CLAIM NO. E709708
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 26, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by MICHAEL FRIEDMAN, Attorney at Law, Texarkana, Texas.
Respondent represented by ANGELA M. DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] This claim came before the Administrative Law Judge on the issues of compensability of claimant’s low back injury, temporary total disability benefits (hereinafter TTD), medical benefits and attorney’s fees. The Administrative Law Judge found that the claimant had suffered a compensable back injury on February 12, 1997, and awarded TTD for the following periods: March 24 to April 1, 1997; April 7 to April 14, 1997; and May 8, 1997 to March 3, 1998, the day claimant was rated with a 9% whole body impairment. The Administrative Law Judge also awarded reasonable and necessary medical treatment for the back injury and attorney’s fees. Respondent has appealed from the order. [3] Respondent raises three arguments on appeal, 1) claimant did not establish by a preponderance of the evidence that she sustained a compensable injury, 2) the contested medical treatment was provided for a condition other than claimant’s on the job injury and 3) claimant failed to establish that she was temporarily and totally disabled during the periods for which TTD was awarded. Based upon our de novo review of the record and without giving the benefit of the doubt to either party we affirm the Judge’s opinion in this case. [4] Respondent argues that proof of causation must be made by objective evidence, and claimant has failed to provide that evidence. The standard for determining causation is that it be established by a preponderance of the credible evidence, objective findings are only required to establish the existence of the injury, therefore respondent’s argument to the contrary is without merit. No medical opinion is required to establish causation and we are obligated to form our own opinion based upon the record. In this case the medical evidence and the testimony of the witnesses paint a clear picture of the February 12, 1997 incident and the injuries arising from it. [5] In reviewing the available testimony we conclude that a preponderance of the credible evidence supports claimant’s description of her February 12, 1997 injury. Claimant is 27 years old and worked for respondent for 7 + years. On February 12, 1997 while moving a small (80-100 pounds) safe claimant felt a pop in her back, she dropped the safe and felt a burning sensation in her low back. Robert Roy, a co-worker, heard claimant yell out in pain and was told by her that she hurt her back lifting a safe. Mary Newburg, a co-worker, saw claimant in pain immediately after the lifting incident and claimant told her that something had popped in her back. Claimant reported the injury to her supervisor, Phyllis Webster. Claimant continued working that day with pain. Angela Oglesby, a co-worker, was told by claimant she had injured her back moving a safe. Ms. Oglesby observed claimant in pain and when asked about claimant’s ability to do her job testified “She always tried, she put 100 percent in. I know really she wasn’t because she wasn’t physically able to.” [6] Claimant sought treatment from a chiropractor and enjoyed slight improvement until she once again suffered a sudden onset of back pain after moving a safe at work on or about March 17, 1997. She went to a chiropractor again and eventually went to her family physician, Dr. James Voorhease, on March 24th. Claimant was referred to Dr. J. T. DeHaan, an orthopedic surgeon, who she first saw on May 8, 1997. In June an MRI was performed which revealed a “very large disc herniation at the L4-L5 level and lesser so at L5-S1”. Claimant was treated with physical therapy until September of 1997 when Dr. DeHaan performed a discetomy. Claimant began to improve and underwent more physical therapy and a work reconditioning program. On March 3, 1998, a functional capacity evaluation was completed and claimant was given a 9% to the body as a whole permanent impairment rating. [7] The medical records also support the conclusion that claimant suffered a work related injury on February 12, 1997. Claimant provided a consistent history to Dr. Voorhease and Dr. DeHaan describing the onset of symptoms due to the February 12th incident moving the safe as does the injury synopsis on the functional capacity evaluation. [8] In considering the testimony of the witnesses in this claim, as in every claim, we must consider their credibility. In this claim, as in most, one could point to differences in details of the testimony to argue that the witnesses are not credible. We have however noted that the witnesses on the record repeat a story that is substantially similar. The available testimony corroborates the important elements of this claim and conforms to the available medical records. Accordingly, we find that the testimony of the witnesses in this matter is credible and entitled to substantial weight. [9] Based upon claimant’s testimony, the uncontradicted testimony of the witnesses and the consistent medical records we find that claimant has established this element of her claim by an overwhelming preponderance of the evidence. Respondent has put on no evidence which contradicts this conclusion. The Administrative Law Judge specifically found claimant and the fact witnesses to be credible, as do we. [10] Likewise, we conclude that the discetomy and the associated treatment was reasonable and necessary for the treatment of claimant’s herniated disc. Claimant had suffered a back strain the previous year. That injury did not exhibit the “very large” herniation which was observed via the first MRI performed after her February 12, 1997, injury. Accordingly, we affirm the Administrative Law Judge on this issue as well. [11] Finally, claimant was taken off work due to her back injury by Dr. Voorhease from March 24 through April 1, 1997 and from April 7 through April 14, 1997. Dr. DeHaan placed claimant off work due to her back injury from May 8, 1997 and released her to return to work on April 17, 1998. We find that it was inherent in the performance of the functional capacity evaluation that claimant had reached the end of her healing as of the date of the evaluation, March 3, 1998 and so end TTD on that date. These medical decisions are credible evidence that claimant was temporarily totally disabled due to her injury. Respondent has put on no evidence which contradicts these findings. Accordingly, claimant has established by a preponderance of the evidence that she was disabled and in her healing period during the time for which she was awarded TTD. [12] Based upon our de novo review of the record before us and without giving the benefit of the doubt to either party we affirm the Judge’s opinion in this case. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [13] IT IS SO ORDERED.
_______________________________
ELDON F. COFFMAN, Chairman _______________________________ PAT WEST HUMPHREY, Commissioner
[16] I respectfully dissent from the majority’s opinion finding that claimant sustained a compensable injury to her lower back on February 12, 1997. 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 that she sustained a compensable injury. [17] Claimant testified that she sustained an injury on February 12, 1997, when she was scooting a safe which weighed between 80 and 100 pounds off of a bottom shelf onto a dolly. According to claimant’s testimony, there were no witnesses of the incident, but two of her co-workers, one of whom she identified as Mary, Ms. Newberg, were coming down the aisle when it occurred. Claimant further testified that Robert Roy, a stockman, was also nearby and came over and inquired of her condition. According to the claimant’s testimony, Mr. Roy did not offer her any assistance because he was already on “another little mission.” Claimant described the incident as causing a burning feeling in her lower back. Despite this alleged injury, claimant continued to work and even enlisted the help of Angie and Cedrid to move the safes. [18] The record reflects that claimant did not see a physician for this condition until March 24, 1997, almost six weeks after it supposedly occurred. In the office notes of Dr. James Vorhease dated March 24, 1997, he recorded the following history:
[19] Based upon her complaints, Dr. Vorhease diagnosed claimant with lower-back pain and prescribed medication. Dr. Vorhease’s March 24, 1997 office note does not reflect that he held her off work at that time. However, in his office note dated April 7, 1997, he indicated that claimant “went back to work 4-1-97.” [20] In support of her claim, claimant called Mary Newberg to testify. Ms. Newberg testified she saw the claimant leaning over a box in the warehouse appearing as if she were in pain. Claimant also called Robert Roy to testify. Mr. Roy described an incident having occurred where he heard a yelp, or something to that effect, and when he went to investigate discovered the claimant trying to lift a safe. According to M. Roy, he and the claimant ended up moving the safe out of the way so that no one would trip over it. [21] The findings of the Administrative Law Judge on issue of credibility are not binding on the Commission. Roberts v.Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983);Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. RicelandFoods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). [22] In my opinion, claimant has failed to present sufficient credible evidence which preponderates in favor of finding that a compensable injury occurred. Claimant’s testimony is replete with inconsistencies and contradictions. Claimant supposedly injured her back while moving a safe from an endcap which is at an end of an aisle. While Mr. Roy corroborates this aspect of claimant’s testimony, all other aspects of their testimony is inconsistent. Claimant testified that Mr. Roy did not assist her in moving the safe, yet Mr. Roy said he did. According to claimant, Angie and Cedrid, two co-workers, helped her to move the safes from the sales floor to a warehouse. Yet, the only Angie to testify, Angela Oglesby, testified that she did not know that claimant had injured herself until some time later when she was advised of the incident by claimant. Furthermore, Ms. Oglesby did not offer any testimony regarding whether she helped to move the safes since she was unaware of when the safe-lifting incident allegedly occurred. Ms. Newberg, who, according to claimant’s testimony, was coming down the aisle when this incident supposedly occurred, testified that the first time she became aware of claimant’s injury was when she observed claimant in the warehouse. If Ms. Newberg were in the aisle and claimant let out a yelp as described by Mr. Roy, one would assume that Ms. Newberg heard the yelp. However, she offered no such testimony. In fact, she placed claimant in a totally different area of the store when she first became aware of claimant’s injury. [23] It is undisputed that claimant was diagnosed with a herniated nucleous pulpous for which she eventually underwent surgery. However, my review of the evidence fails to prove by a preponderance of the evidence that an injury at work, in fact, occurred causing this condition. Claimant’s many friends and co-workers offered testimony in an effort to help claimant, however, their testimony, in my opinion, hurts her claim. Claimant’s witnesses were unable to corroborate many of the facts testified to by claimant. Moreover, they were unable to corroborate a work-related injury. Claimant’s witnesses were only able to offer evidence that they observed the claimant in obvious pain. Given the nature of claimant’s herniated disc, it would be surprising if they were unable to corroborate claimant’s pain. Despite seeing claimant in pain, no one was able to corroborate the alleged injury. Mr. Roy comes close, however, his testimony concerning all other aspects of what he observed is not corroborated by any other witness. This begs the question why. [24] In my opinion, claimant’s credibility is also called into question regarding her denial of any previous low-back pain. Claimant testified on direct examination that she had previously been to the emergency room for shoulder pain and pain in her upper back between her shoulder blades. When presented with medical records from the emergency room stating that claimant was seen on February 17, 1996, for complaints of back pain which radiated into her legs at times, claimant denied any such previous condition although she acknowledged and stipulated that the medical record was hers. In light of this emergency room record, claimant continued to maintain that she was seen in the emergency room solely for shoulder and upper back complaints. [25] Given the many inconsistencies and contradictions throughout the testimony, I find that claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury arising out of and in the course of her employment. Therefore, I respectfully dissent from the majority opinion.c.c. Pain in low back — Onset, 1 + months ago — treated by a Chiropractor improved until last week — pain recurred after lifting “safe” weighing approximately 70 pounds — treated by Chiropractor c/continued pain into hip lower leg/calf —
_______________________________ MIKE WILSON, Commissioner