CLAIM NO. E416219
WILLIAM WATKINS, EMPLOYEE, CLAIMANT v. STAX (CIRCLE K CORPORATION), EMPLOYER, RESPONDENT and HOME INSURANCE, CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 6, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Jon B. Gann, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by Kenny McCulloch, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on June 28, 1996, finding that claimant had sustained a compensable injury on September 29, 1994, and was entitled to a period of temporary total disability benefits from September 30, 1994, through April 5, 1995.
[3] Respondents now appeal from that opinion and order, contending that claimant failed to prove that he sustained a compensable injury on September 29, 1994. The issue of temporary total disability benefits does not appear to have been specifically raised or argued, and we thus do not pass upon that issue. [4] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on September 29, 1994. The decision of the Administrative Law Judge is therefore affirmed. [5] Because claimant asserts the occurrence of a work-related injury after July 1, 1993, the provisions of
Act 796 of 1993 are controlling. Claimant must thus demonstrate that he has sustained “an accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death.” In addition, an injury will be considered “accidental” only if it is “caused by a specific incident identifiable by time and place of occurrence.” Ark. Code Ann. §
11-9-102 (5)(A)(i) (Repl. 1996). [6] Also, a compensable injury “must be established by medical evidence, supported by objective findings.” Ark. Code Ann. §
11-9-102 (5)(D) (Repl. 1996). In turn, “objective findings are those findings which cannot come under the voluntary control of the patient . . . Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Ark. Code Ann. §
11-9-102 (16) (Repl. 1996). A claimant’s burden of proof concerning these issues is to demonstrate them by a preponderance of the evidence. Ark. Code Ann. §
11-9-102 (E)(i) (Repl. 1996). [7] Claimant, who admittedly has a prior history of low back problems, provided the following account of an injury incurred on September 29, 1994:
I was in the process of carrying big containers of Pepsi, liter containers of Pepsi. I went and picked one up and turned to head on back down where the Pepsi’s were located when I felt something pop in my back . . . Well, I really didn’t pay too much — I just really didn’t pay too much attention to it. I continued working until it was time to do the close-out report. I went and did the close-out report and paperwork, and then I went back into the cooler and finished up a few items that had to be — a few things that had to be done in there, throw out empty boxes and stuff of that nature.
[8] Claimant estimated that his injury occurred somewhere between 11:00 p.m. and 12:00 a.m., although in his deposition he recalled the time of accident as being around 9:45 p.m. to 10:00 p.m. When asked about this discrepancy, claimant explained that “well, like I’m saying, I didn’t look at the clock because I stayed in there and I was still working. So, therefore, I had no idea to the exact minute it happened.” During the same deposition, claimant also provided a slightly different account of the type of event he initially experienced: “And I bent down to pick up a case of 32-ounce Pepsis, and I felt a kind of sharp, shooting pain in my lower back.” [9] Although the accident was unwitnessed, claimant stated that a co-worker, Mr. Robert Norton saw him limping, and asked “old man, are you sure you’re going to be able to handle this job with your bad back and everything?” Claimant responded in the affirmative, but told Mr. Norton that his back was hurting. Mr. Norton later denied that this exchange took place. [10] As noted above, claimant originally thought little of the “pop”, but after returning home from his shift discovered its true extent:
Well, I went in and sat down, drank some Pepsi. My back was still hurting, and I told my wife, I said, “I’m going to go take a shower, a good, hot shower, and maybe that will help my back.” So, I went and took a shower. Then I told her I was going to bed. I went and got in bed and laid down, and when I was laying in bed, it just seemed like, I don’t know, it was just a sharp, shooting pain all the way down my lower back. That pain that was there increased. I was pretty miserable.
[11] Claimant sought emergency care the following morning and, after it became apparent that he would not be able to leave the hospital, notified his manager, Ms. Teresa Rucker, of his on-the-job injury. However, Ms. Rucker later denied that claimant informed her that his injury was work-related. [12] Emergency room records from St. Joseph’s Regional Health Center in Hot Springs reveal that claimant presented at 11:47 a.m. on September 20, 1994, with complaints of back pain radiating into both legs since “0200 hours.” With regard to the nature of his injury, these same records, prepared by Dr. Jack Batchler, note that “He . . . complains that he was lifting some material at work yesterday and since then has had pain, although the paid did not begun (sic) until 0200 this morning.” As noted by Dr. Richard G. Pellegrino, subsequent MRI scanning revealed “no change in the last 15 months with slight prominence of L5, S1 disc and mild canal stenosis through the L4-5 level.” Even so, claimant underwent successive operative procedures on November 29, 1994 (L4-5 nucleotome discectomy), and January 9, 1995 (L4-5, S5-S1 right laminotomy and foraminotomy), for L4-5 disc protrusion and L4-5, L5-S1 nerve root compression, respectively. [13] While claimant’s testimony contains some discrepancies relating to the exact time of his injury and the type of injury “sensation” he initially experienced, we note that he has provided an adequate explanation for the time discrepancy and simply appears to be a poor historian in general — a fact that should not be allowed to overshadow the substantive merits of the case. After reviewing claimant’s testimony as a whole, particularly his account of the injury itself, we are persuaded to find that claimant has presented a credible account of the events surrounding this claim. We also find that account of events to be sufficiently detailed to identify a “specific incident” to which claimant’s low back difficulties should be attributed, e.g., an accident sustained while attempting to lift a case of Pepsis as part of claimant’s employment duties on September 29, 1994. We therefore find that claimant has proven, by a preponderance of the credible evidence, the occurrence of a specific incident identifiable by time and place of occurrence, which arose out of and in the course of his employment duties on September 29, 1994. We further find that claimant’s injury required medical services, as his substantial amount of medical records subsequent to September 29, 1994, demonstrate. [14] We would point out that an employer takes an employee as he finds him, and that employment circumstances which aggravate pre-existing conditions are compensable.Public Employees Claims Div. v. Tiner,
37 Ark. App. 23,
822 S.W.2d 400 (1992) (citing Nashville Livestock Comm’n v. Cox,
302 Ark. 69,
787 S.W.2d 664 (1990)). Also, causal connection is generally a matter of inference. Osmose WoodPreserving v. Jones,
40 Ark. App. 190,
843 S.W.2d 875 (1992). [15] Claimant’s lumbar spine, according to MRI scans performed prior to September 29, 1994, appears to have been troubled by some degree of “prominence” at the L5-S1 area as well as spinal canal narrowing “through the L4-5 level.” (From the July 12, 1993, MRI performed by the Hot Springs MRI Center.) In our opinion, viewed in light of claimant’s credible testimony and considering the situs of his post-injury complaints, the abnormalities identified in July, 1993, represent objective findings of a pre-existing condition which was aggravated by claimant’s employment circumstances on September 29, 1994. We are thus persuaded to find that the accidental injury claimant sustained on September 29, 1994, caused an internal physical harm to claimant’s body, and that claimant has established a compensable injury with medical evidence supported by “objective findings.” [16] Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on September 29, 1994. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [17] 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 opinion in accordance with Ark. Code Ann. §
11-9-809 (Repl. 1996). [18] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. §
11-9-715 (6) (Repl. 1996). [19] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[20] Commissioner Wilson dissents.
[21] DISSENTING OPINION
[22] I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury on September 29, 1994. Based upon my de novo review of the entire record, I find that the claimant has failed to meet his burden of proof.
[23] The claimant contends that he sustained a compensable injury on September 29, 1994 while lifting at work. However, respondents contend that claimant’s back problems and eventual need for surgery are not related to claimant’s work activities. [24] The record reveals that the claimant was employed by Stax as a clerk at the time of the alleged injury. Claimant’s job duties consist of operating the register, stocking the cooler and the shelves, and to keep the floor clean. Prior to beginning work for Stax, claimant sustained an injury to his back which temporarily paralyzed the claimant from the waist down when claimant was involved in an accident in which a tractor-trailer rig rolled over. As a result of the tractor-trailer incident, claimant received treatment from Dr. Alan Gocio in Hot Springs. The record further reveals that the claimant sustained additional back injuries when he fell at the AMI Hospital and at Popeye’s Chicken. Claimant filed lawsuits against the landowners and eventually settled his claim against both for an unspecified amount. Finally, shortly after becoming an employee of respondent, claimant was involved in a strong-arm robbery which again injured his back. [25] Claimant contends that on the evening of September 29th or morning of September 30, 1994, he sustained a back injury. Claimant testified that he advised his co-worker, Robert Norton, that his back was bothering him on that evening. Claimant specifically stated that Mr. Norton inquired about claimant’s limping. Claimant’s shift ended at 1:00 AM on September 30, 1994. Claimant testified he left work, went home, took a shower, and as he was getting into bed, he experienced excruciating pain in his back. Claimant went to the emergency room on the morning of September 23, 1994. Claimant eventually underwent two surgical procedures for his back and was released to return to work by his treating physician on April 5, 1995. [26] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of
Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. §
11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, FC Opinion filed Feb. 2, 1995 (
E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. §
11-9-102 (5)(A)(i) and §
11-9-102 (5)(E)(i) (Repl. 1996). He must also prove 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). Finally, Ark. Code Ann. §
11-9-102 (5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in §
11-9-102 (16).” [27] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed, supra. [28] Although a claimant is not required to provide a precise date and time of his specific incident injury, the claimant must provide enough information for the Commission to find that a specific incident, in fact, occurred. In my opinion, claimant’s contradictory testimony and inconsistent story regarding how the incident occurred and to whom he spoke regarding the incident, fail to persuade me that a specific incident actually occurred. [29] First, it is important to note that the claimant was unable to provide a specific time for when his injury occurred. During his deposition which was introduced into evidence, claimant testified that his injury occurred “approximately in the neighborhood of between, I would say, between 10:00, and 9:45. I would say 9:45 and 10:45, 11:00, somewhere in that area.” Had the claimant not provided conflicting testimony, this approximate time of injury might be sufficient. However, at the hearing, when asked when the injury occurred, claimant testified, “it was somewhere between 11:00, around 11:00 to 12:00 that evening.” There is a big difference between 9:00 and midnight, especially considering the fact that claimant’s shift ended at 1:00 AM. In my opinion, if the claimant sustained a specific incident injury, claimant would have been able to pinpoint the precise time more accurately. Did the injury occur midway through claimant’s shift, which would have placed the injury around 9:00, or did the injury occur about the time claimant was preparing to end his shift which would have placed the injury closer to midnight? If an injury occurred, claimant should have been able to supply this information. He could not. [30] Furthermore, claimant’s testimony that he spoke with a co-worker regarding his back pain is obviously inconsistent with the co-worker’s testimony. Claimant testified during his deposition that he advised Robert Norton, his co-worker, that his back was hurting. However, claimant admitted at the hearing that he did not tell his co-worker, Robert Norton, that he injured his back while at work. In fact, claimant testified at the hearing that he did not advise anybody at work that an incident occurred prior to leaving work at 1:00 AM on September 30, 1995. [31] Claimant’s hearing testimony is more consistent with the testimony of Robert Norton, but inconsistent with the claimant’s deposition testimony. Mr. Norton testified at the hearing that claimant did not mention hurting himself at work nor did the claimant mention back pain. Moreover, Mr. Norton testified that he did not observe claimant limping on the evening in question and did not inquire about the claimant’s limp that evening. Finally, Mr. Norton testified that although he knew the claimant had a pre-existing back problem, he did not know that the claimant was alleging a work-related injury until approximately one week after the incident occurred. [32] Moreover, claimant’s testimony regarding how the injury occurred is not consistent. At the hearing, claimant testified, “I was in the process of carrying big containers of Pepsi, liter containers of Pepsi. I went and picked one up and turned to head on back down to where the Pepsi’s were located when I felt something pop in my back.” However, during his deposition, the claimant described the incident as follows: “And I bent down to pick up a case of 32 ounce Pepsi’s, and I felt kind of a sharp, shooting pain in my lower back.” The only consistency in claimant’s story regarding how the injury occurred is the Pepsi’s. One time claimant tells the story of lifting the Pepsi’s and experiencing a pop and pain in his back. At another time claimant testified that he had lifted the Pepsi’s and had turned and was walking when the pop occurred. Since there were no witnesses to the claimant’s alleged injury, these glaring inconsistencies are extremely important. [33] It is also important to note that Teresa Rucker, claimant’s supervisor, testified that when she spoke to the claimant on September 30, 1995 while claimant was in the hospital, claimant did not advise her that he sustained a work-related injury. Claimant testified that he was aware of the procedures for reporting a work-related injury and the fact that he was supposed to call an eight hundred number when the injury occurred. If claimant sustained an injury at work, he had ample time to call the eight hundred number prior to leaving work regardless of whether the injury occurred at 9:00 or at midnight. Teresa Rucker, the claimant, and Mr. Norton all testified that the number was posted in the back office and it was readily available for everyone to see. Moreover, claimant had previously sustained a work-related incident with this respondent when he was involved in a strong-arm robbery. Thus, claimant was very familiar with the procedures involved with reporting a workers’ compensation claim. [34] Finally, of particular interest are the inconsistencies in the histories provided in the medical records. The initial emergency room admission report simply provides a history of “back pain since early AM. Herniated disc in back and neck.” The emergency room department record apparently compiled by Dr. Jack Batchler states in the history of present illness section:
This patient came to the emergency department at 11:47 a.m. The patient brought himself to the hospital because of back pain with radiating pain down into his legs and hills. The patient has had no prior injury like this. He has had pain in his neck before with some shooting pain into his arms, but since 0200 hours today the patient has had pain radiating down the back of both legs. The patient also complains of pain in the mid low back.
[35] This report further states under the discussion section:
This patient has had pain since 0200 hours. He has had pain in past. The patient is very emotional adult male. He has a longstanding history of asthma. He at this time complains that he was lifting some material at work yesterday and since then has had pain, although the pain did not begin until 0200 this morning. The patient is to be admitted to the hospital for pain treatment and for further evaluation.
[36] Claimant consistently reported to the nurses and to his treating physicians at the emergency room that his pain did not begin until 0200 hours. This time is very specific and consistent throughout the hospital records. Interestingly, the pain did not begin until claimant had been off work for at least one hour. The onset of pain is consistent with the claimant’s testimony that it began when he was getting into bed. Nowhere in this early report is a mention of a work-related incident. [37] In light of the claimant’s inconsistent testimony regarding how and when the injury occurred, coupled with the glaring differences between the claimant’s testimony and that of Robert Norton and Teresa Rucker, I cannot find that the claimant has proven by a preponderance of the evidence that he sustained a specific injury on the evening of September 29, 1994 or the early morning hours of September 30, 1994. The threshold question of whether an injury occurred wholly rests upon the credibility of the claimant. Claimant’s failure to report an injury when it occurred, his failure to recite the same story twice with regard to how the injury occurred, and his consistent statements while at the hospital that the pain did not begin until 2:00 AM after he had left work, all convince me that the claimant is not a credible witness. Since claimant’s claim rests solely upon the credibility of his story, I cannot find that the claimant has proven a compensable injury. [38] Even if I were to find that the claimant’s story had some shred of credibility, which I do not find, I cannot find that the claimant has proven his injury by objective medical findings. The medical clearly reveals that all findings noted after the alleged September, 1995 incident were clearly there prior to the September incident. Dr. Paul Tucker’s report dated October 24, 1994 clearly shows that there were no changes in the claimant’s MRI of the lumbar spine between the 1993 and 1994 studies. Moreover, the only objective findings noted by Dr. James Arthur that were present after the September, 1994 incident was weakness in claimant’s dorsiflexion of the right leg. However, as pointed out by respondent, this weakness was noted by Dr. Paul Tucker as early as August 19, 1992 at least two years prior to the claimant’s alleged injury. Thus, since all objective findings were consistent both prior to and subsequent to claimant’s injury, I find that claimant has failed to prove by a preponderance of the evidence any objective medical findings substantiating a specific incident injury in September of 1994. [39] Accordingly, for those reasons stated herein, I find that the claimant has failed to meet his burden of proof. Therefore, I respectfully dissent from the majority opinion. [40] MIKE WILSON, Commissioner