CLAIM NO. E510091
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 7, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by E. DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed April 11, 1996, finding that claimant sustained a compensable back injury on April 19, 1995, while working for respondent and finding that respondent. Based upon our de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. We also find that the respondent is entitled to a credit for those benefits paid by Blue Cross Blue Shield. Accordingly, the decision of the Administrative Law Judge must be affirmed as modified.
[5] Claimant provided Dr. Schwarz with a history of an acute onset of left low back pain while lifting at work which began approximately two weeks prior to first seeing Dr. Schwarz. Likewise, claimant provided Dr. Robert Fisher with the following history, “her history is one of approximately sixteen days of pain in the low back and radiating down the left leg following a simple bending maneuver at work.” Finally, claimant advised Dr. Axelsen that her pain started “as she was putting up some large pots in the school cafeteria that she works at.” [6] 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. ConAgra Frozen Foods,Left posterior lateral herniation of the L5-S1 disc. This extends below the disc space level and the left lateral recess of S1 and likely represents a herniated free disc fragment.
FC 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) (Repl. 1996). 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).” [7] 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. [8] In our opinion, claimant has met her burden of proving a compensable injury. As noted above, claimant has provided a consistent history to her medical care providers with regard to the onset of back pain. Claimant’s pain began on April 18, 1995, as she was putting up large pots at work. Although claimant cannot pinpoint the exact point in time when her pain began, she has identified a specific incident, lifting large pots, as the onset of her pain. Claimant further advised her treating physicians that as she continued to bend and stoop her pain would increase. [9] Finally, it is noted that claimant’s compensable injury has been established by medical evidence supported by objective findings. On May 1, 1995, claimant underwent a CT scan which revealed a herniated disc at L5-S1. These findings corroborate claimant’s subjective complaints of left low back pain and leg pain. [10] With regard to temporary total disability benefits, we find that claimant has proven entitlement to such benefits from April 19, 1995, through May 18, 1995. Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept.v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period continues until the employee is a far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. [11] Claimant’s injury occurred on April 18, 1995. She was unable to work on April 19, 1995, and could not complete her shift when she returned to work on April 20, 1995. Claimant was not released to return to “normal activities” until May 18, 1995, when she was released by Dr. Fisher. While under the care and treatment of Dr. Fisher, claimant underwent epidural steroid injections and such treatment greatly improved claimant’s condition. In fact, claimant had improved to the point where a third scheduled injection was not necessary. Accordingly, we find that claimant was in her healing period and totally incapacitated from earning wages from April 19, 1995, through May 18, 1995. [12] Finally, we find that respondent is entitled to a credit for those benefits paid by Blue Cross Blue Shield. Ark. Code Ann. § 11-9-411 provides in pertinent part:
[13] This section is not written in a fashion which requires respondent to affirmatively plead the right for the dollar for dollar reduction. The right to this reduction is statutory regardless of whether respondent raises the issue or not. It is claimant’s burden and duty to disclose the identity of any potential third party payers; it is not the duty of the respondent to identify and locate these payers and to assert a right to a set-off. This right is statutorily guaranteed. The record clearly reveals that Blue Cross Blue Shield has made payments for medical services provided to claimant. Pursuant to Ark. Code Ann. § 11-9-411 respondent entitled to a credit for the benefits paid by Blue Cross Blue Shield. [14] Therefore, for those reasons stated herein, we find that the decision of the Administrative Law Judge is hereby affirmed as modified. Specifically, we find that the decision of the Administrative Law Judge finding that claimant sustained a compensable injury and awarding temporary total disability benefits is hereby affirmed. Additionally, we find that respondent is entitled to a credit for the dollar for dollar reduction against payment of medical expenses paid by claimant’s health insurance. [15] IT IS SO ORDERED.Any benefits payable to an injured worker under this chapter shall be reduced in an amount equal to, dollar for dollar, the amount of benefits the injured worker has previously received for the same medical services or period of disability, whether those benefits were paid under a group health care service plan or whatever form or nature, a group disability, a group loss of income policy, a group accident, health or accident and health policy, a self-insured employee health or welfare benefit plan, or a group hospital or medical services contract.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[16] Commissioner Humphrey concurs in part and dissents in part.[17] CONCURRING AND DISSENTING OPINION
[18] I concur with that portion of the majority opinion finding that claimant has proven, by a preponderance of the evidence, that she sustained a compensable injury on April 18, 1995, and that she is entitled to an award of temporary total disability benefits for a period beginning April 19, 1995, and ending on May 18, 1995. However, I must respectfully dissent from the majority’s finding that respondents are entitled to a credit or offset under Ark. Code Ann. § 11-9-411 (Repl. 1996).