GUNTER v. DEARIEN LUMBER SUPPLY, 2000 AWCC 99

CLAIM NOS. E900860 and E900861

CORY GUNTER, EMPLOYEE, CLAIMANT v. DEARIEN LUMBER SUPPLY, EMPLOYER, RESPONDENT and INDIANA LUMBERMEN’S MUTUAL INS. CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 31, 2000

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

Claimant represented by the HONORABLE HENRY H. BOYCE, Attorney at Law, Newport, Arkansas.

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

Decision of administrative law judge: Affirmed.

OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed September 27, 1999. The administrative law judge found that the claimant proved by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment on May 30, 1998. The administrative law judge found that the claimant sustained a recurrence of the May 30, 1998 injury on January 19, 1999. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.

I. HISTORY
Cory Gunter, age 34, was a delivery person and yard worker for the respondent-employer. Mr. Gunter testified that he was involved in a work-related specific incident on May 30, 1998, while working with a “shingle ladder,” that is, a large mechanical device used to lift bundles of shingles from the ground to the roof of a house. Gunter stated, “We took the shingles out and was going to put them on the roof of the house so they could shingle it. And we was standing up the shingle ladder; and they let it go, and it come down and hit my shoulder and pulled me to the ground.” David Tilley was working with the claimant, and he testified that the ladder “slipped out of my hands and fell on him. He had held onto it, and it hit his shoulders and went on to the ground.” Braden White also witnessed the incident, and stated, “he had the whole weight of the ladder on him at one time, and then it went on to the ground as he got out from under it.”

The claimant said that the ladder fell on his left shoulder, causing pain in his shoulder and “tingling” in his fingers. “And I got up the next morning,” said the claimant, “and my neck started tilting over. And that’s when I went to the Emergency Room.” The claimant was treated at Stone County Medical Center on May 31, 1998, where he complained of left shoulder pain which started after unloading a truck. Dr. N.J. Piediscalzi authored the following E.R. note, dated May 31, 1998:

This 32 YOWM does not have a local physician in town, he presents to the ER with his wife with a history that yesterday he was unloading a truck at Dearien’s Supply, something he does all the time, didn’t notice anything unusual. Got back in the truck and while he was driving had a severe onset of pain in the left shoulder, more in the scapula. He denies any direct trauma. . . .No positive past medical history pertinent to today’s presentation. . . .In observing the scapula, the patient does have some edema on the left side with pain elicited with mild palpation in the scapular region around the bursa. X-rays of the left shoulder is (sic) taken, there is no sign of any fracture and/or dislocation.

ASSESSMENT:

Painful left shoulder.

The claimant was treated conservatively. At hearing, he did not remember denying any direct trauma, as the physician’s history indicated. “I told him the shingle ladder fell on me,” he testified.

The claimant asserted that the emergency room physician referred him to a Dr. Varela, who the claimant said referred him to a chiropractor, Dr. Holt. There is no record before the Commission of treatment by these two physicians. At any rate, the claimant testified that he presented an off-work slip from Dr. Holt to the respondents on the Monday after the work-related injury. David Tilley testified that he told Jean Dearien, a company co-owner, that a ladder had fallen on the claimant. The claimant stated, “They told me they’d take care of it. They just wanted me to get to feeling better so I could come back to work.”

Dr. Benjamin M. Dodge, an orthopaedist, began treating the claimant upon referral from Dr. Holt on June 18, 1998:

32 year old white male status post fall when a ladder fell onto his left shoulder on 5/30/98 and he injured his left shoulder and his neck. . . .Physical exam reveals patient with marked pain and tenderness to his neck. He is in obvious distress. He holds his neck in a slight cock-robin position. . . .X-rays today reveal C-spine series with no evidence of acute osseous abnormality, but reverse kyphosis of his cervical spine.
IMPRESSION: 1. Cervical spine, rule out herniated nucleus pulposus 5-6 versus other occult pathology. 2. Left shoulder sprain and contusion.

Dr. Dodge treated the claimant conservatively, took him off work, and arranged an MRI of the cervical spine. On June 23, 1998, Dr. Dodge reported that the MRI “revealed a herniated disc at 5-6 intervertebral disc level on the left side. He also has a disc bulge at 4-5.” Dr. Dodge’s impression was “cervical spine with herniated disc,” and he referred the claimant to a neurological surgeon, Dr. Anthony E. Russell. Dr. Russell reported on June 30, 1998:

As you know, this gentleman had a ladder fall on him about five weeks ago. Since that time, he has had severe pain in the left side of his neck, shoulder, radiating into the arm, and has also noted numbness and tingling in the thumb on the left. . . .
The MRI scan perfectly explains the current symptom complex. At C5-C6 on the left, there is a large disc herniation that is causing direct compression on the C6 nerve root. As you know, C6 supplies the skin area, including the thumb, as well as the biceps and its reflex. The patient has had a trial of conservative therapy, but is not significantly improved. In light of the severity of the pain at this point, despite the use of narcotic pain medications, I believe the patient should have resection of the disc along with fusion. . . .We will plan to proceed with anterior cervical diskectomy and fusion at C5-C6 on Monday, 7-6-98.

Following surgery, the claimant followed up with Dr. Russell on September 14, 1998. Dr. Russell noted that the claimant’s arm pain was 100% improved, and that he had been back to routine normal activity for several weeks. Dr. Russell released the claimant to return to work with minimal restrictions. The claimant testified that he returned to work on or about September 18, 1998.

The claimant testified that he was involved in another work-related incident involving his neck on or about January 19, 1999, “I took out come concrete on a delivery. And when I went out to unload the concrete, I pulled a muscle in my neck. And I went back and told them.” Dr. Russell examined the claimant on January 22, 1999:

Mr. Gunter returns today after a four month absence complaining of a burning type pain in his neck. This occurred recently while at work. He was attempting to pick up an 80 lb sack of concrete when he felt a burning type pain in his neck. . . .On physical exam, he does have some spasm of the right cervical paraspinous area. . . .
It appears that Mr. Gunter has sprained his neck. I believe this can be treated conservatively with heat, muscle relaxer, and pain medication. . . .

Dr. Russell corresponded with the claimant’s attorney on May 11, 1999:

According to the AMA guidelines for impairment, a patient who has undergone cervical disc surgery, is entitled to a 9% impairment rating. I typically set maximum medical improvement for three months following the date of surgery. It has been some time since I have had any contact with Mr. Gunter regarding his re-injury on 1-19-99. At this point, any disability in regard to that injury is related more to subjective pain complaints rather than any significant objective neurological deficit. When Mr. Gunter’s pain reaches a tolerable level, he should gradually increase his activity again as tolerated.

Gunter filed a claim for workers’ compensation, contending that he sustained a compensable injury to his left shoulder and neck on May 30, 1998. The claimant also contended that he sustained either a new injury, an aggravation, or a recurrence of his previous injuries in January, 1999. The claimant contended entitlement to reasonable and necessary medical treatment for his injuries and the anatomical impairment rating assigned by Dr. Russell. The claimant reserved entitlement to temporary total disability compensation for the second event. The respondents contended that the claimant could not satisfy the requirements necessary to establish a compensable injury under Arkansas Workers’ Compensation Law, as amended by Act 796 of 1993, either for the alleged May 30, 1998 injury, or for the alleged January, 1999 injury. The respondents specifically contended that the claimant could not prove that he sustained an injury in the course and scope of his employment. In the event that the Commission found the claim to be compensable, the respondents did not dispute the claimant’s entitlement to temporary total disability compensation for the alleged first injury, or for the 9% physical impairment rating assigned by Dr. Russell.

Hearing was held before the Commission on June 30, 1999, at which time the Dearien family presented testimony contradicting the claimant and his corroborating witnesses. Jody Dearien testified that the claimant never reported a workplace injury to him. Jerry Dearien testified that he overheard the claimant telling Jean Dearien that his condition was preexisting and nonwork-related. The administrative law judge noted that Jean Dearien “was extremely unresponsive and evasive in the answers she provided at the hearing,” but that she generally testified that the claimant never directly informed her that he sustained an injury that was related to his employment. The administrative law judge noted that Ms. Dearien made no effort to investigate the claimant’s contentions. Melissa Picard, a bookkeeper for the respondents, nervously testified that the claimant said his condition was preexisting.

After the hearing, on July 27, 1999 the parties deposed Elowayne Mast, an independent general contractor who previously bought construction materials for Dearien Builders. Counsel queried Mr. Mast:

Q. Do you recall an incident which occurred back in May of 1998 in which Mr. Gunter was injured on the job?

A. Yes.

Q. Could you tell us what you recall happening?

A. As I recall happening, my son and I were on the roof, and we had unloaded shingles on the roof with a shingle ladder. As I recall, there were two other helpers with Cory, didn’t know who they were, they were new employees at the time, and as my son and I let the ladder down as far as we could, it was up to them to take it from there on down. From that point on Cory got the whole load, it came down on him. The stress was all on him.

***

Q. And do you have any idea about how much this ladder weighs?

A. No.

Q. Just your best estimate.

A. No, I don’t. I know it takes two to three men to carry it and it’s a load then. Estimate, I don’t know. I don’t know as I could say really how much it weighs. I know it takes two to three men to carry it and move it.

Q. Okay, fair enough.

A. Properly.

Q. But do you recall from the position where you were standing on the roof of the building, Mr. Gunter at some point had to bear the entire weight of the ladder?

A. Yes, he did bear the entire weight of the ladder.

Q. Okay. At that point how did the other two employees of Dearien react to that fact?
A. Well, as I recall, I told them — I said they need to get over and help him. I said, “He can’t handle it.” Of course, he had also asked for help at that particular point.
Q. Do you recall whether or not the ladder ever actually made contact with any part of Mr. Gunter’s body?

A. Yes, it was kind of down around his head.

Q. Do you recall Mr. Gunter making any statements at the time indicating that he was injured?

A. Not at that point. I do recall he said that it hurt.

The administrative law judge filed an opinion on September 27, 1999, and discussed that three witnesses testified that they witnessed an incident involving the claimant and a shingle ladder. Although the witnesses’ testimony differed to some degree, the administrative law judge found the difference to be inconsequential and attributable to a difference in the perspective of the witnesses. The administrative law judge contrasted the testimony of the claimant and three eyewitnesses to that of the Deariens and Ms. Picard. The Deariens and Ms. Pickard asserted that the claimant never reported a work-related injury, and that the claimant attributed his physical problem to a preexisting injury. However, the administrative law judge noted that the only medical evidence of a prior injury related to a prior biceps injury. There were no medical records before the Commission suggesting that the claimant had previously suffered from any problems relating to the cervical condition which necessitated surgery by Dr. Russell.

Further, the administrative law judge noted his observations of the respondents’ witnesses for the record. The facial expressions, posture, and other demeanor of Jean Dearien appeared openly hostile and defiant throughout her testimony. She was extremely evasive and non-responsive to questions posed to her by counsel and the administrative law judge. Jody Dearien, Ms. Dearien’s son, was likewise hostile, defiant, and non-responsive. The administrative law judge found nothing inappropriate with regard to Jerry Dearien’s behavior or demeanor, but did note that “Mr. Dearien appeared as if he would like to close his eyes and the entire affair would be over.” The administrative law judge noted that Melissa Picard “was visibly nervous and extremely distraught. While testifying at a hearing such as one conducted in this matter can be expected to create some degree of anxiety for any witness, the degree of anxiety demonstrated by Ms. Picard far exceeded that which should be expected from a witness with nothing at stake in the outcome of a claim. I further note that Ms. Picard’s testimony was characterized by lengthy pauses following the questions which elicited the most significant testimony, which went to the central issues in this claim.”

The administrative law judge thus found that the credibility of Jean and Jody Dearien in their testimony was adversely affected and entitled to minimal weight, as was the testimony of Melissa Picard. After considering all of the evidence before the Commission, the administrative law judge found that the claimant did sustain an injury arising out of and in the course of his employment on May 30, 1998, when a shingle ladder fell on him. The administrative law judge found that the claimant proved all the elements necessary to establish a compensable injury pursuant to Act 796 of 1993. The administrative law judge found that the claimant sustained a recurrence of the compensable injury on January 19, 1999. The administrative law judge directed the respondents to pay benefits in accordance with his findings of fact, along with their proportionate share of attorney’s fees. Respondents appeal to the Full Commission.

II. ADJUDICATION A. Alleged May 30, 1998 Compensable 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, 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 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 claimant was discharging his employment duties for the respondent-employer on May 30, 1998. The claimant testified that a shingle ladder fell and struck his left shoulder, causing immediate pain and a “tingling” sensation in the fingers of his left hand. Three co-workers personally witnessed and testified to this specific workplace incident. Elowayne Mast, a general contractor with no interest in these proceedings, testified that the ladder struck the claimant “down around his head,” and that the claimant bore “the entire weight of the ladder.” It is true that the first medical report does not specifically mention this incident, but the claimant did complain of pain after working for the respondents, and the treating physician observed edema on the claimant’s left shoulder. The subsequent records of both Dr. Benjamin Dodge and Dr. Anthony Russell include the claimant’s history of the ladder incident.

The administrative law judge found that the claimant and his corroborating witnesses were credible, and that the respondents’ witnesses were less than credible. It is within the Commission’s sole discretion to determine the credibility of each witness and the weight to be given the witness’ testimony. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). The Commission is not required to believe or disbelieve the testimony of any witness.Green v. Jacuzzi Brothers, 269 Ark. 733, 600 S.W.2d 448
(Ark.App. 1980). We may accept and translate into findings of fact only those portions of the testimony deemed worthy of belief.Univ. of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997). In the present matter, the administrative law judge discussed that although the first medical record was silent regarding the ladder incident, the next medical reports, taken two and one-half weeks after the injury, do reference a ladder incident. The administrative law judge personally observed his observation of the respondents’ witnesses, in that they were hostile, defiant, and evasive. After de novo review of the entire record, we affirm the administrative law judge’s credibility determination.

The Full Commission therefore finds that the claimant proved he sustained an accidental injury on May 30, 1998, which caused physical injury to the body, arose out of and in the course of employment, and required medical services. We note that the respondents expressly stated that if the Commission found the claim to be compensable, there would be no dispute regarding temporary total disability compensation or the 9% permanent physical impairment rating. The Full Commission therefore affirms the administrative law judge’s finding that the claimant proved by a preponderance of the evidence the elements necessary to establish a compensable injury under Arkansas Workers’ Compensation Law as amended by Act 796 of 1993.

B. The Alleged Incident of January, 1999.
An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury.Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897
(1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v.Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996).

In the present matter, the claimant contended that he suffered either an aggravation, recurrence, or new injury to his neck on or about January 19, 1999, for which he received medical treatment and should be compensated. (The claimant expressly reserved entitlement to temporary total disability compensation related to the second incident.) According to the record, the claimant returned to Dr. Russell on January 22, 1999, complaining of a burning pain in his neck after lifting an 80-pound sack of concrete at work for the respondent-employer. Dr. Russell found right cervical spasm and opined that the claimant had sprained his neck. The administrative law judge found that the claimant sustained a recurrence of his compensable injury on January 19, 1999. After de novo review, the Full Commission affirms this finding.

III. CONCLUSION
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant proved that he sustained a compensable accidental injury as the result of a specific incident occurring May 30, 1998. The Full Commission finds that the claimant proved entitlement to temporary total disability compensation from June 1, 1998 through September 14, 1998. We further find that the claimant proved entitlement to reasonable and necessary medical treatment related to the compensable injury in addition to the 9% physical impairment rating assigned by Dr. Russell. Further, the Full Commission finds that the claimant sustained a recurrence of his compensable injury on January 19, 1999, for which he is entitled to reasonable, necessary, and related medical treatment. Therefore, we affirm in its entirety the administrative law judge’s opinion.

All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).

For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. §11-9-715 (Repl. 1996)

IT IS SO ORDERED.

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ELDON F. COFFMAN, Chairman

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PAT WEST HUMPHREY, Commissioner

Commissioner Wilson dissents.