GINN v. ELITE LAMP, 1997 AWCC 342

CLAIM NO. E516859

JIMMY GINN, EMPLOYEE, CLAIMANT v. ELITE LAMP, EMPLOYER, RESPONDENT WAUSAU, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 21, 1997

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

Claimant represented by MARC BARETZ, Attorney at Law, West Memphis, Arkansas.

Respondent represented by ROBERT J. DONOVAN, Attorney at Law, Marianna, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed November 13, 1996 finding that the claimant proved by a preponderance of the evidence that he sustained a gradual back injury as a result of his employment activity on October 5, 1995 which was established by medical evidence supported by objective findings and was the major cause of the claimant’s disability and need for medical treatment. Based upon our de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury.

[3] The claimant was employed by the respondent as a second-shift supervisor. The claimant testified that he was injured while picking up barrels of trash on approximately October 5, 1995. He stated that his back pain arose sometime after his shift was over upon his arrival at home that evening. The claimant stated that he felt as though he had strained his back before leaving work on October 5, 1995. However, the claimant stated that he did not believe he sustained a serious injury. The claimant returned to work the next day and worked his entire shift. The claimant remained off work throughout the entire weekend and applied ointments and ice packs to his back. The claimant sought treatment from Dr. Shrader at the Medi-Quick Clinic. He was diagnosed with a kidney infection, prescribed antibiotics and ordered to have a lower GI series. After the claimant’s symptoms failed to improve, he was referred to Dr. Schoettle, then to Dr. Goodman and eventually to Dr. Olinger. The claimant underwent an MRI on October 27, 1995 which revealed a herniated disc at the L4-5 level. The claimant was released by Dr. Olinger on February 22, 1996 to return to light duty work. [4] The claimant was subsequently fired by the respondent because he failed to report to work or contact the employer over a three-day period. The Administrative Law Judge found that the respondent employer had sufficient justification to terminate the claimant and the claimant failed to demonstrate by a preponderance of the evidence that his termination was the result of filing a claim for workers’ compensation benefits. This issue has not been appealed, and therefore is not properly before us. [5] The burden of proving job relatedness is on the claimant,Pearson v, Faulkner Radio Service Co., 220 Ark. 368, 247 S.W.2d 964 (1952), and there is no presumption to that effect.Farmer v. L.H. Knight Co., 220 Ark. 333, 248 S.W.2d 111
(1952). [6] The claimant alleges that he sustained a gradual onset injury. Therefore, the claimant must satisfy the following requirements contained within Ark. Code Ann. § 11-9-102
(Repl. 1996):

(1) “Compensable injury” means: An injury causing internal or external physical harm to the body arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is: (b) a back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(ii)(b) (Repl. 1996).
(2) A compensable injury must be established by medical evidence, supported by “objective findings” as defined in § 11-9-102(16). Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 1996).
(3) For injuries falling within the definition of compensable injury under subdivision (5)(A)(ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996). “Major cause” means more than fifty percent (50%) of the cause. Ark. Code Ann. § 11-9-102(14) (Repl. 1996).

[7] If an employee fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim and the claim must be denied. [8] Based upon or de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that his alleged compensable injury is the major cause of his disability or need for treatment. [9] The medical evidence simply does not support a finding that the claimant’s alleged compensable injury is the major cause of his disability or need for treatment. The medical reports fail to make any reference to major cause. No physician that has examined the claimant has opined that the claimant’s alleged compensable injury is more than 50% of the claimant’s current problems. In addition, evidence was presented that the claimant had previously undergone lumbar surgery in 1976 at the exact same location of his alleged injury. [10] The claimant’s credibility is tenuous at best. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626
(1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). [11] The claimant owned and operated his own dental laboratory. Since the respondent was unable to obtain any cooperation from the claimant, an investigation of his activity was undertaken. On February 21, 1996, the claimant’s vehicle was identified and observed leaving his apartment. The vehicle was followed to the back door of the mall where the claimant’s dental laboratory was located and the claimant was observed entering the premises. The claimant was also observed later in the day leaving through the front entrance. On the day that the claimant was observed, Joe Tucker, the senior claims adjuster for the respondent carrier, attempted to contact the claimant in order to obtain a recorded statement and complete his investigation of the claim. The investigator videotaped Mr. Tucker attempting to contact the claimant at his dental laboratory. [12] After observing the videotape with his attorney, the claimant was asked whether or not he was present in the laboratory when Joe Tucker was attempting to contact him. The claimant testified as follows:

Q. Were you at the lab when that gentleman came to the door of your lab?

A. I possibly could have been, yes, sir.

Q. You phrased it as a possibility, and rather than me fishing around, can we go on and cut through it, were you there?
Q. I could have been — yes, sir, I could have been in the front room asleep, yes, sir.

[13] When questioned earlier about his presence in the laboratory on that date the claimant testified as follows:

Q. Do you recall telling me in the statement that you had an appointment with Dr. Stern on that day?

A. Yes, sir.

Q. But you never did tell me that you canceled it, did you?

A. No, sir, you didn’t ask me.

Q. Okay. So since I didn’t ask you, you just told me you had an appointment, but you never told me that you canceled it?

A. No, sir, You were asking the questions.

[14] On the day the claimant was observed entering and exiting the dental laboratory, the claimant’s friend, Mr. Bobby Stewart, acknowledged that he was there that day and spoke with Joe Tucker. Mr. Stewart testified that the claimant was there and asleep when he spoke with Mr. Tucker. However, Mr. Tucker testified that he was told that the claimant was absolutely not there. Mr. Tucker testified as follows:

Q. If there is testimony here today that Jimmy Ginn was in the office asleep when you were there, is that inconsistent with what you were told that day?
A. I was told he absolutely was not there. I asked repeatedly to see him. I suspected strongly he was there since a vehicle that was identified as his truck was there, and I repeatedly asked the gentleman who came to the door who refused to identify who he is
— I asked him to, you know, tell me his name and who he was, and he refused to give me that information. I repeatedly, you know, indicated that I thought Jimmy was there. I didn’t want to confront him too much, because I was a little bit startled, because he was a rather big guy there, and he was already being dishonest to me about Jimmy being there, I felt, since Jimmy’s truck was there.

[15] In addition, Mr. Tucker also testified:

Q. You talked to Jimmy again the following day?

A. On the phone in the evening.

Q. He told you, this is not hearsay, he told you . . .

A. Jimmy told me he was not there when I was there.

[16] It is our opinion that the claimant’s testimony is entitled to little weight. There was no reason for the claimant to fabricate a story regarding his whereabouts at a particular time unless he was engaging in some activity that he did not want Mr. Tucker to discover. The claimant could have come to the door of the laboratory and told Mr. Tucker that he did not wish to discuss the matter, that he had or was going to employ an attorney and that the matter would have been concluded. Instead, the claimant allowed his friend to lie about his whereabouts and mislead the respondent’s adjuster by stating that he had an appointment with the doctor on that day. [17] After conducting a de novo review of the entire record and based upon the claimant’s lack of credibility and the absence of any medical evidence, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. [18] Accordingly, we reverse the decision of the Administrative Law Judge. [19] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[20] Commissioner Humphrey dissents.

[21] DISSENTING OPINION
[22] I must respectfully dissent from the majority opinion finding that claimant failed to prove that he sustained a compensable injury. In my opinion, the decision of the Administrative Law Judge should be affirmed as modified.

[23] Claimant worked as a second shift supervisor for respondent employer, and explained that his duties were to “mainly keep the line supplied with boxes for the lamps to go in, a fork lift operation, drive a forklift, and if there was a truck that would come in, I would help unload it, check the gates, security at night, you know.” Claimant agreed that his work activities were physical in nature, but also stated that he had no problems with his back when he began working for respondent employer. However, claimant did subsequently experience a back injury on or about October 5, 1995, while engaged in his employment duties:

Q. All right. Now, let me ask you this, how did you injure yourself?

A. Picking up the barrels.

Q. Okay.

A. Picking up the barrels and rotating to dump them over.
Q. All right. And what made you aware, or when did you first become aware that you had sustained an injury?
A. My back — my muscles in my back were really just on fire, you know, tensed up.

Q. When did they become on fire as such?

A. That night after I had gotten home, they were just really — had tensed up, because I got off at 11:00. I worked from 2:30 till 11:00, and . . .

Q. You didn’t clock out early?

A. I’m not for sure. I don’t believe I did, but there could be a chance.
Q. Okay. Were you aware before you left at all that you had a problem with your back?

A. I felt like I had strained it at the time.

Q. Okay. So you felt something even before you left?
A. Yes. Yes, I felt that I had, you know, strained it. I had lifted too much.
Q. Okay. And what sensation did you feel that gave you the sensation of a strain?
A. Pulling of the muscles, you know, just the strain that . . .
Q. At that point, did you think you had sustained — before you left home that evening, did you think you had done anything serious to yourself?
A. No, sir, not serious, just maybe, you know, pulled some muscles.

[24] Claimant initially received a diagnosis of “acute urinary tract infection” from Dr. Floyd Shrader on October 16, 1995. When claimant’s back pain persisted, Dr. Shrader referred him to Dr. S.P. Schoettle, who obtained an MRI scan and offered the following comments on November 8, 1995:

Jimmy T. Ginn is under my care . . . he was seen by another physician, and initially treated for what was though to be a urinary tract infection. However, as his urinary tract infection cleared, his back pain and side pain have remained. He was referred to me for an evaluation of this, and it certainly seemed that he may have a lumbar disc problem. An MRI done on 10/27/95 revealed that he does have a significant herniated lumbar disc at L4-5 and another bulging disc at L3-4. These problems are significant, and by his history it would certainly be considered work-related. He will need at least therapy for this, and possibly surgery.

[25] Claimant received a subsequent referral to Dr. Jack Goodman, who performed a series of lumbar epidural blocks in January and February of 1996. While Dr. Schoettle opined that claimant could return to light-duty as early as January 8, 1996, Dr. Goodman did not release claimant to return to work until February 19, 1996, following the last epidural block. [26] Claimant’s brother, Mr. Douglas Ginn, testified that claimant told him that he had sustained a work-related back injury in the early part of October, 1995, somewhere “between the 4th and the 10th.” While claimant’s brother could not recall the specifics of claimant’s injury, he did explain that claimant had been “in a lot of pain” since its occurrence, and further stated that, prior to the injury, claimant had been in good health. Also, Mr. Bobby Stewart, one of claimant’s long-time friends, offered the following corroborating testimony:

Q. Well, he told you right after it happened, though, I take it? You knew when it happened?
A. Well, yes, sir, I mean, I talk to him every day.
Q. Yeah. And he told you how it happened?

A. Yes, sir.

Q. What did he tell you?

A. He said he was bending over to pick some stuff up at work and hurt his back, and he said, you know, “I thought, well, you know, for a minute, it might subside,” he said, “But, you know, and I tried to work some more,” and he said he finally told his boss.
Q. Did he say anything about any truck or boxes?
A. Yes, sir. I think he worked in some trailers unloading lamps or something. I don’t know. I mean, I wasn’t out there with him when he worked.
Q. The reason I’m asking you and getting into this, we are kind of getting some conflicting, maybe, statements here, and I would just like to know what you were told?
A. I was just told — how can I be specific. I wasn’t at work with him.
Q. Well, I know. I just wanted to know what he told you.

A. He said, “I hurt my back at work.”

Q. Okay. And did he . . .

A. And he said, “I done it, you know, lifting some boxes in a trailer maybe.”

Q. Okay. Lifting some boxes in a trailer?

A. Yeah, and maybe out on the floor.

Q. Did you perceive that it was something that came on suddenly?
A. I don’t really know how I perceived it. I know he has got some back trouble. That’s all I know.

[27] Even claimant’s supervisor, Mr. Mike Malone, verified that claimant did report a work-related injury on October 16, 1996, at which time Mr. Malone referred claimant to Mr. Jerry Chappel, respondent employer’s safety director (claimant had attempted to continue working following his injury, but it appears from the record that he may have consulted Dr. Shrader as early as October 9, 1995). [28] I do not agree with the Administrative Law Judge’s characterization of claimant’s injury as “gradual.” While I find claimant’s account of his injury to be credible, I do not find it descriptive of a repeated series of insults to his lower back which culminated in a gradual injury. Instead, claimant has testified that he injured himself while “picking up the barrels,” and additionally stated that he “felt like I had strained it at the time.” Because claimant can trace the onset of his low back difficulties to a particular work-related activity and time, I would find that his injury arose from a “specific incident identifiable by time and place of occurrence.” I do not believe that such a finding would exceed the scope of this appeal, since claimant has included the following statement in his brief: “it is submitted that claimant sustained either a specific incident or injury while lifting the barrels or gradual injury as found by the Administrative Law Judge.” In addition, claimant contended at the hearing that he “sustained an accidental injury on or about October 5, 1995.” [29] Based on Dr. Schoettle’s opinion of November 8, 1995, and claimant’s credible testimony regarding the circumstances surrounding the occurrence of his injury, I would further find that claimant’s injury arose out of and in the course of his employment. Also, I would find from the presence of claimant’s lumbar disc herniation that he has established a compensable injury with medical evidence supported by “objective findings,” which also serve to demonstrate an internal physical harm to claimant’s body. Finally, it is clear from claimant’s receipt of epidural injections that his injury required medical services. I would thus find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on October 5, 1995. [30] As set out above, I must respectfully dissent from the majority opinion. [31] PAT WEST HUMPHREY, Commissioner