CLAIM NO. E800211.
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 12, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondent represented by the HONORABLE DAVID S. WILSON, Attorney at Law, West Memphis, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on April 13, 2000. In that opinion and order, the administrative law judge found that the claimant sustained an injury arising out of and in the course of her employment on December 17, 1997, from lifting. In addition, the administrative law judge awarded the claimant temporary total disability for the periods beginning December 22, 1997, through December 23, 1997, and from December 26, 1997, through a date yet to be determined. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that she sustained a compensable back injury on December 17, 1997. However, we also find that the greater weight of the evidence establishes that the claimant’s healing period ended on September 14, 1998, and that she is therefore not entitled to additional temporary disability compensation beyond that date. Therefore, we find that the administrative law judge’s decision must be affirmed as modified.
As the dissent notes, the respondents’ theory of the case seems to be that, whatever caused the claimant’s L5-S1 back injury diagnosed in January of 1998, it was not work related because when the claimant started having back problems in December of 1997, and when the store manager asked her days later “what happened”, the claimant basically advised the manager “I don’t know”. The respondents note that the claimant did not report her back problems as work related until some time in January of 1998, at least a couple of weeks after the alleged incident that was never initially reported in December.
The claimant basically asserts that she heard something pop in her back twice while lifting at work on December 17, 1997, but she did not report a work related injury initially because, when she went to the doctor initially, she was told that her problem was “arthritis”. According to the claimant, it was not until her MRI indicated a disk problem that the claimant was able to determine that her problem was not caused by “arthritis”, but was instead associated with the lifting incidents at work. This case turns primarily on credibility, and the administrative law judge, who observed the demeanor of the witnesses, found the claimant’s version of “what happened” to be credible. After reviewing the testimony of the claimant, as well as the testimony of Ms. Stratton, the testimony of Ms. Ammons, and all other evidence in the record, we find that the claimant has established by a preponderance of the evidence that she did, in fact, sustain her back injury as a result of a lifting incident at work on December 17, 1997.
To the extent that one commissioner seems to suggest that the claimant did not report her injury as work related until May of 1998, six months after the fact, there appears to be no dispute between the parties that the claimant, in fact, formally reported her injury to her employer as work related in January of 1998, not May of 1998. In addition, the very first medical report in the record in December of 1997 notes that the claimant lifts boxes at work. While the circumstances in this case are certainly unusual, the claimant’s strange course of action in this case in not initially reporting a work-related injury is quite consistent with her explanation that she did not report her problem as work related during the initial period that her doctors advised her
that her problem was “arthritis”, but she did report the incident as a work-related injury in January of 1998, when her doctors’ initial diagnosis was proven incorrect by an MRI study identifying the true nature of her injury.
To the extent that one Commissioner tries to fault the claimant for not calling a former co-worker (Frankie) as a corroborating witness, we point out that the claimant’s testimony is the only evidence in the record regarding the alleged conversation between the claimant and Frankie. Apparently Frankie still works in El Dorado, and neither party called Frankie as a witness. Clearly, if the respondents felt that Frankie had anything to add to the claimant’s testimony, the respondents were at liberty to call Frankie as a witness, but also chose not to do so in this case.
There appears to be no dispute that the claimant never told any co-workers or supervisors that she thought she might have hurt her back lifting at work on or after December 17, 1997, until at least December 24, 1997. In her September 2, 1998 deposition testimony, the claimant testified that she had a discussion with “Ms. Frankie” (some type of supervisor) on December 24th, wherein the claimant told Ms. Frankie that she thought she had been hurt, but she wasn’t sure whether she was hurt working in the back or working in the front. The claimant testified that Ms. Frankie asked her if she had been to the doctor; the claimant advised Ms. Frankie that she had been to the doctor, and Ms. Frankie advised the claimant that workmen’s compensation would pay for the claimant to go to the doctor. However, according to the claimant, she advised Ms. Frankie that she didn’t think workmen’s compensation would pay for the visit since she had only been working there a couple of months, so the claimant intended to pay for the doctor’s visit herself. (Dep. 38) The claimant testified that she did not have a chance to talk to Ms. Stratton that day (December 24th). (Dep. 39)
At the hearing on February 23, 2000, approximately 1-1/2 years after the claimant’s deposition, the claimant’s testimony was somewhat inconclusive as to what, if anything, she told Ms. Frankie on December 24, 1997. For example, when discussing the prior deposition testimony regarding the alleged Frankie conversation under cross-examination at the hearing, the claimant at first agreed that she had a discussion on the 24th with Frankie advising Frankie that she thought she had previously hurt herself at work, but that she did not know whether the injury occurred in the front of the store or the back of the store because she had actually had two incidents, the first lifting and the second out on the floor. (T. 21) However, later on cross-examination, the claimant testified that Frankie Hollingsworth saw her limping on December 24th, Hollingsworth asked the claimant what had happened, and the claimant purportedly indicated that she wasn’t sure what had happened, that she might be tired, and that the doctor had said she had arthritis. (T. 24) When specifically asked, the claimant then indicated that she had not told Hollingsworth on December 24th that she had hurt her back at work. (T. 25) To the extent that the claimant appears to have become confused in her cross-examination at the hearing on this topic, we accord greater weight to the claimant’s deposition testimony, over the weight we accord the claimant’s confusing hearing testimony, regarding the nature and extent of the claimant’s conversation with Ms. Frankie on December 24, 1997. In reaching this conclusion, we note that the claimant’s deposition was taken much closer in time to the conversation at issue.
Notably, none of the witnesses ever mentioned one way or the other whether the claimant initially attributed her back problem to “arthritis”. However, Ms. Kathy Ammons, Freds’ apparel coordinator testified that, on the last day the claimant worked, the claimant was limping, and when Ms. Ammons asked the claimant what was wrong, the claimant told Ms. Ammons that she had a degenerative disease in her spine. (T. 40). While the claimant apparently didn’t use the word “arthritis” with Ms. Ammons, Ms. Ammons testimony is at least consistent with the diagnosis of “DJD” in the first medical report.
Likewise, there is no specific reference in the medical reports from the initial ER visit or from the claimant’s family doctor that either doctor ever used the word “arthritis”. However, in both her 1998 deposition and in her 2000 hearing testimony, the claimant testified that her doctors initially diagnosed “arthritis”. In summary, we find credible the claimant’s explanation that she never reported a work-related injury in December of 1997 because (1) her doctors initially told her that her problem was “arthritis” (T. 7, 20, 24, 40); (2) she therefore assumed that her problem was “arthritis (T 20); and (3) it was not until Dr. Long diagnosed her with disk problems in January that she learned that her problem was not arthritis as she had initially been led to believe by her doctors. (Dep. 40) Her explanation as to why she did not report her back problem as work related until January of 1998, while unusual, is reasonable under the circumstances. We do not perceive any serious inconsistencies between the claimant’s hearing testimony, the testimony of the other witnesses, the claimant’s deposition testimony, and her medical records, and her credible explanation now makes the few inconsistencies understandable.
With regard to the administrative law judge’s open-ended award of temporary total disability compensation, we recognize, as the administrative law judge did, that Dr. Long indicated on April 2, 1998 that if the claimant is unable to live with her pain, she would need to come in for additional diagnostic studies. However, what the administrative law judge has failed to note, is that the claimant underwent additional diagnostic studies on September 14, 1998, and physicians at Louisiana State University determined that the claimant is not a surgical candidate. Under these circumstances, we find that the claimant reached the end of her healing period on September 14, 1998.
Therefore, after conducting a de novo review of the entire record and for the reasons discussed herein, we find that the decision of the administrative law judge must be affirmed as modified.
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 administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
__________________________________ ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
While I concur with the finding in the principal opinion that claimant sustained a compensable injury in December, 1997, I must respectfully dissent from the modification of the ALJ’s award of benefits for temporary total disability.
Respondents’ notice of appeal to the Commission indicates that the only issue appealed is whether claimant sustained a compensable injury. There is no mention of the ALJ’s award for temporary total disability. Additionally, respondents’ argument in its brief to the Commission is limited to whether claimant sustained a compensable injury. Therefore, in my opinion, respondent did not appeal the ALJ’s award of temporary total disability and it is improper for this Commission to modify the award on appeal.
________________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I can concur that claimant’s temporary total disability period would end no later than September 14, 1998 when she was informed she was not a surgical candidate; however, it is my opinion that she is not entitled to any benefits at all because she has failed to prove that she sustained a work-related injury. I must respectfully dissent from the majority finding that claimant proved that she sustained a compensable injury on December 17, 1997.
Claimant did not report the specifics of her injury to any physician until May 14, 1998, even though she alleges that she was injured in December 1997. Further, while claimant testified that she reported that she was hurt at work on the day of the injury to a supervisor named Frankie, who did not testify, no other supervisor was aware of the injury, and no paperwork was completed. If claimant had suffered an injury at work “lifting boxes” as she told her doctor in May 1998, that fact would have come to light in a report to her employer or her physician far sooner than six months after the alleged injury. I simply cannot credit claimant’s testimony that she sustained an injury at work.
____________________________ MIKE WILSON, Commissioner