CLAIM NOS. E019509 E209198
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 25, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by H. CHARLES GSCHWEND and JAMES C. BAKER, JR., Attorneys at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed May 1, 1996 finding that the claimant has failed to prove that his back problems are a compensable consequence of his November 1, 1990 ankle injury. Based upon our de novo review of the entire record, we find that the claimant has failed to meet his burden of proof. Therefore, we affirm the decision of the Administrative Law Judge.
[5] Claimant went on to describe the incident as follows:And then when I was coming, well, I took cramp and my — in the calf of my leg and reached down to grab it which at that time, I smoked. And I knocked the fire out of my cigarette and it hit my lap. And I was trying to get it out of the seat and I heard gravel and I looked up. It was too late. I went off the curve.
Well, when I smoked, I carried it in my right hand. And I reached down to grab — I had a hold of the steering wheel with my left hand. I reached down to grab the cramp in my leg and had the cigarette between here. And when I reached down, it knocked the fire out on the bottom of the steering wheel and it fell right in my lap
* * *
I went to trying to put it out and get it out of the seat. And I heard the gravel. And I thought I had slipped off of the shoulder of the road on the right side. And I kinda whipped it a little bit. And when I looked up, I had done crossed the — across to the other side of the road and was in the gravel on the other side of the road. And right off the embankment I went.
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I hit two trees and totaled out my pick-up.
[6] Claimant contends that the automobile accident caused him to develop pain in his hip and back. Claimant stated that as a result of the automobile accident, he immediately sought medical attention from his authorized physician, Dr. Lucien Rouse. In 1992, almost one year after the automobile accident, claimant was referred to Dr. Mark Jones of the Little Rock Diagnostic Clinic. Dr. Jones treated the claimant conservatively and assigned the claimant a 6% permanent impairment rating to the body as a whole as a result of the claimant’s back condition. Claimant is now under the care of Dr. Barry Sorrels. [7] Claimant testified at the hearing that on the dayprior to the automobile accident he had experienced a cramp in his left leg as a result of undergoing physical therapy. Claimant stated that he advised his physical therapist of the cramp of the day of the accident. According to the claimant, the physical therapist was not concerned. [8] At the hearing, claimant insinuated that he saw Dr. Jones for his back problems shortly after the accident. When claimant was questioned about when he first saw Dr. Jones for his back problems, claimant’s answers were evasive at best. However, the medical records reveal that the first time claimant saw Dr. Jones for his back problems was on May 6, 1992, almost 11 months to the date after the injury. While the evidence reveals that the claimant suffered from back problems in the past due to a motorcycle accident in 1986 or 1987, a review of the medical records reveals that at no time did the claimant advise Dr. Jones of this previous condition. Claimant only advised Dr. Jones of the following past medical history.[9] Claimant presented Dr. Jones with a history pain in his knee as a result of the compensable 1990 injury. According to the history claimant provided to Dr. Jones, claimant stated that his recovery for his knee problems was “complicated by a development of knee pain from a subsequent motor vehicle accident, which left patient with hip and back pain.” [10] The first appearance of any complaint of back pain in the medical records is in Dr. Rouse’s April 23, 1992 report which states: “He still complains bitterly of pain in his ankle and now also in both knees, both hips, and his lower back.” (Emphasis added.) [11] Dr. Rouse’s medical records are not consistent with the claimant’s testimony. As mentioned above, claimant testified that he advised Dr. Rouse of the hip and leg pain on his first visit with Dr. Rouse following the automobile accident. However, the records do not corroborate this statement. Nowhere in Dr. Rouse’s June 7, 1991 report is there a mention of hip or back pain. [12] Furthermore, the physical therapist’s records do not corroborate claimant’s testimony that he experienced cramps in his leg the day before the accident. The physical therapist notes from June 3, 1991 (two days prior to the accident) state: “Reports being extremely sore and had a lot of cramping in calves after last session.” The last session was in May, 1991. The notes from the day of the accident provides a history from the day prior to the accident as follows: “I think the stimulator aggravates me. I ache the rest of the day after last ex session.” [13] Moreover, inconsistent with the claimant’s rendition of facts is the investigator’s description of how the automobile accident occurred. The investigator described the accident as follows:Significant for being stabbed in the stomach in 1981, fell and cracked vertebrae in neck in 1995, truck wreck in 1991 with injured hip and back, the above mentioned injury to his knee.
[14] Although claimant contends that this claim is controlled by Preway, Inc. v. Davis, 22 Ark. App. 132, 736 S.W.2d 21 (1987), we find that this claim is readily distinguishable from Preway and is, in fact, controlled by the Court’s holding in Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812 (1990). These two Court of Appeals’ cases set forth the law in this state with regard to “quasi-course of employment.” The Court stated in Preway that under the quasi-course of employment theory the claimant inPreway “was engaged in activities rendered necessary by her compensable injury.” The claimant in Preway was involved in an automobile accident when a faulty tie rod on her car gave way as she was on her way to a doctor’s appointment. InPreway, the Court found that a trip to the doctor for a compensable injury places a claimant in the quasi-course of employment. However, in Wolfe v. City of El Dorado, the court limited the rule espoused in Preway. By relying upon the holdings in Schander v. Northern States Power Co.,320 N.W.2d 84 (Minn. 1984) and Maguire’s Case,16 Mass. App. 337, 451 N.E.2d 446 (1983) the Court stated that the simple “but for” case is not all that one looks to in determining whether a subsequent injury is a compensable consequence under the quasi-course of employment theory. A sufficient direct relationship between the employment and the subsequent injury sustained must exist for the claim to be compensable. The Court held in Wolfe that an injury sustained in an automobile accident during a trip by a claimant to retrieve forgotten medicine is one of the categories of activities which ought not to be borne by the employer. [15] In our opinion, the category of activity involved in this case, i.e. claimant’s negligent driving while attempting to retrieve a fallen cigarette, breaks the chain of causation between the claimant’s original injury and his subsequent injury. A single car accident resulting from a claimant who has taken his eyes off the road to tend to a fallen cigarette is not the type of injury risk which should be borne by the respondent. We find that claimant’s unreasonable and negligent activity broke the chain of causation. [16] Furthermore, we question the claimant’s credibility in this case. Although portions of the claimant’s testimony have some shreds of truth in it, we are simply not persuaded by the claimant’s rendition of facts. The physical therapist’s notes do not corroborate the claimant’s statement that he was having leg cramps on the day prior to the accident. On the contrary, the records show that claimant’s leg cramps occurred in May of 1991, and did not occur on the visit preceding June 5, 1991. At best, the visit prior to June 5, 1991 “aggravated” claimant’s ankle, it did not cause claimant’s leg cramps. This is inconsistent with the claimant’s testimony. Moreover, claimant’s description of the automobile accident does not coincide with the investigating officer’s description of the accident. Although the cigarette is involved in both stories, the claimant’s rendition of facts that he was merely wiping ashes off of his legs and off of the seat of the truck as a result of a leg cramp differs completely from the investigating officer’s report that the claimant was retrieving a cigarette which he had dropped on the floor of the truck. A cramp was never mentioned to or reported by the officer. Finally, we are not persuaded by claimant’s testimony that he advised Dr. Rouse of back and hip pain on his visit following the automobile accident. Dr. Rouse’s records do no mention any type of back or hip pain until approximately eight months after the motor vehicle accident. Moreover, claimant did not seek or receive treatment for his back and hip pain until 11 months after the accident. [17] Finally, we are puzzled by claimant’s failure to advise Dr. Jones of his motorcycle accident in 1986. Claimant admitted at the hearing that he was involved in this accident and that the accident resulted in hip and back pain. However, claimant never advised his treating physician of this fact. [18] Accordingly, due to the claimant’s inconsistent statements and his attempts to conceal a past history of back problems from his treating physician, we find that the claimant’s testimony lacks credibility and is not entitled to any weight. Therefore, since the claimant is the only person who testified with regard to how the motor vehicle accident occurred, we find that the claimant has failed to prove by a preponderance of the evidence that the accident occurred as a result of a leg cramp or that he sustained hip and back pain as a result of the accident. The credible evidence of record simply does not substantiate claimant’s testimony. Accordingly, based upon our de novo review of the entire record, and for those reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable consequence as a result of the motor vehicle accident. Therefore, we affirm the decision of the Administrative Law Judge. [19] IT IS SO ORDERED.Operator 1 was traveling south on Highway 155. Operator 1 states he dropped his cigarette in the floor run off the road trying to pick the cigarette up, then hitting a tree before coming to a stop.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[20] Commissioner Humphrey dissents.