CLAIM NO. E616200
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 18, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by MIKE SHERMAN, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by CAROL LOCKARD WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] Respondent appeals from a decision of the Administrative Law Judge filed September 19, 1997 finding that claimant sustained a compensable injury to his lumbar spine. Based upon our de novo
review of the entire record, we find that claimant has failed to establish a compensable injury by objective medical evidence. [3] Claimant was involved in an incident during the course and scope of his employment on December 2, 1996, wherein he fell five to six feet off of a truck onto concrete. The accident was initially accepted as compensable. As a result of that incident, the medical records indicate that claimant sustained a superficial injury diagnosed as a contusion. Claimant’s physical exam on the date of the injury and on December 3, 1996, did not produce any objective medical findings. The December 2, 1996, physical exam only revealed “Tender lumbo-sacral area. No radiation, weakness, parasthesis. Dtr’s ++ [illegible].” This physical exam did not reveal any hematomas, bruises, scratches, or any other objective finding of an injury to support the diagnosis of contusion of lumbar spine and lumbar myofascial strain. [4] As a result of claimant’s complaints of pain, claimant underwent numerous diagnostic testing. A CT scan on December 4, 1996, revealed degenerative disc disease at L5-S1 with bony foraminal stenosis bilaterally. X-rays of both hips revealed early signs of arthritis. MRI scans of claimant’s hips produced normal results. A myelogram and post-myelogram CT performed on January 30, 1997, only revealed degenerative changes. An MRI of claimant’s sacroiliac joints performed on February 26, 1997, revealed normal results. As a result of these normal findings, respondent controverted the injury. [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, F.C. Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his 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) (Repl. 1996). He 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).” [6] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra. [7] In the present claim, after initially accepting the compensability of claimant’s injury, respondent controverted claimant’s claim based upon the lack of objective medical findings. [8] We note that the dissent argues respondent’s controversion should only apply to claimant’s request for additional temporary total disability benefits. However, as we interpret the contentions, it is clear to us that respondent controverted the claim in its entirety based upon “no objective medical findings to support a work-related injury.” After respondent stated its contentions, claimant did not object to respondent raising the question of initial compensability at the “eleventh hour.” [9] Claimant underwent extensive diagnostic testing which all resulted in normal findings. Claimant’s physical examination performed on the day of his injury and on December 3, 1996, the day after his injury, failed to produce any objective findings substantiating claimant’s alleged injury. Although claimant was diagnosed with a contusion of the lumbar spine, there are no objective medical findings such as hematomas, bruises, scratches, scrapes, etc. noted in the medical records to substantiate and corroborate this diagnosis. We are not persuaded that a diagnosis of contusion to an internal body part, without any objective medical evidence supporting the diagnosis satisfies the objective medical requirement. Consequently, affording the statute the strict construction which we are mandated to do, we cannot find that claimant has proven the compensability of his alleged injury by objective medical evidence. Therefore, we reverse the decision of the Administrative Law Judge. [10] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[11] Commissioner Humphrey dissents. [12] DISSENTING OPINION[13] I must respectfully dissent from the majority opinion finding that claimant has failed to prove “the compensability of his alleged injury by objective medical evidence.” [14] I am concerned that this claim is being considered as one involving initial compensability which fails for lack of objective findings. The significance of “objective findings” can vary widely with the type of claim involved. Objective medical evidence is, of course, critical to a finding of initial compensability. See Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997). However, where collateral matters such as the duration of a healing period or reasonably necessary medical care are at issue, “objective findings” lose their capacity to be dispositive and become only one of several factors we may take into account. See, generally, Chamber Door Indus. v. Graham, 59 Ark. App. 224, ___ S.W.2d ___ (1997) and Nancy Adams v. Swift Eckrich, Inc., Full Workers’ Compensation Commission, Opinion Filed May 7, 1997 (Claim No. E600098). [15] A Pre-hearing Order entered on May 12, 1997, lists the following issues that were to be litigated in the instant claim:
[16] The parties’ responses to their respective pre-hearing questionnaires also reflect the foregoing issues. Specifically, respondents initially contended “that there are no objective findings to support Claimant’s entitlement to additional medical expenses or entitlement to indemnity benefits” (emphasis added). Prior to the hearing, it does not appear that respondents ever expressly stated or contended that claimant failed to meet the requirements of proving initial compensability. Only at the hearing of June 11, 1997, over six months from the date of injury, did counsel for respondents contend that:1. Whether the claimant is entitled to additional medical treatment;
2. Whether the claimant is entitled to additional temporary total disability compensation.
[17] So far as I can discern, the foregoing statement was the first time that initial compensability had ever been mentioned. Even at that point, it appears to have been no more than an afterthought which nonetheless prompted the Administrative Law Judge to inquire as to whether respondents had decided to controvert initial compensability. Though claimant did not object when counsel for respondents answered in the affirmative, I suspect that his choices were only twofold: (1) object and move for a continuance; or (2) remain silent, press on, and hope for the best. Given the straits in which most claimants find themselves at the hearing stage of workers’ compensation proceedings, it should hardly be surprising if claimant chose the latter. [18] Be that as it may, I strongly disagree with the majority’s finding that this claim is not supported by objective medical findings. Even ignoring the objective findings of degenerative disc disease, there is another finding that will satisfy the statute. The majority concludes that the diagnosis of a contusion of the lumbar spine is not supported by objective medical findings such as bruises. However, I respectfully point out that by definition a contusion is a bruise. Like the Administrative Law Judge, I find that a bruise is sufficiently objective to support a finding that claimant sustained a compensable injury. [19] For the foregoing reasons, I dissent [20] PAT WEST HUMPHREY, CommissionerYour Honor, the Respondents contend that there are no objective findings to support a work-related injury and, therefore, additional medical treatment is not reasonable and necessary. Additionally, that the Claimant’s problems are associated with degenerative changes and, as such, he’s not entitled to medicals or temporary total disability benefits subsequent to December 13th of 1996.