CLAIM NO. E900406
BRENDA MCDONALD, EMPLOYEE, CLAIMANT v. MALVERN TRUE VALUE HARDWARE, EMPLOYER, RESPONDENT and SPECIALTY RISK SERVICES (TPA), INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 14, 2000
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by C. BURT NEWELL, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[1] The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on October 16, 1998. Based upon our de novo review of the record, we find that the claimant has failed to meet her burden of proof. Accordingly we hereby reverse the decision of the Administrative Law Judge.
[2] The claimant was employed as a sales clerk for the respondent employer. She testified that on October 16, 1998, she was lifting merchandise bins when she bent over and felt a pulling sensation in her back. The claimant testified that she reported this incident to the store’s owner, Clyde Kingery. She stated that Mr. Kingery was performing paperwork at the time and his response was “ok”. The claimant worked the remainder of her shift and worked through the months of November and December as well. In late December, the claimant testified that she awoke with severe low back pain that radiated into her leg. The claimant reported to work but was sent home by Mr. Kingery when she reported that she was having leg pain. Mr. Kingery suggested that the claimant seek medical attention. [3] On January 4, 1999, the claimant consulted Dr. Larry Breshears, her family physician. Dr. Breshears’ chart notes from that date fail to reflect a history of a work-related injury. It was not until January 20, 1999, that Dr. Breshears’ chart notes indicate that the claimant’s back problems were due to a work-related injury. Dr. Breshears referred the claimant to Dr. Dickens, a neurosurgeon. Dr. Dickens performed a lumbar diskectomy on the claimant on February 8, 1999. The claimant has since returned to full-time work with the respondent employer. [4] The claimant contends that she sustained a work-related injury on October 16, 1998. The respondents contend that the claimant did not sustain a work-related injury. We agree with the respondents. [5] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of
Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. §
11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgraFrozen Foods, Full Commission Opinion filed Feb. 2, 1995 (
E317744). When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. §
11-9-102(5)(A)(i) and §
11-9-102(5)(E)(i) (Supp. 1997). She must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. §
11-9-102(5)(A)(i). Finally, Ark. Code Ann. §
11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in §
11-9-102(16).” If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed, supra. [6] In his office notes dated January 4, 1999, Dr. Breshears notes that the claimant has no insurance and she is reluctant to have an MRI performed. On January 20, 1999, there is a notation about the claimant’s workers’ compensation claim. This is the first indication in the medical records of any alleged work-related injury. [7] The claimant argued that she reported the injury to Mr. Kingery on October 16, 1998, but he failed to turn it in to his workers’ compensation carrier. However, the evidence shows that the claimant was able to work for over two months before she had any subsequent problems. She testified that she had other co-workers help her lift boxes and that she complained about her back hurting to them. She also testified that they knew that she was hurt. However, these co-workers failed to testify at the hearing. It is also important that, although she may have complained about her back hurting, she never stated in her testimony that the co-workers knew how she hurt her back or that it was a work-related injury. [8] It is also important to note that the claimant did not report the injury until January 8, 1999, which was after the claimant found out that she was going to have to have an MRI she could not pay for. Further, the claimant did not have any conversations with Mr. Kingery between December 28, 1998 and January 8, 1999, regarding filing a workers’ compensation claim. In addition, Mr. Kingery told the claimant she needed to see a doctor but she failed to tell Dr. Breshears that she sustained a work-related injury in that his notes from January 4, 1999, fail to make notation of a work-related injury. [9] Mr. Kingery testified that he did not recall a conversation with the claimant where she told him on October 16, 1998, that she had a workers’ compensation injury. When she did report a work-related injury to him on January 8, 1999, Mr. Kingery promptly called his insurance carrier to report the injury. If the claimant had reported a work-related injury to him in October Mr. Kingery would have reported it to his insurance carrier immediately. [10] When you consider the evidence that the claimant failed to report an injury, continued to work for over two months and she only raised the issue of a work-related injury for the first time after she was faced with the need to undergo an MRI she could not afford for lack of insurance, the evidence preponderates in favor of finding that the claimant failed to prove that she sustained a compensable injury on October 16, 1998. Accordingly, we hereby reverse the decision of the Administrative Law Judge. This claim is denied and dismissed. [11] IT IS SO ORDERED. [12] _______________________________
MIKE WILSON, Commissioner [13] Chairman Coffman concurs.
CONCURRING OPINION
[14] I concur in the principal opinion’s reasoning and analysis in finding that the claimant failed to establish by a preponderance of the evidence that she sustained a compensable injury. However, since this case involves credibility determinations, and since we are reversing the administrative law judge’s decision, I am compelled to state any additional reasons on which I may base my credibility determination. See, Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999).
[15] The administrative law judge stated in his opinion that he found the claimant credible in all respects. The administrative law judge did not make any specific credibility determination regarding Mr. Kingery, the store owner, although the administrative law judge did state that Mr. Kingery’s recollection is not clear about whether the alleged conversation on October 16, 1998, between the claimant and Mr. Kingery in fact occurred. In my opinion, Mr. Kingery was sufficiently clear in his testimony to persuade me that Mr. Kingery believes that the alleged conversation on October 16, 1998 did not occur, and that the claimant appeared to be working her regular duties during the period she asserts that co-workers were helping her with lifting. I find this testimony significant since Mr. Kingery had only approximately six employees in the hardware store. [16] Finally, I note that the claimant has returned to work for Mr. Kingery, and I also note that Mr. Kingery was reluctant to testify in this case. Under these circumstances, I find Mr. Kingery’s testimony as to what did or did not happen at least as convincing as the claimant’s testimony. For these reasons and for the reasons discussed in the principal opinion, I concur in the finding that the claimant has failed to establish by a preponderance of the evidence that she sustained a compensable injury on October 16, 1998. [17] ________________________________ ELDON F. COFFMAN, Chairman [18] Commissioner Humphrey dissents.
DISSENTING OPINION
[19] I must respectfully dissent from the majority opinion in this case. In my opinion, claimant proved by a preponderance of the credible evidence that she sustained a specific incident injury.
[20] Claimant worked as a sales clerk for respondent employer. On October 16, 1998, she was in the warehouse lifting merchandise bins. Claimant stated that as she bent over to pick up a bin, she experienced a pulling sensation in her back. She immediately placed the bin back on the floor. She stated that this incident occurred at about 2:00 p.m. Claimant thought that she had simply pulled a muscle, and so informed the store’s owner, Clyde Kingery. She stated that Mr. Kingery was performing paperwork at the time, and his response was “okay.” Kingery continued doing paperwork during the exchange. [21] Respondents offered the testimony of Clyde Kingery. He indicated that he has no recollection of a conversation with claimant on October 16, 1998. However, he stated that she may have mentioned it, but he did not consider it a work-related injury until January 8, 1999. On that date, Mr. Kingery stated that claimant called and informed him that a workers’ compensation claim must be filed. [22] To support a denial of benefits, the majority finds that claimant did not report a work-related injury until January 8, 1999. I cannot agree with this interpretation of the evidence. In my opinion, claimant’s credible testimony establishes that she reported the injury to Mr. Kingery on October 16, 1998. However, it is apparent that she did not deem the incident significant. Kingery’s testimony on this point lacks clarity. Moreover, he was involved in another task when claimant reported the injury. Claimant should not be penalized for Kingery’s inattentiveness. [23] To bolster their opinion, the majority also noted that the medical records contained no reference to a work-related injury until January 20, 1999. Claimant acknowledged that when she initially saw Dr. Breshears on January 4, 1999, she failed to mention the lifting incident. However, she explained that the office visit with Dr. Breshears was precipitated by the condition in which she awoke on December 27, 1998. Upon rising on that date, claimant had extreme low back pain, which radiated into her right lower extremity. She stated that she was unaware of the relationship between lower extremity pain and back disorders. [24] Claimant reported to work on December 27, 1998, because Mr. Kingery was away. When he returned, claimant informed him of the leg pain. He advised her to go home, and suggested that she seek medical attention. On cross-examination, claimant conceded that when she advised Kingery of her lower extremity pain on December 28, 1998, she made no mention her work-related injury. Again, claimant explained that she was unaware of the causal relationship between back disorders and lower extremity symptoms. The evidence established that she has no history of back problems. Thus, I am satisfied with claimant’s explanation for her failure to mention the lifting incident to Dr. Breshears on her first visit and Kingery on December 28th. [25] On January 20, 1999, Dr. Breshears documented a phone conversation with claimant concerning her injury. He again noted that claimant’s injury was work-related on January 29, 1999. He stated that claimant’s back pain had worsened. Significantly, he noted that claimant had no history of back pain. A MRI showed a disc herniation, and he made a referral to Dr. Robert D. Dickens, Jr. a neurosurgeon. His report reflected a history of a work-related injury that is consistent with claimant’s hearing testimony. He noted that the MRI showed a disc herniation at L5-S1 on the right. Dr. Dickens performed a lumbar diskectomy on February 8, 1999. [26] Claimant’s medical history revealed that she was involved in a car accident in May of 1997. However, the medical records contain no evidence whatsoever that she injured her back as a result of that accident. To the contrary, chart notes authored by Dr. Breshears demonstrated that claimant fractured her right clavicle as a result of the MVA. She also experienced rib soreness, shoulder pain, and a facial laceration as a result of the car accident. [27] In my opinion, claimant’s credible testimony, and the chart notes authored by claimant’s physicians after January 4, 1999, support a finding that she sustained a specific incident injury on October 16, 1998. I would award all appropriate benefits. [28] Based on the foregoing, I respectfully dissent. [29] _______________________________ PAT WEST HUMPHREY, Commissioner