RAY v. CARGILL, INC., 1995 AWCC 150

CLAIM NO. E318950

JOSEPH RAY, EMPLOYEE, CLAIMANT v. CARGILL, INC., EMPLOYER, RESPONDENT and SEDGWICK JAMES OF ARKANSAS, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 13, 1995

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

Claimant represented by JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by TIMOTHY L. BROOKS, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on January 3, 1995, finding that claimant failed to prove by a preponderance of the credible evidence that he sustained an injury to his back during the course of his employment which arose out of his employment with respondent. Based upon our de novo review, we find that claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable injury to his back.

[3] The Administrative Law Judge originally filed a written opinion on August 16, 1994. We remanded this to the Administrative Law Judge to set forth with more specificity the law upon which he relied in reaching his decision. The Administrative Law Judge filed a subsequent opinion on January 31, 1995 contending that the reason he set forth no law in his original opinion is because, in his opinion, the law upon which he relied was not changed by the modifications of Act 796 of 1993.

[4] A review of the evidence indicates that claimant failed to prove by a preponderance of the credible evidence that he sustained a work-related injury on December 17, 1993. A review of the evidence indicates that this was his first day on the job with respondent. He contends that he sustained a back injury.

[5] This claim is governed by Act 796 of 1993. The new workers’ compensation law in part provides:

(5)(A)(1) “Compensable Injury” means:

(a) An accidental injury causing internal or external physical harm to the body, or accidental injury to prosthetic appliances, including eyeglasses, contact lenses or hearing aids,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.
(2) A compensable injury must be established by medical evidence,
supported by objective findings as defined in § 11-9-102.
(3) The burden of proof of a compensable injury shall be on the employee and shall be as follows:
(a) For injuries falling within the definition of compensable injury under paragraph 5 (A)(1)(a), the burden of proof shall be a preponderance of the evidence.
(16) `Objective findings’ are those findings which cannot come under the voluntary control of the patient. When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty[.] (Emphasis supplied.)

[6] Claimant has the burden of proving his claim by the preponderance of the evidence which means “evidence of greater convincing force.” A.C.A. § 11-9-102; Smith v.Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442
(1947).

[7] In applying the appropriate new law under Act 796 of 1993 to the evidence in this case, the provisions of the new law are to be “strictly” construed. A.C.A. § 11-9-704; § 11-9-717. Further, all prior case law contrary to or in conflict with any provision of Act 796 of 1993 has been repealed, annulled and held for naught. See Section 35 of Act 796 of 1993.

[8] Claimant stated that he was originally assigned the job of “popping thighs”. Subsequently, he was moved to a different job which involved hanging turkeys on shackles at the beginning of the line. He contends that when somebody honked the horn, we was still bent over and it startled him. He twisted and popped his back.

[9] A review of the evidence indicates that claimant’s testimony is inaccurate. Credible testimony was offered that claimant was never assigned to the position of hanging turkeys. Claimant admits this when he presents himself to the nurse’s station and reports the alleged injury. At that time, he made no statement about bending over to shackle a turkey. Claimant stated that he was just merely standing out of his way. Additionally, there is evidence that claimant had indicated that he injured his back while bringing “firewood into the house” the prior weekend.

[10] A preponderance of the credible evidence does not support the claimant’s version of the story. Thus, we affirm the decision of the Administrative Law Judge.

[11] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[12] Commissioner Humphrey dissents.