CLAIM NO. E503517
RANDY NEELEY, EMPLOYEE, CLAIMANT, v. NORTIM CORPORATION, EMPLOYER, RESPONDENT, and LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 26, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by FLOYD A. HEALY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by JAMES C. BAKER, JR., 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 November 7, 1995, finding that claimant had proven, by a preponderance of the evidence, that he sustained a compensable injury identifiable by time and place of occurrence, and that he was entitled to reasonable medical expenses, temporary total disability benefits, and a 10% permanent impairment associated therewith.
[3] Respondents now appeal from that opinion and order, contending that claimant failed to demonstrate that is injury was the result of a specific incident identifiable by time and place of occurrence, and that claimant additionally failed to meet the standard of compensability for a “gradual injury” under Act 796.
[4] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he did sustain a compensable injury on February 22, 1995, as the result of a specific incident identifiable by time and place of occurrence, and that he is entitled to reasonable and necessary medical expenses, temporary total disability from February 23, 1995 until May 16, 1995, and a 10% permanent impairment rating assigned by Dr. Stephen L. Cathey. The decision of the Administrative Law Judge is therefore affirmed.
[5] Claimant, as a timber worker, operated a “skidder” for respondent employer. His testimony explained that a skidder is a large tractor-type machine with a grappling device in the rear that is used for transporting logs. Claimant further explained that operating a skidder requires one to look back much of the time, and that it is a very demanding machine to operate, as “it’s just twists and jerks and bounces and snatching all at the same time.”
[6] Claimant’s testimony, which we find to be credible, established that on February 22, 1995, his neck and shoulder began hurting just after lunch. His medical records are conflicting in that Dr. Berry Moore’s March 2, 1995, report indicates that claimant could not recall a specific injury, yet Dr. D’Orsay Bryant’s March 7, 1995, report states that he “was injured in a specific incident in which he suddenly looked over his shoulder.”
[7] Claimant himself indicated at one point during the hearing that he could not remember a specific event that caused his injury, yet he did not disagree with the contents of Dr. Bryant’s report. Because claimant has identified the date and approximate time of his injury with specificity, and has described a specific “looking back” incident to one of his physicians, we find that claimant has proven, by a preponderance of the evidence, that he did sustain a compensable injury on February 22, 1993, as the result of a specific incident identifiable by time and place of occurrence. Accordingly, we also find that claimant is entitled to all reasonable and necessary medical expenses associated with said injury.
[8] We further find that claimant has proven, by a preponderance of the evidence, that he is entitled to a period of temporary total disability benefits from February 23, 1995, through May 16, 1995. Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. ArkansasState Highway and Transp. Dept. v. Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). In turn, an injured worker’s healing period continues until he is as far restored as the permanent character of his injury will permit, and will end once the underlying condition causing the disability 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 has ended. Id. Finally, the question of when the healing period has ended is a factual determination that is to be made by the Commission. Id.
[9] Although he managed to work for half of the day on February 23, claimant did not return to work after that time on account of his injury. An MRI on March 20, 1995, revealed a “small posterior herniation of C6-7 intervertebral disc,” which prompted Dr. Bryant to refer claimant to Dr. Steven L. Cathey. Noting claimant’s failure to respond to conservative care, Dr. Cathey recommended and performed a cervical decompression and fusion at the C6-7 level on April 17, 1995. A follow-up report from Dr. Cathey to Dr. Bryant on May 16, 1995, indicates that this procedure was almost entirely successful. Claimant thereafter returned to work (though as a welder) virtually without symptoms.
[10] Claimant’s healing period could have begun no earlier than February 22, 1995, which was the date of injury. In turn, Dr. Cathey issued a 10% permanent partial impairment rating in a letter dated May 16, 1995 — a fact tending to suggest that claimant’s healing period ended on that date. Because the difficulties associated with claimant’s compensable injury did not preclude him from working until the day after his injury, we thus find that he is entitled to an award of temporary total disability benefits from February 23, 1995 through May 16, 1995.
[11] In addition, because Dr. Cathey was claimant’s operating physician, and explicitly relied on the American Medical Association’s Guides to the Evaluation of PermanentImpairment in assessing the extent of claimant’s anatomical impairment, we specifically find that claimant has proven, by a preponderance of the evidence, that he is entitled to the 10% rating.
[12] Following our de novo review of the entire record, and for the reasons discussed hereinabove, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on February 22, 1995, as the result of a specific incident identifiable by time and place of occurrence, and that he is entitled to the reasonable medical expenses associated therewith, as well as a 10% permanent impairment rating and temporary total disability from February 23, 1995 until May 16, 1995.
[13] 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).
[14] 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).
[15] IT IS SO ORDERED.
JAMES W. DANIEL, Commissioner PAT WEST HUMPHREY, Commissioner
[16] Commissioner Holcomb dissents.
[17] DISSENTING OPINION
[18] I respectfully dissent from the majority’s opinion finding that the claimant has proven by a preponderance of the credible evidence that he suffered a compensable injury. In my opinion, the claimant did not suffer a compensable injury that is identifiable by time and place of occurrence. or a gradual onset injury.
[19] 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. Therefore, the claimant must satisfy the following requirements contained within Ark. Code Ann. §
11-9-102 (Repl. 1996):
(1) “Compensable injury” means: 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. Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996).
(2) A compensable injury must be established by medical evidence, supported by “objective findings” as defined in § 11-9-102 (16). Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102
(16)(A)(i) (Repl. 1996).
(3) For injuries falling within the definition of compensable injury under subdivision (5)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102 (5)(E)(i) (Repl. 1996).
[20] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury he fails to establish the compensability of the claim, and compensation must be denied.
[21] In my opinion, a review of the record clearly indicates that the claimant did not sustain a compensable injury identifiable by time and place on February 23, 1995. In my opinion, neck injuries are not compensable unless they are the result of an incident identifiable by time and place of occurrence. Claimant describes how he was injured in vague, general terms. Although the claimant contends that it was on February 23rd during “dinner or lunch time” that his neck and side of shoulder began to hurt, there is insufficient evidence to corroborate this contention. Furthermore, the claimant does not state exactly what he was doing at the time that caused the injury. The claimant’s self-serving, uncorroborated, vague recantation of his job duties is simply insufficient to meet his burden of proving a compensable injury identifiable by specific time and place of occurrence. For those reasons, I respectfully dissent.
[22] ALICE L. HOLCOMB, Commissioner
