WHITE v. LAWRENCE MEMORIAL HOSPITAL, 1999 AWCC 177

CLAIM NO. E714906

LUCY WHITE, EMPLOYEE, CLAIMANT v, LAWRENCE MEMORIAL HOSPITAL, EMPLOYER, RESPONDENT and AIG CLAIM SERVICES, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 17, 1999

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

Claimant represented by TROY HENRY, Attorney at Law, Jonesboro, Arkansas.

Respondent represented by KEITH MCPHERSON, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed

[1] OPINION AND ORDER
[2] The respondent appeals a decision of the Administrative Law Judge finding that claimant sustained a compensable injury caused by a specific incident, arising out of and in the course of her employment, which produced physical bodily harm supported by objective findings requiring medical treatment or producing disability. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof by a preponderance of the credible evidence of record. Therefore, we find that the decision of the Administrative Law Judge must be reversed. [3] At the hearing held on May 29, 1998, the claimant contended that she sustained an injury to her lower back on November 25, 1997, while in the process of lifting patients from their beds for the purpose of weighing them. Conversely, respondent contended that claimant did not sustain a compensable work-related injury identifiable by time and place of occurrence and that the claimant’s medical condition pre-existed her work activities on November 25, 1997. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to prove that she sustained a compensable injury either as a result of a specific incident identifiable by time and place of occurrence, or as a result of accumulative trauma. [4] 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. ConAgraFrozen Foods, Full Commission 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) (Supp. 1997). 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).” [5] 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. [6] Claimant testified that she sustained an injury to her lower back on November 25, 1997, while weighing patients. However, a review of claimant’s testimony reveals that while claimant was able to describe the process of weighing patients on that date, she was unable to recall a specific incident while weighing patients which resulted in an injury. As noted through claimant’s testimony, the majority of the patients which she weighed did not require any assistance. These patients were able to place themselves on the scales. Only the bed-fast patients required lifting or stabilization which required an exerted effort on claimant’s behalf. The evidence reflects that after weighing patients for three or four hours on the morning of November 25, 1997, claimant advised her supervisor that she was going to be unable to continue weighing. There was no discussion between claimant and her supervisor with regard to the cause of claimant’s inability to continue weighing. However, claimant testified that she was unable to continue the weighing process because her low back was hurting. Even though claimant’s supervisor told her she could stop weighing patients for the day, claimant took it upon herself to continue weighing patients for the remainder of her shift so that the weighing process could be completed. In our opinion, claimant’s actions of proceeding with the task of weighing patients after being relieved of this duty by her supervisor calls into question the validity of claimant’s complaint of being unable to complete the task. [7] Moreover, as evidenced by claimant’s testimony, claimant did not advise her employer that she sustained a compensable injury as a result of a specific incident while weighing patients when she was asked after the fact what she had done to cause pain in her leg. In this regard, claimant’s testimony reflects:

Q. It was on the 28th of November that you first told Ms. Belcher about your low-back symptoms. Is that correct?

A. And my leg. It was my leg that day.

Q. Okay. And on that date, on the 28th, did Ms. Belcher ask you how you hurt your leg, why you hurt your leg?

A. I’m sure she did.

Q. Do you recall what you told her?

A. She asked me how I hurt my back, I guess, and I told her, “Well, I wouldn’t lie to you. I don’t know exactly when I did hurt my back.”
Q. Did you also tell her that you wouldn’t lie to her, that you didn’t know how you hurt your back?
A. That’s right. I didn’t know of no particular moment when I hurt it. I just know after I did the weights the leg pain started the next day and my back pain started a lot worse.

[8] Claimant’s testimony in this regard was confirmed by Judy Belcher, the administrator at the nursing home. Mrs. Belcher testified:

I asked her if it was Worker’s Comp. related, and if it was, how did she do it. And she said, “I don’t know. I can’t tell you. I’m not going to lie to you. I don’t know how I did it.”

[9] In Renate Hapney v. Rheem Mfg., F.C. opinion filed March 12, 1998 (E311438 E602464) we specifically stated: “An increase or onset of pain after a long day of work is not identifiable enough to meet the definite requirement for a specific incident injury.” The Court of Appeals unanimously affirmed this portion of our decision in Hapney. (The Court of Appeals evenly split over other findings.) See Hapney v. Rheem Mfg., ___ Ark. App. ___, ___ S.W.2d ___ (June 2, 1999). [10] Claimant’s testimony regarding the onset of her symptoms is similar to that of the claimant in Virginia H. Ward v. P.S.C.,Inc., Full Commission Opinion filed October 31, 1996 (E500617). In Ward, we stated:

Claimant’s own testimony fails to establish that she sustained a specific incident identifiable by time and place of occurrence. The claimant candidly admits that she knows of no specific incident of injury to her back. The claimant alleges in her brief that since she was lifting totes on January 3, 1995, and since her problems began that afternoon, she must have experienced a specific incident identifiable by time and place of occurrence. However, we find that the preponderance of the evidence does not support this contention. The claimant unequivocally stated at the hearing that she could not identify a specific incident which precipitated her back and leg pain. Unlike the claimant in Nathan Shepherd v. Calion Lumber Company, Full Commission Opinion, October 6, 1995 (E320270), where the claimant felt an immediate sharp, tight pain in the lower portion of his back as he was lifting a load of lumber, the claimant in the present case cannot identify a specific incident identifiable by time and place of occurrence which precipitated her back and leg pain.

[11] Like the claimant in Ward, claimant in the present claim, was unable to identify a specific incident identifiable by time and place of occurrence which precipitated her back and leg pain. Rather, claimant just assumed that the work she did on November 25, 1997, weighing patients must have resulted in her back and leg pain. As we found in Ward, a generic description to work is not sufficient to support a finding by a preponderance of the evidence of a specific incident identifiable by time and place of occurrence. As we stated in Ward, if the claimant had experienced a specific incident, one would expect her to advise her employer of the incident. In the present claim, claimant stated on more than one occasion that she did not know what caused her pain and she would not lie and state that it was her work that did it. InWard we held:

At best, the claimant can only point to one day when she was lifting and gradually developed back problems. This is not a specific incident identifiable by time and place of occurrence.

[12] Accordingly, we find that the claimant in the present claim has failed to prove by a preponderance of the evidence a specific incident injury identifiable by time and place of occurrence. [13] Simply because the claimant did not sustain a specific incident identifiable by time and place of occurrence, her claim does not automatically fail. Act 796 does recognize certain specified exceptions to the general limitation of compensable injuries to those injuries which are caused by specific incident and which are identifiable by time and place of occurrence. These exceptions are set forth in Ark. Code Ann. § 11-9-102(5)(A)(ii) through § 11-9-102(5)(A)(i)(v) (Supp. 1997). One such exception is for back injuries generally characterized as a gradual onset injury. 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 set forth above, with the exception of the specific incident definitiveness requirement. Thus, the employee still must prove by a preponderance of the evidence that she 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 by 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) (Supp. 1997). (Emphasis added.) [14] In applying the controlling law under Act 796 of 1993 to the evidence in this case, the Commission is to strictly construe the Act. Ark. Code Ann. § 11-9-704(C)(3). Under the gradual onset exception to the specific incident requirement, the claimant must establish a causal connection between her injury and her employment by medical evidence supported by objective findings andshe must establish that her injury is the major cause of herdisability or need for treatment. We find that the claimant in the present case has simply failed to meet her burden of proof on the major cause requirement. [15] The evidence reflects that claimant has suffered from pre-existing back problems. In fact, in September of 1997, a mere two months before claimant’s alleged work-related injury, claimant was seen by her family physician, Dr. Hal Barre, with complaints of severe low-back pain. Although claimant advised Dr. Barre at that time that her pain originated from lifting patients at work, there is evidence in the record that claimant advised her supervisor that she had hurt her back lifting a shelf at home during that time frame. [16] A review of the record reveals that claimant did not introduce any medical record with regard to causation. We are unable to determine from reviewing the evidence whether claimant sustained a herniated disc as a result of her work activities, the mere aging process, or from lifting a shelf at home. In our opinion, to conclude that the alleged compensable injury is the major cause of claimant’s disability or need for treatment would require speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. ofCorrection 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). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). [17] Without more evidence with regard to causation, we are unable to find based upon the record before us that claimant has satisfied the major cause requirement for a gradual onset injury. In light of claimant’s pre-existing back problems, her severe degenerative disc disease, and her recent visit to her family physician for low-back complaints, we find that the evidence with regard to causation is equivocal. [18] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be reversed. [19] IT IS SO ORDERED. [20] _______________________________
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner [21] Commissioner Humphrey dissents. [22] DISSENTING OPINION
[23] I must respectfully dissent from the majority opinion in this case. In my opinion, claimant has proved by a preponderance of the evidence that she sustained a specific incident injury on November 25, 1997. I would award temporary total disability benefits and medical benefits. [24] Claimant worked as a certified nursing aide for this employer. Claimant injured her back on November 25, 1997. On the date of her injury, claimant was lifting and weighing patients with the assistance of a co-worker. After several hours of weighing patients, claimant reported to her supervisor that she was experiencing back pain. Claimant’s co-worker, Cindy Girdner, was present when claimant reported her injury. Ms. Girdner’s statement confirms claimant’s account of events. Although she was instructed to cease the task at hand, claimant continued to perform her assigned duties. Claimant offered the following explanation for resuming her job duties: “Because I felt like I wasn’t doing what she wanted me to do to get them all done and I had Cindy to help me.” Due to a strong work ethic, claimant wished to finish her assignment. The majority ignores claimant’s explanation, and concludes that “. . . claimant’s actions of proceeding with the task of weighing patients after being relieved of this duty calls into question the validity of claimant’s complaint of being unable to complete the task.” This is pure speculation. It is axiomatic that speculation may not replace proof. [25] Claimant’s back pain increased, and she developed right leg pain. On November 28, 1997, claimant reported to work but was unable to complete her shift. She completed insurance forms. She was taken to the emergency room by a family member. The emergency room report provides a patient history of a back injury that is entirely consistent with claimant’s account. Further, an incident report also bearing the date of November 28th reflects a similar history. Finally, the medical reports and group health forms contain a history that is consistent with claimant’s testimony. [26] Judy Belcher, Administrator, sent claimant to the company physician, Dr. Quevillon. He ordered a CT scan, which was performed on December 3, 1997. This test revealed an abnormality in the form of a disc rupture at L4-5 with nerve root impingement. Claimant was referred by Dr. Quevillon to Dr. Barrett-Tuck. Dr. Barrett-Tuck performed surgery on December 30, 1997. Claimant was released to return to work with a lifting restriction of 15 lbs. Also, claimant was advised to avoid stooping and bending. She ultimately assigned an impairment rating of 10% to the whole body. [27] Claimant’s health history includes a life long seizure disorder. Additionally, claimant was involved in a motor vehicle accident in 1993. Following the accident, claimant received treatment from a chiropractor for arm and neck pain. Claimant has also experienced hip and shoulder problems. In the early 1990’s, claimant received chiropractic treatment. Claimant explained that she developed back pain after lifting patients in Arizona. However, claimant’s symptoms resolved following a few days of light duty. [28] In September of 1997, claimant sustained a back strain that her family physician, Dr. Barre’, characterized as mild. After a few days of light duty, she resumed her regular tasks. The records of Dr. Barre’ were not introduced. In any event, claimant stated that she did not require additional treatment for the strain. Indeed, claimant could perform the task of lifting and weighing patients during October. [29] The record includes the depositions of claimant, Peggy Jo Atchley, Cynthia Girdner, Anita Ward, and Judy Belcher. At the hearing, Anita Ward, claimant’s supervisor, and Judy Belcher testified in behalf of respondents. In her opinion, the Administrative Law Judge observed: “The respondent’s witnesses seemed reluctant to concede any information or testimony that might be favorable to the claimant. The claimant appeared to be a hard-working and credible witness.” I completely agree with the Administrative Law Judge’s insightful observations. In my opinion, claimant offered credible testimony. [30] The majority holds that claimant is unable to demonstrate that she sustained a specific incident injury. I cannot agree. Claimant has demonstrated that she sustained an injury to her back while lifting and weighing patients. Claimant cannot identify the precise moment that her back pain began. Thus, the majority concludes, claimant’s claim of a specific incident injury lacks merit. As the Administrative Law Judge stated in her opinion, “[t]he claimant is not required to diagnose her condition or isolate the physical mechanics of the injury by clear and convincing evidence in order to prevail.” [31] To bolster their conclusion that claimant failed to satisfy the specific incident requirement, the majority relies, in part, upon Hapney v. Rheem Mfg., ___ Ark. App. ___, ___ S.W.2d ___ (June 2, 1999). However, I find that these cases are clearly distinguishable. In Hapney, the Court of Appeals held, interalia, that claimant did not sustain a specific incident injury on February 2, 1996. The court’s entire specific incident analysis is as follows:

Appellant next contends that the Commission was bound to find that her injury was the result of a “specific incident” under Ark. Code Ann. § 11-9-102 (5)(A)(i). In this regard, the Commission noted that the appellant testified that she did not know when she was injured and did not report a work-related injury to her employer on February 2. It is also noted that she did not provide a history of a specific incident to any of her treating physicians. We hold that the Commission’s conclusion in this regard is supported by substantial evidence. (Citations omitted).

[32] Here, the facts are strikingly dissimilar. Claimant reported to Anita Ward, Restorative Services Supervisor, on November 25, 1997, that she was having trouble weighing patients. This is corroborated by the deposition testimony of Lucy White. However, as previously noted, this evidence is discounted by the majority. Moreover, the medical evidence supports claimant’s account of a specific incident injury. Claimant initially obtained medical treatment in the emergency room of Lawrence County Memorial Hospital in November 28, 1997. Although no description of the mechanics of the injury are included in the hand-written chart note, the onset of claimant’s pain is specified as November 25, 1997. Moreover, Dr. Robert Quevillon’s chart notes for December 1, 1997, indicated that claimant believed her injury occurred as she was weighing patients on November 25, 1997. Also, in a chart note prepared on December 18, 1997, by Dr. Rebecca Barrett-Tuck, contains the following information:

This 43 Y/O lady relates that on 11/25/97 while lifting and weighing patients, she developed back pain. The following morning this had progressed to involve the right leg and very rapidly became quite severe.

[33] In my opinion, a finding that claimant satisified the specific incident requirement would not run afoul of the court’s opinion in Hapney. Respondents conceded that claimant never complained of back pain before weighing patients on November 25, 1997. She advised Ms. Ward of her pain, and this is corroborated by the deposition testimony of Ms. Girdner. The medical evidence shows that patient histories consistent with claimant’s testimony. There is a close temporal relationship between claimant’s employment duties and the onset of back problems. In my opinion, claimant has met her burden of proof. [34] After finding that claimant failed to satisfy the specific incident requirement, the majority determines that claimant failed to prove that she sustained a gradual onset back injury. To support this finding, they conclude that claimant’s failure to introduce any evidence with respect to causation compels a finding that the disc herniation cannot be attributed to claimant’s employment activities. Since I believe that claimant sustained a specific incident injury, I submit that a gradual onset analysis is unnecessary. Nevertheless, I am of the opinion that the medical records demonstrate the requisite causal relationship between claimant’s work-related lifting and weighing of patients, and the disc herniation with which she was diagnosed. The medical histories contained in the emergency room report and chart notes of Drs. Barrett-Tuck and Ricca reflect that claimant developed back pain during the incident of November 25, 1997. Moreover, Dr. Barrett-Tuck signed a “Certification of Physician or Practitioner.” In response to an inquiry regarding the date the patient’s condition commenced, Dr. Barrett-Tuck’s response was 11/25/97. Finally, in a letter dated March 12, 1998, Dr. Barrett-Tuck expresses concern about claimant returning to work at respondent employer since “. . . heavy lifting is going to be required.” All of the medical evidence supports a finding that claimant’s disc herniation occurred as a result of the work-related incident and there is no evidence which supports a contrary finding. Moreover, the close temporal relationship between the onset of claimant’s symptoms and the discovery of a disc herniation support a causal link. I would also award temporary total disability benefits and medical benefits. [35] Based on the foregoing, I respectfully dissent. ____________________________ PAT WEST HUMPHREY, Commissioner