MEJIA v. CRYSTAL LAKE FOODS, 2007 AWCC 34

CLAIM NO. F408485

MARIO MEJIA, EMPLOYEE, CLAIMANT, v. CRYSTAL LAKE FOODS, EMPLOYER RESPONDENT COMPCARE ADMINISTRATORS, CARRIER RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 11, 2007

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

Claimant represented by HONORABLE EVELYN BROOKS, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Reversed.

OPINION AND ORDER
The respondents appeal a decision of the Administrative Law Judge filed April 27, 2006, finding that the claimant sustained a compensable accidental injury on April 23, 2004, while employed with the respondent employer. The Administrative Law Judge further found that the claimant has failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits in

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association with this alleged injury from August 4, 2004, through September 21, 2004.

A carefully conducted de novo review of this claim in its entirety reveals that the claimant has failed to meet his burden of proving that he sustained a compensable accidental injury on April 23, 2006. Therefore, we find that the decision of the Administrative Law Judge should be reversed with regard to the issue of compensability. Because the claimant has failed to prove compensability, he is not entitled to benefits with regard to this alleged injury. The claimant, a 61 year old Hispanic man, began working for the respondent employer on July 18, 2002. His work duties included moving tumblers with a pallet jack and operating the machine that washes freshly processed poultry. The claimant alleges that on the afternoon of Friday, April 23, 2004, a pallet jack rolled over his left foot, causing injury to his fifth left toe. The claimant testified that he did not report the injury or seek immediate medical attention because, at the time, he felt it was no “big deal”. The claimant worked the remaining 30 minutes of his shift and went home. According to the claimant, once at home, he examined his foot and found that it was purple and swollen. Over the ensuing weekend, the claimant self-medicated with Ibuprofen. On the following

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Monday, April 26, 2004, the claimant sought medical attention from Dr. Rebecca Lewis, the plant physician. A report of that visit reflects that the claimant presented to Dr. Lewis with complaints of a “sore on his left toe for approximately the last two weeks”. The report continues as follows:

He reports no real history of injury. He states he is having a lot of skin loss over the toe. He has been soaking it in Epsom salt with good relief of his symptoms. . . . He denies any symptoms of diabetes. . . .

A blood test, however, revealed that the claimant is diabetic. Dr. Lewis diagnosed the claimant with ulceration of the left fifth toe over the dorsal surface, for which she prescribed him medications and instructed him to continue soaking his foot in Epsom salt.

The claimant was accompanied to this examination by Human Resources Manager and Spanish interpreter, Lorraina White. The claimant testified that during his appointment with Dr. Lewis, he informed Ms. White of his work related incident, who in turn, reported the incident to Dr. Lewis.

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Subsequent to his examination by Dr. Lewis, the claimant continued working. On August 4, 2004, the claimant presented to podiatrist, Dr. Phuong Mueller, who referred the claimant for a triple phase bone scan. This study, which was conducted on August 5, 2004, confirmed that the claimant was suffering from osteomyelitis (bone infection) of the left fifth toe and a region of the head of the left fifth metatarsal.

On August 9, 2004, the claimant was seen again by Dr. Lewis. At that time, the claimant told Dr. Lewis that Dr. Mueller had taken him off of work for two months. However, the medical records are devoid of documentation to confirm this. Further, in her note of that visit, Dr. Lewis reported:

He states that he has a note today for work around a non-moist or wet environment. He is wondering if he can come back to work; he has been off work a couple of weeks.

After reporting that the claimant’s left fifth toe showed “signs of gangrenous changes of ulceration and ulceration healing”, Dr. Lewis concluded by stating that the claimant

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should follow-up with someone at the plant named “Lorena” to fill out FMLA papers and “see what he needs to do from here”.

Although supplemental medical records pertaining treatment that the claimant received from Dr. Mueller in October of 2005, and January 2006, were submitted into the record, these documents are not pertinent to the issues on appeal. Likewise, other medical records submitted into the record dealing with non-related conditions are noted, but not considered for purposes of this appeal.

The claimant has the burden of proving by a preponderance of theevidence the compensability of his claim. Jordan v. Tyson Foods, 51 Ark. App. 100, 911 S.W.2d 583 (1995); Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995). For the claimant to establish a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the following requirements of Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002), must be established: (1) proof by

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a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See also,Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002); Freeman v. ConAgraFrozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001); Wal-Mart Stores, Inc.v. West, 77 Ark. App. 167, 72 S.W.3d 889 (2000). If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of a claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997), see also, Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 (E317744).

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The claimant alleges that he sustained a compensable accidental injury to his left fifth toe on April 23, 2004. However, the claimant failed to report this alleged injury until August 26, 2004. The claimant testified that he could not recall having been instructed in proper reporting procedures. More specifically, the claimant testified as follows:

Q. And you did not report this [alleged incident] to anyone on April 23, 2004, did you?
A. No.
Q. You didn’t report it until the following Monday to Ms. White, did you?
A. Not directly to her early in the morning. I talked to my supervisor to reserve the appointment [with Dr. Lewis] and then later I talked to Mrs. White.
Q. You never filled out any paperwork, did you, sir?
A. No.
Q. And you continued to work until August 4th; isn’t that correct?
A. Yes.

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Q. And what is the policy at Crystal Lake Foods when you have an injury? When are you to report it?
A. I don’t know.
Q. Where you ever instructed that you were to report all injuries immediately?
A. Not that I remember.

Ms. White testified at the hearing of this claim on March 27, 2006. Ms. White verified that the claimant was instructed in the proper procedure for reporting injuries during his new employee orientation. Upon affirming that she was in charge of orientation for new employees at Crystal Lake Foods for workers’ compensation injuries, Ms. White continued her testimony as follows:

Q. And what were the requirements, ma’am?
A. That as soon as it happened they notify their supervisors.
Q. And if a workers’ comp injury is reported, is there paperwork to be filled out?
A. Yes, there is.

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After explaining that a nurse normally handles the paperwork, Ms. White continued . . .

Q. So, if Mr. Mejia would have reported an injury, then he should have filled out some paperwork; is that right?
A. Yes.

Ms. White recalled being present to translate for the claimant during his initial examination by Dr. Lewis. Ms. White further testified that she remembered telling Dr. Lewis that the claimant had injured his toe with a pallet jack. Ms. White stated that Dr. Lewis appeared to be taking notes at the time. However, the record is devoid of evidence that Ms. White followed-up with the claimant to ensure that his alleged injury had been properly reported.

In contradiction to Ms. White’s testimony, Dr. Lewis’s medical records fail to include any history of the claimant’s alleged injury. Further, in a note dated December 30, 2004, Dr. Lewis denied any recollection that the claimant had informed her that his condition was allegedly work related.

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Ms. White assented to the proposition that Dr. Lewis could have failed to accurately note the claimant’s injury in her records. However, she added, “This was the only time”; thus indicating that Dr. Lewis was normally consistent in recording injuries which were communicated to her in the course of treatment.

Based on the above and foregoing, the record plainly reveals that the claimant failed to properly report his alleged injury until four months after it supposedly happened. He failed to do so in spite of credible testimony by Ms. White that he had been instructed on reporting procedures during orientation. Moreover, Dr. Lewis, who visited the plant once a week to address employee health issues, including work related injuries, did not record a history of injury to the claimant’s foot, nor could she later recall having been informed of the claimant’s alleged injury at the time of his April 26, 2004, examination. As the respondent persuasively submits, Dr. Lewis, who was retained by the respondent employer to address, among other things, work related injures, was assuredly aware of the

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importance to the workers’ compensation process of reporting information concerning work related injures. Moreover, that the claimant’s alleged work related injury was not communicated to Dr. Lewis is supported by the tone of her report from April 26, 2004, which illustrates that she, holding a sincere belief that he had suffered no recent injury, was chiefly concerned that the claimant might be suffering from a complication of diabetes. As it turns out, the claimant was suffering from a complication of diabetes; a condition with which up until that time, he had not been diagnosed.

The credible evidence in this claim preponderates against the claimant having sustained a compensable injury on April 23, 2006, as the result of running over his foot with a pallet jack. Rather, the preponderance of the evidence reveals that the claimant had been suffering from an infected toe for at least two weeks prior to his seeking medical attention for this condition. Unknown to the claimant at the time he first sought medical treatment for his condition, he was also suffering from diabetes, which

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had apparently complicated his healing. Based on the medical records, the exact cause of the claimant’s toe infection is uncertain. What is certain, however, is that his alleged accident of April 23, 2004, did not cause his infection, nor is there proof that it complicated his condition. The preponderance of the evidence shows that the claimant’s condition was preexisting, and most likely attributable to his diabetic condition. Because the claimant has failed to prove by a preponderance of the evidence that he sustained an compensable accidental injury on April 23, 2004, compensability is denied and the decision of the Administrative Law Judge is hereby reversed.

IT IS SO ORDERED.

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

Commissioner Hood dissents.

DISSENTING OPINION
I must respectfully dissent from the Majority opinion, finding that the claimant did not sustain a compensable injury to his left toe. After a de novo review of the record, I find that the overwhelming majority of the evidence shows that the claimant has sustained a compensable injury. Specifically, I find that the claimant’s testimony, the testimony of Ms. White, are much more credible than that of Dr. Lewis. Furthermore, in my opinion to rely exclusively on the notations of Dr. Lewis, whose reports are flawed with regard to multiple facts, constitutes error.

In contending that the claimant did not sustain a compensable injury, the Majority is relying almost entirely upon the medical records of Dr. Rebecca Lewis, a Siloam Springs general practitioner, who performed in-plant physical exams at the respondent’s poultry production facility. Dr. Lewis saw the claimant in late April 2004. In a progress noted dated April 26, 2004, Dr. Lewis states,

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“This patient presents today with chief complaints of a sore on his left toe for approximately the last two weeks. He reports no real history of injury.” After describing the condition of the claimant’s toe, Dr. Lewis went on to recommend that he continue Epson salt soaks and she prescribed him medication.

The respondent offered a later statement from Dr. Lewis in regard to her treatment of the claimant. This is in the form of a handwritten note dated December 30, 2004. That note, which is presumably in response to a question from the respondent’s counsel, reads as follows:

In response to your question regarding Mr. Mejia, I have no recollections of him saying his injury was work related to a pallet or other condition.

However, the statements in Dr. Lewis’ report was contradicted by the testimony of the witnesses. The claimant stated that he told Dr. Lewis in his initial visit regarding this injury that he had gotten hurt by running over his toe with a pallet jack. The claimant’s testimony was

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corroborated by that of Lorraina White. Ms. White identified herself as the “Human Resources person” at the respondent’s facility. As part of her duties, Ms. White acted as a translator for individuals, such as the claimant, who were Hispanic and did not speak English. Ms. White testified that Dr. Lewis provided in-plant examinations of employees who needed to see a physician. Dr. Lewis’ duties were not limited to workers’ compensation claims only, but included any medical needs of their employees. Ms. White testified that the claimant advised her of his need to see Dr. Lewis and that she had accompanied him to see her. Ms. White stated that she specifically remembered translating the claimant’s description of an injury in which a pallet jack ran over his foot to Dr. Lewis. When asked about the discrepancy between Dr. Lewis’ April 26 progress note and her testimony, Ms. White could not provide an answer but was certain of her translation of the claimant’s statements at the time of his visit with Dr. Lewis.

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The Majority argues that Dr. Lewis’ medical reports are entitled to more weight than the testimony of the claimant and Ms. White. In this regard, the respondent notes in their brief that Dr. Lewis is a trained medical professional who would not have made such an error. They also note that the respondent’s plant, at which Ms. White was employed, was subsequently closed and she had to seek alternate employment. The respondent implies that this in some way prejudices her against her former employer.

I believe that the Majority is incorrectly evaluating the credibility of the respective evidence from Ms. White and Dr. Lewis. I believe that the fact that Ms. White is no longer affiliated with the respondent enhances her credibility. She testified that she was employed in a similar position with another employer and had no animosity toward the respondent. Ms. White also testified that her connection with the claimant was solely when he was an employee at the respondent’s facility and that she has

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not carried on any relationship with him after the closing of the plant.

In their brief, the respondents also question how Ms. White could have such a clear memory of her translation of the claimant’s discussion with Dr. Lewis almost two years prior to the hearing. Interestingly enough, the claimant’s attorney, during his cross examination of Ms. White, asked her about any possible problems Dr. Lewis’ accurately noting statements made during patient interviews. When Ms. White attempted to explain that she had gone back to the doctor to discuss this situation while the events were still fresh, her answer was interrupted by the respondent’s counsel who told her not to repeat what she was told by the doctor. There was no further inquiry along that line.

I believe that it is disingenuous of the respondent to question Ms. White’s memory, when he is the one who objected to her explaining why she remembered it. I also think the respondent is mis-characterizing Dr. Lewis’ record of accuracy. Among the medical records offered as

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evidence is a document entitled Attending Physician’s Statement. The statement is signed by Dr. Lewis and dated September 30, 2004. This statement is in the form of a number of questions about the claimant’s condition and Dr. Lewis’ diagnosis of it. Among the information provided by Dr. Lewis, is that the claimant is 39 years of age. In fact, other medical records indicate that the claimant was born in 1945. Dr. Lewis also states that she referred the claimant to see Dr. Mueler in Springdale. However, she did not refer the claimant to Dr. Mueler, the claimant sought treatment from him on his own when his condition had not resolved. Another question asked is if the claimant was unable to perform two or more daily activities. To this question, Dr. Lewis’ reply, “Yes” and she stated that he was unable to dress or walk. Obviously, Dr. Lewis obviously misread this question in that there were no such restrictions on his daily activities.

None of those errors are particularly significant as to the claimant’s condition or his treatment for it. In

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noting those errors, I do not intend to imply that Dr. Lewis was incompetent or question her medical abilities. But, I believe the mistakes reflected in the statement referred to above establish that Dr. Lewis is not nearly as infallible as suggested by the Majority. Obviously, she is not immune from making mistakes when recording certain patient information. Considering that she saw the claimant at a site away from her physical office, communicated with him through an interpreter, and most likely later dictated her treatment notes after having spent several hours of seeing a number of patients with a variety of illnesses and conditions, it is not unlikely that she could have made an error in setting out the claimant’s history of injury.

When considering the weight to be given to the testimony of the claimant and Ms. White, as opposed to the notes from Dr. Lewis’ treatment of the claimant, I have no doubt that more weight should be given to the actual testimony provided by Ms. White than the statements set out in Dr. Lewis’ history. I would, therefore, have affirmed the

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finding of the Administrative Law Judge regarding compensability.

Finally, I would have reversed the finding of the Administrative Law Judge regarding temporary total disability benefits.

The Judge denied a request for these benefits because of his conclusion that the claimant could not establish that he was disabled during the time he requested these benefits. However, I believe that the Judge’s conclusion in this regard was in error. The injury the claimant sustained was to a scheduled member set out in Ark. Code Ann. § 11-9-521
(a) (13). Consequently, his entitlement to temporary total disability benefits is controlled by the rule set out by the Court of Appeals inWheeler Construction Company v. Armstrong, 73 Ark. App. 146, 41 S. W. 3d 822 (2001). In that case, the Court of Appeals stated:

We hold that the plain meaning of the language employed indicates that an employee who has suffered a scheduled injury is to receive temporary total or temporary partial disability benefits during his healing period or until he

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returns to work, regardless of whether he has demonstrated that he is actually incapacitated from earning wages.

In the present case, the claimant sustained in injury to his left fifth toe, resulting in an infection. He testified that pursuant to restrictions from Dr. Mueler, he could only return to work if his foot would be kept in a non-moist environment. Surprisingly, this restriction is documented by Dr. Lewis who apparently saw the claimant on August 9, 2004, when the claimant returned to his place of employment in an attempt to arrange work within the employer’s restrictions. In a report of that date, Dr. Lewis not only discusses the restrictions from Dr. Mueler, she also states that the claimant, “Needs to fill out FMLA papers with Lorraina.” Obviously, even Dr. Lewis, the respondent’s on-site physician, agreed in August 2004 that the claimant could not work with his toe in the condition that it was in. I also note that there does not appear to be any dispute that the claimant did not work during the period in question. In the Prehearing Order, which was made part of the record, the claimant contends that he is entitled to temporary total disability benefits. While the

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Order reflects that the respondent is controverting the claim and raising the defense notice, it does not appear that they are denying that the claimant missed work. Likewise, at the beginning of the hearing, the claimant’s attorney specifically stated the dates to which he was asserting temporary total disability benefits and the respondent did not, at that time, contend that he was working during the period in question. There was, however, some discussion as to the claimant’s benefit rate, should the Judge find that the claimant was entitled to temporary total disability benefits. This discussion was taken up again at the end of the hearing and the parties were able to stipulate to a benefit rate. At no point did the respondent ever contend that the claimant did not work between August 4, 2004 and September 24, 2004, as the claimant testified.

I also note that the claimant describes his job as washing down chickens. According to his credible and unchallenged testimony, this job caused his feet to

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constantly be in water. Clearly, this job could not be within the restrictions from Dr. Mueler.

In any event, the clear holding of the Court of Appeals, which has been followed by this Commission on numerous occasions since, is that in scheduled injury cases, such as with this claim, where claimants are within their healing period and not working, they are entitled to receive temporary total disability benefits. The facts of this case leave no doubt that such is exactly the situation here. That is, the claimant had a scheduled injury and while he was being treated for a severe infection, the respondent did not provide him employment. On that basis, I believe there is no doubt that he is entitled to receive temporary total disability benefits from August 4, 2004 through September 21, 2004.

For the aforementioned reasons, I must respectfully dissent.

____________________________ PHILIP A. HOOD, Commissioner

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