WEAVER v. THE MAD BUTCHER, INC., 1997 AWCC 182

CLAIM NO. E504146

RENITA RENEE WEAVER, EMPLOYEE, CLAIMANT v. THE MAD BUTCHER, INC., EMPLOYER, RESPONDENT and CROCKETT ADJUSTMENT, INC., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 14, 1997

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

Claimant represented by MIKE J. ETOCH, JR., Attorney at Law, Helena, Arkansas.

Respondent represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed March 25, 1996 finding that the claimant has proven by a preponderance of the evidence that she sustained a compensable injury on March 23, 1995 identifiable by time and place of occurrence. Based upon our de novo review of the entire record, we find that the credible evidence of record fails to support the claimant’s contention.

[3] The claimant contends that she injured her back on March 23, 1995 when she was lifting a box of potatoes onto an overhead shelf. According to the claimant, the box of potatoes came back on her knocking her into several boxes. The claimant stated that this occurred close to closing time. According to the claimant, she did not report this incident to her supervisor or any of her co-workers. [4] The claimant was scheduled to be off work the day after the alleged incident. It is the claimant’s testimony that on the following day, she told her supervisor that her back was bothering her. However, the claimant was unable to conclusively state that she advised her supervisor of the alleged incident at that time. The claimant maintains that she believed she told her supervisor, however, she cannot recall the conversation. Moreover, the claimant’s supervisor unequivocally testified that the claimant did not report a work-related incident to her at that time. [5] It is important to note that the only person who testified in behalf of the claimant was the claimant herself. A claimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel,46 Ark. App. 303, 879 S.W.2d 457 (1994). [6] It is also important to note that it was not until after the claimant’s back problems persisted that she first told her “story” of a work-related incident to her medical care providers and to her employer. The claimant acknowledged at the hearing that she does not have insurance and uses the health department for her medical services. Although the first three medical records following the alleged injury note pain in the claimant’s lumbar area and an injury on Thursday evening, the reports are clearly void of any notation or comment regarding a work-related injury. It was not until after the claimant had to seek medical services from someone other than the health department that the first mention of a work-related injury appeared. Ironically, this notation coincides with the first time the claimant reported a work-related injury to her employer. [7] Moreover, we find the testimony of Brent Chaffen, Margie Curtis and Sue French, all disinterested witnesses, more credible. Both Marge Curtis and Sue French testified that they recalled the claimant mentioning an incident where she fell off of her porch. The claimant’s comments coincided with the onset of the claimant’s back problems. Both Brent Chaffen and Margie Curtis testified that they were not notified of the claimant’s alleged work-related injury until April 3rd, approximately ten days after the alleged injury, and that the first notification came from a pharmacy seeking authority for payment of medication. [8] One would assume that if the claimant actually injured herself at work on March 23, 1995, as she contends, that she would have at least mentioned the work-related incident to her employer at the same time she was missing work due to back problems. Clearly, the credible evidence of record indicates that the claimant did not do so. [9] Accordingly, based upon our de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the credible evidence that she sustained a specific incident identifiable by time and place off occurrence. Therefore, we reverse the decision of the Administrative Law Judge. [10] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[11] Commissioner Humphrey dissents.

[12] DISSENTING OPINION
[13] I must respectfully dissent from the majority opinion finding that claimant has failed to prove, by a preponderance of the credible evidence, that she sustained a work-related injury as a result of a specific incident identifiable by time and place of occurrence.

[14] Claimant presented the following account of her injury on March 23, 1995:

Ok. That Thursday I went into work, and it was just a typical day. I had been taking frozen food and putting it upon the shelf, and there was a box of potatoes — they are two pound sacks of potatoes, and there is probably fifteen (15) or twenty (20) in a box, and in the cooler you have to keep the aisles straightened out, and during that time, I picked up the box to put the box upon — over some more boxes, and when I did, the box came back on me, and when I fell back on some more boxes that was already in the aisle that I was trying to get out.

[15] Claimant recalled that the accident occurred around 4:30 or 5:30 in the afternoon, and acknowledged that no one else witnessed the event. Although she described “really bad” pain in her back, and stated that she “couldn’t hardly move,” claimant managed to finish her shift after resting for approximately twenty-five minutes. Claimant explained that she did not report her injury that day for the simple reason that she did not believe she was injured very badly. [16] Claimant was off work the following day, and testified that she “never got off the couch,” but instead spent the day on a heating pad. She did attempt to work the following day, but avoided lifting. Even though claimant did mention her back pain to her supervisor, she was encouraged to finish her shift owing to a lack of personnel. She again managed to complete the day (Saturday), but was unable to work the next day and sought medical care on Monday, March 27. At that time, claimant consulted Dr. Johnny Paine, and presented a history of injuring her back while lifting a box. Dr. Paine referred claimant to Dr. Mark J. Malloy, who also noted a history of injury involving a box of potatoes. Dr. Malloy referred claimant for physical therapy, which she entered on April 3, 1995. Claimant’s initial physical therapy evaluation reflects that she suffered from muscle spasms in her lumbar spine. They appear to have dissipated by June 27, 1995, as indicated by Dr. Malloy’s office notes, and he released her to return to work at that time. [17] While it may be true that claimant’s accident was unwitnessed, I nevertheless find her testimony to be entirely credible and accept her account of a work-related injury as accurate. However, I am not unaware that two of claimant’s co-workers testified that she mentioned a previous incident of falling off her porch. Claimant did not deny the occurrence of such an episode but explained that it was her husband that had fallen off the porch. Claimant adamantly denied ever saying that she was the subject of this incident. Accordingly, based on claimant’s credible testimony, I would find that she did sustain a compensable injury as a result of a specific incident on March 23, 1995. [18] For the foregoing reasons, I must respectfully dissent from the majority opinion. [19] PAT WEST HUMPHREY, Commissioner