CLAIM NO. F005689
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 9, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals to the Full Commission an Administrative Law Judge’s opinion filed July 5, 2001. The Administrative Law Judge found, “The preponderance of the evidence fails to show that the claimant suffered an injury to her low back arising out of and in the course of her employment on or about May 4, 2000.” After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Catherine Ilene Garrett, age 55, testified that she injured her back while working for St. Joseph Hospital in 1986. Ms. Garrett testified that she completely recovered after undergoing physical therapy and returned to work. The claimant, a licensed practical nurse, began working for Still Meadow Nursing Home in November 1999. The claimant testified that she sustained an accidental injury on May 4, 2000:
A. . . . I saw a lady, that was a quite heavyset lady, she was trying to get up from the bedside commode. I don’t know how she got there, but she was trying to get up and was wobbling, so I went in to help her, and she grabbed me around the neck and grabbed the bed rail, because she was frightened. And I tried to get her over to the bed by myself. I had to. There was nobody else there, no CNA in the hallway. And I finally got her onto the bed.
Q. Did that twist your back?
A. Yes, it was a twisting motion. . . .
Q. Where did you feel pain, or where did you injure yourself?
A. I felt a burning across my back and down my left leg. . . .
Q. Was there anybody there for you to report this injury to?
A. The office personnel had already left.
The claimant testified that she completed her shift and was scheduled to be off work the next three days.
The record includes a report dated May 8, 2000:
Pt presents to clinic complaining of severe lower back pain. Denies any heat or redness to the area. She has had a problem w/her back for many years. She states she has a lot of tingling and numbness running down her L leg.
Jill Churchwell, R.N.P., noted “Tenderness to palpation in lumbar area. Did note swelling in the mid area.” Ms. Churchwell assessed “Low back pain.” The following opinion resulted from an MRI of the lumbar spine taken May 9, 2000:
1. L5 S1 shows prominent degenerative narrowing. There is moderate generalized bulging of the disc with mild bilateral foraminal narrowing more prominent on the right. This is the result of a combination of disc bulging and facet hypertrophy. No evidence of disc herniation seen.
2. L4-5 shows small left lateral herniation to the disc with mild associated foraminal narrowing.
3. There is prominent bulging of the L3-4 disc on the left with moderate foraminal narrowing.
The claimant presented to an emergency triage on May 10, 2000. The claimant complained of severe pain in her lower to middle back but specifically denied an injury. The physician’s diagnosis was “Lumbar disc disease.” Dr. Robert Kleinhenz provided an orthopedic consultation on May 10, 2000:
Mr.(sic) Garrett is a 53 year old white female, admitted by Dr. Mullins through the Emergency Room for low back pain. She tells me that she has had a history of back pain for a period of time that is rather extensive, but for the last 6 weeks has had quite a bit of difficulty with increasing pain, and over the last two days, has had quite a bit of pain with pain beginning in her low back, radiating across her hips into her posterior thighs. . . .
Review of the MRI shows degenerative changes with mild bilateral narrowing at L5-S1. She has a small lateral herniation on the left at L4-5 and has bulging at L3-4 on the left as well. There is no gross herniation, no marked impingement that is apparent on looking at the lumbar nerve roots. . . .
My impression is that she has degenerative disc disease with lumbar nerve root irritation. . . . I would recommend a McKenzie program for her back and conservative treatment if at all possible.
Another consulting physician, Dr. Lawrence Dodd, reported on May 11, 2000:
Patient is a 53 y/o white female with a history of low back pain. She recalls it beginning 6-8 weeks ago. She works at a nursing home and is involved with patient care and lifting and moving patients. She recalls two episodes; one in particular where she was trying to move a 200 pound woman and felt a sharp pull in her back. She has had pain here in the lumbar area radiating to her upper buttocks and vaguely into her thighs that has been going on the past two weeks, specifically worse the last 3-4 days. . . .
I would agree with Dr. Kleinhenz in this recommendation of pain control, continuation of steroids and physical therapy. She does not have a specific good surgical finding at this point. I would certainly exhaust all conservative measures consisting of oral medicines, physical therapy, potentially a lumbar corset and possibly epidural steroid injection before I would entertain the idea of anything surgical for Ms. Garrett as long as her exam stayed stable and without specific neurologic deficit.
A physician’s note dated May 12, 2000 indicated that the claimant was very unhappy that none of the physicians would recommend surgery. The claimant also said that she could not return to work, and she refused physical therapy.
The record includes a copy of a WCC Form N signed by the claimant on May 12, 2000. The claimant wrote that she was involved in an accident occurring May 4, 2000 at 1:00 p.m. The claimant wrote that she had injured her lower back after a patient grabbed her shoulders. The parties stipulated that “the claimant reported that on May 4, 2000, she sustained a job-related injury.” The parties stipulated that the respondents initially accepted the claim as compensable and paid “various benefits.” The claimant received conservative medical treatment.
The claimant presented to a neurologist, Dr. R. Paul Tucker, on May 31, 2000. Dr. Tucker recorded the claimant’s account of the alleged specific incident occurring May 4, 2000; however, Dr. Tucker’s impression was “The patient does not really have convincing findings.” The respondents controverted further benefits in June 2000.
Ms. Garrett therefore claimed entitlement to additional workers’ compensation. The claimant contended “that on May 4, 2000, she sustained a compensable injury to her back while assisting a patient, for which she should be awarded benefits, including reasonably necessary medical care, such as her treatment by Dr. Paul Tucker, and additional temporary total disability benefits from June 7, 2000, until a date to be determined.”
The respondents contended that the claimant could not establish a compensable injury supported by objective findings, “although there are objective findings of pre-existing degenerative problems suffered by the claimant.” The respondents contended that the claimant “suffered no incident of injury at work and, alternatively, that temporary total disability benefits were paid through June 7, 2000, when the claimant was released to modified duty and appropriate work was made available by the respondents, so that she is not entitled to additional temporary total disability benefits.”
After a hearing before the Commission, the Administrative Law Judge found that the preponderance of the evidence failed to show that the claimant suffered a compensable injury on May 4, 2000. The Administrative Law Judge denied and dismissed the claim; claimant appeals to the Full Commission.
II. ADJUDICATION
A claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2001). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that the injury caused physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. §11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. §11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove that she sustained an accidental injury arising out of and in the course of her employment on or about May 4, 2000. Determination of the credibility and weight to be given a witness’ testimony is within the sole province of the Commission. We are not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony deemed worthy of belief. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). Th Dissenting Opinion would find, based on the instant claimant’s testimony, that she injured her back while lifting a patient. Because the preponderance of evidence indicates that the claimant was not a credible witness, the Full Commission cannot agree with the Dissenting Opinion‘s proposed finding.
The claimant testified that she twisted her back while helping a patient get to her bed on May 4, 2000. The claimant testified, “There was nobody else there, no CNA in the hallway. . . . It was close to five o’clock. It was dinnertime. . . . The office personnel had already left.” The claimant signed a WCC Form N on May 12, 2000, however, and wrote that the alleged injury occurred at 1:00 p.m., not at 5:00 p.m. when the office personnel to whom she would report an incident had left work. The first medical report of record, dated May 8, 2000, indicated that “she has had a problem w/her back for many years.” There was no report of the alleged May 4, 2000 specific incident.
When the claimant presented to the emergency triage on May 10, 2000, she complained of severe lower to middle back pain but specifically denied an injury. The claimant informed Dr. Kleinhenz on May 10, 2000, six days after the alleged workplace injury, that she had suffered extensive back pain for the previous six weeks. There still was no report of the alleged specific incident, and the physician’s impression was “degenerative disc disease with lumbar nerve root irritation.” Dr. Dodd reported on May 11, 2000 that the claimant’s back pain had begun six to eight weeks earlier. The claimant expressed dissatisfaction that she could not find a physician who would perform surgery on her back. In addition, Dr. Tucker subsequently opined that the claimant did not have convincing findings.
The Full Commission finds from a preponderance of the evidence that the claimant was not a credible witness. We therefore find that the claimant failed to prove that she sustained an injury arising out of and in the course of her employment as the result of a specific incident occurring on or about May 4, 2000. Yet, even if we did find that the claimant was a credible witness, which we do not, the Full Commission finds that the claimant did not establish a compensable injury by medical evidence, supported by objective findings.
The claimant sought medical treatment on May 8, 2000 for back pain which had been a problem “for many years.” The Full Commission recognizes that a registered nurse practitioner noted “swelling in the mid area” on May 8, 2000. However, there was no accompanying report of a specific incident occurring May 4, 2000 or of any workplace injury. The nurse’s assessment was “Low back pain.” Dr. Kleinhenz, an orthopedist, reviewed an MRI of the lumbar spine on May 10, 2000 and assessed “degenerative disc disease with lumbar nerve root irritation.” Based on a preponderance of the evidence, we find that the claimant failed to establish a causal connection between the claimant’s alleged specific incident of May 4, 2000 and single report of “swelling in the mid area” and degenerative disc disease. The Full Commission therefore cannot agree with th Dissenting Opinion‘s contention that the claimant “presented objective medical evidence of her injury.”
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove by a preponderance of the evidence that she suffered an injury to her low back arising out of and in the course of her employment on or about May 4, 2000. We deny and dismiss this claim.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I must respectfully dissent from the majority opinion affirming the Administrative Law Judge’s opinion. Upon my de novo review of the record, I find that claimant did prove by a preponderance of the evidence that she sustained a compensable low back injury while working for respondent employer.
Claimant, 54, began working as an LPN for Still Meadow Nursing Home in November of 1999. She contends that she suffered a compensable injury on May 4, 2000 while assisting a patient. She testified that she previously injured her back in 1986 while working for St. Joseph Hospital, but that those problems were resolved at the time of her accident. She stated that she normally worked 12-hour shifts for respondent employer four to five days per week, explaining that respondent employer was short-handed and employees often had to work overtime.
Claimant stated that her back was injured when a “heavy set” patient whom she was helping from a bedside commode grabbed her around the neck and grabbed onto the bed rail to steady herself. She stated that since no one else was around, she helped the patient to her bed alone and twisted her back in the process. Claimant said that she felt a burning sensation across her back and down her left leg, and that she had never experienced this type of pain before.
Claimant further testified that she did not report the incident immediately because it was close to 5 p.m. and the office personnel had already left for the day. She finished her shift and was scheduled to be off for the next three days. She stated that she sought medical attention the following Monday and notified Debra Davis, director of nurses, after her doctor took her off work for one week. She stated that it was hard for her to bend and that she had pain in her left leg when she stood. Claimant stated that the pain continued, so the following Wednesday she went to the emergency room at National Park Medical Center where she was admitted for eight days.
Respondents had claimant treat with Dr. Garrett, who ordered physical therapy and kept claimant off work for two weeks. He released claimant to limited duty on June 2, 2000, but claimant stated that respondent employer did not honor her limitations and she only worked a couple of days.
Respondents began paying claimant benefits, but later controverted her claim. Claimant requests that her benefits be reinstated.
To be compensable, an injury must be established by medical evidence supported by objective findings, which are defined as findings that cannot come under the voluntary control of the patient. Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). Ark. Code Ann. § 11-9-102 (5) (Supp. 1999), further provides in pertinent part:
(A) “Compensable injury” means:
(I) An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.
To prove a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, claimant must establish: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (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; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1999). If claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
Claimant presented medical evidence in support of her claim that she sustained a work-related injury. Jill Churchwell, a nurse practitioner, reported on May 8, 2000:
Patient presents to clinic complaining of severe lower back pain. Denies any heat or redness to the area. She has had problems w/her back for many years. She states that she has a lot of tingling and numbness running down her L leg.
Ms. Churchwell also noted swelling in claimant’s back. Dr. Kevin Hale then admitted claimant to National Park Medical Center where claimant received an MRI on May 9, 2000. Dr. Cecil Cupp noted narrowing of the L5, S1 disc with desiccation and some hypertrophic disc changes anteriorly.
There is moderate generalized bulging of the disc somewhat more prominent on the right and there is milt right foraminal narrowing related to the disc bulging and facet hypertrophy. There is mild desiccation and decreased signal at the L4-5 and L3-4 levels. There is bulging of the L3-4 disc on the left with mild to moderate foraminal narrowing. The disc margins show no other changes. At L4-5 on the left, there is focal disc prominence with somewhat increased T2 signal suspicious for small focal disc herniation with mild associated foraminal narrowing. Facet hypertrophic changes are seen at multiple levels which accentuates these findings. The surrounding soft tissue structures show no changes and there are normal bony signal characteristics seen generally.
On May 10, 2000, Dr. Kleinhenz consulted with claimant and confirmed a diagnoses of degenerative disc disease with lumbar nerve root irritation.
On May 11, 2000, Dr. Lawrence Dodd also consulted with claimant. He noted a six-to eight-week history of pain:
She works at a nursing home and is involved with moving patients. She recalls two episode; one in particular where she was trying to move a 200 pound woman and felt a sharp pull in her back. She has had pain here in the lumbar area radiating to her upper buttocks and vaguely into her thighs that has been going on the past two weeks, specifically worse the last 3-4 days. MRI reviewed showing degenerative disc disease at L5-S1. There is foraminal narrowing at three levels from L3-4 through L5-S1 from disc bulging and facet hypertrophy.
Claimant further states that her injury arose out of her employment, testifying that she began having pains while working.
A physical therapy evaluation of May 11, 2000 noted, “She states that about six weeks ago she began having back discomfort injured her back lifting a patient 2-3 days ago. She is an LPN at a nursing home in Malvern. She states that the pain is constant only diminished minimally with pain medication.”
Dr. Garrett returned claimant to modified duty on June 13, 2000 but claimant felt that she could not work. He then released claimant to transitional duty on June 16, 2000, and respondent employer notified claimant that such a position would be available beginning June 23, 2000.
Claimant testified that while she experienced the normal aches and pains associated with nursing, she did not injure her back until she lifted a patient on May 4, 2000. Claimant stated that she lifted the patient by herself because the patient appeared to be falling and no one was around to help at the time. She testified that after the incident, she went home and did not participate in any other activities because of her pain.
It has long been recognized that a causal relationship may be established between an employment-related incident and a subsequent physical injury upon a showing that the injury manifested itself within a reasonable period of time following the incident, is logically attributable to the incident, and there is no other reasonable explanation for the injury. Hall v. Pittman Construction Co., 234 Ark. 104, 357 S.W.2d 263 (1962).
If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the Commission’s refusal to make an award. Id. But if the disability does not manifest itself until many months after the accident, so that reasonable men might disagree about the existence of a causal connection between the accident and the disability, the issue becomes one of fact upon which the Commission’s conclusion is controlling. Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (1962). See Wentz v. Service Master, 75 Ark. App. 296, 57 S.W.3d 753 (2001).
While medical evidence is not required to show a causal connection, claimant must show proof by a preponderance of the evidence. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). Where claimant’s case for causation rests mainly on her own testimony, the issue is that of credibility and one that is left to the discretion of the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790
(1996).
I find, based on claimant’s testimony, that she did injure her back while lifting a patient. It is logical that she could have strained her back performing such a task. I also find that claimant presented objective medical evidence of her injury. Therefore, I find that claimant sustained a compensable injury while working. Accordingly, I would reverse the Administrative Law Judge’s decision and award benefits.
For the foregoing reasons, I must respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner