JOHNSON v. BERRYVILE HEALTHCARE, 2002 AWCC 156

CLAIM NO. F005937

TONYA JOHNSON, EMPLOYEE, CLAIMANT v. BERRYVILE HEALTHCARE, INC., EMPLOYER, RESPONDENT, CANNON COCHRAN MANAGEMENT, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 14, 2002

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

Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of the Administrative Law Judge: Affirmed.

OPINION AND ORDER
The claimant appeals to the Full Commission an Administrative Law Judge’s opinion filed February 20, 2002. The Administrative Law Judge found that the claimant failed to prove that she sustained a compensable injury while working for the respondents on February 25, 2000. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.

I. HISTORY
Tonya Johnson, age 38, became a certified nurse’s assistant for Berryville Healthcare, Inc. in 1999. Carla Jackson testified that she was an LPN charge nurse, and that she had worked for the respondent-employer for six years. Ms. Jackson testified that both she and Tonya Johnson, the claimant, smoked cigarettes on the employer’s premises:

Q. Is there a place called the smokehouse out at Berryville Health Care?

A. Yes. . . .It’s a designated smoking area.

Q. Okay. And did you ever have any or overhear any discussions when Ms. Johnson was talking about as far as her shoulder injuries?

A. Yes. . . .

Q. And what did you hear Ms. Johnson say?

A. That she hurt her shoulder on a horse.

The parties stipulated that the employee-employer relationship existed on February 25, 2000. The claimant testified:

Q. Now, you had been there about six months before February 25th, `00. Correct?

A. Yeah.

Q. All right. Now, what happened to you on that date?

A. I was working on 100 and 200 hall, and we were shorthanded that night. And I went to Carmel’s room to get her up for dinner. And I was transferring her from the — her bed to her wheelchair. And her legs went out. She kind of went bottom heavy on me, and I caught her. . . .
Q. And what happened to you as a result of you working with patient Carmel?

A. It tore the rotator cuff in my shoulder. . . .

Q. Had you ever had any problems with your shoulder before February 25th?

A. No.

Carla Jackson testified:

Q. Did you ever hear any statements later on in time frame as to where Ms. Huddleston — I’m sorry, where Ms. Johnson may have hurt her shoulder?

A. Yes, I did.

Q. And when was that?

A. The next night.

Q. Okay. And what did you hear the next night?

A. That she hurt it lifting a resident.

Q. Okay. How did you hear that?

A. She was in the smokehouse.

Q. Okay. So one night she tells you that she’d hurt it on the — on a horse, and the next night in the smokehouse again, she says she hurt it picking up — hurt it with the resident. Is that right?

A. Right. Right.

Q. Do you know who the resident was?

A. Carmel Stafford.

The nursing home administrator, Nadine Huddleston, signed an Authorization To Examine And Treat Employee on February 28, 2000. The authorization indicated that the date of injury was February 25, 2000. Ms. Huddleston testified:

Q. And do you know Tonya Johnson?

A. Yes.

Q. Okay. And did you ever get any report of an injury by Ms. Johnson concerning lifting a patient?

A. Yes.

Q. And do you recall who the patient was?

A. Carmel Stafford. . . .

Q. Did, in fact, the nursing home provide medical care based on this allegation that there had been an incident lifting Ms. Stafford to Ms. Johnson?

A. She was referred to Dr. Wallace.

Nadine Huddleston stated that the respondent-employer provided workers’ compensation in-service training in May 2000. Ms. Huddleston testified:

Q. Did — when did you next have discussions with Ms. Johnson about receiving any health care?
A. After the in-service was finished. . . .She stopped me and told me that she was having problems with her shoulder, and she wanted to know how much time she had under workmen’s comp to go see a physician again. . . .

Q. Do you recall when you got back with Mrs. Johnson?

A. I think I have on my note — looks like the 31st, May 31st. . . .
Q. Did Mrs. Johnson tell you anything on or about May 31st of why her shoulder was bothering her?
A. She just told me that she had been working with her horses that morning, and it started giving her problems.

Evelyn McMillan, a certified nurse’s assistant for the respondents, testified:

Q. Have you ever heard Ms. Johnson make any statements in the smokehouse concerning her shoulder?
A. Yes. . . .I heard her say that she had hurt it on her horse.

Q. Okay. Do you know when she said that?

A. No.

Q. Okay. At some point in time, did you ever go to Nadine Huddleston concerning Ms. Johnson?

A. Yes.

Q. Why is that?

A. Because she said that she was going to say that she had hurt her arm there at work, and she was going to sue the facility.

Ms. Johnson claimed entitlement to worker’s compensation. The claimant contended that she injured her shoulder on February 25, 2000, when she was transferring a resident from a bed to a wheelchair. The respondents contended that the claimant did not sustain a compensable injury. The parties agreed to litigate the following issues:

(1) Compensability of the claimant’s right shoulder problems;

(2) Temporary total disability compensation from June 12, 2001 to a date to be determined;

(3) Medical treatment; and

(4) Attorney’s fee.

After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove that she sustained a compensable injury on February 25, 2000. The claimant appeals to the Full Commission.

II. ADJUDICATION
The claimant contends that she sustained a compensable injury as the result of a specific incident occurring February 25, 2000. The claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. 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. 2002). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that the injury caused physical harm 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. In addition, 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 testified that she tore her rotator cuff while transferring a patient from the patient’s bed to a wheelchair. However, three other individuals expressly contradicted the claimant’s testimony. Carla Jackson, the LPN charge nurse, was informed by the claimant that she hurt her shoulder on a horse. The claimant told the nursing home administrator, Nadine Huddleston, that her shoulder problem resulted from working with her horses. Another employee, Evelyn McMillan, testified with regard to the claimant’s shoulder condition, “I heard her say that she had hurt it on her horse.”

The Dissenting Opinion finds the express testimony of these three witnesses to be “suspicious” and “suspect,” and that “ample evidence” shows that the claimant sustained a compensable injury on February 25, 2000. It is exclusively the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). The Commission is not required to believe the testimony of the claimant or other witnesses but may accept and translate into findings of fact only those portions of the testimony deemed worthy of belief. Morelock v.Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1997).

In the present matter, the Administrative Law Judge found the testimony of Carla Jackson, Nadine Huddleston, and Evelyn McMillan to be more believable than that of the claimant. The Administrative Law Judge specifically noted the testimony of Ms. McMillan, who testified that the claimant had informed her, along with the other employees, that her shoulder problems resulted from working with a horse rather than a specific incident on February 25, 2000. The decision of the Administrative Law Judge is affirmed.

Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained an accidental injury arising out of and in the course of her employment on February 25, 2000. We therefore affirm the opinion of the Administrative Law Judge. This claim is denied and dismissed.

IT IS SO ORDERED.

________________________________ ELDON F. COFFMAN, Chairman
________________________________ JOE E. YATES, Commissioner

Commissioner Turner dissents.

DISSENTING OPINION

SHELBY W. TURNER, Commissioner

I must respectfully dissent from the majority opinion affirming and adopting the decision of the Administrative Law Judge. Specifically, I dissent from the finding of the Administrative Law Judge that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury to her left shoulder while working for the respondent on February 25, 2000.

In making this finding, the Administrative Law Judge relied completely upon statements by two of claimant’s co-workers that she had told them she had hurt her shoulder while riding her horse instead of at work. However, a careful analysis of the evidence in the record reveals that these statements are of suspect credibility, and that claimant produced ample evidence indicating her shoulder injury is due to the February 25, 2000 work accident.

Claimant testified that she injured her shoulder on February 25, 2000 in the course of lifting a patient from her bed to a wheelchair. Ms. Nadine Huddleston, respondent employer’s administrator, testified that the “charge nurse,” claimant’s supervisor, completed an incident report on February 25, 2000, and that she had no reason to disagree with the claimant’s testimony that she reported the accident immediately after it happened. See Hearing Transcript, page 67.

The respondents first called Ms. Nadine Huddleston, administrator for respondent employer. Ms. Huddleston testified that based upon the report of the lifting accident sustained by claimant, she referred claimant to Dr. Wallace. See Hearing Transcript, pages 52-53. She testified that on May 30, 2002, she gave an “in-service,” an educational program for employees on the topic of workers’ compensation. See Hearing Transcript, pages 54-55. She testified that after the “in-service” was over, claimant “stopped her and told her she was having problems with her shoulder, and she wanted to know how much time she had under workmen’s comp to go see a physician again.” See Hearing Transcript, page 55. Ms. Huddleston further testified that on the next day, May 31, claimant told her that her shoulder was giving her problems that day due to working with her horses that morning. See Hearing Transcript, page 56.

Then, Ms. Carla Jackson, a “charge nurse” for respondent employer, testified. The written statement offered by the respondents as her statement is dated 5/31/2000 and reads as follows:

I heard Tonya Johnson say the night before her injury that she had hurt her shoulder doing something with her horse. The next night she came in and reported an injury to the same shoulder while lifting a resident.

/s Carla Jackson

(See Respondent’s Exhibit 2)

The handwritten words “in Feb” are inserted in the typewritten statement.

Ms. Jackson testified in relevant part as follows:

Q: What came up that you and Miss Huddleston had a discussion about Miss Johnson’s shoulder?

A: Okay, Nadine came to me and asked if I had heard —

—

THE WITNESS: Nadine came to me and asked me if I had heard anything about Tonya hurting her shoulder.

Q: And did you, in fact, tell Nadine what you heard?

A: Yes, I did.

—

Q: Okay. Now, what date is that dated?

A: May 31st, 2000.

Q: Okay. Did she tell you specifically why she was inquiring as to Miss Johnson’s shoulder?

A: Yes.

Q: And what was that?

A: That — exactly? Okay. That Tonya had claimed that she hurt her shoulder on a resident and that another person heard her say she was going to file workmen’s comp.

Q: Okay. And had you ever heard her make any statements concerning where she hurt her shoulder?

A: Yes.

Q: Okay. And what did you hear her — well, first, where did you hear her make these statements?

A: In the smokehouse.

Q: Okay. Do you recall when? What’s your —

A: It was, like, way before that.

Q: Way before when?

A: May 31st.

Q: Okay. Was May 31st the day you wrote this down?

A: Right.

Q: Now, there is a notation in your statement. And who wrote that handwritten?

A: Miss Huddleston.

Q: Okay. Did you tell her that?

A: I didn’t tell her that.

Q:Okay. Do you know approximately — earlier, though, before this?

A: Before what?

Q: The date of the statement that you may have heard these statements?

A: Yeah, it definitely was.

Q: And what did you hear Miss Johnson say?

A: That she hurt her shoulder on a horse.

Q: Okay.

A: I don’t exactly remember how, but that’s what it was.

Q: Okay. Did you ever hear any statements later on in time frame as to where Miss Huddleston — I’m sorry, where Miss Johnson may have hurt her shoulder?

A: Yes, I did.

Q: And when was that?

A: The next night.

Q: Okay. And what did you hear the next night?

A: That she hurt it lifting a resident.

Q: Okay. How did you hear that?

A: She was in the smokehouse.

Q: Okay. So one night she tells you that she’d hurt it on the — on a horse, and the next night in the smokehouse again, she says she hurt it picking up — hurt it with the resident. Is that right?

A: Right. Right.

—

Q: Miss Jackson, did that trigger anything? Why did you remember this happened May 31st?

A: Because one day she said she hurt it on the horse, and it was the next day that she said she hurt it on a resident.

(see Hearing Transcript, pages 78-82)

On cross-examination, Ms. Jackson testified in relevant part as follows:
Q: And, nurse, let me ask you this, ma’am. There’s an interlineation on that document — or one of the two documents — in writing. After you dictated it, did someone come back and ask you to put that in in February? In other words, how did the individual know to put it in in February if that individual hadn’t have known of the existence of an alleged February incident with a horse?

A: She must have known.

Q: She was the one who had you put in there parenthesis February, or just February, right here where it’s interlineated?

A: Because I didn’t remember which month it was.

Q: And she is Miss Huddleston?

A: Yes, sir.

Q: Who basically said, “Here, this is not complete. You need to put February in here”?

A: No, she didn’t say that.

Q: Okay. Well, what did she say?

A: She asked me did I remember what month it was, and I said, “No, I didn’t remember what month it was.”

Q: Did she then tell you February?

A: I guess so.

—

Q: Do you know whether or not there were two incidents with the horse, one on May 31st immediately after an in-service meeting and then one in February?

A: No, I don’t know that.

Q: But it’s your present sense impression now that at least Miss Huddleston knew about the February incident and she was the one who suggested that you write in there — or that she actually wrote in there on your statement February?

A: The February incident of what? The horse or the incident with the resident?

Q: The February incident with the horse.

A: I don’t know that she knew that.

(see Hearing Transcript, pages 84-86)

The respondents then called Ms. Evelyn McMillan, a CNA for respondent employer. They introduced a signed statement into the record which read as follows:

5/31/00

Tona [sic] said to me when we were in the Smoke House some time ago that she was rideing [sic] her Horse the day before and hurt her shoulder, she said she was going to say she hurt it here at work so that workmens comp would pay for it.

Today 5/31/00 Tonya said in the Smoke house that she talked with her lawyer and he told her that she had a case aginst [sic] Berryville Health care and she would be able to sue for a large amount of money.

/s Evelyn McMillan

5/31/00

(see Respondent’s Exhibit 3)

As to her statement, Ms. McMillan testified in relevant part as follows:
Q: Have you ever heard Miss Johnson make any statements in the smokehouse concerning her shoulder?

A: Yes.

Q: And what did you hear her say?

A: I heard her say that she had hurt it on her horse.

Q: Okay. Do you know when she said that?

A: No.

Q: Okay. At some point in time, did you ever go to Nadine Huddleston concerning Miss Johnson?

A: Yes.

Q: And why is that?

A: Because she said that she was going to say that she had hurt her arm there at work, and she was going to sue the facility.

Q: Okay. Now, I’m going to hand you a document, and I’m going to ask — that’s a copy. Can you identify that document, ma’am?

A: Yes.

Q: And whose handwriting is that document in?

A: It is my handwriting.

Q: Okay. And what date did you write that?

A: I wrote it on the 5th and the 31st of 2000.

Q: Okay. What day did you go to Miss Huddleston?

A: On this date that I wrote this statement, the 5th and the 31st of 2000.

—

Q: Why did you go to Miss Huddleston?

A: Because of what Tonya had said, and it wasn’t correct, and it’s not right.

(see Hearing Transcript, pages 88-89)

On cross-examination, Ms. McMillan testified in relevant part as follows:
Q: Is there any reason why you did not write this down immediately when it occurred?

A: Yes.

Q: Why?

A: I thought she was just talking.

Q: Okay. And then you found out that your supervisor had indicated to you that she had really hurt herself somewhere else.

A: My supervisor never said anything to me.

Q: So you were unaware that Miss Huddleston, the administrator — and that’s who I mean by your supervisor — had already had a conversation with Miss Johnson at the time that you were asked or that you came forward and filled out your document?

A: I was unaware of that, yes.

Q: It just so happened that it happens to be on the same day that Miss Johnson had told her about an incident involving a horse on that day?

A: I have no knowledge of what she had spoken to her about.

Q: So your statement is that about three months before that you remembered this conversation. Anything cause you to remember the conversation other than you happened to come forward on May 31st that happened to be the last day that she worked there?

A: Because she was out in the smoke room and said she was going to sue the facility for something that did not happen there.

(see Hearing Transcript, pages 93-94)

When the statements of Ms. Jackson and Ms. McMillan, coupled with their testimony, is analyzed, they become suspect. First, the statements of both Ms. Jackson and Ms. McMillan are dated May 31, months after they allegedly overheard claimant say that she hurt her shoulder on a horse. Couple this fact with the fact that Ms. Huddleston testified that she found out claimant was going to pursue workers’ compensation on May 30, and the statements given by Ms. Jackson and Ms. McMillan become quite suspicious indeed. Second, by her own admission, Ms. Jackson did not make her statement on her own initiative but was asked by her boss, Ms. Huddleston, whether she had ever overheard claimant say she hurt her shoulder on a horse.

For these reasons, I find the testimony of respondents’ witnesses to the effect that claimant attempted to perpetrate a workers’ compensation fraud to be too suspect to defeat claimant’s claim.

I respectfully dissent.

_______________________________ SHELBY W. TURNER, Commissioner