SISSON v. PETERSON FARMS, 2007 AWCC 13

CLAIM NO. F513631

ALBERT SISSON, EMPLOYEE CLAIMANT v. PETERSON FARMS INC., EMPLOYER RESPONDENT COMP CARE ADMINISTRATORS, TPA, INSURANCE CARRIER RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 24, 2007

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

Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.

Respondents represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

OPINION AND ORDER This case comes before the Commission on the respondents’ appeal of adecision issued by an Administrative Law Judge on August 11, 2006. Inthat decision, the Administrative Law Judge found the claimant hadsustained a compensable injury and awarded temporary total disabilitybenefits for the time period of September 29, 2005, through November 14,2005.
On appeal the respondents contend that the claimant’s injury did notarise out of the course and scope of employment. The claimant assertsthat the injury was due to a specific incident in which he was jerkedaround in a forklift. The claimant further argues that he should beawarded temporary total disability benefits from September 29, 2005until the time he returned to work on December 22, 2005.
After a de novo review of the record, we find the decision of theAdministrative Law Judge is affirmed. However, we modify the decision toaward the claimant temporary total disability benefits from September29, 2005 to December 22, 2005. In our opinion, the claimant providedcredible testimony regarding the occurrence of his injury. Thattestimony was corroborated by the testimony of Doug King, therespondents’ witness. Finally, we find that the medical records areconsistent with the claimant’s testimony regarding how and when theinjury occurred. Likewise, we find that the claimant should be entitledto the entire time period of requested temporary total disabilitybenefits. The claimant provided unrefuted testimony that his jobrequired the use of both hands and the medical records indicate that theclaimant was not released to return to full duty on November 14, 2005.Likewise, there is no testimony the claimant was provided one-handedduty at that time. As such, we modify the portion of the AdministrativeLaw Judge’s decision on temporary total disability benefits and awardthem until December 22, 2005.
The claimant testified that he has been working for the employer foralmost 15 years. At the time of the accident in question, the claimantworked as a live-haul driver. His duties required him to drive a truckto various chicken farms where cages with live chickens were loaded ontothe truck and then driven back to the respondents’ processing plant. Theclaimant was also required to operate a forklift in order to take thecages in and out of the chicken houses.
The claimant testified that on March 28, 2005, he was operating theforklift and taking cages in and out of a chicken house which had a holein front of the door. He described he was in an accident, andtestified,

A. Well, I was loading some chickens at a house that had a great big hole in front of the end door and there was some — a cement slab right at the end door and this had eroded off, and I was loading chickens and I took the forklift and got a cage and started into that house.
It was — well, I had been in and out of there a few times, and if you leave the cage set too high, when the front wheels of the forklift goes up onto that cement it would slap the end door — the top of it — and tear it up, so I was holding it low to keep from doing that. And when the front wheels went off in this hole, the front of the cage hit the cement and it just stopped the loader right there and it threw me forward up on that roll cage and then I fell on off to the side.

The claimant went on to testify that he hit his shoulder on the roll barbut did not think he needed medical attention at that time. As such, hereturned to work and finished his shift.
The claimant said the next morning his back, right hip, and leftshoulder were sore, but that he still did not believe he would needmedical attention. Specifically, he indicated that he thought he couldwork through the soreness and that it would resolve over time.
The claimant initially sought medical treatment on May 6, 2005. He wastreated by the respondents’ physician, Dr. Rebecca C. Lewis. Thedoctor’s report from that day indicates he reported with the primarycomplaint of left arm pain. The report provides that he was having painin his forearm, his elbow, and into his upper arm and shoulder. It alsoprovides, “His job is aggravating it quite a bit. He thinks he hasinjured it at home possibly by doing something.”
At the time of the hearing, the claimant indicated that when hereported to Dr. Lewis his pain was primarily in his forearm and elbow.He further testified that he did not associate the pain in that area ofhis arm to the forklift incident because the primary pain at the time ofhis visit was not in his shoulder.
On May 26, 2005, the claimant was treated by Dr. David J. Tucker. Thenurse assessed the claimant with, “left shoulder pain secondary toinjury 3 ½ weeks ago.” The doctor’s report further provides, “He had ajerking type of injury initially,” and indicates the claimant was givena shot of Depo Medrol and Marcaine. On June 2, 2005, Dr. Tuckerprescribed the claimant physical therapy, which the claimantdeclined.
The claimant returned to Dr. Tucker on August 18, 2005, withcomplaints of persistent shoulder pain. The report again provides theclaimant was injured in a “jerking type maneuver.” Dr. Tucker ordered anMRI which ultimately revealed a complete tear of the left rotator cuff.Based on these findings Dr. Tucker referred the claimant to Dr. R. JacobKaler.
On September 29, 2005, Dr. Kaler performed surgery on the claimant’sleft shoulder. The claimant returned to Dr. Kaler on November 14, 2005.At that time the claimant was released to perform one-handed duty forthe next six weeks. At the time of the hearing, the claimant testifiedthat to operate the forklift, he would use his right hand to shift gearsand use his left hand to steer. He further testified that he did notreturn to work until December 22, 2005, because he was physically unableto perform his job.
The claimant contends that he sustained an injury arising out of thespecific incident occurring on March 28, 2005. The respondents, on theother hand, argue that the claimant’s torn rotator cuff did not ariseout of the work-related incident on March 28, 2005.
In order to prove a compensable injury as a result of a specificincident which is identifiable by time and place of occurrence, theclaimant must establish by a preponderance of the evidence: (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) that the injury was caused by a specific incident and identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). Should the claimant fail to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the claim, compensation must be denied. Mickel v. Engineering SpecialityPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).

In this instance the parties do not dispute that the claimant wasinvolved in a forklift accident on March 28, 2005. Rather, the onlyquestion is whether the claimant’s torn rotator cuff was sustainedduring that incident. After reviewing the testimony of the claimant andDoug King, in conjunction with the medical reports, we find that thepreponderance of the evidence shows the claimant sustained his rotatorcuff tear on March 28, 2005.
This case largely revolves around the issue of credibility. Questionsconcerning the credibility of witnesses and the weight to be given totheir testimony are within the exclusive province of theCommission. White v. Gregg Agricultural Ent., 72 Ark. App 309,37 S.W.3d 649 (2001).When there are contradictions in the evidence, it is withinthe Commission’s province to reconcile conflicting evidence and todetermine the true facts. Id The Commission is not required to believethe testimony of the claimant or any other witness, but may accept andtranslate into findings of fact only those portions of the testimonythat it deems worthy of belief. Id.
At the time of the hearing, the claimant and Doug King, LivehaulManager, both testified. The claimant essentially testified that heinjured his shoulder during the March 28, 2005, incident, and that heinitially did not believe his injury was sufficient to warrant medicalattention. When it did not resolve, he sought medical attention from therespondents’ physician, Dr. Lewis. He said he did not attribute hisinjury to the forklift incident because his pain was primarily in hiselbow and forearm.
King testified that he was aware of the incident that occurred onMarch 28, 2005. King testified that he approached the claimant the dayafter the accident and asked if he needed medical assistance. Theclaimant declined the offer. The next conversation King had with theclaimant was in the Fall. He testified that the claimant relayed hisneed for surgery. King then completed an accident report regarding theloader incident. King testified that the accident report indicates theclaimant was injured on March 28, 2005, “while he was loading his truckwith cages his loader dropped off into a hole.” He further indicated thereport provide the accident caused the loader to “jerk to a stop,throwing Albert off and hurting his left arm.” King testified that theclaimant relayed that he hurt his shoulder when he fell off the loaderor when he was at home. He also said the claimant said he might haveinjured it while changing a starter at home, but admitted the accidentreport did not reference such an injury. Finally, King placed greatconfidence in the claimant’s credibility and work ethic. He testified asfollows,

Q. What kind of employee is he?
A. A good one.
Q. Do you have any reason to believe that he would make up how he hurt his shoulder?
A. No.
Q. Have you found him to be trustworthy and reliable?
A. The best.
Q. And he’s back at work for you now, isn’t he?

A. Yes, sir, and he’ll work for me until they run me off as far as I’mconcerned. He’s a good employee. Though the respondents assert theclaimant’s injury occurred to some incident involving a starter, I notethat the claimant denied having knowledge of any event other than theMarch 28, 2005, incident which would cause the injury. Though Dr. Lewis’report indicates the claimant believed he, “has injured it at homepossibly by doing something,” it is clear that the language of thisreport shows the claimant was unsure of the reason for his injury. Infact, since the claimant testified that he had done nothing at work tocause forearm or elbow pain, we find it is likely he simply associatedhis injury as one that had to have occurred at home since nothingtraumatic had happened at work.
Additionally, King admits that the accident report fails to mentionsuch an incident. However, all parties agree that the claimant wasinvolved in an accident in which he was thrown from a forklift on March28, 2005. Likewise, the medical report from May 26, 2005, specificallyindicates the claimant was injured when he was in a “jerking injury”,which would be consistent with an injury sustained in the forkliftincident. Additionally, an almost identical description was provided inthe accident report, which further corroborates the claimant’s testimonythat he was injured while operating the forklift. Finally, we note thateven the respondents’ own witness, King, testified that the claimant wasa credible, hardworking employee, and that he had no reason to doubt theclaimant’s testimony regarding how he was injured. As such, we find thatthe claimant has shown by a preponderance of the evidence that he wasinjured on March 28, 2005, while operating the forklift for theemployer.
We also note the respondents’ argument that the doctor’s report fromMay 6, 2005, reports an onset of pain for a period of one week. However,we note that neither the nurse’s assessment or the doctor’s reportindicate a specific event in which the claimant injured himself. This iscompletely consistent with the claimant’s testimony that at that pointhe did not know the reason for his pain and did not attribute it to theforklift incident. Additionally, even though there is a notation on theMay 26, 2005, note indicating the claimant had shoulder pain secondaryto an injury three and one-half weeks ago, it is unknown whether thenurse simply drew that conclusion based on the claimant’s description ofwhen his pain worsened or based on some other assumption. Additionally,the nurse’s assessment does not include any description of the eventcausing the injury. However, Dr. Tucker’s notation on May 26, 2005,specifically indicates the claimant was injured in a jerking type ofinjury. As the only jerking incident discussed in the hearing was theclaimant’s March 28, 2005, injury, we find the only logical explanationfor the claimant’s injury was due to the forklift incident.
The respondent appealed the decision of the Administrative Law Judgein its entirety. In his brief, the claimant contends that he is entitledto temporary total disability benefits until December 22, 2005. Thoughnot specifically appealed by the claimant, since the respondent appealedthe finding regarding temporary total disability benefits, we find theCommission has the authority to consider the claimant’s request formodification. The claimant essentially argues that he was unable to workfrom September 29, 2005, until his return to work on December 22, 2005.The respondents are silent as to this argument.
Temporary total disability for unscheduled injuries is that periodwithin the healing period in which claimant suffers a total incapacityto earn wages. Ark. State Highway Transportation Dept. v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period endswhen the underlying condition causing the disability has become stableand nothing further in the way of treatment will improve thatcondition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582(1982).
A claimant who has been released to light duty work but has notreturned to work may be entitled temporary total disability benefitswhere there is insufficient evidence that the claimant has the capacityto earn the same or any part of the wages that he was receiving at thetime of the injury. Breshears, supra; Sanyo Manufacturing Corp. v.Leisure, 12 Ark. App. 274 (1984).
The Administrative Law Judge concluded the claimant was entitled tobenefits from September 29, 2005, through November 14, 2005. In denyingbenefits from November 14, 2005, to December 22, 2005, theAdministrative Law Judge on the basis that the claimant was released toreturn to one-handed duty on November 14, 2005. However, this fails toconsider that the claimant’s job required the use of both hands, therebypreventing him from being able to return to work or had the capacity toearn the same wages as earned at the time of the injury.
The claimant testified that he was required to operate a motor vehicleand that he was required to operate a forklift. The claimant explicitlyindicated that to operate the forklift he would use his right hand toshift gears and would use his left hand to steer. Accordingly, there isno way the claimant would have been able to return to his prior jobwhile on one-handed duty. Additionally, we note that there is noevidence that the claimant was offered one-handed duty. Likewise, theclaimant credibly testified that he was unable to return to work untilDecember 22, 2005, and that he performed no work until that time. Asthis date consistent with the end of the six weeks of one-handed dutyand there is no evidence to rebut the claimant’s, we find that heremained in his healing period and unable to work until December 22,2005. Therefore, we modify the decision of the Administrative Law Judgeand award temporary total disability benefits from September 29, 2005,through December 21, 2005.

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 Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 2002).

Since the claimant’s injury occurred after July 1, 2001, the claimant’s attorney’s fee is governed by the provisions of Ark. Code Ann. § 11-9-715 as amended by Act 1281 of 2001. Compare Ark. Code Ann. § 11-9-715 (Repl. 1996) with Ark. Code Ann. § 11-9-715 (Repl. 2002). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $500.00 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 2002).

IT IS SO ORDERED.

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OLAN W. REEVES, Chairman

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PHILIP A. HOOD, Commissioner

Commissioner McKinney dissents.

DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.

There is no dispute that the claimant had an incident with the forklift on March 28, 2005. However, the claimant did not make a formal report of injury at that time and did not seek any medical treatment until approximately six weeks later when he sought treatment from Dr. Lewis. As a courtesy to the employees, Dr. Lewis comes to the plant to examine employees. On May 6, 2005, the claimant related to Dr. Lewis that he had a history of left arm and shoulder pain for approximately one week. Three and a half weeks later, the claimant sought treatment from his treating physician and he did not say anything to him about a work related injury either. The claimant continued to work up until the time that he had to have surgery. But it was not until the claimant had to undergo surgery that he recalled that the incident in March was the precipitating factor of why his shoulder hurts. The claimant sought treatment several times from Dr. Lewis and Dr. Tucker and did not relate to them that he had any sort of a work related injury. He told these doctors that he did not know how he hurt himself.

Simply put, I cannot find that the claimant proved by a preponderanceof the evidence that he sustained a compensable injury to his shoulder on March 28, 2005. Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority opinion.

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KAREN H. McKINNEY, Commissioner