MILLICAN v. STEPHENS TRUCK LINES, 1996 AWCC 237

CLAIM NO. E505858

ROBERT MILLICAN, EMPLOYEE, CLAIMANT v. STEPHENS TRUCK LINES, UNINSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 1, 1996

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

Claimant represented by GREGORY GILES, Attorney at Law, Texarkana, Arkansas.

Respondents represented by JIM TILLEY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned case on January 16, 1996, finding that claimant had sustained injuries to his low back and cervical spine arising out of and in the course of his employment, and was entitled to temporary total disability benefits from July 26, 1994, through August 25, 1995. Respondents now appeal from that opinion and order, contending that claimant failed to prove the occurrence of an injury to his neck and also failed to satisfy the requirements necessary to an award of temporary total disability benefits.

[3] Following our de novo review of the entire record, we find that claimant has proven, by a preponderance of the evidence, that he did sustain a compensable injury to his cervical spine on July 26, 1994, and that he is further entitled to an award of temporary total disability benefits from July 26, 1994, until August 25, 1995. The decision of the Administrative Law Judge is therefore affirmed. [4] Claimant worked as a truck driver for respondent employer, and on July 26, 1994, fell off his trailer while attempting to pull a tarp over his cargo. The fall left claimant dazed, but did not knock him unconscious. He described the remaining effect of the impact as follows:

I felt like a lot of pain hit my shoulder, I thought my shoulder had broke, because my head popped back. The only thing that hit was my elbow and my tailbone. My head popped back, my shoulder popped up, my glasses come off my head and flipped behind me.

[5] Claimant testified that he was able to finish tarping the load, and then called his dispatcher, Mr. Allen Bryant, to report the accident. The accident occurred while claimant was in Memphis, Tennessee, and it was necessary for him to drive back to Hope, Arkansas, to complete his shipment. This he did with some difficulty, as he found it necessary to stop on occasion for the purpose of stretching. In addition, claimant stated that he had to hold himself “off the seat” while driving. [6] When he arrived in Hope, claimant called his girlfriend, Ms. Sheila Stephens, to assist him with taking the tarp off his cargo, having found that the effects of his injury did not permit him to do so alone. Unfortunately, claimant fell again while pulling the tarp, though this time he was standing on the ground. The impact again centered on claimant’s back, and he testified that he experienced pain in his neck, shoulders, and lower back. Claimant at one point described his pain as “agonizing.” [7] Claimant presented to the Medical Park Hospital Emergency Room on July 27, 1994, with a complaint of “lumbar back pain.” The physician’s notes from this visit indicate that claimant denied a head or neck injury but did report “muscle soreness @ lateral aspect bilat. (symbol) neck.” [8] The symbol preceding the word “neck” resembles the “@” symbol the physician appears to have used to indicate the word “at” throughout the remainder of his notes. It does not resemble the well-defined slashed circle that the physician clearly uses to indicate “no” or “none” at other points in the report. Claimant testified that he did inform emergency room personnel that he was experiencing pain in his neck. The emergency room physician instructed claimant to remain off work for two days and to engage in no lifting or climbing for five days after his return. [9] On August 1, 1994, claimant drove a truck owned by Ms. Stephens’ stepfather from Hope to Shreveport, Louisiana, to speak with respondent employer about a leasing arrangement. Respondent employer did not accept this proposal, and appears to have deemed claimant as resigned from his employment for the purpose of becoming an “owner-operator.” [10] Claimant testified that he did not tell anyone that he was resigning, but was told that he was “on his own” when he requested that respondent employer provide additional medical care for his accident of July 26. Claimant eventually received medical attention from the Louisiana State University Medical Center in Shreveport. A September 12, 1994, MRI scan of his cervical spine revealed the presence of a “large disc herniation at C4-C5 causing significant compression of the spinal cord.” On September 19, 1994, claimant received instructions from an L.S.U. physician to remain off work until his evaluation was complete. Unfortunately, claimant’s financial situation did not permit continued medical care. [11] Claimant began “feeling a little bit better” in August, 1995, and, given his financial straits, attempted to return to work. He found employment as a truck driver and began on August 26, 1995, with the understanding that he would “just drive and do nothing strenuous.” Claimant further testified that he does no lifting or carrying on his new job. [12] Regarding his continuing difficulties (at the time of the hearing), claimant stated that he still has pain in his neck when he drives or does anything strenuous, and his lower back will “catch” when he walks or stands too long. He is able to sit for “up to thirty minutes, maybe an hour” and cannot bend at the waist to pick things up. [13] Because claimant contends that he sustained a compensable injury after July 1, 1993, the provisions of Act 796 of 1993 are controlling. Claimant must thus demonstrate that he has sustained an “accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death.” In addition, an injury will be considered “accidental” only if it is “caused by a specific incident and is identifiable by time and place of occurrence.” Ark. Code Ann. §11-9-102(5)(A)(i) (Repl. 1996). Finally, a compensable injury “must be established by `objective findings.'” Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). In turn, “objective findings are those findings which cannot come under the voluntary control of the patient. . . Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Ark. Code Ann. § 11-9-102(16) (Repl. 1996). A claimant’s burden of proof concerning these issues is to demonstrate them by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(5)(E) (Repl. 1996). In the instant case, we find that claimant has met his burden. [14] Respondents contend that “there is absolutely no objective evidence to establish that claimant sustained a compensable injury to his neck on July 26, 1994,” and that “claimant’s own statements to medical providers at the time of the alleged incident indicate a lumbar strain and contusion to the elbow.” We do not agree with respondents’ assertion that claimant has failed to prove that he sustained a compensable neck injury, in addition to his lower back and elbow injuries, on July 26, 1994. [15] We note first of all that there is clear and objective medical evidence of an injury to claimant’s cervical spine — to wit, the MRI finding of a “large herniation” at C4-5 on September 12, 1994. In addition, we regard claimant’s testimony as credible, including his account of the injury and surrounding circumstances, and point out that he testified that his neck “popped back” when he experienced the first fall on July 26, 1994. Also, we note the emergency room report from the day after claimant’s injury, which refers to his complaints of “muscle soreness” in his neck. From this evidence, we specifically find that claimant did sustain an injury to his cervical spine (neck) on July 26, 1994, which arose out of and during the course of his employment. [16] It is true that the small symbol preceding the “neck” in the above-referenced report is difficult to identify. However, having compared it to other symbols and abbreviations used throughout the report, we specifically find that it is was not intended to negate the presence of neck pain. [17] Finally, after examining claimant’s credible description of the events surrounding his injury on July 26, 1994, we are persuaded to find that claimant has proven, by a preponderance of the evidence, that said injury occurred as the result of a specific incident identifiable by time and place of occurrence. [18] Respondents, in their brief, have insinuated that claimant only raised his claim for a neck injury as some form of reprisal for respondent employer’s refusal to grant the above-discussed lease. However, when claimant originally filed for workers’ compensation benefits in the State of Louisiana on August 16, 1994 (a claim eventually dismissed owing to a lack of jurisdiction in that state), he listed “back, neck” as the portions of his body receiving injury. [19] While this form was filled out some two weeks after the lease discussion with representatives of respondent employer, the MRI which objectively revealed claimant’s neck injury was still almost a month away. He therefore did not have knowledge of the extent of said injury. And again, claimant had presented with “muscle soreness” in his neck just one day after he sustained the injury — well before his lease discussions with respondent employer. Accordingly, we are not persuaded that the timing of claimant’s filing for benefits diminishes the merits of this claim. [20] Based on the foregoing, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable neck injury on July 26, 1994. [21] We also find that claimant is entitled to temporary total disability benefits for the period beginning July 26, 1994, and ending August 25, 1995. [22] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep’t. v. Breshears,272 Ark. 244, 613 S.W.2d 392 (1981). The healing period itself continues until the employee is as far restored as the permanent character of the injury will permit, and will end once the underlying condition has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc.v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id. Finally, the question of when the healing period has ended is a factual determination that is to be made by the Commission. Id. [23] Claimant’s healing period began on the date of his injury — July 26, 1994. The extent of that injury became known when the September 12, 1994, MRI revealed a “large herniation” at the C4-5 level. Claimant was thereafter unable to pursue medical treatment for his cervical injury, which accordingly remained unrepaired even when claimant returned to work out of necessity in August, 1995. [24] In addition to his unrepaired disc herniation, we note that claimant continued to experience accompanying pain and difficulty with his neck as of the hearing date for this claim. We therefore specifically find that claimant remained in his healing period beyond August 25, 1995, by which time he had returned to work as a truck driver for a new employer — albeit with some limitations due to his previous injury. [25] We also find that claimant was totally incapacitated to earn wages during the same period. Claimant was initially taken off work for two days on July 27, 1994, and was thereafter to return to restricted duty for five days. On September 19, 1994, claimant received instructions from an L.S.U. physician to remain off work “until evaluation complete.” Because claimant was not a Louisiana resident, he was unable to continue receiving free medical care from L.S.U., and restricted finances did not allow him to seek treatment elsewhere in light of respondents’ refusal to provide further coverage. Claimant thereafter did not return to work until he had to in August, 1995, in order to pay his bills. [26] It is true that claimant did not have off-work slips for the time period of July 30, 1994, until September 18, 1994. However, we have stated before that a claimant’s entitlement to temporary disability benefits is not dependent upon off work slips from his physician. See Charles David Reynolds v. Osage Products, Inc.,
Full Workers’ Compensation Commission, Opinion Filed August 12, 1996 (Claim No. E204137). Accordingly, we are persuaded by the presence of a significant and objectively identifiable cervical disc herniation, and claimant’s accompanying pain and limitations after its occurrence, that he was totally incapacitated to earn wages during the intervening period between the two off-work slips issued by his physicians. We therefore specifically find that claimant is entitled to an award of temporary total disability benefits from July 26, 1995 through August 25, 1995. [27] Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury to his cervical spine on July 26, 1994, and is thus entitled to all reasonable and necessary medical expenses associated therewith. We also specifically find that claimant has proven, by a preponderance of the credible evidence, that he is entitled to an award of temporary total disability benefits as set out above. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [28] 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). [29] 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 as provided by Ark. Code Ann. §11-9-715(b) (Repl. 1996). [30] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[31] Commissioner Holcomb dissents.

[32] DISSENTING OPINION
[33] I respectfully dissent from the majority’s opinion finding that the claimant sustained an injury to his cervical spine arising out of and in the course of his employment.

[34] The claimant did sustain an admittedly compensable injury to his low back on July 26, 1994. When he reported the incident to his employer, claimant did not report a cervical injury, nor did he relay a history of snapping his neck back during the fall. [35] The Employer’s Report of Occupational Injury dated July 27, 1994 indicated that the claimant received an injury to his lumbar back and contusions. Likewise, when the claimant reported to the Medical Park Hospital, he advised his treating physician that his chief complaint was lumbar back pain. (RX-1, p. 4). The physician’s notes from the claimant’s initial hospital visit states:

33 year old white male who fell from truck trailer approximately five feet onto lumbar back/hitting right elbow on ground. Patient denies head neck injury but has muscle soreness at lateral aspect bilaterally at neck. No [illegible]/paresthesia, [illegible], NV visible problems. No radiation of [illegible]. Positive mild aching pain at right elbow. (RX-1, p. 5). (Emphasis added.)

[36] The nursing assessment from that same hospital visit indicated “fell backward from an eighteen-wheel flatbed trailer striking cocyx and right elbow. Complains of decreased back pain today. No numbness or tingling in extremities. Gait stiff but not unsteady.” (RX-1, p. 6). [37] As a result of his hospital visit, the claimant’s treating physician held the claimant off work for two days and advised the claimant not to lift or climb for five days. (Rx-1, p. 9). All medical reports contemporaneous with the claimant’s injury indicate that the claimant sustained an injury to the lumbar region of his back and that he did not sustain an injury to his head or neck. Contrary to the majority’s finding, all reports contemporaneous to the accident clearly indicate that the claimant denied any neck injury. [38] Claimant contends that both the respondent and the emergency room personnel failed to note the claimant’s complaint of neck injury. These reports were filled out independently based upon representations made to the employer and to the emergency room personnel by the claimant. Since neither of these reports indicate a neck injury, the claimant’s assertions made after being terminated from work lack merit. [39] The claimant admitted at the hearing that he lied to the Louisiana State University Medical Center in an effort to receive free medical treatment. The claimant advised LSU Medical Center that he was a resident of Louisiana. If the claimant would falsify his address to seek medical treatment, it is highly probable, especially in light of the initial emergency room records, that he is not telling the truth with regards to his injury. [40] There is no objective medical evidence in the record to prove a compensable cervical injury on July 26, 1994. The claimant’s own statements to the medical care providers at the time of the alleged injury indicate a lumbar strain and contusion to the elbow with no injury to the neck. [41] Although the MRI results revealed a herniated disc at C4-5, the MRI was not taken until a month and a half after the claimant’s accident and after the claimant was denied the opportunity to lease a truck with respondent. Although the MRI findings are objective, the MRI was not taken until after the claimant’s employment with respondent had ceased and after claimant was denied the opportunity to lease a truck from respondent. Given these circumstances, the lapse in time between the compensable injury and the MRI becomes very important. [42] The record reflects that after being denied the opportunity to lease a truck, the claimant was advised that he would either have to accept loads and haul loads for Stephens as a company driver or resign. The claimant never returned to work for respondent, nor did he ever provide additional medical documentation indicating that he could not work. The claimant never advised the respondent of his additional attempts to seek medical attention or his desires to see a physician, including but not limited to, the LSU Medical Center. Not surprisingly, in light of the respondent’s refusal to lease the truck to the claimant, the claimant became frustrated with the respondent and filed his first workers’ compensation form in Louisiana. It was on this form that the claimant first alleged a neck injury. [43] Based upon my de novo review of the entire record, I find that the claimant’s motivation in filing a workers’ compensation claim is highly suspect and his credibility is severely in doubt. The only evidence presented at the hearing implying that the claimant sustained an injury to his neck when he fell on July 26, 1994 is the testimony of the claimant. The medical evidence and the testimony of other witnesses clearly contradict the claimant’s testimony. I find that claimant’s self-serving testimony is not credible. Therefore, I respectfully dissent from the majority opinion. [44] ALICE L. HOLCOMB, Commissioner