WATSON v. YOUR EMPLOYMENT SERVICE, 1997 AWCC 222

CLAIM NO. E500511

RAY WATSON, EMPLOYEE, CLAIMANT v. YOUR EMPLOYMENT SERVICE, EMPLOYER, RESPONDENT and ITT HARTFORD INSURANCE, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 13, 1997

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

Claimant represented by ROBERT R. CORTINEZ, Attorney at Law, Little Rock, Arkansas.

Respondent represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Claimant appeals and respondent cross appeals from a decision of the Administrative Law Judge filed April 30, 1996 finding that the claimant sustained a compensable injury during the course and scope of his employment. Based upon our de novo review of the entire record, we find that the claimant has failed to prove that he sustained a compensable injury by objective medical findings. Since we find that the claimant failed to meet the first hurdle of proving he sustained a compensable injury as that term is defined by Ark. Code Ann. § 11-9-102, it is our opinion that Ark. Code Ann. § 11-9-102 (B)(iv) which excludes from compensation those injuries which are substantially occasioned by the use of drugs, is irrelevant.

[3] At the hearing held on May 16, 1995, the claimant contended he sustained a compensable injury on December 19, 1994 when he was struck in the back of the neck by a bag of leaves thrown by a coworker. Respondent contended that the injury was not compensable as there were no objective measurable findings to support an injury. In the alternative, respondent contended that the injury was not compensable as it was substantially occasioned by the use of illegal drugs. Respondent controverted claimant’s entitlement to additional temporary total disability benefits and medical benefits. In the opinion filed April 30, 1996, the Administrative Law Judge found that the claimant sustained a compensable injury and met his burden of proof that the injury was not substantially occasioned by the use of drugs. However, the Administrative Law Judge held that the claimant was not entitled to temporary total disability benefits as the claimant failed to prove that he was totally incapacitated from earning wages.

[4] As an employee of Your Employment Services, a temporary job placement agency, claimant was assigned duties at the North Little Rock Sanitation Department. The record reflects that on December 19, 1994 claimant was struck in the back of the neck when a coworker, Ms. Melanie Gunnels, threw a bag of leaves which weighed approximately five pounds. Ms. Gunnels retrieved the leaves from the curve and attempted to throw the leaves into a one ton flatbed truck. The bag hit the truck, bounced off, and struck the claimant from behind. At the time of the incident, Ms. Gunnels inquired of the claimant whether he was injured. Although the claimant yelled out when the incident occurred, the claimant denied any injuries from the incident. The record reflects that the claimant and Ms. Gunnels completed their work assignments for that day. However, prior to the end of the work shift, claimant did advise Ms. Gunnels that his neck was a bit sore and stiff. Claimant reported an injury after arriving at the Sanitation Department on the afternoon of December 19, 1994, however, claimant declined medical treatment stating that the incident was not significant. On the following day, December 20, 1994, claimant reported to work but related to the secretary of the Sanitation Department that his back was stiff and sore. Again, claimant denied medical treatment after it was offered. The record further reflects that the claimant worked until approximately noon when he was taken to the Medi-Stat Clinic for medical treatment since the claimant continued to complain of pain and stiffness. In addition to receiving treatment at Medi-Stat, a urine specimen was collected and sent to the laboratory for drug testing. Claimant was treated at the Medi-Stat Clinic and released to modified duty for a one week period. When claimant reported to work on the following day, his employment was terminated due to the positive results of the drug screening.

[5] 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).”

[6] 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.

[7] After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury. The claimant has failed to present any evidence of objective medical findings. The only medical document introduced by the claimant is the first visit work sheet from Medi-Stat which is almost illegible. The nurse’s handwriting under the patient history section states: “Pt. states `bag fell on (R) side of neck and shoulder of leaves.'” The subjective complaint noted by the physician states: “Pt. s/p blow to back of neck approx 5# bag ofleaves . . . (illegible) now c mild stiffness.” (Emphasis in original.) Under the objective findings on the work sheet, the physician noted “O:VSSA” “CS/dif. from neuro (illegible), DTR’s 2+= (illegible) o/spasm of paraspinous (illegible) L (illegible) trapezius, ext. is tender.” At the bottom of the report, the claimant noted that the claimant had negative x-rays of cervical spine.

[8] Respondent called Kimberly Houser, an LPN with the Medi-Stat Clinic to testify. Ms. Houser explained that the handwriting on the medical report is Dr. Epsom’s. She testified that she is familiar with Dr. Epson’s handwriting since she has to read it to determine what type of treatment the doctor wants instigated. Ms. Houser explained that the circle before the word spasm means that the claimant did not have any spasms. She also deciphered the physician’s handwriting stating that the x-rays were without fracture. On cross-examination, Ms. Houser was asked to decipher “O:VSSA,” however, she did not know what that sentence meant. According to Ms. Houser’s interpretation of Dr. Epsom’s handwriting, the claimant is without difficulty in his cervical spine. However the claimant does have tenderness on extension of the arm.

[9] After reviewing the medical record, we cannot find that the claimant has presented evidence of objective findings unless one resorts to speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover,35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co.v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). ArkansasMethodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125
(1993).

[10] Since we find that the claimant has failed to prove that he sustained a compensable injury, it is our opinion that we do not need to address the drug use exclusion from compensable injuries and constitutional issues raised by claimant.

[11] For the foregoing reasons, we find that the claimant has failed to prove that he sustained a compensable injury. Therefore, we reverse the decision of the Administrative Law Judge.

[12] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[13] Commissioner Humphrey dissents.