CLAIM NO. E805447
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 29, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RICHARD A. REID, Attorney at Law, Blytheville, Arkansas.
Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Reversed.
[1] OPINION AND ORDER[2] The claimant appeals an administrative law judge’s opinion filed August 25, 1998. The administrative law judge found that the claimant failed to prove that he sustained a compensable injury pursuant to Act 796 of 1993. The Full Commission has reviewed the entire record de novo, and we hereby reverse the opinion of the administrative law judge. We find that the claimant sustained a compensable injury to his right knee, for which he is entitled to reasonable and necessary medical treatment as well as temporary total disability benefits. [3] The claimant, age 35, is employed with the respondents as a truck and tractor tire changer. The claimant contends that he sustained an accidental injury on April 2, 1998. The claimant testified that a large truck tire fell and struck his upper right leg. Dr. Dave Jain, an osteopathic physician, examined the claimant on April 7, 1998 and reported “rt. knee swelling.” Dr. Donald Weimer, an orthopedic surgeon, corresponded with Dr. Jain on April 23, 1998, and stated that the claimant “had a truck tire fall against the lateral aspect of his right distal thigh about 3 weeks ago and sustained a valgus force type injury to the right knee. He has had pain and swelling since then and a couple of episodes of giveaway but no locking, catching or notable popping.” On May 21, 1998, Dr. Weimer performed a right knee arthroscopy. In the description of operation, Dr. Weimer reported moderate chondromalacia of the patellar surface but no other abnormalities, and his postoperative diagnosis was osteoarthritis of the patellofemoral joint. Dr. Weimer opined, “I do think his problem was related to his job since this whole problem began when a tire fell against his leg 3 weeks prior to his 1st visit with me.” [4] The employee filed a claim for workers’ compensation, which the respondents controverted in its entirety. After a hearing, the administrative law judge found that the claimant’s pain and swelling were caused by degenerative changes in his knee, and that there was no objective medical evidence of recent trauma.” The administrative law judge determined that the claimant cannot prove the accident he described caused any “internal or external physical harm to the body which required medical services or resulted in disability.” The administrative law judge thus dismissed the claim; claimant appeals to the Full Commission. [5] 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. 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. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997). Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. §11-9-102(5)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). [6] In the present matter, the preponderance of the evidence shows that a large tire struck the claimant’s right leg at work. The claimant credibly described this incident, which occurred while he was mounting tires. The record indicates that the tire which struck the claimant’s leg was nearly six feet tall and weighed 587 pounds. Martin Crawford, the respondent-employer’s assistant manager, testified that a large tire indeed struck the claimant’s right leg in the upper thigh area. Mr. Crawford testified that he witnessed the claimant “favoring” his right leg after the specific incident. The respondents assert that it is incredible that a tire of this size would not have caused “a much more serious injury” than the injury reported by the claimant. The respondents state that the claimant “had no explanation for the lack of a more serious injury.” However, we find that respondents’ theorizing in this regard to be speculative and conjectural. Speculation and conjecture can never be substituted for credible evidence, no matter how plausible. DenaConstruction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151
(1980). In any event, Dr. Jain reported swelling of the right knee after the workplace incident. Obviously, a report of swelling by a treating physician qualifies as an objective medical finding. Williams v. General Electric Co., Full Workers’ Compensation Commission, April 3, 1998 (E303597). Dr. Weimer, an orthopaedic surgeon, also reported knee swelling and credibly attributed the claimant’s condition to the workplace incident. Dr. Weimer opined that the claimant had sustained an injury to the right knee, and that the claimant’s resulting knee problem related to his job with the respondents. [7] In her opinion, the administrative law judge stated that the claimant’s swelling was caused by degenerative changes in his knee, rather than a workplace incident. Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship.Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). We have reviewed the entire record de novo, and we are unable to find any evidence of record to support the administrative law judge’s assertion that a degenerative condition caused the claimant’s knee swelling. The claimant testified that he had never previously experienced trouble with his right knee, and there is no evidence of record contradicting the claimant’s testimony. Further, the weight of evidence preponderates against the administrative law judge’s assertion that “there is no objective evidence of recent trauma.” The Full Commission thus finds that the claimant proved that he sustained an accidental injury which arose out of and during the course of his employment with the respondents, and that the injury caused physical harm to the body and required medical services. In addition, we find that the claimant established a compensable injury by medical evidence, supported by objective findings. [8] Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Departmentv. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The claimant sustained a compensable injury to his right knee on April 2, 1998. Dr. Jain took the claimant off work on April 7, 1998 and released the claimant to return to work on April 10, 1998. The record indicates that the claimant did return to work on April 10, 1998. Dr. Jain took the claimant off work again on April 21, 1998. On April 23, 1998, Dr. Weimer returned the claimant to modified work duty, sit-down job only, otherwise off work, beginning April 24, 1998. There is no evidence before the Commission that the respondents did not comply with this work restriction. Dr. Weimer performed surgery on May 21, 1998. On May 28, 1998, Dr. Weimer noted that the claimant’s knee was healing, and he sent the claimant to physical therapy. The claimant testified that he actually returned to work on June 22, 1998. Therefore, we find that the claimant was within his healing period and totally incapacitated to earn wages for the periods April 7-10, 1998, April 21-23, 1998, and May 21, 1998 through June 21, 1998. We order the respondents to pay the claimant temporary total disability benefits for these periods, in addition to reasonable and necessary medical treatment related to the compensable injury. [9] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant proved, by a preponderance of the evidence, that he sustained a compensable injury to his right knee pursuant to Act 796 of 1993. We find that the claimant is entitled to reasonable and necessary medical treatment for his compensable injury, as well as temporary total disability benefits. We reverse the decision of the administrative law judge denying this claim. [10] 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). [11] 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(b) (Repl. 1996). [12] IT IS SO ORDERED.
_______________________________
ELDON F. COFFMAN, Chairman _______________________________ PAT WEST HUMPHREY, Commissioner
[15] I must respectfully dissent from the majority opinion finding that claimant sustained a compensable injury to his knee on April 2, 1998, when a tire fell on his knee for which he is entitled to benefits. The evidence reflects that claimant did sustain swelling to his knee after the tire incident, but it was not this swelling that required medical services or which resulted in disability. In my opinion, claimant’s pain and need for treatment were caused by degenerative changes in his knee not by the tire incident. Accordingly, I would affirm the decision of the Administrative Law Judge and deny and dismiss this claim. Therefore, I respectfully dissent.
_______________________________ MIKE WILSON, Commissioner