CLAIM NO. E415662
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 29, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by WILLIAM KIRBY MOUSER, Attorney at Law, Pine Bluff, Arkansas.
Respondent represented by WILLIAM M. GRIFFIN, III, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed January 29, 1997 finding that claimant sustained a compensable injury on April 29, 1994. Based upon our de novo
review of the entire record, we find that claimant has failed to establish his compensable injury by medical evidence supported by objective findings as required by Ark. Code Ann. § 11-9-102(16) (Repl. 1996).
[5] On physical examination, Dr. Campbell did note mild muscle spasms in the neck area around the C5-6 vertebrae. [6] Interestingly, claimant was not working for respondent during this period of time and he was drawing unemployment benefits. There is no valid explanation in the record to explain why “he hashad to wear a hard hat recently.” We simply find no validity in claimant’s testimony that he simply wore a hard hat around the house to see if he could. Not only is this explanation incredible, but it is also inconsistent with the history of “has had to.” [7] 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, FC 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) (Repl. 1996). 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).” [8] 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. [9] Moreover, in Bennet v. City of Benton, FC Opinion August 14, 1996 (E500506), we stated:He has had to wear a hard hat recently. He notices at night, that having to wear a hard hat during the day, his neck has been hurting him, it has been very sore. Now it is difficult for him to move it without pain. His x-rays that were done, show degenerative changes in his c-spine.
[10] Claimant contends that merely because he proved a specific incident on April 29, 1994, when he struck his head on the scaffolding, that claimant sustained a compensable injury. However, the record clearly shows that claimant has failed to prove by a preponderance of the evidence a compensable injury established by medical evidence supported by objective findings. As noted above, if a claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of an injury, he fails to meet his burden of proof and compensation must be denied. [11] The record plainly shows that claimant suffered from pre-existing degenerative changes in his neck well before the April 29, 1994, incident. In fact, after the April incident claimant eventually underwent surgery performed by Dr. Kerry Bernardo to alleviate left C7 radiculopathy as a result of cervical spondylosis and posterior osteophytes, both degenerative conditions. The record is clear that the incident on April 29, 1994, did not cause the degenerative changes, the osteophyte formation or the spondylosis. The only finding made by claimant’s medical care providers after the April 29, 1994, incident was of mild muscle spasms and the pre-existing degenerative changes of spondylosis and osteophyte formation. It is important to note that the mild muscle spasms were not even detected until four months after the incident occurred and after the “mandatory” hard hat wearing incident. All medical evidence supports a finding that claimant’s pain originated from the degenerative condition and not a result of claimant’s specific incident on April 29, 1994. Moreover, all objective tests, as well as the surgery performed by Dr. Bernardo revealed that claimant did not have or suffer from an acute injury as a result of the April 1994 incident. Claimant’s only complaint related to the April 1994 incident is that of pain. Claimant has failed to present any evidence to persuade us that there is an objective basis for his pain associated with the April 1994 incident. All evidence indicates that the pain is associated with claimant’s underlying pre-existing condition, and not the minor incident in April of 1994. [12] This case is substantially similar to Michael Allen v.Planters Cotton Oil Mills, FC Opinion March 27, 1997, (E415988) wherein we found that Mr. Allen failed to prove the compensability of his claim. The evidence in Allen revealed that Allen sustained a compensable injury to his lower back in June of 1992. As a result of that injury Allen underwent a lumbar laminectomy and diskectomy. Allen was assessed a fifteen percent (15%) permanent impairment rating. On October 9, 1994, approximately two years after undergoing surgery, Allen fell from a ladder. After the fall from the ladder Allen complained of pain. All medical evidence showed that Allen’s pain and muscle spasms originated from claimant’s scarring as a result of the 1992 surgery and not from the specific incident in 1994, even though the pain and spasms did not occur until after the 1994 incident. Based upon such evidence we found that Allen failed to establish the compensability of his 1994 injury by medical evidence supported by objective findings. [13] Likewise, in the present case, claimant has failed to prove by a preponderance of the evidence that his incident in April of 1994 caused internal or external physical harm to the body as well as proof by a preponderance of the medical evidence establishing a compensable specific incident injury supported by objective findings. All objective findings point to the pre-existing degenerative condition. Accordingly, we find that claimant has failed to meet his burden of proof establishing the compensability of his injury. The overwhelming evidence of record undoubtedly shows that the claimant’s condition was caused from the pre-existing condition and not from the alleged specific incident. Therefore, we reverse the decision of the Administrative Law Judge. [14] IT IS SO ORDERED.The proposition that a party bringing a claim must establish every element required to establish such a claim in order to prevail is an elementary concept of law. Certainly, proof of the facts necessary to establish certain elements can be provided by the stipulations of the parties, and, where evidence related to an element is unrebutted, the element may be established with only minimal evidence. However, the party opposing the claim is not required to specifically challenge every element of the claim in order to bring this element into issue. Instead, by challenging the claim, the opposing party brings every element of the claim into issue and imposes the burden of establishing each element of the claim on the party bringing the claim. This is such an elementary tenet of the law that the claimant in the present claim cannot be heard to claimant surprise by its application, as he suggests. Furthermore, the claimant cannot be heard to complain that he did not know the elements of compensability under the amended law since these elements are contained in the statute itself.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents.[16] DISSENTING OPINION
[17] I must respectfully dissent from the majority opinion. Specifically, I cannot agree that claimant failed to establish an injury with “objective findings,” nor do I accept the proposition that “the overwhelming evidence undoubtedly shows that the claimant’s condition was caused from the pre-existing condition and not from the alleged specific incident.
[21] Dr. Bernardo also addressed the question of whether claimant would have needed surgery in the absence of the April 29, 1994, injury:I believe the cervical spondylosis, the bony structural changes present at C6-7, were there prior to the time of the injury . . . the work-related injury from May 29, 1994 (sic). But I believe it was the injury, as described to me, on May 29, 1994, (sic) that triggered the symptoms. In other words, the structural problem was there, but there were no symptoms experienced by the patient prior to the injury, which is a very frequent occurrence.
[22] In light of the foregoing, I think the evidence supporting the majority opinion’s conclusion is anything but “overwhelming.” [23] For the reasons set out above, I must respectfully dissent from the majority opinion. [24] PAT WEST HUMPHREY, CommissionerWell, he probably would not have needed it then. Would he have needed it at some time in his future, some other point in his life? That’s impossible to say.