CLAIM NO. E411456
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 13, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LEWIS RITCHEY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE J. MICHAEL PICKENS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on February 10, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. After conducting a de novo review of the entire record, we find that the claimant failed to satisfy the requirements necessary to establish a compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed.
[5] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra. [6] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that he sustained an injury as the result of the specific incident which occurred on July 11, 1994, as he describes. There were no witnesses to this alleged incident, and Mr. Hartwick testified that the claimant merely advised him that he had hurt his back and had to go to the emergency room. However, according to Mr. Hartwick, the claimant did not tell him how the injury occurred. Significantly, the medical records indicate that the claimant initially gave a history which is inconsistent with his contention that his injury is the result of a specific incident occurring on July 11, 1994. In this regard, the July 11, 1994, emergency room report contains the following in part:(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) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5)(E)(i) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993));
(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) (Cumm. Supp. 1993)).
[7] Although this record indicates that the claimant informed emergency room personnel that his problems were not the result of any specific injury, a July 19, 1994, physical therapy report indicates that the claimant did relate the onset of his pain to lifting tires. However, this report also indicates that the claimant told the physical therapist that this incident had occurred about three weeks previously, which would have been during the last week of June, not the second week of July as the claimant now contends. In fact, no medical record contains a history of injury which is consistent with the claimant’s current contention until the July 24, 1994, emergency room report, which indicates that the claimant related the onset of his problems to lifting heavy truck tires two to three weeks previously. [8] The record contains numerous other inconsistencies which raise doubts about the credibility of claimant’s testimony and which diminish the weight that his testimony is entitled to receive. For example, the claimant testified that this incident occurred at 8:45 a.m., approximately 45 minutes after he began working that morning. However, Mr. Hartwick testified that the claimant advised him of a back injury around 11:30 a.m., and he testified that he recalled the time because it was around lunch time. In addition, the claimant testified that he has continuously experienced sharp pain in his back which radiates into his left leg and that he experiences numbness and weakness in his lower extremity. However, Robert Taylor, a former co-employee and personal friend of the claimant’s, testified that he and the claimant had gone deer hunting since the accident. According to Mr. Taylor, the claimant drove his four wheel drive vehicle truck through something like a muddy corn field, and he testified that they parked the truck and walked in the woods for two and one-half (2 1/2) hours. Mr. Taylor testified that the claimant carried a double barrel shotgun during the time that they were walking, and he testified that they returned to the claimant’s trailer and drank beer and watched television afterward. The claimant denied Mr. Taylor’s account of this incident. According to the claimant’s testimony, he merely drove Mr. Taylor down a dirt road and then walked a short distance down a tree line which was by an open field. The claimant also denied carrying a gun during this excursion. [9] In addition, the claimant admitted to lying about an incident that occurred on September 16, 1994. He had returned to light duty work for the respondent employer at that time, and he left the respondent employer’s facility at 11:30 to get lunch for some of the employees. However, he never returned that afternoon. When he did return, he told his supervisor, Bobby Adams, that he had been involved in an accident and that his vehicle had been towed to Twin City Motors. The claimant acknowledges that he told Mr. Adams that he had rear-ended another vehicle. However, the claimant also testified that he had actually stopped to talk to some friends at a location where he was not supposed to be when another vehicle ran into him. Mr. Adams testified that he examined the claimant’s vehicle when he returned to work and that the vehicle did not appear to have any new damage. In addition, the claimant provided Mr. Adams with the name of the tow truck driver, but Mr. Adams testified that the tow truck driver denied any knowledge of the incident. The claimant testified that he lied about this incident to protect his job. The claimant’s employment was ultimately terminated as a result of the September 16, 1994, incident. He subsequently worked for a short period of time for a security guard company, and he admitted that he was not truthful in completing a questionnaire regarding his physical capabilities and with regard to the answers to other questions on the application. [10] We also note that the severity of the condition described by the claimant is not consistent with the findings reflected in the medical records. Furthermore, the medical records do not contain objective findings, as required by the Act. In this regard, the emergency room reports indicate that the clinical examinations of the claimant were normal except for some slight tenderness reported by the claimant on palpation. Specifically, there were no signs of radicular symptoms, such as those described by the claimant. Likewise, the claimant was referred to Dr. C. Lowry Barnes, an orthopedic specialist, and Dr. Barnes has indicated that there were no radicular findings and that there was no evidence of spasm. In addition, Dr. Barnes indicated that the only positive findings were tenderness in the lower lumbar spine and some mild decreased range of motion. However, as discussed, under Ark. Code Ann. § 11-9-102. . . Over the last several weeks, he has developed increased soreness of his chest and back, particularly worse with movement. He has not had any specific injury.
(5)(D), a compensable injury must be established with medical evidence, supported by objective findings, and objective findings are defined in Ark. Code Ann. § 11-9-102
(16) (Cumm. Supp. 1993) as “those findings which cannot come under the voluntary control of the patient.” We find that the findings in the present claim fall short of satisfying this statutory requirement. [11] In short, the medical evidence indicates that the claimant initially related a history which is contrary with his current contention that he sustained an injury as a result of a specific incident that occurred on July 11, 1994. In addition, the medical evidence is not consistent with the nature and extent of the injury that the claimant contends he sustained. Furthermore, evidence establishes that the claimant’s credibility is subject to substantial doubt, and we find that the weight that his testimony is entitled to receive is accordingly diminished. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that he sustained an injury resulting from a specific incident on July 11, 1994. In addition, we find that the claimant failed to establish a compensable injury with medical evidence, supported by objective findings. [12] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to satisfy the requirements necessary to establish a compensable injury. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed. This claim is denied and dismissed. [13] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[14] Commissioner Humphrey dissents.