POTTS v. TYSON FOODS, INC., 1996 AWCC 257

CLAIM NOS. E505963 and E505964

CHARLOTTE POTTS, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 23, 1996

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

Claimant represented by the HONORABLE MATTHEW KETCHUM, Attorney at Law, Fort Smith, Arkansas.

Respondent represented by the HONORABLE EARL BUDDY CHADICK, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on February 7, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she sustained injuries arising out of and during the course of her employment with the respondent employer in February of 1993 or on June 24, 1994. In addition, the administrative law judge found that a claim for benefits related to any alleged injury sustained in February of 1993 is now barred by the Statute of Limitations.

[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an injury arising out of and during the course of her employment in February of 1993, or on June 24, 1994. In addition, we find that a claim for benefits related to any alleged injury sustained in February of 1993 is now barred by the Statute of Limitations. Therefore, we find that the administrative law judge’s decision must be affirmed.

[4] This Commission has a statutory duty to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704 (c)(2) (1987); see,Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. §11-9-704 (c)(4) (1987); Wade v. Mr. C. Cavenaugh’s, 198 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). In this regard, the claimant has the burden of establishing his entitlement to the compensation sought by a preponderance of the evidence. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992); Lybrand v. Arkansas OakFlooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates,supra. Determining the weight to be given evidence is a matter within the province of the Commission. Central Maloney, Inc. v.York, 10 Ark. App. 254, 663 S.W.2d 196 (1984).

[5] In the present claim, the claimant had been employed in the respondent’s chicken processing plant in Waldron, Arkansas, for approximately 10 years when, according to the claimant’s testimony, she sustained a work-related injury on Friday, February 12, 1993. In that regard, the claimant testified that she felt a “pop” in her back with pain while hanging chickens on a processing line but continued to work until she contacted LaDonna Franklin, a plant nurse, later that same day. According to the claimant, Ms. Franklin advised her to take two Ibuprofen, and Ms. Franklin also fitted the claimant for a back brace that day. The claimant testified that she rested the following day, a Saturday, but presented to the hospital on Sunday. The claimant did not report to work on Monday, and according to the claimant, her husband took a doctor’s slip to the respondent on Monday, February 15, 1993.

[6] The claimant testified that she remained off work, but that she returned to the plant to sign a claim form on March 12, 1993. The claimant testified that she signed the form at the request of Tammy, an employee who handles insurance claims for her employer. According to the claimant, the form had been completed before she arrived and she was not asked to read the form before she signed it. The claimant testified that she only has an 8th grade education and does not read well.

[7] On March 29, 1993, approximately two weeks after the claimant signed a claim form entitled “Claim For Health Care Benefits,” the claimant underwent a lumbar laminectomy and bilateral diskectomy at the L4-5 and L5-S1 levels of the back. The claimant returned to work for the respondent employer in June of 1993, and continued to work there until June 24, 1994, when, according to the claimant, she felt another pop in her back while lifting a box of chicken leg quarters. The claimant testified that she notified Matt Cain, the floor person, that she was hurt and that she needed to speak with her supervisor, Milo Hughes. The claimant testified that she told Mr. Hughes that her back hurt although she did not say how she hurt her back. According to the claimant, her section was short-handed at the time, and Mr. Hughes requested that the claimant attempt to continue working on a different but less strenuous task. The claimant testified that she could only tolerate her pain an additional five or ten minutes before she had to stop working. The claimant testified that Mr. Hughes did not inquire as to how she hurt herself or whether her pain was work related before she left work early on June 24, 1994. The claimant underwent a lumbar laminectomy and a bilateral diskectomy at the L4-5 level of the spine for recurrent disc herniation on August 22, 1994. The claimant testified that she has not returned to work since June 24, 1994. The claimant filed a form AR-C with the Commission on May 22, 1995, alleging that she sustained work-related injuries on February 14, 1993, and on June 1, 1994.

[8] In assessing the weight to be accorded the claimant’s testimony regarding her alleged work-related injuries, we note that the claimant’s hearing testimony is contrary to the information contained in the “Claim For Health Care Benefits” form which she signed on March 12, 1993, approximately four weeks after her first alleged injury. In that regard, the claim form which the claimant signed on March 12, 1993, indicates the claimant’s first injury occurred on February 14, 1993, a Sunday, while moving boxes, and that signed form specifically states that the claimant’s injury was not work related.

[9] In addition, contrary to the claimant’s assertion that she discussed her alleged injury that day with LaDonna Franklin, a plant nurse, Ms. Franklin testified that she had no conversation with the claimant on February 12, 1993, and that she did not fit the claimant for a back brace that day. Moreover, the claimant’s “Employee Health Record,” a first aid record maintained by the plant nurse’s office, indicates that the claimant did not contact the nurse’s station on February 12, 1993, as the claimant contends. The claimant’s Employee Health Record indicates that the claimant did not contact the nurse’s station in 1993 until June 7, 1993, approximately four months after the alleged February 12, 1993, work-related injury, at which time the claimant received Ibuprofen for a reported backache. With regard to the accuracy of the claimant’s Employee Health Record, Ms. Franklin testified that the nurses keep a first aid daily log by the window to the nurse’s station to record all visits to the nurse’s station each day. Then, a nurse in charge of charting would transfer the information from the daily log onto a permanent Employee Health Record for each of the employees who visit the nurse’s station.

[10] In light of the Claim For Health Care Benefits form signed by the claimant on March 12, 1993, indicating that the claimant sustained an injury on February 14, 1993, which was not work related, and in light of the testimony of Ms. Franklin and the records of the respondent’s nursing station, indicating that the claimant did not contact the nurse’s office on February 12, 1993, as she asserts, we find that the claimant’s uncorroborated testimony regarding alleged work-related injuries is entitled to very little weight. In addition, we find that the preponderance of the credible evidence indicates that the claimant’s back problems in February of 1993 were caused by moving boxes away from work on Sunday, February 14, 1993, and not while hanging chickens at work on Friday, February 12, 1993, as the claimant asserted during her testimony. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on February 12, 1993, or on February 14, 1993.

[11] We also find that the claimant failed to prove by a preponderance of the credible evidence that she sustained an injury arising out of and during the course of her employment with the respondent employer on June 24, 1994. In that regard, the claimant acknowledged that she has been instructed to report injuries to the nurse’s station, and the records of the nurse’s station indicate that the claimant reported medical problems to the nurse’s station on at least eight occasions between 1992 and 1994. However, these records, which we find are entitled to significant weight, indicate that the claimant did not report any work-related problems on June 24, 1994, or on February 12, 1993, even though the claimant testified that alleged incidents on each of those dates caused a “pop” in her back with subsequent pain.

[12] In addition, we note that the claimant did not indicate to her supervisor, Milo Hughes, that any problems she was experiencing on June 24, 1994, were work-related. In that regard, the claimant testified as follows:

Q. In 1994, you were working for Milo Hughes at that time?

A. Yes, sir.

Q. Now, you never did tell Milo Hughes that you hurt your back at work did you?
A. No, because I didn’t know what was — for sure what was wrong.
Q. And you didn’t go to the nurse’s station and tell the nurse?

A. No, I went home.

[13] However, the claimant’s testimony that she did not know what was wrong that day is contrary to her testimony that she experienced a pop in her back on June 24, 1994, prior to her alleged onset of intense pain shortly thereafter. In that regard, the claimant acknowledged that she had been instructed to report any work-related injuries, and we note that the claimant had previously reported to the nurse’s station on approximately eight occasions prior to June 24, 1994. In light of the nature and severity of the back pop and pain which the claimant testified she experienced on June 24, 1994, we find that the claimant’s testimony, that she experienced a back pop at work while lifting without reporting the incident to Mr. Hughes or to the nurse’s station, is also entitled to little weight. Moreover, the evidence establishes that the claimant never notified the respondent between June 24, 1994, and May 22, 1995, that she felt that any back problems she may have experienced on June 24, 1994, were work-related. In light of the nature and severity of the problems allegedly experienced on June 24, 1994, through the claimant’s testimony, the claimant’s acknowledged training to report all work-related injuries, and the evidence establishing that the claimant did not report any alleged work-related injury between June 24, 1994, and May 22, 1995, we find that the claimant failed to prove by a preponderance of the credible evidence that she sustained an injury arising out of or during the course of her employment on June 24, 1994, as she now asserts.

[14] Accordingly, after considering the claimant’s diminished credibility, the lack of corroborating evidence regarding any alleged injuries at work, the Claim For Health Care Benefits form signed by the claimant approximately one month after the first alleged injury indicating that her problems were caused by moving boxes and were not work related, and the records of the nurse’s station indicating that the claimant never reported any work-related injury in February of 1993 or June of 1994 despite the claimant’s knowledge of instructions to report any such injury, and all other evidence properly in the record, we find that the claimant failed to prove by a preponderance of the credible evidence that she sustained any injury arising out of or during the course of her employment with the respondent on February 12, 1993, on February 14, 1993, or on June 24, 1994.

[15] Even if we were to find that the claimant has sustained a back injury arising out of and during the course of her employment in February of 1993, which we do not find, we would also find that any claim for workers’ compensation benefits related to that injury is now barred by the Statute of Limitations. In that regard, Ark. Code Ann. § 11-9-702
(a)(1)(1987) states in relevant part:

(a) TIME FOR FILING. (1) A claim for compensation for disability on account of an injury, other than an occupational disease and occupations infection, shall be barred unless filed with the commission within two (2) years from the date of the injury.

[16] An obvious threshold question whenever the Statute of Limitations is at issue involves the determination of when, and if, the limitations period commenced to run. Our Courts have held on numerous occasions that the Statute of Limitations for workers’ compensation claims does not commence to run until the injury causes an incapacity to earn the wages which the employee was receiving at the time of the accident and until the incapacity continues long enough to entitle him to benefits under Ark. Code Ann. § 11-9-501 (a) (1987). See, e.g., Hall’sCleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992); CornishWelding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983);Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Shepherd v. EasterlingConstruction Company, 7 Ark. App. 192, 646 S.W.2d 37 (1983).

[17] As discussed, in the present claim, the claimant testified that she sustained a compensable injury on Friday, February 12, 1993. In addition, the claimant’s testimony indicates that her back problems caused an incapacity to earn wages for a sufficient consecutive period thereafter to qualify her for immediate disability compensation under Ark. Code Ann. § 11-9-501 (a) on February 15, 1993, although she did not seek or receive any workers’ compensation benefits at that time. The record also establishes that the claimant did not receive any workers’ compensation benefits or file any claim for workers’ compensation benefits before May 22, 1995. Consequently, we find that the claimant did not file her claim for compensation until the two year limitations period for filing an original claim for compensation had expired under Ark. Code Ann. § 11-9-702
(a)(1), and we find that her claim for compensation for the alleged February 12, 1993, injury is now barred by the Statute of Limitations.

[18] In reaching our decision, we note that the claimant asserts on appeal that the respondent should be barred by the doctrine of estoppel from arguing that the Statute of Limitations bars a claim related to the alleged compensable injury from February of 1993. In that regard, the claimant suggests that the respondent “knew” that the claimant sustained a work-related injury in February of 1993, but requested that the claimant sign forms which related to regular health benefits and not workers’ compensation benefits. As discussed, however, we find that the preponderance of the credible evidence establishes that the claimant did not notify the respondent at any time prior to filing a Form AR-C on or after May 22, 1995, that she felt her back problem might be work related. Although the claimant asserts that she told Ms. Franklin that she was injured at work, Ms. Franklin’s testimony and the nurse’s station records indicate that the claimant never notified Ms. Franklin that she was injured in February of 1993, and nothing in the record suggests that either Ms. Franklin, the employee identified by the claimant as Tammy, or any other co-worker, had any reason to suspect that the claimant’s back problems might be work related prior to the AR-C filing on May 22, 1995.

[19] In short, we find that the preponderance of the credible evidence indicates that the respondent had no reason to believe that the claimant would ever contend that she had sustained a work-related injury until the respondent received a copy of the form AR-C filed by the claimant on May 22, 1995. Therefore, we find that the preponderance of the evidence indicates that the respondent should not be barred under any possible estoppel theory from asserting the affirmative defense provided in Ark. Code Ann. § 11-9-702 (a)(1), and we find that the respondents proved by a preponderance of the evidence that any claim for benefits for a back injury allegedly sustained in February of 1993 is barred by the Statute of Limitations.

[20] Consequently, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury in February of 1993, or on June 24, 1994. In addition, we find that the respondent proved by a preponderance of the evidence that a claim for compensation related to a back injury allegedly sustained in February of 1993 is barred by the Statute of Limitations. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed.

[21] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[22] Commissioner Humphrey dissents.