LOCKHART v. ST. EDWARD MERCY MEDICAL CENTER, 2004 AWCC 189

CLAIM NO. F210149

PAMELA LOCKHART, EMPLOYEE, CLAIMANT v. ST. EDWARD MERCY MEDICAL CENTER, EMPLOYER, RESPONDENT, SISTERS OF MERCY HEALTH SYSTEM, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 27, 2004

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

Claimant represented by HONORABLE BRENT STERLING, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by HONORABLE RANDY MURPHY, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed.

OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed April 2, 2004. The administrative law judge found, “The claimant has proven that she sustained a work-related injury while working for the respondent on August 21, 2002.” After reviewing the entire record de novo, the Full Commission finds that the claimant did not prove she sustained a compensable injury. We therefore reverse the opinion of the administrative law judge.

I. HISTORY

The parties stipulated that the employment relationship existed on August 21, 2002. The record contains an undated Employee Injury Report. The claimant stated that she was hurt in an accident occurring on the afternoon of August 21, 2002. The claimant wrote, “My left leg went numb there was excruciating pain down my lower back.”

The record indicates that the claimant received emergency medical treatment on or about August 21, 2002. A physician’s handwritten notes appear to indicate the following, “49 y.o. F CC of L paraspinal low back pain radiating down to toes of L foot x 3 wks getting worse. Her leg burns and aches. She does a lot of lifting, bending pushing at work.”

Steve May, a workers’ compensation specialist for the respondents, interviewed the claimant on August 28, 2002. The claimant described the discomfort in her back, which culminated on August 21, 2002:

SM: Now you say that you had trouble with your back region two to three weeks prior to the 21st?
PL: Yes, for three weeks I had been fighting it and then it all came down to, it just like I said it, by the end of the day I was trying to hold on to one of those carts and walking around pushing it holding on in order to stay balanced.
SM: Did you slip or twist or fall or anything like that?
PL: No, I did not slip, twist or fall or anything like that.
SM: So you say you were pushing a cart and you felt the pain then?
PL: Yes. It was just getting worse through out the day after I came down off the floor I was hurting really bad I told Marty right after that that I needed to go to the doctor . . .
SM: Do you have anything, anything else you would like to add to the description as far as what happened here?
PL: Uh, no, sir, I don’t know of anything else, but I could add to the description, as I said I don’t know exactly what happened either, except my back apparently was stressed somehow and that resulted in whatever is the matter with it now.
SM: But you don’t remember any specific incident at all, uh, you know any kind of a lifting incident, or tripping, or falling, or unusual strain or anything like that?
PL: No sir, I didn’t trip. I didn’t fall, I didn’t get pinned between the wall and the cart, uh, it could have been, I don’t remember any specific incident[.]

The claimant signed a WCC Form N on August 30, 2002. The claimant discussed the cause of injury: “repetitive strain from pushing oversize pt. food service carts overloaded dish carts, down carpeted passageway (unintelligible) sudden jolting stops to avoid running over pts.
coworkers.” The claimant wrote that the accident occurred “around 12:00.”

Steve May informed the claimant on September 10, 2002 that the respondents were controverting the claim.

The claimant began treating with Dr. Mark A. Hayes on September 17, 2002. After diagnosing “stenosis, L4-L5 on the left,” Dr. Hayes performed surgery in October 2002. Dr. Hayes wrote to the claimant’s attorney on March 5, 2003:

Ms. Lockhart was injured on 08/21/02 when she was pulling a dietary cart filled with food. It weighed about 500 to 600 pounds. She began having back and leg pain following this. She was treated conservatively by Dr. Ferguson at the Indian Hospital in Talihina and was then referred to me. . . .
An MRI was unclear so a myelogram and CT was ordered. This showed a small disc herniation at L4-5 on the left and severe disc space narrowing. There was also a compression fracture found at L1. The disc herniation and the severe stenosis were consistent with her clinical symptoms. It is my opinion within a reasonable degree of medical certainty that the findings on the myelogram and CT scan are consistent with Ms. Lockhart’s description of her injury and duties at St. Edwards Hospital. It is also my opinion within a reasonable degree of medical certainty that Ms. Lockhart did sustain an injury as a result of her work related activities.
On 10/21/02 Ms. Lockhart underwent surgery for her condition. I performed a decompressive lumbar laminectomy at L4 with foraminatomy and discectomy. She did very well following surgery and was subsequently released from my care on 12/17/02.
Ms. Lockhart’s diagnosis is status post HNP L4-5 with stenosis. As a result of her injury Ms. Lockhart was temporarily totally disabled from the first time I evaluated her on 09/17/02 until 12/18/02. On 12/18/02 the patient was given permanent restriction of no lifting or carrying over 40 pounds, no pushing or pulling over 40 pounds, no repetitive activities and no excessive bending or twisting.
It is my opinion within a reasonable degree of medical certainty that Ms. Lockhart’s work activities are the major cause (more than 50%) of her need for medical care and treatment.

Ms. Lockhart claimed entitlement to worker’s compensation, and a pre-hearing order was filed on September 30, 2003. The claimant contended that she sustained “a compensable injury and/or aggravation of a preexisting condition to her lumbar spine as a result of pushing an oversized patient food service cart while performing her employment for the respondent.” The respondents contended that the claimant did not sustain a compensable injury. The parties agreed to litigate the issues of compensability, medical treatment, temporary total disability, and attorney’s fees.

The parties deposed Dr. Hayes on January 20, 2004. Dr. Hayes testified that he had ordered additional diagnostic testing in the form of a discogram, and he stated, “Findings were her disc at L4-5 which had been the one I operated on was asymptomatic. Disc L5-S1 which I had not operated on was symptomatic.” Dr. Hayes testified:

A. Well, she had a disc protrusion which I didn’t feel was chronic, wasn’t clinically chronic; something relatively acute.

Q. Do you know when it occurred?

A. I felt I did.

Q. Okay. When was that?

A. When she got hurt at work.

Q. All right, sir. And that’s based on the history she told you?

A. Yes.

Hearing before the Commission was held on January 29, 2004. The claimant testified:

Q. On August 21st, 2002, did something happen to you while working at St. Edward’s?

A. Yes, sir.

Q. What happened to you?

A. I was pulling or pushing the cart up on the floor and my — I felt this excruciating pain and it went down my left leg and my left leg would not bear my weight or support it and I was hurting across my lower back.

Q. About what time did this occur?

A. About 9:45.

Q. In the morning?

A. Yes, sir, a.m.

On cross-examination, the claimant did not know why the initial reports “omitted” reference to the alleged specific incident. Martin Hoyt, the claimant’s supervisor, testified for the respondents:

Q. Do you remember having a conversation with her during the course of that day? And I’ll tell you for the record it’s August 21st, 2002.
A. Yes. . . . I had a conversation with her that morning. . . . Pam asked me, you know, if she could take off early that day to go to the doctor and I said she could. . . .

Q. Did she tell you she had injured herself at work?

A. No.

Q. Did she report any type of back incident or anything like that that morning?
A. No. I just thought she just had an appointment. . . .
Q. So what time is your next conversation with Ms. Lockhart?
A. Right around 2:00. . . . Pam came to me and said, “Do you have those papers?” and I didn’t know any — “What papers?” And she said, “Well, I’m going to the doctor. I need to go to the doctor.”

Q. Did she ask you why?

A. Well, at that time she said about her back and I didn’t know anything about it and I said — you know, I asked her, “Well, when did you hurt your back?” and she couldn’t tell me when she hurt it. . . .

Q. Did you ask her how?

A. She had said that she had hurt it just in the process of her work, you know, through the carts and stuff, but she didn’t tell me when.

The administrative law judge found, “The claimant has proven by a preponderance of the evidence that she sustained a work related injury while working for the respondent on August 21, 2002.” The ALJ awarded reasonably necessary medical treatment, a period of temporary disability, and 10% anatomical impairment. The respondents appeal to the Full Commission.

II. ADJUDICATION

The claimant contends that she sustained an accidental injury as the result of a specific incident occurring on August 21, 2002. Ark. Code Ann. § 11-9-102(4)(A) defines compensable injury:

(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, 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). The claimant’s burden of proof is a preponderance of the evidence. Ark. Code Ann. §11-9-102(E)(i).

In the present matter, the Full Commission finds that the claimant did not prove she sustained an accidental injury on August 21, 2002. The preponderance of evidence does not show that the claimant was involved in a specific incident identifiable by time and place of occurrence. If the claimant does not prove such a specific incident, her claim is not compensable. Edens v. Superior Marble Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). A generic description of her work does not suffice — the claimant must prove a particular, specific incident. Hapney v.Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000). Hurting at the end of a long work day does not constitute a compensable accidental injury.Howard v. Wal-Mart, Workers’ Compensation Commission E814194 (Nov. 3, 1999).

We recognize the claimant’s testimony that her left leg went numb with back pain while pushing a cart on August 21, 2002. We also note the undated injury report which described left leg numbness and back pain while pushing a cart that date. Nevertheless, the Full Commission attaches greater weight to the initial medical report on August 21, 2002, which report details a three-week history of increasing back pain without a specific incident. On August 28, 2002, the claimant plainly informed Steve May that she did not “slip, twist, fall or anything like that.” The claimant described worsening pain throughout the day of August 21, 2002, but expressly informed Mr. May, “I don’t remember any specific incident.” The claimant’s supervisor confirmed at hearing that the claimant did not report a specific incident. Finally, on the Form N the claimant signed on August 30, 2002, she described “repetitive strain” from pushing carts at work without a specific incident.

Based on our de novo review of the entire record, the Full Commission finds that the claimant did not prove she sustained an accidental injury pursuant to Ark. Code Ann. § 11-9-102(4)(A)(i). The Full Commission finds that the claimant did not prove she sustained an accidental injury as the result of a specific incident identifiable by time and place of occurrence. We therefore reverse the administrative law judge’s opinion, and we hereby dismiss this claim.

IT IS SO ORDERED.

_______________________________ OLAN W. REEVES, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner

Commissioner Turner dissents.

DISSENTING OPINION SHELBY W. TURNER, Commissioner.

The majority denies benefits to Claimant based only on “specific incident” analysis and does not address whether Claimant’s injury is a compensable gradual onset injury. The prehearing questionnaire states that “[C]laimant contends that she sustained a compensable injury and/or aggravation of a preexisting condition to her lumbar spine as a result of pushing an oversized patient food service cart while performing her employment for the respondent.” Respondents simply contended that “[C]laimant did not sustain an injury within the course and scope of her employment.” Moreover, the majority quotes the Form N, in which Claimant wrote “repetitive strain from pushing oversize [patient] food service carts and overloaded dish carts,” yet still fails to address any gradual onset analysis. In so doing, the majority forces Claimant to cross insurmountable hurdles in a case where the record leaves little doubt as to the cause of her undisputed acute back injury.

The causal connection here is clearly established and there is no basis to deny benefits. Claimant worked as a certified dietary manager in Respondent’s hospital. She testified that approximately three months before the August, 2002 injury that she began pushing food carts on patient floors much more frequently. These carts weighed 350 to 500 pounds when fully loaded. In August, 2002, she began developing problems with her back while “loading and unloading carts and pulling them up to the floor.” She described it as initially intermittent pain that she treated with Ben Gay and over-the-counter pain medications. This pain became excruciating and began radiating down her left leg on August 21, 2002, which is what prompted her to request medical treatment.

All of the medical documentation describes Claimant’s condition as related to physical exertion required in performance of her job for Respondent. The Emergency Room reports relates Claimant’s back and leg pain to her employment as does Dr. Hayes’ reports and correspondence. Dr. Hayes diagnosed Claimant with a small disc herniation at L4-5, severe disc space narrowing, and a compression fracture at L1. Dr. Hayes testified that these injuries were acute and that her work activities were the “major cause (more than 50%) of her need for medical care and treatment.”

In sum, there is a causal connection between Claimant’s employment duties and her back injury. The medical records consistently support Claimant’s testimony. The majority has erred in failing to adjudicate whether Claimant’s injury is a compensable gradual onset injury. Claimant’s contentions are not narrowed to a specific incident injury yet the majority unnecessarily limits their analysis in this way. For these reasons, I find that Claimant’s injury is compensable and dissent from the majority opinion. The Administrative Law Judge’s opinion should be affirmed.

_______________________________ SHELBY W. TURNER, Commissioner