CLAIM NO. E513022
OLA M. WILLIAMS, EMPLOYEE, CLAIMANT v. ASH GROVE CEMENT COMPANY, SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION JUNE 11, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by SHEILA CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondent represented by MIKE PICKENS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed May 15, 1996 finding that the claimant has failed to prove by a preponderance of the evidence that her low back pain arose out and in the course of her employment and finding that she has failed to meet her burden of proof demonstrating that she is entitled to additional medical or indemnity benefits. Based upon our denovo review of the record, we find that the claimant has failed to meet her burden of proof.
[3] The claimant contends that she sustained an injury on June 26, 1995 and is entitled to additional temporary total disability benefits through January 15, 1996. The parties stipulated that the claimant did in fact sustain an injury on June 26th, however, there is inconclusive medical evidence corroborating that an injury in fact occurred on June 26th. Be that as it may, since the parties stipulated to the alleged injury, the only issue is whether the claimant is entitled to additional temporary total disability benefits.
[4] The claimant contends that she injured her back on June 26, 1995 when she was lifting at work. The claimant was taken to the Little River Memorial Hospital and x-rays were performed. The claimant was treated by the company doctor for a period of time. In July of 1996, the claimant was referred to Dr. Thomas Fletcher, a Little Rock neurosurgeon, for an independent medical evaluation. Dr. Fletcher reviewed an MRI of the claimant’s back as well as x-rays and other relevant medical records. After examining the claimant and reviewing the diagnostic tests, he released the claimant to return to work with no impairment and with a lifting restriction of 40 to 50 pounds effective July 5, 1995. The claimant received a letter from her employer asking her to return to work. However, the claimant did not believe she was capable of returning to work and failed to report to work. Instead, the claimant presented herself to Dr. Joseph Greenspan, a Texarkana, Texas, physiatrist. After treating the claimant for six months, Dr. Greenspan, like Dr. Fletcher, released the claimant to return to work with a 40 to 50 pound lifting restriction effective January 15, 1996. However, unlike Dr. Fletcher, Dr. Greenspan placed a four hour per day work restriction on the claimant.
[5] The medical records clearly indicate that the claimant had been treating with Dr. Frank Hamlin, of Texarkana, an orthopaedic surgeon, prior to the alleged date of her specific incident. In fact, the claimant reported to Dr. Hamlin in May of 1995 without a history of a specific incident and complained of low back pain which had existed for the past year. Dr. Hamlin ordered an MRI and bone scan of the claimant’s lumbar spine which revealed only mild degenerative disc disease at L4-L5.
[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,
FC Opinion filed Feb. 2, 1995 (
E317744). The claimant alleges that she sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence. Consequently, in order to prevail on his claim, the claimant must prove by a preponderance of the evidence that she 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). She 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, she fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed,
supra.
[8] As previously stated, a preponderance of the evidence fails to demonstrate that the claimant in fact sustained a compensable injury on June 26, 1995. However, even assuming, arguendo, that the claimant did sustain an injury when she lifted at work, the overwhelming objective medical evidence clearly shows that the claimant was not suffering any prolonged effects from that lifting incident as of July 5, 1995 when she was released to return to work by Dr. Fletcher. Dr. Fletcher noted in his independent medical evaluation:
I think she has degenerative disc disease in both the cervical and lumbar areas but is not getting a neurological impairment from either site and this appears to be a problem that she can manage with good posture and body mechanics. I think she can return to work and has been released to return to work on July 5, 1995. I would recommend that while she works she restrict her lifting to about 40 to 50 pounds. I don’t think she has residual permanent impairment secondary to the work injury, however.”
[9] The overwhelming medical evidence fails to produce any objective evidence to prolong the claimant’s disability period. Consequently, we find that as of July 5, 1995 when claimant was released to return to work by Dr. Fletcher, her condition had stabilized and she was no longer temporarily totally disabled. Accordingly, we find that the claimant has failed to prove entitlement to additional benefits. Therefore, we affirm 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 that her period of disability extended beyond July 5, 1995.
[14] The majority states that the “overwhelming medical evidence fails to produce any objective evidence to prolong the claimant’s disability period.” It should be noted that objective medical evidence, or the lack thereof, is not determinative in an analysis regarding the length of a period of disability. See Graham v. Chamber DoorIndustries, Inc., Full Workers’ Compensation Commission, Opinion Filed January 9, 1997 (Claim No.
E400258).
[15] Even so, Dr. Greenspan’s report of July 7, 1995, clearly records that claimant still suffered from para lumbar muscle spasms as of that date. Muscle spasms have been recognized as “objective findings” within the meaning of Ark. Code Ann. §
11-9-102 (16)(A)(i) (Repl. 1996). SeeDonna Lee Norvell v. J-Mar Express, Inc., Full Workers’ Compensation Commission, Opinion Filed May 24, 1996 (Claim No.
E402198).
[16] Based on the foregoing, and considering Dr. Greenspan’s maintenance of a four-hour per day work restriction as late as January 3, 1996, I would find that claimant’s period of disability persisted well beyond July 5, 1995.
[17] For the reasons set out above, I must respectfully dissent from the majority opinion.
[18] PAT WEST HUMPHREY, Commissioner
