CLAIM NO. E711649
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 17, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CASEY TUCKER, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE NEAL L. HART, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on June 2, 1998. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be reversed. [3] The claimant asserts that she sustained a compensable injury on September 7, 1997, when she fell at work. At the time this alleged injury occurred, the claimant was employed as a housekeeper at the respondent’s motel in Little Rock, Arkansas. While coming down some steps carrying various cleaning equipment, she tripped and fell landing on her buttocks and back. The claimant asserts that she is entitled to temporary disability benefits and payment of expenses she incurred for medical treatment after the incident. The respondents assert that the claimant cannot establish that this fall caused her to suffer any compensable injury. Specifically, they rely upon the fact that the claimant has a long history of back problems and contend that any back symptoms that she may have experienced after the incident are the result of her preexisting back condition. The respondent also asserts that there is no objective evidence supporting the existence of a compensable injury. [4] The record establishes that the claimant fell at work on a stairway on September 7, 1997. The claimant was driven home by a supervisor. Later that day the claimant presented to the emergency room at St. Vincent Infirmary where she was examined and x-rayed, and released with a prescription for medication. The following day, September 8, 1997, the claimant presented to the emergency room at Columbia Doctors Hospital for a second opinion, because, according to the claimant, the prescription that she received from St. Vincent Infirmary was not strong enough. The claimant was again examined and x-rayed and released with a prescription for medication. [5] On September 12, 1997, the claimant presented to the Arkansas Primary Care Clinic, where she was prescribed approximately 16 sessions of rehabilitation treatment consisting of electrical stimulation and hot/cold packs. The claimant returned to work for the respondent on October 10, 1997. [6] Since the claimant contends that she 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 FrozenFoods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that she 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:
[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, she fails to establish the compensability of the claim, and compensation must be denied.Reed, supra. [8] In the present case, we find that the claimant has failed to establish by a preponderance of the credible evidence the existence of a work-related injury supported by objective findings. In reaching our decision, we note that Dr. Rose Bullock’s September 12, 1997, office note from the Arkansas Primary Care Clinic contains a notation of “ecchymosis” on the claimant’s posterior hip. In assessing the significance of this notation, we note that Dr. Muhammad Shakir, who also treated the claimant at the Arkansas Primary Care Clinic on September 30, 1997, testified that ecchymosis is essentially a bruise, consisting of a collection of blood under the skin or in the muscles. Dr. Shakir also testified that ecchymosis usually appears within hours of trauma and might be detected as soon as half an hour or one hour after the incident. Oddly, while Dr. Bullock’s report from 5 days after the incident contains a notation of ecchymosis, a report of examination at St. Vincent Infirmary at 8:35 p.m. on September 7, 1997, (approximately 7 hours after the incident at work) indicates that no(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) (Supp. 1997); see also, Ark. Code Ann. § 11-9-401(a)(1) (Supp. 1997));
(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) (Supp. 1997));
(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) (Supp. 1997));
(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) (Supp. 1997)).
bruises or abrasions were detected. Likewise, a physical examination report from Columbia Doctors Hospital on September 8, 1997, appears to contain a notation of mild right para sacral tenderness, but also contains a notation of no
ecchymosis. In light of Dr. Shakir’s testimony that ecchymosis usually appears within hours, and might be detected as soon as half an hour to one hour after trauma, and in light of the notations of no bruising or ecchymosis observed at St. Vincent Infirmary and Columbia Doctors Hospital on September 7-8, 1997, we find that the claimant has failed to establish a causal connection between the notation of “ecchymosis” in Dr. Bullock’s report on September 12, 1997, and the incident that occurred at work on September 7, 1997. [9] In reaching our decision, we also note that chart notes prepared by Shana Banks at the Arkansas Primary Care Clinic Rehabilitation Medical Treatment Center from September 24, 1997, through October 3, 1997, each contain a notation of “muscle spasms”. This Commission has previously found that notations of muscle spasm observed by a physical therapist can satisfy the requirement of “medical evidence supported by `objection findings,'” as that term is used in Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997). [10] However, in assessing the weight to be accorded Ms. Banks’ notations of muscle spasm during the indicated period, we initially note that Ms. Banks’ chart notes indicate that the claimant was experiencing symptoms due to a motor vehicle accident. We also note that Ms. Banks’ four prior chart notes from treatment on September 16-19, 1998, do not contain any notation of muscle spasm. Likewise, Dr. Bullock’s office note from September 12, 1997, specifically indicates that no spasm was observed in the claimant’s lumbar area. On September 30, 1997, Dr. Shakir examined the claimant, and based on results from a straight leg raise maneuver, Dr. Shakir later indicated that he felt limitations in the movement of the claimant’s right leg were indirect evidence of muscle spasm. However, in his deposition, Dr. Shakir testified that he could not recall whether he ever attempted to directly palpate muscle spasm in the claimant’s back. In addition, as we interpret Dr. Shakir’s straight leg raise testing, his conclusions and inferences were based on active range of motion measurements which could be under the voluntary control of the claimant, and which would also therefore not qualify as “objective findings”.Compare, Department of Parks Tourism v.Helms, 60 Ark. App. 110, 959 S.W.2d 749 (1998); Cox v.CFSI Temporary Employment, 57 Ark. App. 310, 944 S.W.2d 856
(1997). [11] Because of the various anomalies in the medical record discussed above, and the temporal separation between the incident on September 7, 1997, and the later notations of ecchymosis and spasm at the Arkansas Primary Care Clinic beginning on or after September 12, 1997, we find that the claimant has failed to establish, by a preponderance of the credible evidence, a causal connection between any objective medical findings in the record and any injury related to the claimant’s fall at work. Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed. [12] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[13] Commissioner Humphrey dissents. DISSENTING OPINION
[14] I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that she had a compensable injury supported by objective medical findings.