CLAIM NO. E805573
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 24, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by NATHAN CULP, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on December 14, 1998, finding that the claimant sustained a compensable injury to his right elbow on April 24, 1998. Based upon our de novo review of the record, the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury to his right elbow on April 24, 1998. Therefore, we hereby reverse the decision of the Administrative Law Judge. [3] The claimant testified that he sustained injuries to his lower back and right arm when he slipped and fell while mowing the side of a hill on Friday, April 24, 1998. There were no witnesses to this incident and the claimant did not report the incident to his supervisor until Monday, April 27, 1998. The claimant received treatment from the Arkansas Occupational Health Clinic in Lowell on Monday, April 27, 1998. Dr. Gary L. Moffitt examined and treated the claimant on April 28, 1998. Dr. Moffitt had x-rays taken of the claimant’s elbow wherein it was discovered that the claimant had a calcium deposit on his right elbow. The claimant denied to Dr. Moffitt that he had any previous elbow injuries. Dr. Moffitt noted in his report that the claimant had some swelling along the posterior aspect of his elbow due to the claimant’s calcium deposit was not due to the claimant’s alleged injury. Dr. Moffitt returned the claimant to work with no restrictions and advised him to see his family physician about the calcium deposit in his elbow. [4] On July 22, 1998, the claimant sought treatment from Dr. Peter Heinzelmann. Based upon the medical history from the claimant and a review of the x-ray of April 28, 1998, Dr. Heinzelmann stated that his impression was an impaction type injury of the right elbow joint with persistent symptoms of intermittent pain and locking. Dr. Heinzelman did not review any of the claimant’s previous medical records. A CT scan of the claimant’s right elbow was performed on August 7, 1998, which indicated “Multiple calcifications above the elbow joint . . . most compatible with intraarticular loose bodies probably on the basis of previous trauma.” On August 13, 1998, Dr. Heinzelmann recommended that the claimant have an arthrotomy of the joint and removal of the loose bodies. [5] The medical records indicate that the claimant sustained injuries to his right elbow in 1986 and 1987. The claimant fell from a jungle gym when he was in elementary school and sustained an injury to his right elbow. Further, on March 1, 1997, claimant was involved in a motor vehicle accident for which he sustained injuries which included swelling and tenderness to his right elbow. Upon being provided with these medical records, Dr. Heinzelmann stated on October 6, 1998:
[6] The claimant’s 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. ConAgraFrozen 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).” 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. [7] It is apparent from the evidence that the claimant cannot prove that he sustained a specific incident injury to his elbow on April 24, 1998. There were no witnesses to the incident and the claimant failed to report it to his supervisor until the following Monday. Further, Dr. Moffitt noted that the alleged injury was not thought to be the cause of the calcium deposit. The evidence shows that both Dr. Heinzelmann and Dr. Moffitt have opined that the calcium deposits in the claimant’s elbow were formed from previous injuries and not from his alleged incident in April of 1998. Therefore, after considering all of the evidence, we would find that the claimant has failed to meet his burden of proof. Accordingly, we hereby reverse the decision of the Administrative Law Judge and deny and dismiss this claim. [8] IT IS SO ORDERED. [9] _______________________________Of course, I cannot accurately tell you when the loose bodies of his right elbow developed. I feel that it would have taken at least three months time for them to develop, but it would be more likely that it would have been at least eight to twelve months or longer. It is quite possible that they could have been related to a motor vehicle accident in March, 1997, in which the medical records you sent me indicated that there was swelling and tenderness of the right elbow with negative x-rays of this joint.
In short, it is impossible for me to say that the loose bodies were not caused (sic) his work-related injury of 01/25/98. However, in my opinion, they were most likely present before that time and possibly related to the injury of his right elbow from his motor vehicle accident in March of 1997.
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner [10] Commissioner Humphrey dissents.