RICE v. POTLATCH CORPORATION, 1995 AWCC 46

CLAIM NO. E119240

EVA J. RICE, EMPLOYEE, CLAIMANT v. POTLATCH CORPORATION, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 9, 1995

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

Claimant represented by LANA DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondent represented by JOSEPH H. PURVIS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[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 July 19, 1994 finding that claimant’s cervical neck difficulties arose out of and in the course of her employment with respondent.

[3] After conducting a de novo review of the record, we find that a preponderance of the credible evidence does not support the Administrative Law Judge’s determination that claimant has proven by a preponderance of the credible evidence that she sustained a neck injury while employed with respondent. Therefore, we reverse the decision of the Administrative Law Judge.

[4] Claimant sustained a compensable occurrence of bilateral carpal tunnel syndrome. This was accepted by respondent who have paid all benefits to which claimant is entitled including a five percent impairment rating to each extremity. Claimant presently contends that she sustained a gradual neck injury over the course of her employment with respondent and that she is entitled to temporary total disability benefits from October 8, 1992 through a date yet to be determined, medical treatment, etc. Respondent contends that claimant did not sustain a compensable injury to her neck. A hearing was held and an Administrative Law Judge found that claimant had met her burden of proof. Respondent now appeals.

[5] The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. FaulknerRadio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H.Knight Co., 220 Ark. 333, 248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521
(1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).

[6] As stated, claimant contends that she sustained a neck injury while working for respondent. She contends that her neck difficulties began when she was working on the number one cutoff saw. This apparently occurred in 1989 or 1990. However, we find that claimant has failed to prove by a preponderance of the credible evidence that she sustained a cervical neck injury related to her job.

[7] Dr. Pennington in his July 27, 1993 medical report, states that he is of the opinion that claimant’s cervical problem is not caused by her work. Claimant has seen Dr. Pennington approximately 42 times from March of 1990 through December of 1992. During these visits, claimant was seen for sore throat, shoulder pain, lump in the neck, carpal tunnel syndrome, hemorrhoids, dysplasia, fibrocystic disease, headaches, high blood pressure, heart palpitation, tinea corporis, contact dermatitis, occipital neuralgia, atrophic vaginitis, nevus and dysuria. Claimant has not contended any of these except for the carpal tunnel syndrome is attributable to her work-related injury. Furthermore, in our review of the record, it does not indicate that claimant initially attributed her neck complaints to her work activities.

[8] Claimant apparently relies heavily upon the reports of Dr. Adametz. However, Dr. Adametz’s opinion is premised upon speculation and conjecture. He indicates that there is the possible existence of a small ruptured disc. Yet, there is insufficient evidence of a causal connection between her neck problems and her work. Dr. Adametz opined that if claimant was suffering from a bulging disc, it is merely possible that the HNP was caused by a trauma which she might have experienced at work. This is equivocal at best and certainly does not constitute a preponderance of the evidence.

[9] Claimant has failed to prove by a preponderance of the credible evidence that she sustained a work-related neck injury. Therefore, we reverse the decision of the Administrative Law Judge.

[10] IT IS SO ORDERED.

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

[11] Commissioner Humphrey dissents.