CLAIM NO. F108633
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 29, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by HONORABLE GAIL PONDER GAINES, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an Administrative Law Judge’s opinion filed April 25, 2002. The Administrative Law Judge found, “The claimant fails to prove by a preponderance of the evidence that there is a causal connection between her work activities of May 18, 2001 and her complained-of physical difficulties.” After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
The testimony of Donna Ray, age 48, indicated that she had worked for Kroger since 1991. The parties stipulated that the employer-employee relationship existed on May 18, 2001. Ms. Ray testified that she worked from 10 p.m that day until 5 a.m. the next morning:
Q. And tell us what you did during your shift.
A. Well, I checked until midnight constantly.
Then I got out the vacuum cleaner and a bucket of water and a sponge, and I scrubbed down nine check stands. I had to pull the backs off of it to clean up underneath there, and I had to scrub the bottoms and the tops and the sides — all around — to get all the black marks and things off the check stands.
Q. How long do you think you did that scrubbing activity?
A. Oh, I probably worked at it for a good five or six hours.
Q. Continuously?
A. Well, from midnight until — Well, I’ll say from 11:00, because business had slowed down about that time. From 11:00 until 4:00 o’clock that morning I was working on the check stands. What times customers would come in I was the only cashier so I would have to stop long enough to check out a customer. Then I would go back to my cleaning. . . .
Q. Which hand did you use to scrub the check-out stands?
A. Well, of course I used my right hand mostly, because that’s what I am. And I got to the point later on that I had to use my left. . . .
Well, my shoulder was hurting me pretty good.
I was sore. I mean it was hard to lift. It felt like I had been lifting weights all night long is the way it felt. It hurt.
The claimant testified that she reported her pain to a co-worker, but that she did not fill out an accident report. The claimant testified, “We discussed it and said that, you know, I’d probably just overworked it and it would be all right.”
The claimant testified that she experienced shoulder soreness, but that she continued to perform her employment duties:
Q. How did your shoulder feel weeks after that incident?
A. Well, it got to where it progressed worse and worse. It got to the point where I couldn’t hardly pick up a gallon of milk and run it across the scanner. So I got to where I depended on my left arm a lot. And it just kept getting worse and worse.
The claimant testified that she eventually presented to her regular physician, Dr. Troy Oxner. The record indicates that Dr. Oxner saw the claimant on June 29, 2001 for right shoulder pain, “no injury in past.” Dr. Oxner assessed “right shoulder pain” and “deltoid muscle pain.”
The claimant began treating with Dr. Ferdinand Roda on August 1, 2001. Dr. Roda wrote that the claimant’s symptoms began approximately four months earlier, when the claimant was cleaning in a circular and up and down motion. Dr. Roda’s impression was “right shoulder bursitis,” and he treated the claimant conservatively. Dr. Roda also assigned restricted work duties.
The claimant testified on cross-examination:
Q. So, on the day that you’re claiming this happened, you didn’t report that you’d had an on-the-job injury to anybody in management, did you?
A. No, ma’am.
Q. And, in fact, the first formal report that you made to anybody in management that you’d hurt yourself on the job was August 1st of 2001, even though you knew that you were to report injuries to management?
A. Yes, ma’am, but, you know, I just thought this was because I had overworked it myself. Elaine and I had both discussed this and decided, well, you know, I’d just overworked myself. I did not want to report this as a workman’s comp.
My doctor suggested it.
The claimant’s manager, Mary Ruth Washington, testified for the respondents:
Q. Did there come a time when you learned that
Ms. Ray was contending that she was injured on the job?
A. Yes, it was.
Q. How did you learn that?
A. The doctor’s office called, and they said,
“We have an employee here that we need to have the bill sent to the store.”. . .
Q. Did you then speak to Ms. Ray?
A. I asked to speak to her. . . .
Q. What did she tell you?
A. She told me that she’d had an ongoing problem with her shoulder, and that it got so bad that she went to the doctor. . . .
Q. Had she given you any indication before that she had been injured on the job?
A. No, she hadn’t.
Dr. Roda noted on August 13, 2001, “Workman’s Comp will not allow MRI at this time.”
Dr. Chris Young examined the claimant on September 7, 2001:
Donna is here for an evaluation of her right shoulder. Apparently, on 05/18/01 she was cleaning the check-out counters at Kroger and had an onset of pain in her right shoulder.
Since that time she has had pain in her right shoulder. . . .
X-RAYS: AP of her right shoulder shows some tendinosis at the insertion in the greater tuberocity (sic).
Her MRI result is reviewed and shows degenerative
AC changes and tendonosis of the supraspinatus tendon.
Dr. Young’s impression was “Impingement syndrome, right shoulder with AC joint arthritis and tendentious (sic).” Dr. Young treated the claimant conservatively. Dr. Young reported on October 1, 2001, “I think that it is reasonable at this point to proceed with right shoulder decompression and distal clavicle excision.”
Ms. Ray claimed entitlement to worker’s compensation. The claimant contended that she sustained a compensable injury to her right shoulder which was caused by rapid repetitive motion, and which manifested on May 18, 2001. The claimant contended that she was entitled to temporary total disability compensation from February 26, 2002 until a date to be determined. The respondents controverted the claim.
Dr. Young wrote to the claimant’s attorney on October 17, 2001:
It is my opinion that Donna probably aggravated her right shoulder condition at work with her working duties of scrubbing the check-out stands.
I do feel that likely her job at Kroger’s was the cause of her tendonitis and pain about her right shoulder. We have tried and failed conservative, non-operative therapy for this problem.
At this point I think it is reasonable to proceed with a right shoulder arthroscopy, and indicated procedures.
On or about March 1, 2002, Dr. Young performed a “Right shoulder subacromial decompression” and “Right shoulder distal clavicle resection.” Dr. Young reported:
She had obvious arthritic changes to the AC joint. . . .
Her rotator cuff was inspected. She had a significant amount of bursitis, therefore I
performed a bursectomy. . . .Her rotator cuff was not torn.
The claimant testified that she had benefitted from surgery. “I lost 50 percent of my pain at least,” she testified.
After a hearing before the Commission, the Administrative Law Judge found, “The claimant fails to prove by a preponderance of the evidence that there is a causal connection between her work activities of May 18, 2001 and her complained-of physical difficulties.” The Administrative Law Judge determined that the claimant failed to establish a causal connection between her work and her physical problems. The Administrative Law Judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.
II. ADJUDICATION
The claimant contends that she sustained “either an injury identifiable by a specific incident or incurred as the result of rapid and repetitive motion.” The claimant must therefore prove by a preponderance of the evidence that she sustained an injury causing internal or external physical harm to the body and arising out of and in the course of employment. See, Ark. Code Ann. § 11-9-102(4)(A) (Repl. 2002). After reviewing the entire record de novo, the Full Commission affirms the Administrative Law Judge’s implicit finding that the claimant failed to prove that she sustained an injury causing physical harm and arising out of and in the course of employment.
The claimant contends that she sustained a compensable injury, and that the surgery performed by Dr. Young in March 2002 was reasonably necessary in connection with this compensable injury. However, the preponderance of evidence indicates that the claimant failed to prove that she sustained an injury arising out of her employment.
The determination of the credibility of the witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5
(2000). In the present matter, we find that the claimant was not a credible witness. The claimant testified that she began experiencing acute shoulder pain after cleaning the cash register area for several hours on May 18, 2001. Yet, the claimant admitted that she did not immediately report an injury to the respondent-employer, even though she had previously sustained a wrist injury, at which time she did properly report the injury. The claimant did not see a physician for approximately six weeks. When she did report to her family doctor, the claimant did not report the alleged cleaning injury; in fact, the claimant expressly reported “no injury.”
The claimant alleges that she was injured on May 18, 2001, yet she did not report the alleged injury to the respondents until August 1, 2001, at the suggestion of a new physician. The claimant told her manager that she had experienced an “ongoing problem” with her shoulder. In comparing the claimant’s testimony to the preponderance of the evidence, the Full Commission finds that the claimant was not a credible witness.
Therefore, the Full Commission finds that the claimant failed to prove that she sustained an injury arising out of and in the course of her employment. We thus affirm the Administrative Law Judge’s finding that the claimant failed to prove a causal connection between her work on May 18, 2001 and the claimant’s shoulder problems. We recognize Dr. Young’s opinion that the claimant “probably aggravated her right shoulder condition” while scrubbing the check-out stands. However, the Commission is entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and medical evidence. MaverickTransp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). The Full Commission places minimal weight on Dr. Young’s opinion in the present matter, because it was based on an inaccurate history provided him by the claimant.
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove that there was a causal connection between her work activities of May 18, 2001 and the claimant’s physical difficulties. This claim is denied and dismissed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury to her right shoulder.
In hindsight, claimant made a mistake by not immediately and formally
reporting the injury to the employer. Claimant elected, to her detriment, to delay making an official notice of injury because she thought she had simply “overworked” her shoulder and that her condition would get better if she took “care of the problem myself.” Claimant added, “I did hot packs, and I babied my shoulder. I used my left hand [at] different times.” Claimant stated that on several occasions between the day of the injury and her first medical treatment, she had to leave work early as a result of the pain in her shoulder and so informed management personnel. However, claimant acknowledged that she did not formally give notice of injury to the employer by filling out an accident report until on or about August 1, 2001.
All too often we encounter injured workers who are reluctant to file claims for workers’ compensation benefits. There are certain pressures, not only from employers, but from fellow employees as well. Injured workers frequently complain about enduring derisive comments and subtle (or maybe not so subtle) retaliatory or discriminatory conduct. Further, an employer may even offer prizes or other financial incentives for an injury-free workplace. “Injury-free” does not mean no injuries were sustained. It means no claims for injuries were filed. Finally, nobody relishes the thought of being labeled a complainer or a whiner. In the end, many legitimately injured workers conclude that “it just ain’t worth it.”
In my opinion, claimant presented credible evidence that she sustained an injury arising out of and in the course of her employment. The opinion of the Administrative Law Judge should be reversed.
_______________________________ SHELBY W. TURNER, Commissioner