CLAIM NO. E306845
BILLY W. WHISENHUNT, EMPLOYEE, CLAIMANT v. ACTION ERECTORS, INC., EMPLOYER, RESPONDENT and CLAS, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 8, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by B. W. SANDERS, Attorney at Law, Arkadelphia, Arkansas.
Respondents represented by KEITH M. McPHERSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Respondents appeal the opinion of an Administrative Law Judge finding that claimant is entitled to benefits for work-related injuries to his lower back and right knee.
[3] Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patel,
26 Ark. App. 54,
759 S.W.2d 579 (1988); Ark. Code Ann. §
11-9-705(a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Grimes v. North AmericanFoundry,
42 Ark. App. 137,
856 S.W.2d 309 (1993). After ourde novo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
[4] Claimant was a working foreman for the employer, which installs conveyors and storage rack systems. This work required considerable heavy lifting on a daily basis. Claimant handled the heavier end of any object because he was the largest and strongest on the crew.
[5] In April 1989, claimant sustained a back injury at work. After X-rays were negative, the treating physician diagnosed a lumbar strain. A claim for workers’ compensation benefits was not filed because claimant did not believe the injury was serious, and, in fact, the condition resolved completely.
[6] Claimant continued to perform the heavy lifting requirements of the job. At times the employees were lifted to a work area by the use of a forklift. In September 1992, the forklift suddenly jerked while claimant was being lowered, causing him to experience a sharp pain in his lower back, as well as numbness in his lower extremities. This incident was immediately reported to James Ricks, owner and president. However, due to a high pain threshold, claimant was able to continue working. Approximately one week later, claimant experienced considerable swelling in his right knee after kneeling on the floor while performing his job duties. Claimant continued to work but the swelling worsened. (Even Ricks testified in the proffered deposition that the swelling was from claimant’s hip through the entire right lower extremity). Thereafter, Ricks was lifting claimant and Jeffrey Scott Stephenson, a co-worker, with the forklift when there was a sudden jerk, causing an increase in claimant’s back and leg pain. At this point, claimant again informed Ricks of his back and lower extremity difficulties and advised that he needed to see a physician.
[7] Since the physician in Texas did not know what was wrong with claimant, claimant left Texas and returned home to see Dr. Mark T. Jansen, his family physician. The initial examination and treatment focused on claimant’s lower extremity problems. Three days later, claimant returned to Dr. Jansen with improvement in his lower extremity problems but a continuation of lower back difficulties. At this time lumbar spine X-rays revealed bilateral spondylolysis with first degree spondylolisthesis at L5-S1, a condition not present in 1989.
[8] We find claimant’s testimony concerning the heavy lifting required at work and the specific incidents at work to be credible. Each of these incidents, as well as claimant’s notice to, and Ricks’ knowledge of, claimant’s injuries, were specifically corroborated by the testimony of Stephenson. Additionally, Dr. Jansen opined that claimant’s back condition “is likely to be the result of repetitive trauma to the lower back as might be brought about by heavy lifting on a routine basis.” Furthermore, Dr. Charles C. Schock, to whom Dr. Jansen referred claimant, reported that his “impression is one of spondylolysis at L5, which most certainly was in large part, associated with his heavy lifting job that he did for many years.”
[9] Therefore, based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he sustained compensable injuries to his lower back and right lower extremity.
[10] Prior to the hearing, counsel for respondent identified James Ricks as a witness for the hearing. Ricks did not appear at the hearing to present his testimony and counsel for respondents moved to admit Ricks’ deposition and claimant objected. The Administrative Law Judge excluded this deposition because the deposition was not identified at the prehearing conference and because Ricks, as owner and president, is considered a party to the action. However, in our opinion, even if Ricks’ deposition should be considered, claimant has still met his burden of proof. Ricks’ testimony that he never learned of a back injury until after claimant filed for workers’ compensation benefits is directly contradicted by the testimony of claimant and Stephenson.
[11] Finally, respondents’ argument that this claim for benefits is barred by res judicata because of an unfavorable decision with regard to claimant’s attempt to draw unemployment insurance benefits is without merit. It is clear that claimant quit this job with the employer because of a conflict with a co-worker. He did not quit as a direct result of the compensable injuries. Thus, res judicata or collateral estoppel would not apply in this case, even if these doctrines could be applied to bar a claim, as alleged by respondents.
[12] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that he is entitled to benefits for work-related injuries to his lower back and right knee. Respondents are directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.
[13] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner PAT WEST HUMPHREY, Commissioner
[14] Commissioner Tatum dissents.
