CLAIM NO. E402198
DONNA LEE NORVELL, EMPLOYEE, CLAIMANT v. J-MAR EXPRESS, INC., EMPLOYER, RESPONDENT and SECURITY INSURANCE CO. OF HARTFORD, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 24, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE WILLIAM CLAY BRAZIL, Attorney at Law, Conway, Arkansas.
Respondents represented by the HONORABLE NEAL L. HART, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on August 10, 1995. In that opinion and order, the administrative law judge found that the preponderance of the evidence failed to establish that the claimant sustained a compensable injury. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be reversed. We find that the preponderance of the evidence establishes that the claimant sustained a compensable injury arising out of her employment with the respondent.
[3] The claimant and her husband were employed by the respondent as a truck driving team. They were paid for every mile they drove, and each would receive credit for the miles that the other drove. They received separate checks and their money was divided evenly. Therefore, they were paid 26 cents a mile as a team, but they would receive 13 cents each. When they were on a run, they drove non-stop, 24 hours a day, seven days a week. One drove for five hours while the other slept; then they would switch places and allow the first driver to sleep. The area in which they slept was in the bed of the truck behind the driver’s seat. The bunk, or sleeper, is a large enough area for one to stand; the evidence reflects, however, that there are no restraints or safety belts in the sleeper area of the truck. [4] On February 14, 1994, the couple was on a run in California. The evidence reflects that about 11 p.m., the claimant was taking her turn in the sleeper. As it was almost time for her to drive, she got up to get dressed. She testified that since there was no restraint or safety belt in the sleeper, she could not stay in the back to do anything but sleep. She testified that she was getting ready to crawl up into the jump seat, or passenger seat, of the truck to comb her hair and drink some coffee. The evidence indicates that as she was stepping up into the front of the truck, the claimant’s husband had to make a sudden stop to miss an oncoming vehicle which had run a red light. When he slammed on his brakes, the claimant was thrown from the sleeper into the front windshield and then back into the sleeper. The claimant’s husband testified that he was travelling at about 30 miles per hour when he had to “lock it up” to miss the other car by two or three feet. He also testified that when the truck came to a dead stop, the claimant was thrown back into the sleeper. [5] The claimant’s testimony is that when she got up after the incident, she was sore and shaken, but she did not think that she had been injured. The couple stopped for the claimant to begin her driving period. She testified that the longer she drove, however, the more pain she began to experience in her neck, shoulders and back. She testified that she got her husband up out of the sleeper, because she was hurting from her neck down to her shoulders and through her back into her tailbone. She testified that she had driven for about two hours when they finally decided to stop at a rest area. When they stopped, she testified that she could not get up from the driver’s seat by herself. [6] At that time, they were near Santa Maria, California, so they decided to stop at the Marian Medical Center in Santa Maria. The emergency room physician examined, x-rayed her and gave her pain medication. His diagnosis was that her injury was a strain, and the x-ray indicated that the cervical and lumbar spines were normal. The claimant testified that she was told to fly home; however, the couple drove the truck “straight back to Arkansas.” She testified that her husband drove the entire way to Arkansas, as she neither drove nor got out of the truck the entire trip; instead, she rode in the sleeper. The evidence reflects that the couple had been driving since February 8, 1994, and that the claimant had not had any physical problems before or during this particular trip. [7] When the claimant and her husband arrived in Clinton, Arkansas, on February 17, 1994, she went to see her family doctor, Dr. Jose Abiseid in Clinton. Dr. Abiseid’s diagnosis was that the claimant had sustained a cervical and lumbar strain, and he prescribed pain medication. At the request of respondent, the claimant also saw Dr. Eugene A. Joseph in Searcy. Dr. Joseph first saw the claimant on February 23, 1994. His findings revealed a 4+ muscle spasm of the entire spine from the neck all the way down to the coccyx. A March 2, 1994, note also indicates that the claimant was “doing some better,” but that she still had muscle spasms and pain down to her lower back. Under Dr. Joseph’s care, the claimant underwent a MRI on March 16, 1994, which indicated that the cervical and lumbar spine were normal and that no abnormalities were present other than degenerative disc disease. The evidence also reflects that Dr. Joseph determined that her spinal mobility was poor at that time. Dr. Joseph diagnosed the claimant’s condition as a musculoskeletal type injury. The claimant was then advised by Dr. Joseph to undergo physical therapy. [8] The claimant began a course of physical therapy, and on April 18, 1994, Gary Harris, the physical therapist, indicated that the claimant was experiencing severe muscle spasms. The evidence reflects that the claimant eventually quit seeing Dr. Joseph and attending physical therapy. Her testimony is that she quit seeing both Dr. Joseph and going to physical therapy because the insurance company did not pay and she could not afford to go without it. A June 30, 1994, letter from Dr. Joseph indicates that when the claimant was last seen by him on May 4, 1994, she was still not released to go back to work. The evidence reflects that the claimant was off work from February 14, 1994, to August 10, 1994, at which time she began working for another company. [9] The claimant contends that she sustained a compensable injury arising out of her employment with the respondent. After conducting a de novo review of the entire record, we find that the claimant has proved by a preponderance of the evidence that she sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed. [10] Since the claimant contends that she sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by
Act 796 of 1993. In addition, since the claimant in the present claim alleges that she 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) (Michie 1996) are controlling, and the following requirements must be satisfied:
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her employment;
(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;
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102
(16), establishing the injury;
(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.
[11] See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No.
E317744). If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied. [12] In the present case, the claimant related the same account of the incident to the hospital in California and to both doctors in Arkansas. The record also establishes that she was within the course of her employment when the incident occurred. The evidence reflects that part of the duties of the husband and wife driving team is to drive non-stop during the trip and sleep in shifts. It was in this capacity that her injury arose. It is therefore clear from the preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. The record also establishes proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by a specific time and place of occurrence. The evidence indicates that the injury occurred in California at about 11 p.m. when the claimant’s husband had to slam on his brakes to avoid a collision. Both the claimant and her husband testified as to the same account at various times. [13] We also find that the claimant has proved by a preponderance of the evidence that the injury caused physical harm to the body, and that the medical evidence is supported by objective findings. 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.” Dr. Joseph’s report specifically notes that the claimant was experiencing muscle spasms. This is an objective finding which shows the presence of a soft tissue injury. It is clear from the record that after the claimant was thrown into the windshield and back into the sleeper part of the truck, she experienced some soreness. The evidence indicates that as she continued to drive the truck and bounce around in the driver’s seat, she experienced more and more pain. This was related to the emergency room doctor in California and to both doctors in Arkansas. [14] As a result of the foregoing analysis, therefore, we find that the claimant sustained a compensable injury on February 14, 1994, while in the course of her employment with respondent. We find that the preponderance of the evidence establishes she sustained the injury at about 11 p.m. when the truck in which she was a passenger had to be suddenly stopped to avoid a collision. As a result of this incident, we find that the record indicates that she sustained physical harm to the body, which is supported by medical evidence based on objective physical findings. [15] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has proved by a preponderance of the evidence that she sustained a compensable injury. Therefore, we find that the decision of the administrative law judge must be reversed. [16] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[17] Commissioner Holcomb dissents.