WILLIAMS v. COLSON CASTER CORPORATION, 1997 AWCC 235

CLAIM NO. E516250

MARY WILLIAMS, EMPLOYEE, CLAIMANT v. COLSON CASTER CORPORATION, EMPLOYER, RESPONDENT and SEDGWICK JAMES OF ARKANSAS INSURANCE, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 27, 1997

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

Claimant represented by CHRISTOPHER LEIF HAMMAN, Attorney at Law, Jonesboro, Arkansas.

Respondent represented by RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an Opinion and Order in the above-captioned claim on August 8, 1996, finding that “claimant sustained an aggravation or new injury to her low back, culminating in her disability on October 13, 1995, arising out of and during the course of her employment with respondent.”

[3] Respondents now appeal from that Opinion and Order, contending that claimant has failed to prove that she sustained a compensable injury.

[4] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable injury in the form of an aggravation of a pre-existing condition on October 13, 1995. The decision of the Administrative Law Judge is therefore affirmed.

[5] Because claimant asserts the occurrence of a compensable injury after July 1, 1993, the provisions of Act 796 of 1993 are controlling. Claimant must thus demonstrate that she has sustained “an accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death.” In addition, an injury will be considered “accidental” only if it is “caused by a specific incident and is identifiable by time and place of occurrence.” Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996).

[6] Also, a compensable injury “must be established by medical evidence, supported by “objective findings.” Ark. Code Ann. §11-9-102 (5)(D) (Repl. 1996). In turn, “objective findings are those findings which cannot come under the voluntary control of the patient . . . Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Ark. Code Ann. § 11-9-102 (16) (Repl. 1996). A claimant’s burden of proof concerning these issues is to demonstrate them by a preponderance of the evidence. Ark. Code Ann. § 11-9-102 (5) (i) (Repl. 1996).

[7] While claimant appears to be a poor historian, we nevertheless find her testimony to be credible. Claimant asserted at the hearing that her back became problematic on January 2, 1995, when she “witnessed a cramping, tingling in my back, but, you know, I didn’t know exact, I didn’t know what was wrong with me at the time. I couldn’t put my finger on it. I knew I had, I knew something went wrong.”

[8] According to the testimony of Mr. Darrell Pickney, respondent employer’s human resources manager, claimant could not have been injured at work on January 2, 1995, owing to the fact that respondent employer’s facility was closed in observance of New Year’s Day (which had fallen on a Sunday). Mr. Pickney further testified that claimant’s only day to work in January, 1995, was the 3rd; she was thereafter laid off until April 10, 1995.

[9] Regardless of whether claimant sustained an injury to her back on January 2, 1995, it is evident from the office notes of Dr. Hermie Plunk that claimant had experienced pain in her back and down her hips as early as August, 1994. By March 23, 1995, Dr. Plunk’s notes revealed that claimant was experiencing “bad pain” down her right hip and leg. A CT scan performed the following day detected “marked bulging disks” at the L3-4 and L4-5 levels.

[10] Claimant continued working until October 13, 1995, when her back problems appear to have culminated:

Okay. How I felt that night, I couldn’t go any further, and tingling, numbness, and everything went dead, and I managed to the bathroom, and I cried out. I couldn’t go any further with my job.

[11] Claimant went on to explain that she was “lifting” when she experienced the above-described episode, and that her resulting pain was “very serious.”

[12] Claimant then came under the care of Dr. Richard Kyle, who performed surgery to repair an L4-5 disk herniation and bilateral recess stenosis at the L4-5 levels on October 23, 1995. An additional surgery was performed on November 22, 1995, in response to a recurrence of claimant’s L4-5 disk herniation. Unfortunately, x-rays ordered by Dr. Kyle on January 2, 1996, revealed that claimant still experienced “movement at the L4-5 level.”

[13] We note that an employer takes the employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable. Public Employees Claims Div. v.Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992) (citing NashvilleLivestock Comm’n v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990)). We find from claimant’s CT scan of March 24, 1995, that she suffered from a pre-existing disk bulge at both the L3-4 and L4-5 levels. Also, while claimant at times appears to characterize her back injury as gradual, we are persuaded by her credible testimony to find that the episode of October 13, 1995, constituted a “specific incident identifiable by time and place of occurrence,” which arose out of and in the course of claimant’s employment.

[14] We also find that claimant’s L4-5 disk herniation is causally related to the lifting incident of October 13, 1995. In reaching this conclusion, we note the following deposition testimony provided by Dr. Kyle:

Q. Following that first visit, did you cause additional diagnostic studies to be done on Ms. Williams?
A. Right. We ordered a lumbar myelogram and CT scan.

Q. And what did those tests disclose?

A. That showed a dramatic change from the previous study. Without looking at my notes, I remember there was severe stenosis at L4-5, with a herniated disk.

[15] Given the significant difference in claimant’s radiographic studies before and after October 13, 1995, and taking into account her credible description of a specific injury on that date, we find that claimant’s L4-5 disk herniation is attributable to the incident of October 13, 1995. We therefore find that her pre-existing bulging disk at the L4-5 level was aggravated by her employment circumstances on October 13, 1995.

[16] Because of the presence of claimant’s L4-5 disk herniation, we further find that she has established a compensable injury with medical evidence supported by “objective findings,” and that she has also sustained an “internal . . . physical harm to the body.” Finally, in light of claimant’s two surgeries and substantial amount of medical records, there can be little question that her injury required “medical services.”

[17] Based on our de novo review of the entire record, and for the reasons stated herein, we specifically find that claimant has satisfied each of the elements necessary to prove a compensable injury under Act 796 of 1993. We thus specifically find that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable aggravation of a pre-existing condition on October 13, 1995. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.

[18] 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 Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).

[19] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. §11-9-715 (b) (Repl. 1996).

[20] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[21] Commissioner Wilson dissents.

[22] DISSENTING OPINION
[23] I respectfully dissent from the majority’s opinion finding that claimant sustained a new injury or aggravation of a pre-existing condition in October of 1995. Based upon my de novo
review of the entire record, I find that claimant has failed to prove a compensable injury by a preponderance of the credible evidence.

[24] The compensability of this claim rests upon the credibility of the claimant. At the hearing, claimant originally contended that she suffered a compensable injury on January 2, 1995. The Administrative Law Judge found that claimant’s testimony regarding the January 2, 1995, incident was not credible; however, the Administrative Law Judge and the majority awarded benefits based upon the claimant’s theory of a new injury or aggravation in October of 1995. The award is flawed as there is no evidence of a new injury or aggravation in October of 1995. Contrary to the majority’s finding, claimant emphatically testified that she did not sustain a specific incident injury in October of 1995. Thus, the only way for claimant to prevail she must prove a gradual onset injury. In my opinion, such was not proven.

[25] 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) (Repl. 1996). 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 for a specific incident injury, 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) (Repl. 1996). (Emphasis added.)

[26] 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 and she must establish that her injury is the majorcause of her disability or need for treatment. I find that the claimant in the present case has simply failed to meet her burden of proof on the major cause requirement.

[27] In my opinion, claimant has failed to prove a gradual onset injury arising out of and in the course of her employment by the credible evidence of record. The evidence clearly shows that claimant suffered from a pre-existing back condition and in fact sought treatment for this condition as early as August 16, 1994. Claimant received a prescription for pain in her back radiating into her hips. Again, on November 22, 1994, claimant’s prescription was re-filled. Obviously, this treatment was received prior to claimant’s alleged January, 1995 incident.

[28] It is troubling when a claimant attempts to fabricate a specific incident injury as in this case and then alters the contention to be a gradual onset injury. When the veracity of the claimant is questioned on the specific incident injury, such veracity also carries over to the alleged gradual onset. In my opinion, a preponderance of the evidence shows that while claimant’s condition may have worsened while she was working, the major cause of her gradual onset injury was not claimant’s work. Clearly, claimant’s back problems began as early as August of 1994. There has been no evidence that the onset of problems in August of 1994 was any way related to claimant’s work. The overwhelming weight of the credible evidence of record reflects that claimant did not sustain a work-related injury either in January of 1995 or October of 1995, nor at anytime in between. Claimant has contended all along that all of her problems stem from an incident in January of 1995. As found by the Administrative Law Judge and as shown in the record there is no credible evidence that an incident in January of 1995 actually occurred. Thus, I cannot find that claimant has met her burden of proof. The credible evidence of record simply does not support the claimant’s claim.

[29] I also point out that the often quoted language from old act cases that “the employer takes the employee as he finds him” must be reconciled with the major cause requirement for a gradual onset injuries. In my opinion, it was just this type of case that the General Assembly had in mind when it adopted the major cause requirement. If one’s work is the major cause of a gradual onset aggravation of an old injury it is compensable. But as in this case, when claimant was symptomatic before the alleged gradual onset injury and there is no proof that the original symptom in August of 1994 are in any way related to claimant’s employment. She has failed to satisfy the major cause requirement. Therefore, I respectfully dissent from the majority opinion.

[30] MIKE WILSON, Commissioner