CLAIM NO. F504690
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 6, 2006
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Honorable Kenneth A. Olsen, Attorney at Law, Little Rock, Arkansas.
Respondent represented by Honorable Betty J. Demory, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury to her low back on April 28, 2005. Based upon our de novo review of the record, we find that the claimant has failed to meet her burden of proof. Accordingly, we hereby reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent employer as a clerk. On April 28, 2005, at approximately 8:55 a.m., the claimant was rolling a cart with potting soil outside and it rolled over the sidewalk. The claimant testified that she tried to lift the two wheels of the cart back up onto the sidewalk but her back popped. The claimant went and got Ms. Diane Ware, the store manager, to come help her put the cart back on the sidewalk. Ms. Ware testified that she used one hand to pick up the end with the two wheels that were off and put it back up on the sidewalk. The claimant did not report an incident of a back injury or any other injury to Ms. Ware at that time. At approximately 2:45 p.m. the claimant reported the injury to Ms. Ware as the claimant was leaving for the day. The claimant did not seek medical treatment that day or the next. As a matter of fact, she worked the next day. The claimant did not seek medical treatment until May 4, 2005, when she went to the doctor on her own. The claimant sought medical treatment from her family physician, Dr. Catherine Gonzales. The claimant ultimately underwent an MRI which revealed a possible compression fracture or a large Schmorl’s node.
The medical evidence demonstrates that the claimant has had back problems at least as far back as 1989. The claimant suffered a mid back strain in 1991 while lifting a 20 pound sack of dog food. She suffered another lumbar strain several years later on March 25, 1995. The claimant treated with Dr. Antoon on June 27, 2001, for mid back pain and was having numbness and tingling in both of her arms.
A “compensable injury” is defined as an accidental injury causing internal or external physical harm to the body arising out of and in the course of employment. Ark. Code Ann. §11-9-102(4)(A) (Supp. 2003). Act 796 of 1993 redefined the term “compensable injury” to exclude an injury that was inflicted upon the employee at a time when employment services were not being performed. Olsten Kimberly Quality Care v. Petty,55 Ark. App. 343, 934 S.W.2d 956 (1997); Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2003). The same test is used to determine whether an employee was acting within the course of employment at the time of the injury as is used when determining whether an employee was performing employment services. Privett v. Excel SpecialtyProds., 76 Ark. App. 527, 69 S.W.3d 445 (2002). The test is whether the injury occurred within the time and space boundaries of the employment while the employee was carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly. Id.
The only evidence in the record of the claimant sustaining an injury is the claimant’s own self-serving testimony. In our opinion, the claimant’s credibility is suspect at best. The claimant admitted during the hearing to having a history of back problems which required hospitalization and emergency room treatment. However, in her deposition the claimant testified that the only time she ever had problems with her back before April of 2005 was when she had a lifting incident at Kroger in 1996. The claimant also admitted at the hearing that she remembered twisting her back at home and going to the doctor on September 18, 1998, but she failed to remember this incident during her deposition as well. She also admitted that she probably had more back problems on May 22, 2000, and requested pain medication from her doctor. The claimant stated that she told Dr. Gonzales about her prior back problems but Dr. Gonzales’s medical records fail to indicate that the claimant had any prior back problems. The medical evidence also demonstrates that the claimant has been taking various pain medications like Percacet, Darvocet, Tylenol 3, and Soma on a regular basis since 1989. Furthermore, the claimant admitted that she left work with Kroger in August 1999 because of an injury.
The testimony of Ms. Ware also supports a finding that the claimant has failed to meet her burden of proof. Ms. Ware testified that prior to April 28, 2005, the claimant told her that she wanted to cut back her hours because she was trying to obtain disability. Ms. Ware cut the claimant’s hours back but the claimant was ultimately denied disability. Moreover, the cart that the claimant was pushing was a lightweight cart that weighed approximately 10 pounds. Ms. Ware testified that the cart might of had 4 bags of potting soil on it which weighed no more than 4 pounds each as these were $1-bags of potting soil. Ms. Ware testified that she picked the cart up with one hand and put it back up on the sidewalk. At the time that Ms. Ware put the cart back on the sidewalk, the claimant failed to mention that she had hurt her back. In fact, it was not until 2:30 or 2:45 p.m. that afternoon that the claimant told her that she had hurt her back. When Ms. Ware asked the claimant how she hurt her back, she stated that she hurt it lifting the cart. Ms. Ware stated that she responded, “Pat, I lifted the cart. How did you hurt your back? I lifted the cart.”
Ms. Ware observed that the claimant did not have any problems moving or doing her work on April 28, 2005, and, in fact, helped unload a truck on April 29, 2005. Ms. Ware stated that the boxes that they unloaded on the 29th could have weighed up to 40 pounds. The last day that the claimant worked was on May 9, 2005, and the claimant came to the store on that Friday to pick up her final pay check. The claimant cursed at Ms. Ware and Ms. Ware had to escort her out of the store. Ms. Ware also testified that a lot of the customers complained about the claimant and wanted to know what she was on. Ms. Ware testified that it was obviously pain medication because she was always stumbling while at work.
The medical records also do not support a finding of compensability. The records demonstrate that the claimant has been suffering from lower back pain since at least December 27, 1989. At that time, the claimant treated with Dr. Franklin Roberts who noted that she had a tender lumbosacral spine area with kyphosis. Dr. Roberts diagnosed the claimant with back pain and abdominal distention. On May 31, 1991, the claimant was seen at the emergency room at the Magnolia Hospital for lower back pain she suffered while lifting a 20-pound sack of dog food. The claimant was diagnosed with acute thoraco lumbar strain. Again, on July 4, 1992, the claimant was treated at the Magnolia Hospital with lumbosacral pain and was given Tylenol 3. The claimant received treatment again at Magnolia Hospital on March 25, 1995, for a lumbosacral strain while she was walking across the floor at work and her back just caught. X-rays were performed which revealed degenerative bone and joint changes. The claimant saw Dr. Patrick Antoon on September 18, 1998, complaining of back pain after twisting at home. The x-rays did not show any fracture and a contusion back sprain was noted. The claimant received Soma and was taken off work until September 21, 1998. The claimant did not return to work until September 23, 1998. The claimant again complained of mid back pain on June 27, 2001, when she saw Dr. Antoon. She complained of her arms going to sleep and of trapezeous pain. Dr. Antoon diagnosed a cervical thoracic spine back pain and paresthesias in both arms. The medical records demonstrate that the claimant called Dr. Antoon’s office on August 1, 2001, August 24, 2001, September 27, 2001, October 24, 2001, November 27, 2001, March 25, 2002, and July 3, 2002, for refills of Soma for her chronic back pain.
The claimant sought treatment from Dr. Gonzales on May 9, 2005. An x-ray performed on that date revealed osteopenia with mild degenerative changes. The claimant underwent an MRI on June 14, 2005, which revealed an acute to subacute compression fracture or Schmorl’s node defect involving the superior endplate of L2 along with a component of central spinal stenosis at multiple lumbar levels from L1-2 through L3-4 related to mild degenerative changes and bulging of the disc. No focal disc protrusions were identified. The radiologist was unable to say if there was a compression fracture or a Schmorl’s node. The actual MRI states “there is a large Schmorl’s node defect involving the superior endplate of L2 resulting in depression.” Dr. Gonzales’s notes of August 5, 2005, state that “Problem #1: Back pain with possible L2 compression fractures seen on MRI scan.”
After considering all the evidence in the record, the fact that the claimant has had back problems since 1989, the fact that she failed to tell Ms. Ware at the time of this alleged incident that she hurt her back, plus the questionable credibility of the claimant, we cannot find that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on April 28, 2005. Accordingly, we reverse the decision of the Administrative Law Judge. The claimant alleges that he sustained a compensable injury that is governed by the Arkansas Workers’ Compensation Act, A.C.A. § 11-9-101 et seq. The claimant’s alleged injury is, indeed, an injury that is covered by the Act; however, the claimant has failed to establish the elements necessary to prove a compensable injury by a preponderance of the evidence. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION SHELBY W. TURNER, Commissioner
I must respectfully dissent from the Majority opinion finding that the claimant did not sustain a compensable injury on April 28, 2005, and denying her associated medical treatment and temporary total disability benefits for the time period of August 3, 2005, to a date yet to be determined.
The Majority finds that the claimant had pre-existing back problems, is not credible and that the evidence does not show that she sustained a compensable injury. The Majority’s reversal appears to be largely based on their own determination that the claimant was not credible and that she suffered from pre-existing conditions to her back. However, after reviewing the record, I find that while the claimant failed to disclose her past back conditions, the evidence still shows by a preponderance of the evidence that she sustained a compensable injury.
The Administrative Law Judge found the claimant sustained a compensable injury and that she was entitled to receive medical treatment and temporary total disability benefits from August 3, 2005, to a date yet to be determined. In making these findings, he opined that the events surrounding the injury showed that the claimant had injured herself by lifting the cart on the date in question. Likewise, he noted that while the claimant had pre-existing back problems, the objective findings shown after the incident in question prove the claimant sustained an injury to her back. I agree with these conclusions.
In my opinion, the claimant provided credible testimony that her injury occurred during the course and scope of employment as she attempted to lift the metal cart containing potting soil. The claimant credibly testified that she reported this incident to Ware on the date of the injury. This is confirmed by the fact that Ware admitted the claimant reported an injury due to lifting the cart on the day of the injury. The testimony of Eubelis also reveals that the claimant reported the injury as having occurred due to an incident with the cart. It further shows that the claimant had reported the injury to Ware but was still seeking further advise regarding how to obtain medical treatment. Furthermore, the doctor’s reports confirm the claimant’s account of how the injury occurred, indicating that the claimant was injured on April 28, 2005, and that the injury occurred due to attempting to lift the cart.
The claimant’s back injury is also shown by the objective findings shown throughout the medical records. On May 5, 2005, the first time of treatment after the injury, Dr. Gonzales noted the claimant suffered from a “moderate amount of muscle spasm.” Likewise, the MRI performed on June 14, 2005, revealed the claimant suffered from, “Acute to subacute compression fracture or Schmorl’s node defect involving the endplate of L2 as described above.” While the MRI did not conclusively diagnose the claimant with a fracture, subsequent medical records indicate that the claimant did sustain a compression fracture.
On June 22, 2005, Dr. Gonzales, indicated that she notified the claimant of the compression fractures found on the MRI. Likewise, on June 23, 2005, Dr. Gonzales assessed the claimant with a compression fracture and formed a plan of treatment that was directed to treat that condition. Given the close proximity between the time of the claimant’s injury, the observation of moderate muscle spasms, the findings of the MRI indicating that the claimant had a possible compression fracture that was either acute or subacute, and given Dr. Gonzales’ conclusion that the claimant suffered from a compression fracture at L2, I find that the claimant has shown that the fracture was due to lifting the cart at work.
The Majority asserts that the claimant suffered from pre-existing back problems and opines that the claimant’s testimony regarding how and when the injury occurred is not credible. I agree that the claimant suffered from pre-existing back problems; however, I note that prior to this incident there is no evidence to show that the claimant had suffered from a compression fracture or any other back injury that would comport with contemporaneous diagnostic records or the conclusions of Dr. Gonzales.
The claimant had been to the doctor sporadically for her back since 1989 and had multiple diagnostic tests performed. Despite this treatment, no diagnostic report indicated that the claimant had compression fractures or even a defect of the Schmorl’s node until the June 2005 MRI was performed. Furthermore, in my opinion, the fact that the claimant was 60 years old, suffered from degenerative changes to the back, and had been diagnosed with osteopenia would support a finding that the claimant would be able to injure and aggravate her back more easily in the manner which she contends.
I also note the Majority’s assertion that the claimant failed to disclose her previous back problems to Dr. Gonzales and that as a result Dr. Gonzales’ opinion should be entitled to no weight. While the records do not indicate the claimant provided such a disclosure, in my opinion, that does not overcome the abundance of medical findings that existed only after the time of the claimant’s April 28, 2005, fall. There is no evidence in the record to indicate the claimant ever reported suffering from back pain while working for the respondents. Likewise, there was no evidence presented to indicate that the claimant was unable to perform the task of heavy lifting, which she presumably would have been unable to perform if she had been suffering from back pain. Finally, I note the MRI indicated the claimant’s injury was acute or sub-acute, which would not relate to a finding that her condition was chronic in nature.
Next I address the Majority’s argument that the claimant did not provide credible testimony regarding how she injured herself. In making this assertion, the Majority relies almost exclusively on Ware’s testimony. Specifically, they note Ware’s testimony that the claimant did not complain of pain immediately after the accident. They also rely on Ware’s testimony that the claimant was able to perform her job duties the next day and note Ware’s testimony that the claimant had asked to have her hours reduced in order to draw disability.
After closely reviewing the testimony of Ware, I find that her testimony is suspect at best. Ware testified that the claimant did not lift the cart but instead asked her to lift it. She also indicated that the cart weighed no more than 10 pounds and contained no more than four bags of soil with an individual weight of four pounds per bag. Accordingly, if one believe’s Ware’s testimony, the cart, including the soil, could only weigh up to 26 pounds. Ware testified that the claimant’s job regularly required her to lift up to 40 pounds, and that the claimant was able to continue performing those duties after the incident in question. Likewise, there is no evidence that the claimant was unable to perform these duties prior to April 28, 2005. Accordingly, I find that it is extremely curious that the claimant would be unable to lift a 26 pound cart or that she would ask for assistance in that task. Rather, I find that it is more likely that the cart weighed more than Ware asserted. Additionally, I find that it the claimant likely asked for assistance because she had injured herself in attempting to lift the cart.
I also find that it is curious that Ware could lift the cart with one hand. Even if one believes Ware’s testimony regarding the weight and dimensions of the cart, the cart would have weighed some 26 pounds and would have been seven feet tall and two feet wide. Accordingly, I find that it is simply not credible that she could have lifted and maneuvered the cart while reaching down and using only one hand. Finally, if the task was as easy as Ware asserted, I find that it is curious that she would not ask the claimant why she needed assistance since she was accustomed to dealing with heavier objects.
Additionally, I note Ware’s testimony regarding the conversation that occurred when the claimant reported her injury. Ware testified, “She come to me and said I hurt my back. I said, how did you hurt your back? She said, well, I think I did it lifting the cart. I said, Pat, I lifted the cart. How did you hurt your back? I lifted the cart. And she stomped off, clocked out, and went home.” Ware admitted that she was not outside when the claimant was moving the cart, indicating that she had no personal knowledge of whether the claimant attempted to lift the cart. Despite this lack of knowledge, Ware’s testimony above seems to indicate that she could not even fathom the possibility that the claimant could have attempted to lift the cart before asking for assistance. Once again, since lifting was a regular part of the claimant’s job, this is very odd.
Several other things regarding Ware’s testimony struck me as peculiar as well. Ware testified that the claimant asked her to reduce her hours so she could draw disability. She went on to describe that the claimant constantly received complaints that she appeared to be “on” something, was seldom at work, and stumbled constantly at work. Despite this alleged abhorrent behavior on the part of the claimant, there was no testimony that the claimant was ever reprimanded or in danger of being discharged until she reported a work-related injury.
Even more peculiar is Ware’s testimony that she had absolutely no knowledge that the claimant had been terminated after the incident in question. At the time of the injury, Ware was the store manager for the respondents’ and therefore presumably involved in all personnel matters including the scheduling and termination of employees. Accordingly, I find it difficult to imagine that she would be unaware the claimant had been terminated; particularly since she believed the claimant was attempting to defraud the respondents and had actively participated in an attempt to prove the claimant did not injure herself while working.
While I acknowledge that the testimony of the claimant was suspect regarding her prior injuries, I still find her testimony regarding the incident in question to be credible. I also find that her testimony regarding the event to be more credible than that of Ware. The claimant testified that she told Ware of her injury when she asked for assistance in lifting the cart. As the claimant admittedly asked for help in lifting the cart despite the fact that she regularly had to lift items weighing as much as 40 pounds, I find that her testimony that the cart had bags of soil that totaled a weight of around 140 to 160 pounds and that she was unable to lift the cart to be more credible than Ware’s account of the events.
Likewise, I note that Ware does not dispute that she had to lift the cart for the claimant and that the claimant reported hurting her back while attempting to lift the cart on the same day of the injury. Eubelis’ testimony also corroborates the claimant’s testimony regarding injuring herself and reporting it to Ware. When considered in conjunction with the opinion of Dr. Gonzales’ which was based on an objective diagnostic study that the claimant suffered from a compression fracture at level L2 and the MRI showing similar findings including, “stenosis at multiple lumbar levels from L1-2 through L3-4 related to mild degenerative changes and bulging of the disc,” and the opinion of Dr. Gonzales that the claimant sustained a compression fracture, I find that the claimant has shown by a preponderance of the evidence that she sustained a compensable injury.
For the aforementioned reasons, I respectfully dissent.
___________________________________ SHELBY W. TURNER, Commissioner