory was not properly raised before an administrative law judge and therefore, not appropriately preserved for consideration in this appeal. [15] In summary, we find that the claimant has not established that the condition for which he received medical treatment on, or about, October 8, 1997 and after, was in any way related to any event or accident which occurred while he was acting in the course and scope of his employment. Therefore, we find that the administrative law judge’s decision must be affirmed. In addition, we find that the claimant’s estoppel theory was not properly raised before the administrative law judge and preserved for this appeal. Accordingly, the claim filed herein is respectfully denied and dismissed. [16] IT IS SO ORDERED. [17] _____________________________
ELDON F. COFFMAN, Chairman _____________________________ MIKE WILSON, Commissioner [18] Commissioner Humphrey dissents.