SIMMONS v. ST. VINCENT INFIRMARY MED. CTR., 1996 AWCC 219

CLAIM NO. E502802

THELMA SIMMONS, EMPLOYEE, CLAIMANT, v. ST. VINCENT INFIRMARY MED. CTR., SELF-INSURED EMPLOYER, EMPLOYER

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 11, 1996

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

Claimant represented by the HONORABLE MARVA J. DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondent represented by the HONORABLE JOHN W. FINK, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on November 28, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. After conducting a de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury and therefore we find that the administrative law judge’s decision must be reversed.

[3] The claimant worked for the respondent as an orderly for approximately eleven years. Her duties included the transportation of linen, trash, record, and medical equipment on carts supplied her by the respondent employer. The evidence indicates the carts are approximately five feet high and four feet long. According to the testimony, on January 31, 1995, the claimant was pushing a cart with one hand and pulling another cart loaded with medical equipment with the other hand. As she turned a corner, the cart she was pulling “got away from” her, and she contends that she injured her right shoulder as she attempted to regain control of it. The claimant testified that she didn’t think she had really hurt herself at that time and she continued her shift. The claimant also testified that, while her shoulder bothered her some, she worked her regular shifts on the next two days, February 1 and 2, 1995. However, on Friday, February 3, 1995, she testified she could not raise her arm when she awoke on 2-3-95. She did call her supervisor on that date and report that she could not come to work. However, according to the supervisor’s notes, the claimant indicated she could not recall a specific injury but that “she thought it was related to lifting boxes and pulling carts.”

[4] The claimant testified that she “rested” her arm over that weekend, and she reported back to work on the following Monday. After working for several days though, the claimant testified that the arm started to bother her a great deal, and on February 9, 1996, she again contacted her supervisor. The claimant testified that she told her supervisor that she needed to see a doctor since the arm hadn’t gotten better with time. She was sent to the respondent employer’s emergency room where she filled out an incident report and was examined, x-rayed, and treated. She was taken off work for the rest of the day.

[5] According to the claimant’s testimony, she next reported for work on February 16, 1995. When the claimant reported to work on the 16th, she was instructed to obtain a release from the emergency room physician prior to returning to her duties. Because her arm still caused her difficulties, she was only released to light duty work. Since no work within her restrictions was available, she was sent home.

[6] The claimant was then referred to Dr. Hahn, an orthopedic specialist. A MRI was scheduled by Dr. Hahn on February 20, 1995, and the claimant was placed in physical therapy. The claimant remained off work until she was released to return to work on March 14, 1995. The claimant has remained at work since that time and fulfilled her job requirements, although she testified that she still suffers from some degree of pain in the arm.

[7] Since the claimant contends that she sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirement for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See,Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that she sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102
(5)(A)(i) (Repl. 1996) are controlling, and the following requirements must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996); Ark. Code Ann. § 11-9-102(5)(E)(i) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102 (5) (A)(i) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury (see, Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102 (5) (A) (i) (Repl. 1996)).

[8] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied. Reed, supra.

[9] We find that the claimant failed to establish the existence of an injury through medical evidence which is supported by “objective findings.” According to Ark. Code Ann. § 11-9-102 (16), “objective findings” are those which cannot come under the voluntary control of the patient. The x-rays were normal and the MRI ordered by Dr. Hahn was described as “unremarkable,” although some thickening of the rotator cuff tendon and mild degenerative changes were revealed. The only evidence in the submitted medical records which tends to indicate an injury is found in the results of the range of motion tests. As noted, objective findings do not include those items which are subject to the claimant’s voluntary control. However, range of motion tests are dependent on the claimant’s effort and, thus, are subject to the voluntary control of the claimant. Therefore, we find that these findings are not sufficient to satisfy the statutory definition of objective findings. Consequently, we find that the claimant failed to satisfy the requirements necessary to establish a compensable injury. Likewise, we find that the noted “mild apprehension findings” upon rotation of the shoulder do not rise to the level of an “objective finding” as that term is defined in the statute since the claimant can obviously control her expressions of “anticipatory fear or anxiety.”

[10] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to satisfy the requirements necessary to establish a compensable injury. Therefore, we find that the administrative law judge’s opinion must be, and hereby is, reversed. This claim is denied and dismissed.

[11] IT IS SO ORDERED.

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

[12] Commissioner Humphrey dissents.