JONES v. SPRINKLE, 2001 AWCC 73

CLAIM NO. E905182

MICHAEL JONES, EMPLOYEE, CLAIMANT v. CLARENCE SPRINKLE and MARK SPRINKLE, d/b/a M.C. d. SPRINKLE CONSTRUCTION, (UNINSURED)EMPLOYER, RESPONDENT NO. 1 SKIP MACON CONSTRUCTION COMPANIES, RESPONDENT NO. 2 ZENITH INSURANCE COMPANIES, INSURANCE CARRIER, TPA, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 20, 2001

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

Claimant represented by the HONORABLE KEITH BLACKMAN, Attorney at Law, Jonesboro, Arkansas.

Respondent No. 1 represented by the HONORABLE TERENCE C. JENSEN, Attorney at Law, Benton, Arkansas.

Respondents No. 2 represented by the HONORABLE TERRY D. LUCY, Attorney at Law, Little Rock, Arkansas.

Decision of administrative law judge: Affirmed.

OPINION AND ORDER
Respondent No. 1 appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed September 18, 2000. The administrative law judge found that the claimant sustained a compensable injury on March 30, 1999 while employed with Respondent No. 1. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.

I. HISTORY
Michael David Jones, age 34, became employed with M.C. D. Sprinkle Construction in approximately October, 1998. Mr. Jones testified that he was “cleaning footings” in the course of his employment with Respondent No. 1 on March 30, 1999:

Q. Now, tell us what you’re referring to?

A. Rocks, and dirt, and leveling, leveling off the pad up there, whatever you want to call it, you know. He was raking dirt around, and we was shoveling dirt, you know, back up around, and I was down in the footing when I got the catch in my back.
Q. Well, tell us what you were doing and explain what position you were in.
A. I was shoveling. I was bent over like this right here, you know. . . .
Q. And you say you were bent over when it hit you?

A. Yes, sir. . . .

Q. What did you do or say at that point?

A. I couldn’t do nothing just for a minute, and I was down there, and I was kind of bent over there, and I eased up out of that ditch, and I thought, “Well, I’ve got a catch in my back,” you know. “I’ve got to work this out in just a minute,” you know. And I tried to shovel again, and I couldn’t move. When I got there on that flat part, I could not. It got so bad I couldn’t move my legs or nothing, I was just there, and I was leaned on that shovel.

The record indicates that the claimant sought emergency medical treatment on the date of injury, and the claimant presented to Dr. Gregory F. Ricca on March 31, 1999:

Mr. Jones is a 32-year-old gentleman who injured his low back at work yesterday while shoveling.
He experienced a sudden severe low back pain that he describes as shock-like. It was so severe that he was unable to ambulate and they had to bring his truck up to him to get him away from the job site. The pain continued and last evening it radiated into the left hip and anterior and lateral proximal left thigh. The pain is so severe that he had to be transported to the Emergency Room today. He has no prior history of back injury and he has never had pain this severe before. He is unable to sit, stand or walk. . . .

The low back has lumbar paraspinous muscle spasms. . . . I reviewed the CT scan of the L-Spine done through the Emergency Room at St. Bernards Regional Medical Center today. This is of good quality and shows a large herniated nucleus pulposus at L4-5 left.

IMPRESSION:

1. Low back pain, left buttock and hip pain with proximal anterior and lateral left thigh pain.

2. Herniated nucleus pulposus L4-5 left.

3. Numbness into the L5 distribution on the left.

Dr. Ricca admitted the claimant to the hospital for acute pain control and consideration of surgery. Dr. Ricca performed a “Partial hemilaminectomy and discectomy L4-L5 left” on April 2, 1999. Dr. Ricca wrote on May 19, 1999:

I had the pleasure of seeing Dr. Jones in the office today for follow up of partial hemilaminectomy and discectomy on L4-5 on 04/02/99. The patient is much better than he was prior to surgery, as he does not have the right lower extremity pain that he had previously. He is able to ambulate now, and he could not ambulate pre-operatively. He does, however, have continued problems with back pain and back spasms and pain into the right hip. This bothers him whenever he is active. . . .
Overall, I believe that Mr. Jones has improved considerably, but he has not improved enough to return to regular activities. He hangs steel for a living. I reviewed routine instructions with him, as well as the risk of recurrent disc rupture and further troubles. The importance of good back care for the remainder of his life was discussed. Patient stated at that point that he probably would not return to hanging steel, as this is quite stressful on the back.

Dr. Ricca released the claimant from his care on August 18, 1999.

Mr. Jones claimed entitlement to worker’s compensation. The claimant contended that he was an employee of Respondent No. 1 on March 30, 1999, and that his average weekly wage was $400.00. The claimant contended that he sustained a compensable injury arising out of and in the course of his employment with Respondent No. 1. The claimant contended that either Respondent No. 1 or “Respondent No. 2, believed to be the prime contractor and therefore the statutory employer,” should be responsible for all medical and related expenses. The claimant contended that he was entitled to temporary total disability compensation from March 31, 1999 through August 18, 1999.

Respondent No. 1 maintained that at the time of the claimant’s alleged injury, the claimant was an independent contractor and not an employee of Respondent No. 1. Respondent No. 1 contended that it “did not have the requisite number of employees for jurisdictional purposes,” and that the claimant did not sustain any injury arising out of and in the course of his employment on March 30, 1999. Respondent No. 1 contended that “claimant’s problems, if any, are the result of a pre-existing condition.” Respondent No. 2 contended, inter alia, that the claimant could not prove that he sustained a compensable injury as defined by Act 796 of 1993.

After a hearing before the Commission, the administrative law judge found that the claimant was an employee of Respondent No. 1 at all relevant times, and that the claimant was not an independent contractor. The administrative law judge found that Respondent No. 2 was neither a prime contractor nor a statutory employer as defined by Act 796 of 1993. The administrative law judge found that on March 30, 1999, the claimant sustained a compensable injury arising out of and during the course of his employment with Respondent No. 1. The administrative law judge found that the claimant’s average weekly wage was $400.00, which entitled the claimant to a compensation rate of $267.00 weekly for temporary total disability. The administrative law judge found that Respondent No. 1 was responsible for all hospital, medical, and related expenses resulting from the claimant’s March 30, 1999 injury. The administrative law judge found that the claimant had proven entitlement to temporary total disability compensation from March 31, 1999 through August 18, 1999. The administrative law judge found that the respondents were entitled to a credit in the amount of $1,520.00 for benefits previously paid.

In accordance with his findings of fact, the administrative law judge awarded the claimant temporary total disability compensation, medical and related expenses, and the maximum statutory attorney’s fee. Respondent No. 1 appeals to the Full Commission.

II. ADJUDICATION
Respondent No. 1 appeals that portion of the administrative law judge’s decision finding that the claimant sustained a compensable injury arising out of his employment on March 30, 1999. A claimant has the burden of proving the compensability of his 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. 1999). For an accidental injury to be compensable, the claimant must show that he sustained an accidental injury; that it caused internal or external 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. Additionally, 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 Full Commission affirms the administrative law judge’s finding that the claimant sustained a compensable injury while employed with Respondent No. 1 on March 30, 1999. The claimant credibly testified that he felt a “catch” in his back while using a shovel on March 30, 1999. The claimant experienced acute lower back pain and was transported for emergency medical treatment. Dr. Gregory Ricca saw the claimant on March 31, 1999 and reported a disc protrusion at L4-L5; in addition, Dr. Ricca reported “lumbar paraspinous muscle spasms.” The preponderance of evidence clearly indicates that the claimant sustained an accidental injury, which caused physical harm, required medical services, and was established by objective findings.

Respondent No. 1 argues on appeal, as it did before the administrative law judge, that the claimant “did no work” on March 30, 1999. Clarence Sprinkle asserted that the claimant “was just standing there watching my son” operate a backhoe. Mr. Sprinkle acknowledged, however, that the claimant had a shovel in his hand that morning. Further, Mr. Sprinkle admitted that the claimant was unable to move after reporting the low back injury on March 30, 1999. There was also some testimony indicating that the claimant had previously injured his back while lifting a toilet at home, which testimony the claimant denied. However, the medical records corroborate the claimant’s testimony that he was injured while working for Respondent No. 1 on March 30, 1999.

It is the exclusive function of the Commission to determine 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). We decline to find that this claimant, with no prior history of work-related back problems, fabricated the March 30, 1999 injury and resulting need for a discectomy at L4-L5. From the record before us, the Full Commission affirms the administrative law judge’s determination that the claimant was a credible witness, whereas Clarence and Mark Sprinkle were not credible witnesses with regard to the specific incident.

Based on our de novo review of the entire record, the Full Commission finds that the claimant sustained a compensable injury on March 30, 1999, while employed with Respondent No. 1. We find that Respondent No. 1 is responsible for all hospital, medical, and related expenses resulting from the compensable injury, including the treatment of Dr. Ricca. We find that the claimant proved that he remained within his healing period and totally incapacitated to earn wages from March 31, 1999 through August 18, 1999. The Full Commission therefore affirms, in its entirety, the opinion of the administrative law judge.

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 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 Turner concurs.

Commissioner Wilson dissents.