CLAIM NO. E815157
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 5, 2000
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE FREDERICK S. SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by HONORABLE GLENN LOVETT, JR., Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The Respondent appeals a decision of the Administrative Law Judge filed on March 7, 2000, finding that claimant proved that he sustained a compensable injury and that claimant’s weekly wage was $297.74. After ourde novo review of the entire record, we find that the Administrative Law Judge’s decision should be reversed.
Claimant asserted at the hearing that he injured his back while lifting an axle and carrying it approximately twenty feet to his work station on December 10, 1998. He also asserted that he suffered no back problems prior to that date, because his previous back injury had been resolved with surgery. Claimant has failed to prove by a preponderance of the evidence that he suffered a compensable injury.
First, the medical records indicate that claimant sought prescription pain medication on December 8 and 9, 1998, before the injury. Dr. Bruce DeYoung’s office notes for claimant indicate that on December 8, 1998, at 3:15 p.m., Debra Hensley, claimant’s mother, called requesting “something for pain” for claimant. At the hearing, claimant suggested that this was for his father. However, the complete page on which the notation is found refers to claimant and there is no indication that it does not refer to him. On December 9, 1998, claimant called Dr. DeYoung’s office at 9:52 a.m. requesting “something for back pain — McBride gone til Tues, Dec. 15.” There is no question that Dr. McBride was claimant’s treating physician for his September, 1998, back injury. Claimant’s explanation that it must have been for his father is insufficient to overcome the fact that a person with claimant’s name called claimant’s family doctor for a prescription for back pain the day before the date of claimant’s alleged injury because claimant’s back surgeon would be out until December 15, which was the date claimant saw his doctor for the alleged injury.
Secondly, claimant saw Dr. McBride on December 15, 1998, and according to the doctor’s notes, “over the past two weeks he has developed recurrent right leg pain . . . very similar to his preoperative pain. Hehas had no injuries associated with this.” These notes are consistent with claimant’s need for pain medication on December 8 and 9. Claimant has presented the argument that he was afraid for his job and did not mention the injury on December 10 to Dr. McBride. However, claimant did provide the information that the pain developed over two weeks, which was unnecessary to his ruse that he did not hurt himself at work. Furthermore, the notes in Dr. DeYoung’s records that he was seeking out pain medication before December 10, indicate that claimant indeed suffered in the weeks before December 15, 1998, as claimant indicated to Dr. McBride.
In regard to claimant’s explanation for the notations in Dr. DeYoung’s records that claimant and Debra Hensley sought pain medication on December 8 and 9, we note that claimant stated in the record that he told Dr. McBride at the first visit in December that he hurt himself at work because “my mom called all that week and he was on vacation.” This is consistent with the notations in Dr. DeYoung’s office records. I conclude that claimant was being less that truthful in his assertion that Dr. DeYoung’s notations were in regard to his father.
There is a single notation in the history section of a December 18, 1998, medical record from the Baxter County Regional Hospital when claimant was admitted for intravenous medication for pain control, that claimant “returned to work, and while lifting heavy objects at work, he had recurrent rebound back and leg pain.” This is insufficient to prove that claimant was injured at work.
Third, claimant’s witness Bruce Holiday described an incident completely different from claimant’s description of the injury. Mr. Holiday stated that he and claimant picked up a side rail off the floor to put on the jig — a table — and that shortly after that he complained about his back. No one dropped the rail on the floor. No one almost fell down. Mr. Holiday stated that there were at least ten other people in the immediate area of their table. He also stated that claimant indicated by words and actions that his back hurt. He stated that the next day claimant asked him not to mention his back because he was afraid for his job. This testimony does not go to prove that claimant injured his back at work. It certainly shows that claimant was in some pain at that time, but it is not conclusive or suggestive of more than that.
Claimant reported his fear of losing his job to James Payne, TI Trailer’s plant manager, and Kevin Campbell, production manager at TI, as well as Dr. McBride. Certainly, claimant’s concern for his job can be explained in his comment at the hearing that he “hoped” he would be hired full-time by TI but that “because of the insurance risk I probably wouldn’t have been.” I ascribe his concern about getting fired to his fear of not getting hired by TI as a regular employee because of his continued back problems and not to getting fired because of workers’ compensation expenses.
Fourth, claimant failed to be forthright in his responses to questioning at the hearing and at his deposition. Claimant admitted at the hearing to earning his rent by performing jobs for his landlord, including mowing a yard with a riding lawn mower; bush hogging, which he was able to do even though it was kind of rough; and cutting a little wood. Claimant admitted that he had testified at his deposition that he had not cut wood. His explanation was that he “worked a couple minutes, then quit for a little while and take a break. . . . I thought you meant cutting wood for a living. I cannot do it. I cut [the landlord’s] wood as slowly as I could.” The following exchange then took place between respondent’s attorney and claimant:
I asked you if you had cut wood in your deposition and you told me you had not; correct?
I thought you meant cut wood for making money for myself.
Well, you cut wood for Mr. Woodbury to pay your rent?
Just exactly.
And I asked you how you cut the wood. And maybe you misunderstood me.
I cut it with a chain saw and Mr. Woodbury had a log splitter. I did not have to split the wood. . . . There’s two men to work the log splitter.
We cannot discern the difference between cutting wood for rent and cutting wood for money when claimant was asked what activities he could perform.
Claimant also stated at the hearing that he has not ridden a motorcycle “in a while.” However, respondent presented the testimony of Larry Walters to the contrary. Mr. Walters testified that he is a neighbor of claimant, living on a farm adjacent to the farm upon which claimant was a tenant. The area is typical Ozark woods and hills. In the spring and summer of 1999, claimant rode “a dirt bike down the road in front of my house and in on the back gate of the farm. The reason it was a concern is because I’ve got five dogs and they go crazy every time somebody comes down there on a motorcycle.” This occurred “several” times and “enough that we felt compelled to talk to his landlords about asking him not to come over there.” The dirt bike was a “small motorcycle for off road use, loud.” While this evidence goes more to whether and to what extent claimant is disabled, it is also indicative of claimant’s flexibility with the facts of this claim, by choosing not to be forthright concerning his abilities. Further, the fact that claimant can engage in this variety of activities, mowing, bush hogging, cutting wood with a chain saw, co-operating a log splitter, and dirt biking in the Ozark hills adversely affects his credibility, since he asserts that he is unable to work because of his back and leg pain.
These activities do coincide with Dr. McBride’s February 26, 1999, note that claimant “has complete resolution of his right leg pain,” which also works against his credibility in light of his assertions that he cannot work.
After our de novo review of the evidence, we find that claimant has failed to prove by a preponderance of the evidence that he suffered a compensable injury. Accordingly, we hereby reverse the decision of the Administrative Law Judge, and dismiss this claim in its entirety.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
Commissioner Humphrey dissents.
PAT WEST HUMPHREY, Commissioner
I must respectfully dissent from the finding by this Commission that claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury.
The Commission’s decision in this case turns on credibility. The Administrative Law Judge found that the greater weight (or the preponderance) of the evidence lies with claimant. It is neither necessary nor even possible in most instances to explain or rebut every seemingly inconsistent or contradictory piece of evidence. To require such a precision in the evidence is unreasonable.
The primary difficulty with much of the evidence results from claimant’s concern that if he claimed a work-related injury, he would lose this job. While this Commission’s decision appears to discount claimant’s anxiety in this regard, it remains a genuine and legitimate concern for many injured workers in Arkansas. Sadly, many of these injured workers not only lose their jobs but also their claim for workers’ compensation benefits.
In my opinion, claimant has met his burden of proof and the opinion of the Administrative Law Judge awarding benefits should be affirmed.
________________________________ PAT WEST HUMPHREY, Commissioner