CLAIM NO. E703475
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 12, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HOWARD J. GOODE, Attorney at Law, Texarkana, Texas.
Respondent represented by NELSON V. SHAW, Attorney at Law, Texarkana, Arkansas.
Decision of Administrative Law Judge: Affirmed
[1] OPINION AND ORDER[2] Claimant appeals from a decision of the Administrative Law Judge filed May 7, 1998, finding that claimant failed to prove that he suffered a compensable injury to his back while employed by respondent. Based upon our de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury. Therefore, we find that the decision of the Administrative Law Judge must be affirmed. [3] At the hearing held on April 7, 1998, claimant contended that he sustained a compensable injury to his back on March 14, 1997. Conversely, respondent contended that claimant did not suffer an injury on that date which arose out of and in the course of his employment. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent. [4] Claimant testified that on February 14, (sic) he was moving a pallet of metal and when he bent to pick up something which had fallen off of the pallet he felt a sharp pain in his back. According to claimant, this injury occurred around 12:40 in the afternoon but that he was able to continue working the rest of the day. Claimant further testified that he was able to work the next day which was Saturday and that he did not feel any pain or problem with his back. According to claimant, he did not work on Sunday and he did not have any pain in his back on that day. In claimant’s direct examination he testified he worked on Monday and informed Fred West, a co-worker:
[5] Claimant testified he did not work on Tuesday as a result of car trouble, and according to the claimant, was unable to get out of bed on Wednesday so he called his employer and advised them that he was going to the doctor. Claimant further testified that when he reported to his employer’s place of business on Thursday he advised Dave Rhinehart that he had injured his back at work on the previous Friday. According to claimant, he had an obvious limp by that Thursday but he did not have a limp on the first Monday following the alleged injury. [6] Contrary to the claimant’s testimony, Fred West testified on claimant’s behalf that he noticed the claimant limping on either the Monday or Tuesday following the alleged incident. Mr. West testified that claimant advised him “I hurt myself emptying some barrels or handling some barrels.” However, the record reflects that Mr. West had previously denied having any knowledge of claimant’s injury when asked by counsel for respondent. In fact, Mr. West acknowledged that he was asked to advise either counsel for respondent or the plant manager, Mr. Jeffus, if anything ever came to mind regarding the claimant’s injury and he failed to do so. [7] Mr. Michael Wayne Jeffus, the General Manager for respondent employer testified on behalf of respondent that on Monday, March 17, 1997, claimant inquired in a joking manner if he could have his vacation early. There was no indication at that time that claimant had injured his back the previous Friday. Mr. Jeffus further testified that his records reflects that claimant called in to work on Tuesday March 18th reporting car trouble. For Wednesday, March 19th, Mr. Jeffus testified that the records reflected:I was having a sharp pain. . . . Yes I told him that, you know, I felt a sharp pain in my back, you know, on Friday, that I was lifting as I felt it. I said, but you know, I said, it’s really not hurting that bad.
[8] David Rhinehart, the Plant Superintendent testified that the first time he was ever made aware that claimant claimed a work-related injury was on Wednesday, March 26, 1997. According to Mr. Rhinehart when claimant reported to work on Thursday, March 20, 1997, there was no discussion regarding claimant having hurt himself at work. Instead, Mr. Rhinehart testified that on the 20th, claimant brought a doctor’s excuse which merely said “Illness, return to regular work.” [9] Brian Keith Richardson, claimant’s co-worker, also testified on behalf of respondent. Mr. Richardson testified that he spoke with claimant on the telephone on March 19th when claimant called in reporting car trouble. According to Mr. Richardson claimant did not mention anything at that time about having sustained a work-related injury. Rather, Mr. Richardson testified that claimant did state during a latter telephone conversation that he had hurt his back or that claimant’s back was hurting and that claimant would not be in to work but at no time did claimant relate his back pain to an injury at work. [10] Finally, respondent presented testimony of Ronald Cunningham, another co-worker of the claimant. Mr. Cunningham testified that claimant advised him that he had hurt his back while working on his girlfriend’s car on cold concrete. Mr. Cunningham further testified that claimant never advised him that he had sustained a work-related injury. In an effort to discredit Mr. Cunningham’s testimony, claimant’s counsel asked Mr. Cunningham directly if he had ever called claimant by a derogatory name to which he responded with an unequivocal “No, sir.” [11] On redirect examination claimant testified that he had never advised Mr. Cunningham of an injury to his back at work or otherwise because he and Mr. Cunningham did not get along. Moreover, claimant testified that his back did not start hurting him until Wednesday. In addition claimant offered the testimony of his girlfriend to rebut the allegations of Mr. Cunningham. [12] The findings of the Administrative Law Judge on issue of credibility are not binding on the Commission. Roberts v. Leo-LeviHospital, 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. Riceland Foods, 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). [13] The compensability of this claim rests solely upon claimant’s credibility. The only witness presented by claimant to corroborate his allegations of a work-related injury was Fred West. However, Mr. West not only failed to corroborate claimant’s testimony regarding how the injury occurred, Mr. West’s testimony lacks credibility. Mr. West admitted to denying any knowledge of claimant’s alleged injury when approached by the General Manager for respondent employer and respondent’s attorney. At the hearing, however, Mr. West recounted first hand how claimant had advised him that he had injured his back “moving barrels.” In our opinion, Mr. West’s attempt to help his friend actually undermines claimant’s claim. [14] Furthermore, although claimant worked the remainder of the day after the alleged injury, five hours on the following Saturday, and eight hours on the following Monday, claimant did not report an injury at any time. It was not until after claimant had missed a day of work for car trouble that claimant ever called in and advised his employer that his back hurt and he would not be in to work. According to the credible evidence presented, claimant did not even allege at that time that his back pain was in any way related to a job related injury. [15] Claimant’s testimony is the primary evidence of a causal connection between his back difficulties and an alleged work-related injury. In our opinion, claimant’s testimony simply does not support a finding that his back injury arose out of and in the course of his employment. Claimant failed to present any credible corroborating evidence that he reported an injury to his back while lifting metal at work. The only witness to testify in claimant’s behalf besides the claimant could not even corroborate the facts of how claimant alleges to have gotten injured. Moreover, claimant failed to advise his employer of a work-related injury at the time of the incident or until at least March 20th and possibly March 26th. The record reflects that when claimant first advised his employer of back pain which required medical attention, claimant did not advise his employer or his co-workers that the pain resulted from a work-related injury. Furthermore, the doctor’s excuse which claimant brought to his employer reflects that he saw a doctor for an illness, not a work-related injury. Accordingly, when we weigh the credible evidence of record, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury. [16] In reaching our findings, we do acknowledge that claimant’s histories as reported to his physician regarding the onset of his problem do contain a thread of consistency of an injury to his back while working with or around metal. However, it is noted that the medical records introduced into evidence contain inconsistencies with regard to how the injury actually occurred. In the first history provided to St. Michael Family Health Clinic on March 20, 1997, claimant reported that his back first began hurting when he “twisted to catch the metal . . .” Subsequent histories report pain upon bending and still others, pain upon lifting. Granted, each of the reports does involve metal, but the mechanics of the injury are varied. In Milton Taylor v. BeardenLumber Co., F.C. Opinion filed June 11, 1997, Claim No. (E306827) we denied a claim due to the many inconsistencies in the claimant’s story of how the injury occurred. Like the claimant inTaylor, claimant in the present case was the only person to offer testimony regarding how the injury occurred. Since we find that the claimant’s testimony lacks credibility, we find that claimant has failed to prove by a preponderance of the evidence that he actually sustained a compensable injury during the course and scope of his employment. The dissent implies that since we find claimant’s testimony regarding how he injured himself to lack credibility that we must have relied upon Mr. Cunningham’s testimony. It is not necessary to even pass on the believability of Mr. Cunningham’s testimony, since in our opinion claimant failed to overcome his burden of proof as to compensability in his case in chief. In order to find the claim compensable we must believe claimant’s testimony. For the numerous reasons set forth above, we find the veracity of claimant’s testimony lacking. The dissent also argues that the medical opinions support a finding that claimant’s injury is consistent with his on-the-job injury. If an on-the-job incident occurred it is wholly conceivable that claimant could have sustained a herniated disc. We disagree, however, that an on-the-job injury did in fact occur. Merely because a physician offers an opinion as to causation does not mean that we must blindly accept that opinion at face value. A medical opinion which relies upon the credibility of the history provided by the claimant, rests not on the expertise of the medical care provider but on the veracity of the history provided. A medical opinion based solely upon claimant’s history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence.Brewer v. Paragould Housing Authority, Full Commission Opinion filed Jan. 22, 1996 (E417617). The commission is not bound by a doctor’s opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant’s claim. Roberts v. Leo-LeviHospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983). Therefore, since we find claimant’s testimony lacks credibility, we likewise find that the medical opinions based upon information provided by the claimant are entitled to no weight. [17] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be, and hereby is, affirmed. [18] IT IS SO ORDERED. [19] _______________________________Called in early and talked with Keith and said he wasn’t coming in because his back was hurting. Made no remarks about having hurt it on the job. He never came to work that day.
ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
[20] Commissioner Humphrey dissents. [21] DISSENTING OPINION[22] I respectfully dissent from the majority opinion, which holds that claimant failed to prove by a preponderance of the credible evidence that he sustained a compensable injury to his back. [23] The majority states that “[t]he compensability of this claim rests solely upon claimant’s credibility.” This pronouncement suggests the absence of corroborating medical evidence and testimony, in addition to wholly believable witnesses offered by respondents. The record reflects that there most certainly exists medical testimony and evidence which supports a finding of compensability; however, I submit that the testimony of Mr. Cunningham, is clearly suspect. [24] Claimant worked as a maintenance employee for respondents. In that capacity, he was responsible for keeping the shop clean, and taking shaving barrels to the salvage yard. He testified that on Friday, March 14, 1997, at approximately 12:40 p.m. he was moving metal on a pallet. The metal fell off and claimant was attempting to lift it back onto the pallet. As he bent over to perform this task, claimant experienced a sharp pain in his back. The pain subsided, and claimant completed his shift. [25] Claimant testified that he worked March 15, 1997, and March 17, 1997, without difficulty. Due to car trouble claimant did not work the following day. Then, on March 19, 1997, claimant stated that he had trouble getting out of bed. Claimant testified that he didn’t work on that date due to transportation problems. He stated that he initially received medical treatment on March 20, 1997. Following his doctor’s appointment on March 20th, claimant reported to work, and advised his supervisor, Mr. Rhinehart, of his work-related injury. However, claimant testified he was informed that it was too late to report a work-related accident. [26] Claimant has been treated by Drs. Greenspan, Danielson, and DeHaan. He has had several diagnostic studies. According to Dr. Greenspan’s summary dated 9/18/97, a myelogram was abnormal. Specifically, Dr. Greenspan noted: “documented L4-5 disc protrusion at L4-5 and secondary left nerve root failing attenuation. . . .” Moreover, muscle spasms were detected. Claimant was treated conservatively, with physical therapy, medication, and epidural steroid injections. [27] The majority discounts the common histories claimant provided to each of his treating physicians, acknowledging the existence of a “thread of consistency.” Further, the majority dissects each account only to conclude that the mechanics of the injury varied. The history contained in Dr. Greenspan’s report is as follows: “On 3/14 he was injured. Apparently he was lifting heavy metal onto a palette [sic] when he began experiencing severe low back pain. . . .” Progress notes from St. Michael Family Health Clinic dated March 20, 1997, state that claimant “was moving metal last Friday dropped a piece of metal; he twisted to catch the metal. . . .” Dr. Guy Danielson’s report dated July 28, 1997, provides the following history: “indicates that on 3/14/97 he was clearing out a parking lot when a piece of metal fell off of his fork truck, and he dismounted the fork truck to lift this metal back onto the forks. He bent over to pick up the piece of metal and felt a sharp pain in his low back. . . .” Dr. DeHaan’s chart note dated 5/1/97, states that “[claimant] is a young man who’s here following an injury to himself in March of 1997. He was trying to pick up some fairly heavy pallets weighing greater than 100-pounds.” [28] On cross-examination, counsel for respondents questioned claimant regarding these perceived inconsistencies. The following exchange took place:
Q. So of the four statements on the medical exhibits that you’ve introduced here today, the last one is correct?
A. Well, all of them is [sic] correct, because the metal was on the pallet, and all I was trying to do was lift it and put it back on the pallet.
Q. Was the metal on the pallet in the parking lot?
[29] In my opinion, characterizing the commonality between the accounts as merely thread-like is an understatement. On three occasions, claimant explained that he injured himself at work on March 14, 1997, and the injury involved moving metal. While Dr. DeHaan’s history is somewhat different with respect to the manner in which the injury occurred, he still documents a March, 1997 work-related injury. Claimant should not be penalized because of semantics. Claimant explained that each history was correct to some extent. It appears to me that claimant offered a detailed explanation of the manner in which the injury occurred, and each physician wrote down only portions of the account. Thus, the histories contain some variances, none of which are consequential. In my view, claimant offered credible testimony of a work-related injury. [30] This is not the only medical evidence which supports claimant’s claim. Drs. Danielson and Greenspan completed a document entitled “Medical Opinion Regarding On-The-Job Injury.” Both physicians stated that claimant’s injuries are consistent with his on-the-job injury. Moreover, their opinions are stated within a reasonable degree of medical certainty. [31] I am dismayed that the majority has also chosen to accord any credence whatsoever to the testimony of respondent’s witness, Ronald Cunningham. Cunningham and claimant were co-workers. Mr. Cunningham testified that according to claimant, the injury to his back occurred as he was working on some cold concrete as he was repairing his girlfriend’s car. On cross-examination, Cunningham was unsure whether this alleged conversation occurred on Monday or Tuesday. Moreover, he denied using a racial epithet with respect to claimant. On redirect examination, claimant stated that he never informed Cunningham that he had sustained a back injury since he never speaks to him. Claimant explained that Cunningham didn’t like claimant and had previously referred to him as “Mr. Fred’s nigger.” In my view, Cunningham’s testimony does not contain even a scintilla of credulity and it is, therefore, unworthy of belief. First, it is noteworthy that Cunningham was unsure of the date the conversation took place. Second, claimant was understandably upset after hearing Cunningham’s testimony. Third, claimant offered evidence from his girlfriend, Barbara Lynn, which rebuts Cunningham’s testimony. Lynn testified that claimant has never repaired her car. She stated that claimant complained of back pain, and related that the injury occurred at work. Finally, claimant offered medical testimony which rebuts the account of the injury offered by Cunningham. The following exchange between counsel for claimant and Dr. Greenspan:A. No, I was carrying metal from the parking lot to the back. It was on a pallet in the parking lot. But I had to pick the metal from the parking lot to take it on the back.
Q. So Exhibit Five where it says that you were clearing out a parking lot, that’s not true, then?
A. That’s what, I was moving everything from the parking lot on the back. You can call it clearing out or moving from the back. You know, you can call it what you want.
[32] On cross-examination, Dr. Greenspan stated that he obtained claimant’s history, rather than relying on his office personnel to perform this function. He indicated that he has no notation that claimant had been working on a car at the time of the injury. However, he stated he would have pursued that subject if claimant had related this sort of history. [33] The majority also relies upon the fact that a note that claimant brought with him from the doctor’s office was indicative only of an illness. However, it is clear by looking at the progress note generated during claimant’s initial office visit that he reported a work-related injury to his physician. In any event, the note was not introduced by either party. Claimant stated that when he presented the note to his supervisor, David Rhinehart, he informed him of the injury. Moreover, claimant requested permission to see a chiropractor. He testified that Rhinehart refused to authorize chiropractic care because he did not believe there was a work-related injury involved. Curiously, respondents did not offer the testimony of Rhinehart. [34] Contrary to claimant’s assertion, respondents contend that claimant did not report his work-related injury until March 26, 1997. Assuming arguendo that this was so, I am not persuaded that this slight discrepancy is significant. The fact remains that claimant reported a work-related injury within two-weeks of its occurrence. [35] The majority also concludes that the testimony of co-worker Fred West undermines claimant’s claim. I also find the testimony of West to be problematic. However, I would not penalize claimant for this. Claimant’s work-related accident was not witnessed. Therefore, he attempted to offer the testimony of a co-worker with whom he discussed the incident. Unfortunately, Mr. West has credibility problems. When initially questioned by counsel for respondents, West stated that he had no recollection of claimant’s injury. At the hearing, he related the barrel incident. It seems that Mr. West was attempting to answer truthfully prior to and at the hearing. It is apparent, however, that his memory is faulty. This witness is simply unreliable and a determination with respect to claimant’s credibility should not rest on his testimony. [36] In my opinion, claimant has offered credible testimony of a work-related injury to his back identifiable by time and place of occurrence. Further, he has satisfied the remainder of the elements of compensability. [37] Claimant is seeking medical benefits, which I would award based on a finding that the medical treatment he has received has been reasonable and necessary. [38] Claimant also contends that he is entitled to temporary total disability benefits. In my opinion, claimant has met his burden of proof with respect to this issue as well. [39] As a final matter, I wish to underscore my uneasiness with the majority’s credibility determination in this case. Even the majority grudgingly acknowledged some commonality between the accounts of the injury contained in claimant’s medical reports. In my view, the accounts of the injury claimant provided to his physicians are rather close. One would expect some variance for a rote recitation of the facts would be suspect. Also, two physicians have opined that claimant’s injuries are consistent with the work-related injury he reported. Further, Dr. Greenspan testified that the account of the injury allegedly conveyed to Cunningham by claimant (repairing a car on a concrete slab) is inconsistent with the type of injuries claimant actually sustained. This undisputed medical evidence is ignored, and Cunningham’s testimony is deemed credible. Further, the testimony of Lynn that claimant never repaired her car is virtually overlooked by the majority. After offering one version of events to respondents and another to claimant, the testimony of West is not discounted but used to impugn claimant’s credibility. Faced with this level of scrutiny, it seems to me that very few claimants could survive the sort of “credibility determination” claimant encountered in this case. [40] For the foregoing reasons, I respectfully dissent. [41] ____________________________ PAT WEST HUMPHREY, CommissionerQ. Now, is it possible, and in fact is it quite often the case where a person can injure his back and not feel the effects until maybe a couple of days later, two or more days later?
A. Yeah. We used to use the term “herniated disc,” we really don’t use that anymore, we use, “protruding disc” now. But anyway, the disc is made up of two parts. It’s got an outer part, which is shaped kind of like an automobile tire, and then it’s got an inner part, which is much more, it’s kind of a fluid. You can think of it like a hydraulic fluid to absorb the shock.
And a normal story is that someone will lift something heavy or do something to hurt their back where they’ll have a tear on the outer part, or the automobile tire part, and then later on at some future date the inner part or the fluid, the hydraulic fluid will leak out of this tear, and that’s when people usually become symptomatic.
So that’s a typical story of somebody with a disc protrusion.
Q. With that type of injury, could that occur just laying on concrete working on a car, hypothetically?
A. Well, probably not the original injury. Usually, the original injury will involve a significant axial load or a push and sometimes a twisting motion. A mechanic lying on his back might injure his arms pulling a wrench, or you know, hit his thumb, hitting something with a hammer, but it would be unusual to be laying on your back working on something and injure a lumbar vertebrae. So I don’t think his history is consistent with that.