FRANCIS v. ROCK CITY FURNITURE, 1995 AWCC 176

CLAIM NO. E315390

KATHY FRANCIS, EMPLOYEE, CLAIMANT v. ROCK CITY FURNITURE, EMPLOYER, RESPONDENT and LINDSEY MORDEN, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 29, 1995

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

Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on January 3, 1995. In that opinion and order, the administrative law judge found that the claimant failed to prove 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 claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury to her low back on September 3, 1993. Therefore, we find that the administrative law judge’s decision must be affirmed.

[3] 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 Frozen Foods, 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) (Cumm. Supp. 1993) are controlling, and the following requirements must be satisfied:

(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) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5)(E)(i) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993)).

[4] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra. [5] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. She was employed in the respondent employer’s finishing department, and her duties involved wiping stain from furniture moving on a conveyor belt. While the job did not involve significant lifting, the claimant did have to stretch due to her short height. She contends that she sustained a compensable injury to her low back on September 3, 1993. According to her testimony, she was standing on her toes to wipe the stain off of a high piece of furniture when she felt a pop in her low back. Afterward, she was unable to straighten up. Jerry Brown, safety director, personnel director, and plant manager, and Benny John Gragg, the claimant’s supervisor, were summoned, and Mr. Brown took the claimant to the Protho Medical Center, where a back strain was diagnosed. [6] Prior to this incident, on Friday, August 20, 1993, the claimant was involved in a motorcycle accident. She was a passenger on a motorcycle driven by Jerry Redman, and she apparently jumped from the motorcycle when Mr. Redman hit a bump as he was driving into the yard of their home. The claimant testified that she injured her left shoulder, right elbow, right wrist, and right leg as a result of this accident, and Mr. Redman testified that the claimant’s injuries were minimal. She denied any injury to her back resulting from this accident. However, her testimony in this regard is contradicted by the testimony of Mr. Brown and Mr. Gragg. Mr. Brown testified that the claimant “looked like she’d been drug down a gravel road” and that “[s]he was pretty well beat up” after the motorcycle accident. More significantly, Mr. Gragg, who is no longer employed by the respondent employer, testified that the claimant was complaining about back pain after the motorcycle accident, and he testified that she was complaining that her back hurt when she would bend over to do her work. He also testified that a back brace was obtained for her as a result of these complaints. In addition, Mr. Gragg testified that the claimant mentioned hurting her back while lifting her five year old grandson a few days before the alleged September 3, 1993, injury. The claimant denies lifting her grandchild as well as complaining of back problems resulting from the motorcycle accident. [7] In short, the evidence shows that the claimant experienced back pain while she was at work which was so severe that she could not straighten up. However, the evidence also shows that the claimant was involved in a motorcycle accident a few days before this which resulted in relatively severe injuries to multiple areas of her body. Moreover, her contention that the back pain was caused by the stretching required of her job and not by the motorcycle accident is contradicted by the testimony of Mr. Gragg. In this regard, we would note that Mr. Gragg is no longer employed by the respondent employer and has nothing to gain by testifying falsely. Accordingly, we find that his testimony is entitled to greater weight than that of the claimant. Furthermore, after considering all of the evidence in the record and giving the evidence the weight to which it is entitled, we find that the greater weight of the evidence does not support a conclusion that the claimant injured her back while performing her employment duties on September 3, 1993. [8] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. Therefore, we find that she failed to satisfy the requirements necessary to establish a compensable injury. Consequently, we find that the administrative law judge’s decision must be, and hereby is, affirmed. This claim is denied and dismissed. [9] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[10] Commissioner Humphrey dissents.