MULANAX v. PERSONNEL CONSULTANTS, 2007 AWCC 127

CLAIM NO. F500540

LOUIS MULANAX, EMPLOYEE CLAIMANT v. PERSONNEL CONSULTANTS, EMPLOYER RESPONDENT TRAVELERS INSURANCE COMPANY, INSURANCE, CARRIER RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 26, 2007

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

Claimant represented by the Honorable Evelyn Brooks, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the Honorable Robert Montgomery, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

OPINION AND ORDER
The claimant appeals an administrative law judge’s opinion filed December 14, 2006. The administrative law judge found that the claimant did not prove he suffered a compensable injury. After reviewing the entire record de novo, the Full Commission reverses the opinion of the administrative law judge. The Full Commission finds that the claimant proved he sustained a compensable injury, and that the claimant proved he was entitled to reasonably necessary medical treatment and temporary total disability compensation.

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I. HISTORY

Louis Ray Mulanax, Jr., age 39, testified that he began working for Personnel Consultants in about November 2004. Through this employment, Mr. Mulanax at first worked with plastic at Johnson Johnson before being sent to ABC Block. “I was there for three hours, and I hurt my arm,” the claimant testified. The parties stipulated that the employment relationship existed on December 20, 2004. The claimant testified, “I was chipping slag off of block with a big hammer. And, after a while, my arm got tired. I missed the chisel and the weight of the hammer forced extended the arm to where I felt just a big burning, pop sensation in my arm. And that’s when I reported it to the guy that works there. . . . I reported it to my supervisor there at ABC Block, and he told me to go over to Personnel Consultants and report it to them, so I walked across the street. I set down in front of Cindy, told her that I’d hurt my arm, pulled my arm sleeve up, and she just stared at me, like, what are you going to do? I said I was going to the hospital; I went straight to the hospital.”

The claimant testified that he went to a hospital in Harrison, and that he was immediately referred to University of Arkansas for Medical Sciences. The record contains handwritten notes dated December 20, 2004 authenticated by Dr. Charles A. James: “Injury @ work (8# hammer) “forced flexion” @ wrist pulled on forearm RUE (dominant). Abrupt swelling black/blue.”

The record indicates that the claimant was treated at UAMS Medical Center on December 21, 2004. The claimant was diagnosed with “Rupture,”

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“brachioradialis, extensorcarpi muscle tears.” It was noted on an E.D. Physician Record that the “Activity during injury” was “hammering” and that the onset of pain was “immediate.” The “Mechanism of Injury” was “direct blow.” It was also noted on the Physician Record, “muscular bulge proximal Rt radial forearm.”

Dr. Andrew Heinzelmann dictated the following on December 30, 2004:

Patient is a 37-year-old right-hand dominant white male who works as a mason. He presented to the UAMS ER on 12/22/04 with history of injury to his right forearm. He reports hammering with a heavy mallet with his right hand and chiseling mortar from bricks when he missed the spike with the mallet. There was no resistance and he felt a sharp pain and deformity in his right forearm. . . .
Patient has had a similar injury in the past that required an open repair of his forearm musculature. This was done in 1991. He reports that this is the same pain that he experienced at that time. . . .
He has a prominent area in the right forearm that is exquisitely tender to palpation. There is no cellulitis or erythema. He has a previous dorsal incision over his extensor mechanism at the proximal forearm level. It measures 4 cm in length. . . .

Dr. Heinzelmann assessed, “Avulsion injury of the right forearm extensor musculature, most likely ECRB and ECRL, and possibly BR. His EDC is intact. . . . Patient will be scheduled for an open exploration and reconstruction with graft jacket for tomorrow morning. . . . We will place him in a splint and send him to preop.” Dr. Randy R. Bindra electronically signed Dr. Heinzelmann’s dictation.

Dr. Bindra performed a “Repair of R extensor tendon” on December 31, 2004.

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Dr. James noted on December 31, 2004, “Surgical resection. No improvement postop. Progressive STS Now softball size Most discoloration gone. Hard to pick things up. No strength. Constant pain/numbness.” Dr. James’ notes appeared to indicate that the claimant had undergone “muscle injury repair” in 1993, “muscle reconstruction” in December 2004, and “5th digit laceration/repair” in 1996.

The claimant did not return to work following surgery. “I was in a cast for three months, and then the medication that they had me on, I wasn’t able to work,” he testified. The claimant testified that he told Personnel Consultants on or about January 8, 2005 that he had physical restrictions following the accident.

The claimant presented to North Arkansas Regional Medical Center on January 10, 2005 for continued complaints of right forearm pain.

The claimant saw Dr. Peter R. Heinzelmann on January 17, 2005:

Mr. Mulanax is a 36-year-old mason seen in the clinic on 01/17/05. He sustained an acute injury to the extensor muscles of his right forearm when he was using a sledge hammer in his work. He noticed some acute pain, localized tenderness, and swelling in the proximal extensor area of his forearm. Dr. Bindra operated on him and found what was reported as a hemangioma and surrounding hematoma in the proximal muscle belly in the extensor carpi radialis brevis. The mass was excised, however, I do not have a path report with records which we have and a hematoma was evacuated. The posterior interosseous nerve was also decompressed with release of the supinator muscle. Today, the patient states he had moderate degree of pain and reports having taken Mepergan until just recently. . . .

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IMPRESSION: Postop evacuation of a hematoma and possibly an hemangioma from the proximal extensor carpi radialis muscle of the right forearm with release of the supinator muscle over the posterior interosseous nerve right forearm with complaints of some numbness in the right thumb but evidence of active extension of the thumb, fingers, and wrist.

Dr. Heinzelmann provided the claimant with a new long arm posterior splint and scheduled a followup visit in two weeks.

Dr. Heinzelmann noted on January 18, 2005, “Dr. Bindra would like to see him back for a follow-up visit at the Medical Center in Little Rock. We will arrange that appointment for him.”

On an emergency room note dated February 20, 2005, the claimant appears to have been diagnosed with “Contusion RUE.” The claimant reported that he had slipped and fallen, bending back his right wrist.

Dr. David L. Wassell at UAMS examined the claimant on March 11, 2005:

The patient is a 37-year-old gentleman who was operated on by Dr. Bindra back in November for a right ECRB hemangioma and hematoma in the brachioradialis secondary to a rupture of the common extensor origin with acute posterior interosseus nerve palsy. The patient was referred postoperatively to Fayetteville, Arkansas, Dr. Heinzelman, but because of the patient’s continued problems, he was referred back to us.
The patient continues to have significant difficulty with his arm. He still has very large soft tissue swelling of the right forearm with pain over the incision site over the lateral epicondyle. He continues to have a radial nerve palsy with inability to extend his wrist very well. He has been wearing a wrist brace that has helped out quite a bit.
Patient is here today to see about continued treatment. Patient continues to have a tumor in the right forearm that will need to be

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removed at some point. The pathology from his original report showed just a benign venous malformation, which I am sure that he continues to have a large one in there.
It is felt that the patient would benefit from an MRA of his right forearm. We will also look at seeing if this is something that could be treated with embolization. The patient was informed that his surgery would be fairly extensive and that he would probably always have difficulty with extension of is (sic) wrist postoperatively. We will see him back in clinic following his MRA and plan out our surgical options at that time.

Dr. Bindra electronically signed Dr. Wassell’s report.

An MRI of the claimant’s right elbow was taken on March 20, 2005, with the following impression: “1. Probable intramuscular hemingoma with sparing of the brachioradialis and supinator muscles. However, partial encasement of the median nerve is noted.”

Dr. Bindra noted on April 1, 2005:

Mr. Mulanax returned today for a followup after his MRA. This has been reported to show a hemangioma which is intramuscular, sparing the brachioradialis and supinator muscles, with partial encasement of the posterior interosseous and median nerves. I discussed this with Mr. Mulanax. I told him that I would have to check with the radiologist, as the differential diagnosis here is a venous malformation rather than a hemangioma and complete excision could not be guaranteed and recurrence is most likely. I told him we could control this with pressure garment with which we will fit him today, and there is a possibility that it could be treated with sclerosant injection. I will have to discuss this with the radiologist and see if he will be a candidate for that. We will discuss these x-rays and possible sclerotherapy with Dr. James at Children’s Hospital and this gentleman will return to see me back in one month.

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The record indicates that medical imaging taken April 5, 2005 showed “Intramuscular venous malformation.”

The claimant followed up with Dr. Bindra on April 22, 2005:

This patient has swelling in the right forearm, which has been diagnosed with venous malformation on the MRA. Today we had a long discussion with the patient about the nature of his disease and the MRA findings discussed with the radiologist. Since this patient has an extensive involvement of the forearm with the venous network in most of the forearm muscles, intramuscular as well extramuscular. He also has some of the tumor engulfing and wrapping the posterior interosseous nerve. We discussed his management with Dr. James, the radiologist, and he will be contacted by the radiology team for a possible sclerotherapy for his condition. Since this is an extensive tumor involving all the major structures of the forearm, we told him that surgery is not possible to completely eradicate the disease. Hence, the best option for him at this point would be sclerotherapy to block some of the feeding vessels. As far as his pain is concerned, the patient will be referred to pain clinic because of his chronic long-term pain problems. . . . We told him that we will see him periodically every six months about the progress of the condition.

Dr. Charles A. James, Associate Professor Radiology and Pediatrics at UAMS, wrote on May 17, 2005 regarding “Insurance approval for Venous Sclerotherapy, Pt.”:

Venous Malformations are rare lesions, which enlarge throughout life and if untreated they cause increasing pain, mass effect, disfigurement, and dysfunction for the patient. They are often initially incorrectly diagnosed and often undergo incomplete surgical treatment before a correct diagnosis is made. We have established an expertise in the diagnosis and treatment of Vascular Malformations at our institution and receive worldwide referrals in this field. It is our experience over the last seven years that sclerotherapy is a good primary treatment option for venous malformations by controlling extent and symptoms of these difficult lesions.

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Mr. Mulanax is a 37 year old white male who sustained trauma in December of 2004. He subsequently underwent surgery for evacuation of a hematoma, neurolysis and removal of the intramuscular lesion. It was at surgery the diagnosis was made for a venous malformation. Mr. Mulanax reports that the lesion has increased in size since the surgery. He continues to have persistent pain, numbness, and weakness. He was given a compression sleeve to wear for the swelling for which he states he has worn for most of the day. However, he feels this aggravates his symptoms. His clinical exam reveals a softball size mass on his right forearm. The mass is noted to be prodominately (sic) intramuscular on the ventral and radial aspect with a small component in the antecubital fossa. The mass is very tender to touch to him. There is numbness over the distal forearm, right hand but worse over the thumb. He also has limited range of motion involving the elbow, decreased extension of the wrist and incomplete extension of the wrist, and decreased suprination/pronation (sic). . . .
We plan to perform scleropathy of the posterior thigh intramuscular component venous malformation on Thursday, May 26, 2005 at the University Hospital of Arkansas. . . . I hope this letter will clarify for you our treatment plan of this patient.

The impression from a Patient Diagnostic Report on May 26, 2005 was as follows:

1. SUCCESSFUL SCLEROTHERAPY OF THIS PATIENT IS RIGHT FOREARM VENOUS MALFORMATION WITH ABSOLUTE ETHANOL INJECTIONS FROM THREE SEPARATE SITES AS WELL AS A FOLLOW UP RIGHT UPPER EXTREMITY VENOGRAM WHICH SHOWED PATENCY OF THE BRACHIAL VEIN AT THE TERMINATION OF THE PROCEDURE.

Dr. Lonnie Wright performed sclerotherapy on August 29, 2005, with the impression, “1. Successful percutaneous sclerotherapy of this patient’s right forearm venous malformation.”

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The claimant testified that sclerotherapy “wasn’t fun.” The claimant testified, “They put me out on the operating table. They take a needle, inject this with rubbing alcohol, to destroy the tissues, and then they drain it and fill it up with dye to keep it — the pockets in there from stagnating with blood.”

The claimant continued follow-up visits for treatment at UAMS.

Dr. James stated the following on September 28, 2005:

Venous Malformations are uncommon developmental errors of vein formation present throughout a patient’s life. We evaluate and treat a large number of venous malformations at our medical center and have developed international expertise in this field.
Traumatic injuries can aggravate an existing venous malformation by causing it to enlarge, bleed and/or partially clot. Therefore a traumatic event can result in new or worsening patient symptoms. The new or increased patient symptoms frequently include significant pain and difficulty with function of the body part involved.
It is documented in the medical literature that an injury can cause an underlying venous malformation to become symptomatic. I have evaluated and treated many patients in which a traumatic injury made a previously asymptomatic venous malformation become symptomatic.
I believe this patient’s injury was the most important reason that the forearm venous malformation required subsequent medical therapy (venous sclerotherapy).

Dr. Jeffrey Johnson gave the following impression on October 14, 2005: “Venous malformation of the right forearm, status post sclerotherapy and surgical intervention without improvement. . . . Dr. Bindra would like to discuss the case further with the interventional radiologist and will contact Mr. Mulanax by

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phone to set up follow-up appointment if needed in the future. Please note that Dr. Bindra saw and examined Mr. Mulanax and formulated the treatment plan.”

The final outpatient note of record was entered by Dr. Firnhaber-Burgos on October 31, 2005:

Mr. Mulanax is a 37-year-old, white male who is referred from Dr. Bindra, for evaluation of chronic right arm pain. The patient has a history of venous malformation of his right forearm. According to the patient, he was at work when he injured his right arm in December 2004. On December 31, 2004, he underwent a right forearm exploration and partial excision of the mass.
He has also undergone sclerotherapy twice. His MRI suggested that the venous malformation encompassed the entire right forearm including the median nerve. According to the patient, he has no relief after two sessions of sclerotherapy.
The patient complaints of severe throbbing pain in the right forearm where the venous malformation swelling is most prominent. The patient’s pain is sometimes burning and radiates down the palm at times. The patient had his forearm in a sling and, according to him, any activity of movement makes the pain worse. . . . The patient wishes for surgical excision of the mass, but it appears that surgeons are not going to proceed with further excision. . . .
The patient appears to have swelling on the right forearm which is very tender to touch. . . . There is some wasting on the left hypothenar muscles. . . . He is able to perform motor maneuvers like extension of the thumb and fingers, abduction, adduction and opposition though the movements were restricted due to pain. . . .
According to the MRI report, the signals are suggestive for an intramuscular hemangioma. The mass is seen to pass between brachioradialis and supinator muscles. Radial nerve lies in the posterior most aspect of the lesion. The median nerve is medial to the lesion and is partially encased by the tumor. The ulnar nerve is spared. No joint effusion was identified.
IMPRESSION:
The patient seems to have an unresectable AV malformation in the right forearm with chronic pain. The patient may have an element of neuropathic pain because

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of involvement of the nerves in the AV malformation. . . .
At this moment, we do not feel that the patient has any signs or symptoms suggestive of CRPS though the patient may have some element of neuropathic pain due to direct involvement of the nerves by the malformation. We feel that the patient may benefit from Neurontin and trazodone to help him with his neuropathic pain. We do not feel that his pain is sympathetically mediated and doing sympathetic ganglion block would not be helpful at this stage. . . .

Dr. Firnhaber-Burgos prescribed the recommended medication and referred the claimant back to his primary physician for continuation of care.

A pre-hearing order was filed on August 1, 2006. The parties agreed to litigate the following issues: “1. Whether Claimant sustained a compensable right arm injury on December 20, 2004. 2. Whether Claimant is entitled to medical benefits. 3. Whether Claimant is entitled to temporary total disability benefits. 4. Whether Claimant is entitled to an attorney’s fee.”

A hearing was held on September 7, 2006. At that time, the claimant contended that he was entitled to temporary total disability benefits from December 21, 2004 through October 31, 2005.

The claimant testified on direct examination:

Q. Are you still under care at UAMS?
A. Not at this moment. He’s wanting me to get a hold of the sclerotherapy team again, this week, to schedule another sclerotherapy.
Q. Since your injury in December of `04, has your arm ever been back to normal?

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A. No, ma’am, not at all.

The administrative law judge found, in pertinent part:

5. Claimant did not sustain his burden of proving by a preponderance of the evidence that he suffered a compensable injury arising out of and in the course of his employment on December 20, 2004. Claimant’s testimony concerning an injury and notice is rebutted by Heather Brewer’s testimony; the medical evidence is inconsistent. In particular, the orthopaedic history form signed by Claimant on December 30, 2004 indicates that he suffered an “accident,” not a “work accident.”

The administrative law judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.

II. ADJUDICATION
A. Compensability

Ark. Code Ann. § 11-9-102(4)(A)(i) defines “compensable injury”:

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. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]

A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).

The claimant’s burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means the

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evidence having greater weight or convincing force. Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).

The administrative law judge found in the present matter that the claimant did not prove he sustained a compensable injury on December 20, 2004. The Full Commission reverses this finding. The claimant testified that he was using a large hammer with a chisel at work on December 20, 2004. The claimant testified that he began tiring and missed the chisel, and that he felt a burning and pop in his arm. The claimant testified that he reported an accident to his supervisor and to an individual at Personnel Consultants. We recognize Heather Brewer’s testimony for the respondents that the claimant did not report an accident to Ms. Brewer’s staff. However, the Full Commission attaches more weight to the claimant’s testimony that there was involved in a workplace specific incident on December 20, 2004.

The medical evidence corroborates the claimant’s testimony. A note from Dr. James on December 20, 2004 indicated that the claimant had sustained an injury at work while using an eight-pound hammer. The record contains objective medical findings establishing a compensable injury, including a diagnosis of “extensorcarpi muscle tears” on December 21, 2004 along with a “muscular bulge” in the claimant’s right forearm. Other objective findings include a “prominent area” in the claimant’s forearm noted by Dr. Heinzelmann on December 30, 2004, a note by Dr. James on December 31, 2004 that there had been discoloration in the claimant’s arm in the area of injury, and soft tissue

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swelling in the claimant’s forearm noted by Dr. Wassell on March 11, 2005. Additionally, in May 2005, Dr. James noted a “softball size mass” on the claimant’s right forearm.

The Full Commission finds that the claimant proved by a preponderance of the evidence that he sustained an accidental injury on December 20, 2004 which caused physical harm to the claimant’s body. The accidental injury arose out of and in the course of the claimant’s employment, required medical services, and resulted in disability. The accidental injury was caused by a specific incident identifiable by time and place of occurrence. The claimant established a compensable injury by medical evidence supported by objective findings not with the claimant’s voluntary control. The decision of the administrative law judge is reversed.

B. Medical Treatment

The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). The claimant must prove by a preponderance of the evidence that he is entitled to requested medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543
(1999).

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In the present matter, the claimant proved by a preponderance of the evidence that all of the medical treatment of record was reasonably necessary in connection with the claimant’s compensable injury. The record demonstrates that treatment from Dr. James, Dr. Andrew Heinzelmann, Dr. Bindra, Dr. Peter Heinzelmann, Dr. Wassell, Dr. Wright, Dr. Johnson, and Dr. Firnhaber-Burgos was all causally connected to the December 20, 2004 specific incident. The record does not show that any of this treatment was causally related to a pre-existing condition.

C. Temporary Disability

An employee who has suffered a scheduled injury is to receive temporary total disability benefits during his healing period or until he returns to work. Ark. Code Ann. § 11-9-521(a); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Whether an employee’s healing period has ended is a question of fact for the Commission. Armstrong, supra.

In the present matter, the record demonstrates that the healing period for the claimant’s compensable scheduled injury began on December 20, 2004. The claimant’s testimony indicated that he did not return to work after the compensable injury. The claimant underwent surgery on December 31, 2004. The claimant testified that his arm has not been “back to normal” following the compensable injury. The record also indicates that the claimant has consistently sought reasonably necessary medical treatment following the compensable injury and has remained within a healing period for his compensable injury. As we

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have noted ante the last treatment of record was provided by Dr. Firnhaber-Burgos on October 31, 2005. The claimant contends that he is entitled to temporary total disability from December 21, 2004 through October 31, 2005. The Full Commission finds that the claimant proved he was entitled to temporary total disability compensation for that period.

Based on our de novo review of the entire record, the Full Commission finds that the claimant proved he sustained a compensable injury on December 20, 2004. The claimant proved that the medical treatment of record was reasonably necessary, and the claimant proved that he was entitled to temporary total disability from December 21, 2004 through October 31, 2005. The decision of the administrative law judge is reversed. The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(2) (Repl. 2002).

IT IS SO ORDERED.

________________________________ OLAN W. REEVES, Chairman

________________________________ PHILIP A. HOOD, Commissioner

Commissioner McKinney dissents.

DISSENTING OPINION

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I must respectfully dissent from the majority opinion finding that the claimant sustained a compensable injury to his right forearm on December 20, 2004. Based upon my de novo review of the entire record, I find that the claimant has failed to meet his burden of proof. Accordingly, I find that the decision of the Administrative Law Judge should be affirmed.

The claimant contends that he sustained an injury to his right forearm on December 20, 2004, when he swung a hammer, missed the chisel and forcibly extended his wrist. According to the claimant, he reported this injury to the supervisor at the job site and was informed by him to report the injury to Personnel Consultants, which he claims to have done. The concurring opinion makes much of the fact that the respondents did not call this supervisor or the former Personnel Consultants’ employee to prove a negative, i.e. that the claimant did not report an injury. However, it is axiomatic that the claimant bears the

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burden of proof. 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 compensable, that the claimant’s injury is job-related or that a claimant is entitled to benefits. Crouch Funeral Home v. Crouch, 262 Ark. App. 417, 557 S.W.2d 392 (1977); 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) (Repl. 1996). In determining whether a claimant has sustained his 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. CCavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Heather Brewer, the Branch Manager for respondent employer testified that there is no record of the claimant reporting an on the job injury. In fact the only notation regarding the claimant’s work on December 20, 2004, indicated that the

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claimant walked off the job. Given that the claimant carries the burden of proof, I find that he has failed to establish by a preponderance of the evidence that he sustained a compensable injury. It is just as likely as not that the claimant injured himself prior coming to work on December 20, 2004, attempted to work and discovered that he simply could not; thus he walked off the job. Had this injury occurred prior to 1987, when the benefit of the doubt was always weighed in the claimant’s favor, then I could understand the finding and reasoning of the majority decision. However, since 1987, the law has clearly stated: “In determining whether a party has met the burden of proof on an issue, Administrative Law Judges and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party.” Ark. Code Ann. §11-9-704(c)(4) (Repl. 1996). After weighing the evidence impartially, and without giving the benefit of the doubt to either party, I find that the claimant has failed to meet his burden of proof. The claimant did not present any corroborating evidence that he sustained a compensable injury. He alleges to have reported this

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injury to at least two people, yet he did not call any witnesses to substantiate his story. Maybe his injury was caused by swinging a hammer; however, the claimant has failed to present any credible evidence that a he sustained a hammer injury which arose out and in the course of his employment. Based upon the evidence presently before the Commission a finding of compensability can only be reached if one resorts or speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correctionv. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co.v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas MethodistHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).

Accordingly, for those reasons stated herein, I must respectfully dissent.

________________________________ KAREN H. McKINNEY, Commissioner

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