CLAIM NO. E811762
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 17, 2000
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by RONALD M. CHAUFTY, Attorney at Law, Texarkana, Arkansas.
Respondent No. 1 represented by GILL A. ROGERS, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
Respondent No. 1 appeals a decision of the Administrative Law Judge filed on August 19, 1999, finding that the claimant sustained a new injury on July 22, 1998, and awarding temporary total disability benefits for the period of August 18, 1998, continuing through a date yet to be determined. Based upon our denovo review of the record, we hereby reverse the decision of the Administrative Law Judge.
The claimant contends that he sustained a new injury on July 22, 1998. Respondent #1 contends that the claimant did not sustain a compensable injury on July 22, 1998. Specifically, Respondent #1 contends that there are no objective findings of a new injury. In the alternative, they contend that if there are some objective findings to support the claimant’s claim, then the statute of limitations is a bar to any benefits because the findings are related to an injury sustained by the claimant in 1992. Respondent #2 contends that the claimant could not demonstrate that he sustained a compensable injury because there are no objective findings causally connected to the 1998 episode and that the L4-5 disc which is at issue now was present prior to objective testing done before the 1998 incident.
The claimant sustained an admittedly compensable injury to his back in August of 1992. Ultimately, the claimant came under the care of Dr. Chris Alkire who operated on the claimant for a herniated disc at L5-S1. The claimant was assessed a permanent impairment rating of 11% to the whole person. The claimant continued to have problems following his surgery in 1993. We would note that a myelogram of the lumbar spine dated March 2, 1993, shows that the claimant had a bulging disc at L4-L5 that did not show any specific herniation.
The claimant returned to light-duty work and drove a truck for the respondent for approximately one year. His assignment to the truck driving job ceased when the claimant had received three speeding tickets. The claimant was ultimately assigned to duties in the pre-fab department as a welder. It was while working in the welding department that the claimant contended that he sustained his alleged injury on July 22, 1998.
The claimant testified that at approximately 9:00 a.m. on July 22, 1998, he sustained an injury to his back when he was lifting a base plate. The claimant stated that he experienced a sharp pain in his back with pain radiating down into his right leg and into his feet. The claimant stated that he reported the injury to Mr. Willard Franklin, his immediate supervisor, who told the claimant to go sit in the break room. The claimant saw Dr. Downs, the company doctor, the following week. The claimant thereafter scheduled an appointment with Dr. Alkire in August of 1998.
The claimant did not complete an incident or accident report with respect to the July 22, 1998, alleged incident. Mr. Jessie Henry, the shop superintendent, testified that the respondent employers’ policy is that employees are to report injuries no matter how slight to their supervisor and to the plant nurse. The claimant’s supervisor would have reported the claimant’s injury to Mr. Henry. However, no injury was reported to him. Mr. Henry testified that the employer maintains a log which records injuries. No injury was recorded for July 22, 1998, for the claimant.
The medical evidence shows that between September 7, 1995 and November 13, 1995, the claimant was seen on four separate occasions by Dr. Alkire. The claimant complained of low back pain and radiation of pain into his legs. A clinic noted dated September 7, 1995, reflects that a review of the claimant’s myeologram and CT scan showed that there was nerve root cut-off at L4-L5. The claimant was prescribed a series of three epidural steroid injections. After two injections, the claimant reported on September 28, 1995, to Dr. Alkire that the injections did not help. Dr. Alkire indicated during the September 28, 1995, visit that the claimant would need a discectomy at L4-L5 and discussed the procedure with the claimant. A note dated October 13, 1995, by Dr. Alkire states:
Patient and I had long discussion today. I told him I think his residual discomfort is due now to the disc rupture at L4-5. I’ve offered him again the possibility of considering operation. He has just not decided yet. I told him while he was deciding what we could let him go back to work light-duty, sedentary type work. Work excuse given. He is to return to see me in four weeks for review. If has problems between now and then, he will let me know.
On November 13, 1995, the claimant again sought treatment from Dr. Alkire. Dr. Alkire noted that he offered for the claimant to get a second opinion on his surgery recommendation. The doctor notes the claimant was going to “ponder this”. However, the claimant failed to seek treatment with the doctor or any other physician until July of 1998.
The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is compensable, that the claimant’s injury is job-related or that a claimant is entitled to benefits. Crouch Funeral Home v.Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977); O.K. Processing,Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). In determining whether a claimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 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).
Under Act 796, the presence of a pre-existing condition does not disqualify a claim for benefits. St. Vincent InfirmaryMedical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). However, the claimant must satisfy all the requirements of a compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). That is, the claimant must demonstrate that he has sustained an accidental injury; that it caused external or internal physical bodily harm; the injury arose out of and in the course of employment; and that medical services were required. Id. In addition, the claimant must prove a causal connection between the work related accident and the later disabling injury. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). The claimant must show a causal relationship exists between his condition and his employment.Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118
(1974).
The claimant has failed to prove by a preponderance of the evidence that a causal relationship exists between his condition and his employment. It is evident from the medical records that the claimant had a bulging disc at L4-L5 at the time that he sustained his compensable injury at L5-S1 in 1992. The claimant continued to have problems with this bulging disc at L4-L5 through 1995. At that time, Dr. Alkire recommended surgery. However, the claimant did not pursue that option but instead failed to seek medical attention until the alleged incident lifting a 5 pound piece of metal in 1998.
The claimant cannot prove that he sustained a compensable injury. Specifically, the claimant has failed to satisfy the section of the statute that requires that the claimant prove that he had an injury that caused external or internal physical bodily harm to his body. It is evident that the claimant had problems prior to the alleged incident on July 22, 1998. Further, the claimant failed to report any injury on July 22, 1998. This is supported by Mr. Henry’s testimony and the employer accident log.
Therefore, based upon our de novo review of the record, we hereby reverse the decision of the Administrative Law Judge. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
_______________________________
ELDON F. COFFMAN, Chairman
_______________________________
MIKE WILSON, Commissioner
Commissioner Humphrey dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion in this case. In my opinion claimant sustained a new injury or an aggravation of a pre-existing condition on July 22, 1998.
In their denial of benefits, the majority relies, in part, upon the fact that claimant failed to report a work-related injury, noting that the accident log did not contain an entry regarding the incident. Although Mr. Henry so testified, respondents never introduced a copy of the accident log. Further, claimant never contended that he reported the injury to Mr. Henry. Rather, he stated that the injury was reported to his immediate supervisor, Willard Franklin. Franklin’s apparent failure to inform Henry of the injury is not claimant’s responsibility. He should not be penalized for the oversight.
The week following the injury, he was treated by the company
physician, Dr. Downs. He stated that a company representative working within the nurse’s station scheduled the appointment with Dr. Downs. I rather doubt that the company physician would treat an employee in the absence of authorization from respondent employer. In my opinion, claimant’s testimony that he reported the occurrence of a work-related injury is credible.
The majority also concludes that claimant is unable to demonstrate the existence of physical harm to the body. I disagree.
The medical records showed that claimant consulted Dr. Alkire on July 18, 1998. A chart note prepared by Dr. Alkire indicated that claimant provided a history of a work-related injury. The description contained in the chart note is consistent with claimant’s hearing testimony. Dr. Alkire prescribed medication, and excused claimant from work. Subsequently, he ordered a MRI, which showed a disc bulge at L4/5. Although this abnormality was present on an earlier study, Dr. Alkire opined that the bulge had increased in size. He continued to treat claimant conservatively. Dr. Alkire’s treatment of claimant spanned several years. Thus, his vantage point is very useful. It is indeed persuasive that he determined that there was an increase in the size of claimant’s disc bulge.
Moreover, Dr. Schlesinger performed an IME on April 22, 1999. He opined that claimant sustained a new injury, basing this conclusion on “[claimant’s] current symptoms and the fact that the left L5-S1 level looks good.”
In my opinion, claimant sustained a new injury or aggravated a pre-existing condition. He is entitled to temporary total disability benefits in accordance with the administrative law judge’s award. Moreover, claimant is entitled to all reasonable and necessary medical benefits.
Based on the foregoing, I respectfully dissent.
___________________________________ PAT WEST HUMPHREY, Commissioner