CLAIM NO. E301084
JIMMIE HUBBARD, EMPLOYEE, CLAIMANT v. HOSPITALITY CARE CENTER OF ARKADELPHIA, EMPLOYER, RESPONDENT and ITT HARTFORD INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 28, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by RICK MEDLOCK and ROBERT McCALLUM, Attorneys at Law, Arkadelphia, Arkansas.
Respondents represented by JOSEPH KILPATRICK, JR. and MICHAEL P. VANDERFORD, Attorneys at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Respondents appeal an opinion of the Administrative Law Judge filed on August 30, 1993.
[3] The Administrative Law Judge found that claimant had sustained a compensable injury and awarded benefits for temporary total disability from March 18, 1993 through an uncertain future date. Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patel,
26 Ark. App. 54,
759 S.W.2d 579 (1988); Ark. Code Ann. §
11-9-705 (a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Central Maloney, Inc. v.York,
10 Ark. App. 254,
663 S.W.2d 196 (1984). After our denovo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge. [4] Claimant was the maintenance supervisor for the employer. Claimant presented credible testimony that on August 16, 1992, he sustained a back injury while lifting roofing material. Claimant immediately informed Pam Reng of his injury. Reng is claimant’s daughter and was the administrative secretary responsible for the paper work required for work-related injuries. James Gary Manning, the former administrator of the employer, testified that claimant informed him of the injury on August 17, 1992. Manning added that since claimant was the maintenance supervisor, he was able to continue to work for several months by avoiding heavy manual labor. Claimant provided a history of the work-related injury to Dr. Lowry, who performed claimant’s gall bladder surgery, and Dr. Schock, to whom Dr. Lowry referred claimant for his back condition. [5] Respondents point to the fact that the medical records do not document the work-related injury until December 8, 1992. However, at the time of the accident, claimant was receiving active treatment for abdominal pain, for which he underwent gall bladder surgery on September 21, 1992. Claimant explained that he tried to accurately describe his pain to the physicians. Following gall bladder surgery, claimant continued to have pain. In an office note dated December 8, 1992, Dr. Lowry indicated that claimant continued to have gas and pain in the lower right side radiating into his back and that these were the same symptoms as before surgery. As a result of these continuing lower back symptoms, Dr. Lowry referred claimant to Dr. Schock. [6] Based on the credible testimony presented by claimant, Pam Reng, and James Gary Manning, as well as the consistent history of a work-related injury provided to Drs. Lowry and Schock, we find that claimant has proven by a preponderance of the evidence that his back condition is causally related to his employment. [7] Claimant contended that he was entitled to temporary total disability benefits from March 18, 1993 through an uncertain future date. Temporary total disability is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark.State Highway Transportation Dept. v. Breshears.
272 Ark. 244,
613 S.W.2d 392 (1981). [8] On March 17, 1993, Dr. Schock provided claimant with a note indicating that he should remain off work until April 1, 1993. However, in a report dated March 30, 1993, Dr. Schock noted that respondents had “entirely withdrawn the support from his further back treatment.” Dr. Schock added that claimant was to remain off work indefinitely and was to return for treatment “when he has been able to achieve needed support for treatment for his Workman’s Compensation related back condition.” Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for temporary total disability from March 18, 1993 through an uncertain future date. [9] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant’s back difficulties are causally related to his employment and that claimant is entitled to benefits for temporary total disability from March 18, 1993 through an uncertain future date. Respondents are directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [10] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[11] Commissioner Tatum dissents.
[12] DISSENTING OPINION
[13] I respectfully dissent from the majority’s opinion finding that claimant has proven by a preponderance of the credible evidence that he sustained a compensable injury on August 16, 1992.
[14] Claimant maintains that he sustained a compensable back injury on August 16, 1992. Respondent controverts this claim in its entirety. A hearing was held and an Administrative Law Judge found in favor of the claimant. Respondent now appeals. [15] The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. FaulknerRadio Service,
220 Ark. 368,
247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H.Knight Co.,
220 Ark. 333,
248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. §
11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. §
11-9-704;Wade v. Mr. C Cavenaugh’s,
298 Ark. 363,
768 S.W.2d 521 (1989); and Fowler v. McHenry,
22 Ark. App. 196,
737 S.W.2d 663 (1987). [16] In my opinion, claimant failed to prove by a preponderance of the credible evidence that he sustained a work-related back injury on or about August 16, 1992. [17] A review of the evidence indicates that claimant claims on Sunday, August 16, 1992, while attempting to lift a roll of roofing material he injured his back. Claimant stated he reported the injury to his daughter, Pam Reng,former administrative secretary at respondent. The next day, claimant testified he told James Manning, the former
administrator at respondent. Despite this assertion, the workers’ compensation First Report of Industrial Accident Form was not filed until November 30, 1992. [18] A review of the evidence indicates claimant did not seek any medical treatment for the alleged back injury until December of 1992. I find this gap significant. This gap is significant primarily because during this time period claimant was regularly seeing Dr. Balay for gallbladder and hernial problems. Yet, at no time prior to April of 1993
did claimant tell Dr. Balay that he had back difficulties or suffered a back injury. [19] Additionally, I find it significant that the people corroborating claimant’s testimony no longer work for respondent and apparently have close ties to claimant. Thus, given the facts of this case, I discount their testimony. [20] Furthermore, a review of Dr. Schock’s records does not offer any corroborating testimony. Dr. Schock does not appear to have any independent knowledge of how claimant injured himself or any corroborating evidence that claimant’s present back condition is related to a work-related injury. Dr. Schock’s original diagnosis in December of 1992 is of mild osteoarthritis. Osteoarthritis has been present in claimant’s back since 1979. Dr. Schock’s opinion is based primarily on claimant’s assertions and does not constitute a preponderance of the credible evidence. [21] Claimant has failed to prove by a preponderance of the credible evidence that his present low back condition is the result of a compensable injury with respondent. Therefore, I respectfully dissent from the majority’s decision. [22] ALLYN C. TATUM, Commissioner