JARAMILLO v. SYSTEMS CONTRACTING CORP., 2011 AWCC 96

CLAIM NO. G006583

ROBERTO JARAMILLO, EMPLOYEE CLAIMANT v. SYSTEMS CONTRACTING CORP., SELF-INSURED EMPLOYER RESPONDENT INTEGRATED CLAIMS MANAGEMENT, INSURANCE CARRIER RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 11, 2011

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

Claimant represented by the Honorable Bill Bracey, Jr., Attorney at Law, Blytheville, Arkansas.

Respondent represented by the Honorable Michael E. Ryburn, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed March 9, 2011. The administrative law judge found that the claimant sustained injuries arising out of and in the course of his employment. After reviewing the entire record de novo, the Full Commission reverses the administrative law judge’s opinion. The Full Commission finds that the claimant did not prove he sustained a compensable injury to his back, neck, ribs, knees, or left shoulder.

I. HISTORY

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The record indicates that Roberto Jaramillo, age 48, was hired at Systems Contracting Corporation in June 2005. Mr. Jaramillo testified that he worked as a welder for the respondent-employer. The parties stipulated that the employment relationship existed at all pertinent times, including September 7, 2008. The claimant testified on direct examination:

Q. Now, what were you doing on September the 7th of 2008?
A. Well, I worked — I [was] driving a forklift. . . . I see the pipe in the floor and the man carried it on the forklift, he’s rolling the pipe. The pipe [was] over here, I’m over here. When the front wheels, you use it like this, hit the back of my feet and it knocked me on the concrete.
Q. Did the forklift then hit the pipe?
A. Yeah, oh, yes.
Q. And the pipe hit you and what happened to your body then?
A. Well, I — I [was] going in the air, it hitted (sic) my arm.
Q. You went up in the air and came down on your left shoulder?
A. My-my spine. . . . I feel like a hot wire going in my stomach, in pain. I feel like all this — my body had a slit.

The claimant testified that the respondent-employer did not provide medical care following the accident. The claimant’s employment was terminated on August 4, 2009. The claimant did not receive any medical treatment of record until August 4, 2009, when he was seen at Regional Medical Center at Memphis. The Reason For Visit was “Left shoulder injury at work.” It was also noted, “46 yo hispanic male 5 mo. ago fall at work w/injury to left shoulder.” A Triage

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Assessment indicated, “I was at work and a guy driving a fork lift got the back of my feet and it flipped me on my back and hurt my left shoulder. I never saw a doctor. I still have trouble with my shoulder.” It was reported, “No obvious deformity noted limited ROM due to pain.” It was also noted that a CT scan showed no acute findings, and that an x-ray of the claimant’s shoulder was negative. The claimant was discharged to home and was instructed to follow up for a possible umbilical hernia. No work restrictions were given and the claimant was instructed, “Follow up with Medplex surgery for elective hernia repair in 2-4 weeks. Also follow up with Medplex for blood pressure management.”

A CT of the claimant’s chest, abdomen, and pelvis was done on August 4, 2009, with the following impression:

No acute findings.
Cardiomegaly with left ventricular hypertrophy.
Cholelithiasis without evidence of cholecystitis.
Diverticulosis without evidence of diverticulitis.
Umbilical hernia containing fat only.

An x-ray of the claimant’s left shoulder was done on August 4, 2009: “Left shoulder, three views: No fracture or dislocation. No soft tissue calcification.”

The claimant was seen at Regional Medical Center at Memphis on September 3, 2009, at which time it was noted, “s/p fall on concrete — industrial w/small umbilical hernia, reducible, sometimes painful, always reducible.” The claimant was seen at Regional Medical Center on November 12, 2009, where it was noted that the claimant complained of “Hernia S/P fall.” The claimant also complained of left shoulder pain and left-sided neck pain. The record indicates

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that the claimant was diagnosed with “history of umbilical hernia,” and “right testicular mass.” The claimant was instructed to follow up with a urologist.

The claimant was seen at Regional Medical Center on January 19, 2010:

46 yo male c/o multiple problems but has not completed w/u from previous clinic. Pt. still has size difference between testicles abnormal mass Right testicle. C/O pain in left shoulder and right chest from work accident about 1 year ago. Pt previously seen in our clinic for asymptomatic umbilical hernia. He needs to go to ER for HTN today and have these other problems addressed before scheduling umbilical hernia repair. . . .

The claimant was diagnosed with 1) Emergent HTN; 2) Testicular mass; 3) Shoulder pain; 4) Chest pain; and 5) Umbilical hernia.

The claimant was seen at Regional Medical Center on March 5, 2010, at which time the claimant’s chief complaint was “Hernia.” It was noted that the claimant complained of multiple problems, including abdominal pain, testicular pain, and left shoulder pain. The claimant appears to have been diagnosed with “Muscle strain/spasm.” A handwritten notation appears to have indicated, “Rx Flexeril.”

A Colonoscopy Report on April 20, 2010 showed a diagnosis of Diverticulitis of colon, along with polyps in the claimant’s rectum and colon.

The claimant was seen at St. Bernards Medical Center on June 4, 2010 and was diagnosed with chronic neck and back pain. It was noted at that time, “Roberto Jaramillo was seen in the Emergency Department on 06/04/10 at 1800 and may return to work/school in 1 day.” A pre-hearing order was filed October 25, 2010. The claimant contended that the employment relationship

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existed on September 7, 2008, “when claimant was welding for employer a co-worker on a forklift hit a pipe and knocked claimant off his feet causing injury to his back, neck, ribs, and knees. Claimant received no medical care and was placed on light work then terminated.”

The respondents contended, “This claim was not reported to the employer and no notice was given. The claimant was not injured at work. He has no objective medical findings. He did not sustain a compensable injury.”

The parties agreed to litigate the following issues: “compensability (temporary total disability from September 8, 2008 to a date to be determined, and medical benefits) and controverted attorney fees.”

A hearing was held on January 13, 2011. At that time, the parties essentially agreed to reserve an issue of whether or not the claimant sustained a compensable injury in the form of a hernia. An administrative law judge filed an opinion on March 9, 2011. The administrative law judge found that the claimant “sustained injuries arising out of and in the course of his employment” on September 7, 2008. The administrative law judge found that the claimant was entitled to reasonably necessary medical treatment and temporary total disability benefits.

The respondents appeal to the Full Commission.

II. ADJUDICATION Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4) (Repl. 2002), provides:

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(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body . . .
arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]

A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2002). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 2002).

The claimant has the burden of proving by a preponderance of the evidence that he sustained a compensable injury. Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002). Preponderance of the evidence means the evidence having greater weight or convincing force Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).

An administrative law judge found in the present matter, “3. On September 7, 2008, the claimant sustained injuries arising out of and in the course of his employment which rendered him temporarily totally disabled for the period commencing August 4, 2009, and continuing through the end of his healing period, a date to be determined.” The Full Commission reverses this finding. The Full Commission finds that the claimant did not prove he sustained a compensable injury to his back, neck, ribs, knees, or left shoulder.

The parties stipulated that the employment relationship existed on September 7, 2008. The claimant testified that he was injured in an accident

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involving a forklift that date. The claimant testified that he was thrown in the air, was hit in the arm, and fell on his left shoulder. The claimant testified that he also injured his spine and felt “like a hot wire going in my stomach, in pain.” There is no evidence of record corroborating the claimant’s testimony that the respondents refused to provide medical care following the alleged accidental injury of September 7, 2008. The record indicates that the claimant did not seek medical treatment until after the claimant’s employment was terminated on August 4, 2009. The claimant was seen at Regional Medical Center on August 4, 2009, and the claimant reported at that time that he had been involved in an accident five months earlier. The claimant reported that he had been flipped onto his back and had injured his left shoulder. Nevertheless, a physical examination of the claimant’s left shoulder showed “no obvious deformity,” albeit “limited ROM due to pain.” A CT scan showed no acute findings, and an x-ray of the claimant’s left shoulder was negative. The claimant was instructed to follow up for a possible umbilical hernia.

A CT of the claimant’s chest, abdomen, and pelvis on August 4, 2009 showed no objective findings. There is no probative evidence of record demonstrating that the impression of the conditions cardiomegaly, cholelithiasis, or diverticulosis were in any way causally related to the accidental injury allegedly occurring September 7, 2008. An x-ray of the claimant’s left shoulder on August 4, 2009 showed “No fracture or dislocation. No soft tissue calcification.” The claimant was treated for complaints primarily related to a

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hernia on September 3, 2009, November 12, 2009, and January 19, 2010. As the Commission has earlier noted, the claimant was seen at Regional Medical Center on March 5, 2010, at which time the claimant’s chief complaint was “Hernia.” The claimant also complained of abdominal pain, testicular pain, and left shoulder pain. The claimant was also apparently diagnosed with “Muscle strain/spasm,” and a handwritten notation appears to have indicated “Rx Flexeril.” There is no probative evidence before the Commission demonstrating that the claimant suffered from muscle spasm in his left shoulder. Nor is there any probative evidence before the Commission demonstrating that the claimant suffered from muscle spasm in his back, neck, ribs, or knees. Nor did any treating physician or medical professional state or opine that the claimant suffered from muscle spasm in his left shoulder, back, neck, ribs, or knees.

The Full Commission finds in the present matter that the claimant did not prove by a preponderance of the evidence that he sustained a compensable injury to his back, neck, ribs, knees, or left shoulder. While the claimant did prove that he sustained an accidental injury causing physical harm to his back, neck, ribs, knees, or left shoulder, the claimant did not prove he sustained an injury to his back, neck, ribs, knees, or left shoulder which arose out of and in the course of employment, required medical services, or resulted in disability. The claimant did not establish a compensable injury to his back, neck, ribs, knees, or left shoulder by medical evidence supported by objective findings.

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Based on our de novo review of the entire record, therefore, the Full Commission reverses the administrative law judge’s finding that the claimant “sustained injuries arising out of and in the course of his employment” on September 7, 2008. The Full Commission finds that the claimant did not prove by a preponderance of the evidence that he sustained a compensable injury to his back, neck, ribs, knees, or left shoulder. We reiterate that the parties have reserved the issue of whether or not the claimant sustained a compensable injury in the form of a hernia. This claim for benefits is otherwise denied and dismissed.

IT IS SO ORDERED.

________________________________ A. WATSON BELL, Chairman

________________________________ KAREN H. McKINNEY, Commissioner

Commissioner Hood dissents.

DISSENTING OPINION
After my de novo review of the entire record, I must respectfully dissent from the majority opinion. The claimant was injured on September 7, 2008, when he was thrown by a fork lift to a concrete floor. He suffered immediate pain in his groin and his spine, as well as his left shoulder. He received no treatment by the respondents,

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despite the obviously traumatic nature of this work-related accident and despite the fact that the respondent-employer acknowledged his injury by placing him on light duty for a time after the accident. The claimant’s ability to obtain care in this situation was hindered not only by the respondents’ behavior, but also by his limited education and limited ability to speak the English language.

The claimant began to seek treatment on his own for his hernia and for pain in his left shoulder, back, knees, ribs, groin and right testicle, approximately one year after the accident. The claimant received care from a hospital, which focused on his hernia and hypertension. However, his other complaints remained. On March 5, 2010, the claimant was seen by a physician at the Regional Medical Center at Memphis, who noted his complaints of hernia, abdominal pain, testicular pain and left shoulder pain. The physician diagnosed muscle strain and spasm, for which he prescribed Flexeril. The umbilical hernia and testicular complaints were not muscular in nature, but the left shoulder was. I find that the Flexeril prescription logically is related to the left shoulder complaints of the claimant, which are related to the March 2008 fork lift

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incident. The claimant has always related his complaints to that incident, without variation.

This situation is remarkable for its injustice. The respondents did not provide medical care for the claimant or otherwise fulfill the responsibilities imposed by the Workers’ Compensation Act, but the claimant cannot succeed in his claim, because the majority construes the lack of medical care as evidence of the lack of need. In this case, there is a specific incident, identifiable by time and place, during which the claimant was performing employment services. The incident caused physical damage to the claimant’s left shoulder, torso and groin, which is demonstrated by medical evidence, including objective evidence, for which the claimant requires medical care.

I would award the claimant medical and indemnity benefits, and an attorney’s fee, for his compensable injuries. I also recommend that the actions and policies of the respondent-employer be investigated for failure to comply with the mandate of the Arkansas Workers’ Compensation Act.

For the foregoing reasons, I must respectfully dissent from the majority opinion.

______________________________ PHILIP A. HOOD, Commissioner

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