GRAHAM v. GLIDEWELL CONSTRUCTION, 2000 AWCC 192

CLAIM NO. E901112

TERRY D. GRAHAM, EMPLOYEE, CLAIMANT v. GLIDEWELL CONSTRUCTION, INC., EMPLOYER, RESPONDENT, ZENITH INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED JULY 12, 2000

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

Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.

Respondent represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Vacated and remanded.

ORDER
The respondent appeals an opinion and order filed by the administrative law judge on January 6, 2000. In that opinion and order, the administrative law judge found that the claimant has proven by a preponderance of the evidence that he sustained a compensable injury while working for the respondent. In addition, the administrative law judge found that the description of the claimant’s work by the claimant himself as well as by his supervisor, Mr. Voss, clearly sets forth that his work was the major cause of his compensable injury and resulting need for medical treatment. We vacate the January 6, 2000 decision of the administrative law judge and remand this case to the administrative law judge for more adequate findings.

In a pre-hearing order filed on July 23, 1999, the claimant contended that he sustained a shoulder injury at work in November or December of 1998. At the start of the hearing held on November 12, 1999, the claimant’s attorney contended that the claimant sustained an injury as a result of a specific incident, that “incident” being putting plywood on a whaler and hammering it in on or about November 30, 1998. In the alternative, the claimant’s attorney asserted that the claimant sustained a compensable gradual onset injury.

A claimant has the burden of proving the compensability of his claim by a preponderance of the evidence. Georgia-PacificCorp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. §11-9-102 (4)(A)(i) (Supp. 1999). For an accidental injury to be compensable, the claimant must show that he sustained an accidental injury; that it caused internal or external physical injury 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 within the voluntary control of the patient. Ark. Code Ann. § 11-9-102
(16). A 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 Trucklines v.Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

To the extent that the claimant has alleged, in the alternative, that his injury was gradual onset in nature, we note that this claim would appear to be governed by the provisions of Ark. Code Ann. § 11-9-102 (4)(A)(ii)(a) (Supp. 1999). In order to prove the compensability of a rapid repetitive injury under Ark. Code Ann. § 11-9-102 (4)(A)(ii)(a), the employee must prove by a preponderance of the evidence that he sustained internal or external damage to the body as a result of an injury that arose out of and in the course of employment, and the employee must establish the compensability of the claim with medical evidence, supported by objective findings. In addition, the claimant must prove that the injury was caused by repetitive motion that was performed in a rapid manner. Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998). Finally, in order to establish a compensable gradual onset injury caused by rapid and repetitive motion under Ark. Code Ann. § 11-9-102 (4)(A)(ii)(a), the resulting condition is compensable only if the alleged compensable injury is the major cause of the claimant’s disability or need for treatment. Ark. Code Ann. § 11-9-102 (4)(E)(ii) (Supp. 1999).

The administrative law judge’s legal analysis of the evidence in this case appears on page nine and on page ten of the administrative law judge’s decision filed on January 6, 2000. In that analysis, the administrative law judge states that this is an unusual case because the claimant’s injury could be found compensable under a specific injury analysis as well as a gradual onset analysis. The respondents’ attorney concedes in the first paragraph of his brief on appeal filed on March 3, 2000, that it is not clear from the administrative law judge’s written opinion if she intended to find that the claimant sustained a compensable “gradual onset” type of injury or a compensable “specific incident” type of injury. We agree with the respondents’ attorney.

We point out that, in order to find that the claimant sustained an injury at work caused by a specific incident, a preponderance of the evidence must prove that a specific incident, in fact, occurred at work. See, Hapney v. Rheem ManufacturingCo., 67 Ark. App. 8, 992 S.W.2d 151 (1999), reversed on other grounds, ___ Ark. ___, ___ S.W.2d ___ (June 8, 2000). See, also,White v. Lawrence Memorial Hospital, Full Workers’ Compensation Commission, Opinion filed June 17, 1999 (W.C.C. No. E714906). We fail to see where the administrative law judge’s decision identifies any specific incident that occurred on November 30, 1998, the date alleged by the claimant.

To the extent that the administrative law judge appears to suggest in the text of Finding No. 4, that the claimant has satisfied the “major cause” requirement for compensable gradual onset injuries, we note the administrative law judge found that the claimant’s work was the major cause of his injury. With regard to this finding, we direct the administrative law judge and the parties to the Court of Appeals’ decision in Medlin v.Wal-Mart, 64 Ark. App. 17, 977 S.W.2d 239 (1998). It appears that the administrative law judge has applied the wrong legal standard for “major cause” in Finding No. 4.

Finally, to the extent that the claimant asserts that he sustained a rotator cuff tear shoulder injury as a result of an alleged specific incident in late November or as a result of hammering and lifting duties in late November and/or early December, we note that the administrative law judge’s January 6, 2000 opinion and order fails to address Dr. Martin’s November 4, 1998 report which indicated that the claimant already had a possible rotator cuff tear (before late November/early December), and the administrative law judge’s decision fails to address Dr. Wolfe’s December 14, 1998 report indicating that the claimant had been experiencing left shoulder problems for three months.

Under the circumstances, we remand this case to the administrative law judge for a full examination of the evidence presented in this case, and for more adequate findings on the issues presented.

IT IS SO ORDERED.

_______________________________
ELDON F. COFFMAN, Chairman

_______________________________
MIKE WILSON, Commissioner

Commissioner Humphrey concurs.