CLAIM NO. E400880
HENRY WEAVER, EMPLOYEE, CLAIMANT v. PRECISION PACKAGING, SELF-INSURED EMPLOYER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 2, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE WILLIAM J. KROPP, III, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by the HONORABLE J. MICHAEL PICKENS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on July 28, 1994. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury on December 21, 1993. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury as the result of an incident which occurred on December 21, 1993, as he contends. Therefore, we find that the administrative law judge’s decision must be reversed.
[3] The claimant contends that he sustained a compensable injury to his low back on December 21, 1993, so the provisions of
Act 796 of 1993 apply to this claim. To establish entitlement to compensation under the law that existed prior to Act 796, employees were simply required to prove by a preponderance of the evidence that they sustained an injury arising out of and in the course of their employment. The phrase “[a]rising out of the employment refers to the origin or cause of the accident,” so the employee was required to show that a causal connection existed between the injury and his employment. GerberProducts v. McDonald,
15 Ark. App. 226,
691 S.W.2d 879 (1985). An injury occurs “`in the course of employment’ when it occurs within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose, or advancing the employer’s interests directly or indirectly.” City of El Dorado v. Sartor,
21 Ark. App. 143,
729 S.W.2d 430 (1987). Generally speaking, these were the only two requirements which had to be satisfied to establish compensability under the prior law. [4] Act 796 retained the definitional requirement that an accidental injury arise out of and in the course of employment in order to be compensable. Consequently, employees still must show that a causal connection exists between the injury and the employment and that the injury occurred within the time and space boundaries of the employment. However, Act 796 also redefined the term “compensable injury” to impose additional requirements. In addition to limiting compensable injuries to those arising out of and in the course of employment, Act 796 establishes a definiteness requirement by limiting the definition of the term “compensable injury” to those injuries which are caused by a specific incident and identifiable by time and place of occurrence. Ark. Code Ann. §
11-9-102 (5)(A)(i) (Cumm. Supp. 1993). In addition to this definiteness requirement, the definition also limits compensable injuries to those injuries which cause internal or external physical harm to the body and which require medical services or result in disability or death, and the definition provides that any “compensable injury must be established by medical evidence, supported by `objective findings’ as defined in §
11-9-102 (16).” Ark. Code Ann. §
11-9-102 (5)(D) (Cumm. Supp. 1993). Finally, any compensable injury must be proven by a preponderance of the evidence. Ark. Code Ann. §
11-9-102 (5)(E) (Cumm. Supp. 1993). [5] However, Act 796 also recognizes certain specified exceptions to the general limitation of compensable injuries to those injuries which are caused by a specific incident and which are identifiable by time and place of occurrence, and these exceptions are set forth in Ark. Code Ann. §
11-9-102 (5)(A)(ii) through §
11-9-102 (5)(A)(iv) (Cumm. Supp. 1993). Claims involving mental illness, heart, pulmonary, and cardiovascular conditions, and hernias are excepted from the definiteness rule in Ark. Code Ann. §
11-9-102 (5)(A) in through §
11-9-102 (5)(A)(v), and the requirements necessary to establish the compensability of these conditions are set forth in other sections of the Arkansas Workers’ Compensation Law. Claims for injuries caused by rapid repetitive motion, for back injuries, and for hearing loss are excepted in Ark. Code Ann. §
11-9-102 (5)(A)(ii). To satisfy the definitional requirements for injuries falling under Ark. Code Ann. §
11-9-102 (5)(A)(ii), the employee still must satisfy all of the requirements discussed above, with the exception of the definiteness requirement. Thus, the employee still must prove by a preponderance of the evidence that he sustained internal or external damage to the body as the result of an injury that arose out of and in the course of employment, and the employee still must establish the compensability of the claim with medical evidence, supported with objective findings. However, in addition to these requirements, if the injury falls under one of the exceptions enumerated under Ark. Code Ann. §
11-9-102 (5)(A)(ii), “the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.” Ark. Code Ann. §
11-9-102 (5)(E)(ii) (Cumm. Supp. 1993). [6] In summary, as a result of the definitional limitations imposed by
Act 796 of 1993, the following must be shown in order to establish the compensability of an injury occurring after July 1, 1993:
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment;
(2) proof by a preponderance of the evidence that the injury caused internal or external physical 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;
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence.
[7] If the injury was not caused by a specific incident and is not identifiable by time and place of occurrence, it may be found to be compensable if a preponderance of the evidence shows that it is included in one of the exceptions set forth in Ark. Code Ann. §
11-9-102 (5)(A)(ii) through (v). If the injury involves one of the conditions excepted in subsections §
11-9-102 (5)(A)(iii) through §
11-9-102 (5)(A)(v), the requirements of the statute dealing with that particular condition must be satisfied. In addition, for injuries falling under one of the exceptions set forth in Ark. Code Ann. §
11-9-102 (5)(A)(ii), the employee must show that the alleged compensable injury is the major cause of the disability or need for treatment. [8] If the employee fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Therefore, in such cases, it is not necessary to consider all of the requirements. However, where the claim is found to be compensable, the Commission must consider and make findings with regard to each of these requirements. [9] In the present claim, the claimant contends that he sustained an injury as a result of a specific incident, identifiable by the time and place of occurrence. He was employed by the respondent employer as a dryer operator. His duties included loading different types of sand onto a large conveyor belt and feeding it into a dryer, and he was also responsible for removing any sand or rocks which fell off the conveyor belt. According to his testimony, the sand which fell off the conveyor belt was as high as his head at times, and he had to shovel the sand or rocks back into a front end loader, since the loader could not get under the conveyor belt. [10] According to the claimant’s testimony, he experienced the sudden onset of sharp pain in his low back as he was twisting to throw the sand into the front-end loader on December 21, 1993. He testified that he immediately stopped working, and he testified that he went to the office and asked an employee named Elisa if he could go to see a doctor. He also testified that Elisa advised him that he would have to discuss this with his supervisor, Mike Kimberling, when Mr. Kimberling returned from lunch. According to the claimant’s testimony, Mr. Kimberling told him to “go ahead” when he asked if he could take a long lunch hour to go see a doctor for his back pain. [11] The claimant had been treated by Dr. Douglas Parker, an orthopedic surgeon, for complaints of back pain following a vehicular accident in April of 1992, and he testified that he returned to Dr. Parker on December 21, 1993, since the respondent employer did not instruct him to see any specific doctor. He also testified that Dr. Parker ordered a MRI after examining him on December 21. A MRI was performed on December 22, 1993, and this MRI showed minimal bulging of the disc at L3-4, but no herniated nucleus pulposus or other abnormality was noted. Due to this finding, Dr. Michael Westbrook, a physician in Dr. Parker’s office, instructed the claimant not to do any heavy lifting, and Dr. Parker’s office continued to follow the claimant through December 28, 1993. However, the respondent employer advised the claimant that they wanted him examined by their company physician, Dr. M. S. Harford. Dr. Harford examined the claimant on December 29, 1993, and he referred him to Dr. Michael Standefer, a neurosurgeon, for a neurosurgical evaluation. According to Dr. Standefer’s testimony, he saw the claimant on one occasion, and his reports and testimony indicate that his clinical findings were not consistent with the claimant’s complaints nor the MRI results. Nevertheless, Dr. Standefer suggested additional testing. However, the respondent employer controverted the claim in its entirety, and the claimant returned to Dr. Parker. On February 3, 1994, Dr. Parker released the claimant to return to work with restrictions, and he assigned a 10% impairment rating. [12] However, other evidence in the record is not consistent with the testimony of the claimant. Shelley Rae Nichols is the respondent employer’s office manager, and she is responsible for workers’ compensation claims. She testified that Elisa telephoned her on December 21, 1993, while Ms. Nichols was at home on vacation, to ask if she would approve a workers’ compensation claim for the claimant for a prescription. Ms. Nichols testified that she talked to the claimant on the telephone at that time, and she testified that he told her that he had hurt his back. However, she also testified that he told her that he did not know when he had hurt his back. In this regard, she testified that he told her that he could have hurt it 17 days previously or that he could have hurt it on that date. Ms. Nichols also testified that the claimant told her that his back was bothering him when he reported to work that morning and that it worsened as the day progressed. She also testified that the claimant told her that he did not report an injury to his supervisor before going to the doctor, and she testified that her investigation indicated that he had not reported an injury to anyone prior to going to the doctor. A narrative statement from Harry E. Campbell, risk manager for the respondent employer, is consistent with Ms. Nichols’ testimony. The claimant at first denied talking to Ms. Nichols, but he ultimately admitted to talking to her on the telephone, although he disputed her version of the conversation. [13] Furthermore, Dr. Parker’s records do not support the claimant’s contention that he sustained an injury on December 21, 1993. First, Dr. Parker does not have any record of treating the claimant on December 21, 1993. Instead, the first record of any treatment after the claimant recovered from the April of 1992 vehicular accident is found on December 22, 1992. This December 22, 1992, office note indicates that it was a follow-up visit, and the MRI was performed prior to this office visit. Dr. Parker testified that the claimant was seen sometime prior to December 22, 1993, but after April of 1992, but he was unable to determine when the claimant had been seen. Moreover, there is no mention of any connection between the claimant’s employment and his back problems until December 28, 1993, and the claimant was aware that the respondent was questioning the compensability of the claim at that time. Moreover, Dr. Parker and Dr. Standefer both testified that the claimant’s problems were caused by degenerative changes, and neither was able to opine that this degenerative condition became symptomatic as a result of a specific incident which occurred on December 21, 1993, as the claimant contends. In fact, Dr. Parker was of the opinion that the claimant’s problems were more consistent with a cumulative-type trauma as opposed to a specific incident of trauma. [14] In short, the claimant’s contention that a specific incident occurred on December 21, 1993, which resulted in the sudden onset of back pain is contradicted by other evidence in the record. In this regard, contrary to the testimony of the claimant, the testimony of Ms. Nichols and the narrative statement of Mr. Campbell, indicate that the claimant had been experiencing back pain for several days prior to December 21, 1993, and that he was experiencing back pain when he reported for work that morning. Furthermore, the medical evidence is not consistent with a specific trauma, and the medical evidence does not otherwise support the claimant’s contention that he injured his back as the result of a specific incident on December 21, 1993. In considering the credibility of the claimant’s testimony, we also note that he had an ongoing dispute with his supervisor regarding the requirement that he shovel the sand that fell from the conveyor belt, and he had turned in his resignation on two or three occasions as a result of this dispute. Moreover, the claimant admitted that such a dispute had occurred on December 21, 1993, shortly before the alleged injury. Based on these conclusions, we find that the claimant failed to prove by a preponderance of the evidence that a specific incident occurred on December 21, 1993, which arose out of and in the course of his employment and which resulted in the immediate onset of low back pain, as described by the claimant. [15] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed. This claim is denied and dismissed. [16] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[17] Commissioner Humphrey dissents.