CLAIM NO. E401692
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 5, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ANTHONY BARTELS, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] The respondent appeals an opinion and opinion filed by the administrative law judge on January 16, 1997. In that opinion and order, the administrative law judge found that the claimant sustained an injury arising out of and during the course of his employment with the respondent on January 22, 1994. In addition, the administrative law judge found that the claimant is entitled to temporary total disability benefits commencing January 22, 1994 and ending on July 29, 1994 and commencing again on September 15, 1994 and ending on February 2, 1995. After conducting a de novo
review of the entire record, we find that the decision of the administrative law judge must be affirmed. [3] Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirement for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries.See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996) are controlling, and the following requirements must be satisfied:
[4] In the present case, we find that the claimant proved by the preponderance of the evidence each of the requirements necessary to establish a compensable injury caused by a specific incident. In this regard, the claimant testified that on January 22, 1994, he was trying to line up a fabricated trailer side, with two girls working on one side, and he working on the other. The claimant testified that he was pulling very hard when he felt something pop and had severe pain going down the back of his leg. The claimant testified that he reported the incident to his supervisor, went to the emergency room, and then started seeing the company doctor. [5] The claimant eventually came under the care of Dr. Kenneth Tonymon, a neurological specialist who had treated the claimant following a prior back injury sustained in August of 1993 while employed by a different company. Dr. Tonymon ordered a myelogram and post-myelogram CT on March 15, 1994, which indicated the presence of a herniated disc at the L4-5 level of the claimant’s lumbar spine, and Dr. Tonymon performed a hemilaminotomy and diskectomy on the left side at the L4-5 level of the claimant’s spine on May 31, 1994. Consequently, we find that the claimant’s injury is supported by objective medical findings and that the claimant’s injuries caused internal harm to the body which required medical services and resulted in disability. [6] In addition, we find that the claimant proved by a preponderance of the evidence that his L4-5 herniated disc injury arose out of and in the course of his employment with the respondent and that the claimant proved by a preponderance of the evidence that the injury was caused by a specific incident, identifiable by time and place of occurrence on January 22, 1994. In reaching our decision, we note that the respondent apparently controverts the compensability of the claimant’s injury on two grounds. First, the respondent essentially asserts that the claimant failed to prove by a preponderance of the evidence that he was involved in a specific work-related incident on January 22, 1994, and second, the respondent asserts that the claimant’s back condition in 1994 was the result of a preexisting medical condition and not the result of the alleged incident at work on January 22, 1994. [7] With regard to the respondent’s assertion that the claimant’s herniated disc injury was somehow related to the claimant’s prior injury sustained for another employer in 1993, we are particularly persuaded by the May 16, 1996, letter prepared by Dr. Kenneth Tonymon who followed the claimant following both injuries and ultimately performed the claimant’s back surgery in May of 1994. In that 1996 letter, Dr. Tonymon opined that he did not feel that the claimant’s 1994 injury was related to the injury that the claimant previously sustained in 1993. In explaining the basis for this conclusion, Dr. Tonymon stated in the 1996 letter:(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996); Ark. Code Ann. § 11-9-102(5)(E)(i) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996));
(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 (see, Ark. Code Ann. § 11-9-102(5) (A)(i) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996));
(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, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996)).
[8] In reaching our decision on this issue, we note that the dissent asserts that “the medical records consistently show that as a result of the [1993] injury claimant complained of low back pain and pain radiating into his hip and into his right lower extremity.” In assessing the weight to be accorded this assertion by the dissent, however, we note that Dr. Tonymon’s June 1, 1994 report specifically states:As to the last question as to whether or not an injury such as the one he sustained in 1993 would make him more prone to future injuries, that is somewhat difficult to answer with any amount of certainty. Certainly, people who have in the past, suffered myofacial injuries do tend to occasionally re-injure themselves or require treatment for flare ups of back pain during their healing period from the myofacial injury. The second injury that he sustained, however, was not a myofacial injury and was a ruptured lumbar disc and was not related to the myofacial injury that he suffered in 1993. [Emphasis added].
[9] Consequently, in light of the history indicated by Dr. Tonymon (that the claimant’s leg pain and his herniated disc were new injuries as a result of the 1-22-94 incident) we find absolutely no merit in the assertion of the dissent and the respondent that the claimant’s 1994 back condition was somehow simply an extension of the claimant’s 1993 injury. Moreover, both the objective findings and the opinions and notes of Dr. Tonymon all indicate that the claimant sustained a new disc herniation injury in 1994. Consequently, we find that the respondent’s assertion in this regard is without merit. [10] With regard to the respondent’s assertion that the claimant failed to prove that an incident occurred on January 22, 1994, we note that this is essentially a new argument that the respondent has raised for the first time on appeal before the Full Commission. In assessing the weight to be accorded this new argument, we note with interest that the record indicates that the respondent did, in fact, initially accept the claimant’s injury as compensable and paid the claimant temporary total disability benefits. Apparently, the respondent carrier did, in fact, perform an investigation of the alleged incident, and as a result of that investigation, initially determined that the alleged incident did occur. The claimant testified at the hearing that the incident occurred in the presence of two female co-workers and that he immediately reported the incident to his supervisor. As the administrative law judge noted, the respondent failed to call any witnesses to rebut the claimant’s explanation of how and when the incident occurred or who he reported the incident to. In fact, the respondent failed to present any evidence whatsoever to rebut the claimant’s testimony regarding the occurrence of the incident on January 22, 1994. In assessing the weight to be accorded the claimant’s testimony in this regard, we note that the medical records consistently refer to an incident that occurred on January 22, 1994. In addition, the medical records in no way indicate that the claimant’s injury was a result of any other activity that occurred before or after January 22, 1994. [11] The dissent seems to place significant weight on the fact that the first medical treatment documented in the record were records of a radiology report dated March 15, 1994, even though the claimant testified that he was initially seen at the emergency room and by the company physician on the date of, and shortly after, the incident on January 22, 1994. In light of the fact that the respondent initially accepted this claim as compensable and paid the claimant temporary total disability benefits, and in light of the fact that the respondent apparently never raised any assertion that no specific incident occurred prior to filing their brief on appeal before the Full Commission, we find no significance in the fact that the claimant has not submitted into the record documentary evidence of medical treatment initially obtained in the emergency room and by the company physician during that period immediately after the initial injury. Moreover, the claimant has submitted into the record the objective medical test results confirming the nature and extent of his injury, and the relevant opinions of Dr. Tonymon explaining why the claimant’s 1994 injury was in no way related to the claimant’s prior 1993 injury. In short, under the circumstances of the present case, we accord significant weight to (1) the claimant’s credible explanation of the incident that occurred on January 22, 1994, (2) his account of the witnesses thereto and (3) his testimony that he immediately reported the injury and received medical treatment shortly thereafter. Consequently, for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he sustained a compensable low back injury on January 22, 1994, as a result of a specific incident, identifiable by time and place of occurrence. [12] Since the claimant’s injury occurred after July 1, 1993, the provisions of Act 796 of 1993 are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, 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 she is within her healing period and totally incapacitated to earn wages. ArkansasState Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(6) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. [13] In the present case, we find that the claimant was initially within his healing period and incapacitated to earn through the date of his low back surgery and continuing until July 29, 1994, when Dr. Tonymon released the claimant to return to work. In addition, we find that the claimant sustained an incapacitating recurrence of temporary disability during the period from September 15, 1994, when Dr. Tonymon again placed the claimant in off work status, until February 2, 1995, when Dr. Braden released the claimant with a 10% impairment to the body as a whole as a result of his compensable back injury. We note, however, that the respondent is entitled to a credit against liability for temporary total disability benefits for any period therein in which the claimant may have returned to work. [14] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury on January 22, 1994. In addition, we find that the claimant proved by a preponderance of the evidence that he is entitled to temporary total disability benefits commencing for the period beginning January 22, 1994 and continuing through July 29, 1994 and commencing again on September 15, 1994 and continuing through February 2, 1995. [15] 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). 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 (Repl. 1996). [16] IT IS SO ORDERED.Mr. Metz has been seen by me earlier this year on 9-8-93. At that time, he had injured himself at work on 8-2-93 and had merely lower back pain without left lower extremity pain. However, he reinjured himself on 1-22-94 while on a new job. He was pulling an object with some co-workers when he had pain in his lower back which now went down his left lower extremity. This leg pain is new and represents some new injury. [Emphasis added].
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[17] Commissioner Wilson dissents. [18] DISSENTING OPINION[19] I respectfully dissent from the majority’s opinion affirming and adopting the decision of the Administrative Law Judge finding that claimant sustained a compensable injury on January 22, 1994. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof. Claimant contends that he sustained an injury on January 22, 1994, during the course and scope of his employment. Claimant described the incident as follows:
[20] The first medical record introduced by claimant for claimant’s alleged January 22, 1994, injury is a radiology report dated March 15, 1994. Despite claimant’s testimony that he was seen at the emergency room and by the company physician on the date of and shortly after the alleged incident, no such medical reports corroborating claimant’s testimony were introduced. [21] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [22] The evidence clearly reveals that prior to beginning work for respondent claimant suffered from degenerative disk disease and a bulging disk at L4-5. Claimant was treated by Dr. Kenneth Tonyman, Dr. Darrell Ragland and Dr. Mark Hackbarth for this previous injury. The previous injury occurred when claimant fell approximately six feet to the ground from a ladder landing on his back and hip. The medical records consistently show that as a result of the previous injury claimant complained of low back pain and pain radiating into his hip and into his right lower extremity. These medical records are inconsistent with claimant’s testimony since claimant denied at the hearing having suffered from radicular pain in his extremities as a result of the previous injury. [23] In my opinion, given claimant’s pre-existing medical condition in the exact same location which claimant now contends is injured as a result of a compensable injury, it is imperative that claimant present corroborating evidence to prove the compensability of his claim. Based upon my de novo review of the entire record, and without giving the benefit of the doubt to either party, I cannot find that claimant has met his burden of proof. The only evidence in the record establishing the existence of the alleged incident is claimant’s testimony, which is not corroborated in any fashion. Claimant did not call the co-workers who were allegedly present when the incident occurred on January 22, 1994, nor did claimant call the supervisor to whom he allegedly reported the incident. Finally, there are no medical records supporting claimant’s testimony that he was seen at the emergency room or was seen by the company physician in association with an injury on January 22, 1994. The first medical report introduced was not prepared until two months after the incident allegedly occurred. [24] Although claimant contends that respondent should have called these alleged witnesses to dispute claimant’s testimony, I point out that the burden of proof rests with claimant and not with respondent. Claimant failed to present any evidence either from lay witnesses or from medical records contemporaneous with the alleged injury to support his testimony. [25] I further point out that any medical evidence in the record which implies that claimant’s eventual surgery is a result of the alleged incident in January 1994 is based solely upon the history as provided by the claimant to his treating physicians. Since I find claimant’s history to lack support in the record, I can place no weight in these medical records. [26] Accordingly, for those reasons stated herein, I would reverse the decision of the Administrative Law Judge. Specifically, I find that claimant has failed to prove by a preponderance of the credible evidence of record that he sustained a compensable injury. Due to claimant’s pre-existing condition and the similarity between the pre-existing condition and claimant’s alleged injury I find that the lack of corroborating evidence is crucial to this case. In my opinion, the evidence presented by claimant simply fails to rise to the level of a preponderance of the evidence. Therefore, I respectfully dissent from the majority opinion. [27] MIKE WILSON, CommissionerI was working on an assembly line, and there was the sides of the trailers coming out of the machine, and when they come out of the machine, it comes lopsided and you have to get it lined up straight to get the rivets in the side of the machine, and there was two girls on one side and I was on the other, and we was trying to get it lined up, and I kept telling them push, push, and I was pulling, and they were pushing and I just jerked real hard to get it over and when I did, I felt something pop and I didn’t think much about it, but I had some pain going down the back of my leg. I can’t remember the supervisors name, but I told him, I said, you know, I think I’ve hurt my back, but I just kind of, you know, did some light stuff and I said I don’t think I’m going to make it, and they sent me to the emergency room and then I just started going seeing doctors, the company doctor.