CLAIM NO. E203575
PAUL SMITH, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 1, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DONALD E. BISHOP, Attorney at Law, Harrison, Arkansas.
Respondent represented by DAVID WALL, Attorney at Law, Fayetteville, 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 September 29, 1993 in which the Administrative Law Judge found that claimant had proven by a preponderance of the credible evidence that he sustained a work-related injury in October of 1991 and that he is entitled to temporary total disability benefits.
[3] After carefully conducting a de novo review of the entire record, we find that a preponderance of the evidence does not support claimant’s contention that he sustained a work-related injury in October of 1991. Therefore, we reverse the decision of the Administrative Law Judge. [4] Claimant contends that he suffered an injury to his low back during the course of his employment with respondent. Respondent controverts this claim in its entirety. A hearing was held and an Administrative Law Judge found that claimant proved by a preponderance of the evidence that he sustained a compensable injury and that claimant is entitled to temporary total disability benefits from the date of last employment through a date yet to be determined with a credit given to respondent for the 24 weeks during which claimant received unemployment benefits. It is from this decision that respondent 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] A preponderance of the credible evidence does not support claimant’s contention that he sustained a work-related injury in October of 1991. Therefore, we reverse the decision of the Administrative Law Judge. [7] Claimant maintains that in October of 1991 he sustained a work-related fall on top of a machine while at work. Claimant testified that he told his supervisor of the incident. However, a review of the company nurse’s records indicate that claimant did not report a fall in October of 1991 similar to the one described. The medical records indicate that claimant reported an incident on or about October 29, 1991, approximately three weeks after claimant maintains he allegedly fell. We find this significant in light of the fact that claimant had several prior work-related incidents which he promptly reported to the nurse. In fact, claimant reported at least 15 incidents to the nurse during the five years in which he was employed. Claimant was aware of the proper reporting procedures and did not follow them. [8] Furthermore, claimant maintains he suffered a second injury during November of 1991. Once again, claimant failed to report an incident to the nurse despite knowing the rules. [9] The medical records and the other testimony show that claimant is highly inconsistent as to how he was allegedly injured. There is evidence that claimant stated he slipped and fell on a slick floor. There is evidence that claimant testified he slipped on the top of a machine and fell through a hole. Due to the various inconsistencies in the evidence and the fact there are several versions of how claimant injured himself, we find claimant’s credibility minimal. [10] Furthermore, a preponderance of the credible medical evidence does not support claimant’s contention that he sustained a work-related injury. Claimant explicitly denied receiving medical treatment for a back injury prior to October 1991. However, a review of the medical evidence indicates that prior to October of 1991, claimant had sought treatment for back difficulties. [11] Claimant was seen by Dr. Butler, a chiropractor, prior to the October of 1991 alleged incident. Claimant returned to Dr. Butler at least seven times during October of 1991. However, a review of Dr. Butler’s records do not indicate that at any time claimant told Dr. Butler of a work-related fall. Also, during this time period, claimant forwarded his medical bills to his general insurer. Since claimant had had prior workers’ compensation incidents that were reported and paid for by respondent, he was well aware of the difference between workers’ compensation and general insurance. [12] In our opinion, claimant’s lack of credibility and the lack of corroborating medical evidence do not allow us to find that claimant sustained a work-related injury on or about October of 1991. Claimant has simply failed to meet his burden of proof by a preponderance of the credible evidence of record. Therefore, we deny and dismiss claimant’s claim. [13] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[14] Commissioner Humphrey dissents.