CLAIM NO. E514528
DOROTHY PONDER, EMPLOYEE, CLAIMANT v. PATTERSON CLEANERS, INC., EMPLOYER, RESPONDENT and FARMERS INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 10, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by BRANDON CLARK, Attorney at Law, Little Rock, Arkansas.
Respondents represented by JAMES W. 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 claim on June 25, 1996, finding that claimant sustained an injury arising out of and in the course of her employment on September 8, 1995, and was subsequently temporarily totally disabled from September 9, 1995, through November 2, 1995.
[3] Respondents now appeal from that opinion and order, asserting that claimant has failed to prove that she sustained a compensable injury and is not entitled to temporary total disability benefits. [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 she sustained a compensable injury on September 8, 1995, and that she is further entitled to an award of temporary total disability benefits for a period beginning September 9, 1995, and continuing through November 2, 1995. We therefore affirm the decision of the Administrative Law Judge. [5] Claimant asserts that she sustained a compensable injury after July 1, 1993, so that the provisions of
Act 796 of 1993 are applicable to this claim. Claimant must thus demonstrate that she 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). [6] Also, a compensable injury “must be established by medical evidence, supported 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)(i) (Repl. 1996). [7] Claimant contended at the hearing below that, on September 8, 1995, she tripped over a power cord which ran from her work station at a counter to a wall behind her:
A customer had pulled up into the parking lot and got up and was walking around and I had my pad there and I was looking for my pen and it was down to the corner, so I was going after the pen and my foot got under the cord and down I went.
[8] We are persuaded, as an initial matter, that claimant’s testimony is credible. We thus accept as accurate her account of a fall over the extension cord behind her work station. We also note the photographic evidence contained within the record, which reveals that the power cord in question did impede the walkway behind claimant’s work area. [9] Finally, Mr. David Hyde, a customer who entered the store to find claimant on the floor, testified that the power cord was behind claimant by approximately two to three feet and “toward her feet.” Based on the photographic evidence regarding the location of the power cord, Mr. Hyde’s testimony regarding the cord’s proximity to claimant when he found her, and claimant’s own credible testimony, we specifically find that claimant sustained a work-related fall on September 8, 1995, and has satisfied the requirements of Ark. Code Ann. §
11-9-102 (5)(A)(i) (Repl. 1996). [10] Respondents argue on appeal that claimant has failed to demonstrate objective medical evidence of an injury. We disagree. Claimant’s emergency room records from September 8, 1995, state that she presented with a left cheek contusion. In fact, this finding, clearly an objective one, was included as one of claimant’s diagnosed injuries (along with “cervical and lumbar strains”). Also, by October 5, 1995, Dr. Donald A. Laurenzana noted the presence of paraspinous muscle spasms and “increased muscle tone” in claimant’s cervical region. Based on the foregoing medical evidence, we specifically find that claimant has established her compensable injury with “medical evidence supported by `objective findings'” as per Ark. Code Ann. §§
11-9-102 (5)(D) and (16) (Repl. 1996). Respondents’ assertion that claimant introduced “absolutely no objective medical evidence to support her claim of a compensable injury” is simply without merit. [11] From the foregoing, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable injury on September 8, 1995. [12] Respondents further contend on appeal that claimant is not entitled to an award of temporary total disability benefits from September 9, 1995, through November 2, 1995. Again, we disagree. [13] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway andTransp. Dept. v. Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). The healing period itself continues until the injured 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. MadButcher, 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. [14] We note first that Dr. David Gilliam did not pronounce claimant to be at maximum medical improvement until November 2, 1995, and we accordingly find that her healing period extended at least until that time. [15] In addition, claimant’s emergency room “Fitness for Duty” form instructed her not to work from September 8, 1995, until at least September 11, 1995. Thereafter, from September 11, 1995, until October 5, 1995, claimant was unable to perform her “regular activities” according to Dr. Laurenzana. [16] Even though Dr. David Gilliam allowed for “clerical, administrative, or sedentary-type activities” by October 4, 1995, claimant was not allowed to engage in “repetitive bending, stooping, or twisting.” Claimant also was not permitted to lift more than 10 pounds. In light of claimant’s seventh-grade education, we are persuaded that she is poorly equipped to find sedentary work in the first place, particularly such that would be in compliance with Dr. Gilliam’s restrictions. Even claimant’s regular duties for respondent employer, a dry cleaning business, which included writing laundry tickets, accepting laundry for cleaning, and retrieving previously laundered clothing to be returned to customers, easily lend themselves to exceeding Dr. Gilliam’s limitations — particularly with regard to weight bearing. From the foregoing, we specifically find that claimant was totally incapacitated to earn wages from September 9, 1995, through the end of her healing period. [17] Because we have found that claimant’s healing period extended from September 9, 1995, through November 2, 1995, and that she was totally incapacitated to earn wages through the end of her healing period, we further specifically find that claimant has proven, by a preponderance of the credible evidence, that she is entitled to an award of temporary total disability benefits from September 9, 1995, through November 2, 1995. [18] As a final matter, we note that claimant concludes her brief by raising, for the first time, issues relating to retaliatory discharge and worker safety. Because these issues were not raised or developed at the hearing level, we decline to consider them for the first time on appeal. [19] 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 she sustained a compensable injury on September 8, 1995, and was temporarily totally disabled from September 9, 1995, through November 2, 1995. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [20] 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). [21] 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). [22] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[23] Commissioner Wilson dissents.
[24] DISSENTING OPINION
[25] I respectfully dissent from the majority’s opinion finding that claimant sustained a compensable injury on September 8, 1995. Based upon my de novo review of the entire record, I find that claimant has failed to prove by a preponderance of the credible evidence of record that she sustained a compensable injury.
[26] Based upon my de novo review of the record, it is my opinion that the claimant’s testimony is the one lacking credibility. The Administrative Law Judge found fault with Ed Patterson’s testimony because at first glance it appears to conflict with a written statement Mr. Patterson provided to the Employment Security Division. Although I do not find the apparent discrepancy to be an actual discrepancy, it is not Mr. Patterson’s testimony upon which I rely, to find claimant’s story full of holes. Claimant’s witness, David Hyde, and respondent’s witness, Samantha Crossland, each offer sufficient, credible evidence to cause one to doubt claimant’s story. [27] With regard to the actual facts surrounding the layout of the store and the scene of the accident both Mr. David Hyde and Ms. Samantha Crossland are credible witnesses. Moreover, Ms. Crossland testified that there had been animosity between claimant and Ms. Crossland for a period of time. She further testified that on the evening prior to claimant’s alleged fall claimant had threatened to strike her. Furthermore, Ms. Crossland testified that the photos introduced by respondent accurately depicted the store during the time frame when claimant’s injury allegedly occurred. [28] Mr. Hyde testified that claimant’s feet were approximately two to three feet away from the extension cord when he observed claimant lying on the floor. He further testified that before he left the store claimant asked him for his name and telephone number. I find it highly unusual that a person who allegedly just suffered a traumatic fall would be concerned about the name and telephone number of this only witness. Such information is usually the least of an accident victim’s concern. [29] Given the testimony of these two witnesses I find that claimant’s testimony regarding her relationship with Ms. Crossland, her alleged previous fall, and her tripping over the cord on September 8, 1995 to be highly suspect. A claimant’s testimony is never considered uncontroverted.Lambert v. Gerber Products Co.,
14 Ark. App. 88,
684 S.W.2d 842 (1985). Nix v. Wilson World Hotel,
46 Ark. App. 303,
879 S.W.2d 457 (1994). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North AmericanFoundry,
42 Ark. App. 137,
856 S.W.2d 309 (1993). [30] I find claimant’s testimony lacks credibility. When claimant’s testimony is compared to that of Mr. Hyde and Ms. Crossland, it is obvious that her testimony is replete with inconsistencies and contradictions. Claimant testified that she had previously fallen or tripped over the same cord which caused her to trip on the morning of September 8, 1995. However, Ms. Crossland, claimant’s co-worker and the only other employee to work in the Mabelvale store, testified that she was unaware of anybody, including the claimant, ever tripping over the extension cord in the past. Moreover, she testified that claimant never complained to her about the extension cord or that she had fallen. [31] Furthermore, claimant’s testimony implying that the pictures introduced into evidence do not accurately depict the location of the counter on the morning of her injury is not corroborated by the testimony of Ms. Crossland. Although Ms. Crossland testified that the desk could be moved if one so chose to move it, she stated that the counter in the photograph was in the same location as the counter on the morning of September 8, 1995. It is important for claimant’s story that the counter was further away from the wall so that the extension cord would pose a threat. In addition, if Mr. Patterson went to the trouble to move the counter before taking pictures, one would also expect him to plug the extension cord in flush with the socket prior to taking a close up picture of the cord and socket. Obviously, this was not done. It simply makes no sense for Mr. Patterson to alter only one aspect of the scene and leave potentially damaging evidence alone. Consequently, I find that claimant’s testimony regarding the position of the counter to be incredible. In my opinion, there is simply insufficient credible evidence to support a finding by a preponderance of the evidence that the desk, and thus the cord were in any other position, than that depicted in the photographs. [32] Mr. Hyde described the scene of the store when he arrived to deliver laundry on the morning of September 8, 1995. He testified that claimant was worried about being fired, mentioned something about the extension cord and asked him his name and telephone number. Furthermore, Mr. Hyde testified that claimant’s feet were at least two if not three feet away from the extension cord when he found claimant lying on the floor. I find it hard to believe that if claimant had tripped over the cord that she would propel through the air and land two to three feet away from the instrument that caused her to trip and fall. [33] In my opinion, if the cord caused claimant to fall, claimant’s feet would be closer than 2 to 3 feet from the cord. Moreover, I am troubled by claimant’s immediate concern to obtain Mr. Hyde’s name and telephone number. This testimony clearly contradicts claimant’s testimony on direct examination that she knew him since he was a regular customer and that she looked up his number in the telephone book. As noted through Mr. Hyde’s testimony, he did not routinely take the cleaning to the cleaners; rather, his wife delivered the cleaning. Thus, contrary to claimant’s testimony on direct examination she would not be readily familiar with Mr. Hyde since he was not a regular customer so to speak. Although claimant attempted to rehabilitate her testimony when questioned by the Administrative Law Judge regarding obtaining Mr. Hyde’s name and telephone number, I find that her testimony in this regard is unbelievable. [34] Claimant’s testimony is the primary evidence of a causal connection between her medical findings of a contusion on her cheek and neck strain and the alleged work-related incident. Claimant’s testimony simply does not support a finding that claimant, in fact, fell at work during the morning of September 8, 1995. I cannot find that the counter was moved, that the extension cord was taut, and that claimant fell and landed 2 to 3 feet away from the extension cord. To find that claimant actually fell at work would require that I give claimant the benefit of the doubt and discard and ignore the testimony of every other witness. This, I simply, cannot do. [35] Accordingly, considering the evidence as a whole, I find that claimant has failed to prove by a preponderance of the credible evidence that she sustained a work-related injury on September 8, 1995 during the course and scope of her employment. Therefore, I respectfully dissent from the majority opinion. [36] MIKE WILSON, Commissioner