CLAIM NO. E912776
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 14, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KENNETH K. MARSHALL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of the administrative law judge: Affirmed.
OPINION AND ORDER
Respondent appeals from a decision of the administrative law judge filed August 14, 2000, finding that claimant proved by a preponderance of the evidence that she sustained a compensable specific incident injury. After conducting a de novo review of the entire record, we find that the claimant met her burden of proof that she sustained a compensable injury. Accordingly, the decision of the administrative law judge should be affirmed.
Claimant worked as a dietary aide for the respondent. Her duties consisted of washing dishes, silverware, cleaning, preparing snacks, cooking and other assistance as needed by the cook.
She testified that on October 9, 1999, “her back gave out” while she was putting chicken (weighing approximately 25 to 30 pounds) in the bottom of the refrigerator to thaw. She stated that she felt pain in her back and left hip and that the pain grew progressively worse. This injury occurred on a Saturday when no office personnel was on duty. However, claimant reported the incident to her co-worker, Darlene Martin, who assisted her with the rest of her duties that night. Later that evening claimant took a smoke break with Theresa Maxwell, charge nurse, and was startled when a resident surprised her and she jumped. Claimant stated that she again felt pain in her leg and back. Ms. Martin testified that she heard claimant inform Ms. Maxwell that she had hurt her back prior to the “smoke break” incident.
Claimant reported the “kitchen” incident to Debbie Russell, her supervisor, the following Monday. Although the claimant worked for the next eight days, she testified that she was in pain, could not straighten up and could hardly walk. Claimant stated that she worked on her regularly scheduled day off when asked by her supervisor whom she also informed that she was hurting and really did not feel like working that day. Betty Preston testified that she helped claimant with her work because claimant was injured and hurting. She also stated that she called claimant’s supervisor so that claimant could get a replacement, but never reached her.
The Arkansas Worker’s Compensation Act specifically excludes from the definition of “compensable injury,” “any injury which was inflicted upon the employee at a time when employment services were not being performed, or before the employee was hired or after the employment relationship was terminated.” Ark. Code Ann. § 11-9-105 (5)(B)(iii) (Supp. 1997).
Employment services are being performed when the employee is engaged in an activity that carries out the employer’s purpose or directly advances the employer’s interest. Shults v. Pulaski County Special School District, 63 Ark. App. 171, 976 S.W.2d 399 (1998); Ray v. the University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). If the activity in which the employee is engaged only indirectly advances the employer’s interest and is not inherently necessary for the performance of the job for which the employee was hired to perform, the activity is not sufficient to constitute “employment services” under the statute. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998).
Respondent argues that claimant failed to prove a compensable injury because she was not performing work-related activities at the time of her injury. This argument is based on the reasoning that claimant’s injury was caused when a resident startled her, causing her to jump and injure herself while she was having a smoke break.
We find this argument to be the unpersuasive for a number of reasons: (1) claimant immediately reported her “kitchen” injury to her co-worker, Ms. Martin, who helped her with her duties the rest of the night because claimant was in so much pain; (2) claimant also reported this injury to Ms. Maxwell while they were on smoke break together. It also is notable that Ms. Martin testified that she heard claimant inform Ms. Maxwell about her injury well before the patient startled the claimant, causing her to jump and feel additional pain from her already established injury; and (3) claimant is consistent in her account that she was injured in the kitchen and there is no evidence to support the argument that she was not.
Having established the fact the claimant was performing employment services at the time her back “gave out,” it next is necessary to determine whether this injury is compensable as a result of a specific incident.
To establish a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the following requirements of Ark. Code Ann. § 11-9-102 (5)(A)(i) (Supp. 1999), must be established: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of a claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
Claimant has shown by a preponderance of the evidence that her injury arose out of and in the course of her employment and that it is identifiable by time and place of occurrence. The claimant testified, “As I was lowering [the frozen chicken] down, that’s when my back give way and hurt. It just felt like it just opened up and my knees went down.” Claimant was advancing the interests of her employer by making preparations for the next day’s meals.
There also is objective medical evidence establishing her injury. Dr. Roy Tyrer, neurologist, stated that claimant suffers from an L-5 disc herniation. Aware of claimants “kitchen” as well as her “smoke break” incidents, Dr. Tyrer reported, within a reasonable degree of medical certainty, that the claimant’s left L5 disc herniation was caused by her lifting the chicken — not by the “smoke break” incident.
Accordingly, we find that claimant did prove by a preponderance of the evidence that she sustained a compensable injury identifiable by time and place of occurrence. We, therefore, find that the decision of the administrative law judge must be affirmed.
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).
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 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
______________________________ SHELBY W. TURNER, Commissioner
ELDON F. COFFMAN, Chairman concurs.
I concur in the principal opinion’s findings. I write separately to state my conclusions on the “employment services” issue presented in this case.
The dissent and the respondent assert on appeal that the claimant did not sustain a work-related back injury. However, there appears to me to be overwhelming evidence in the record that the alleged chicken lifting incident did, in fact, occur and that the claimant did, in fact, hurt her back during the course of that incident. Nevertheless, the dissent and the respondent assert that, despite the claimant’s lifting injury sustained in the kitchen at approximately 5:00 p.m., the claimant’s “real” back injury occurred about an hour later when one of the respondent’s patients “goosed” the claimant while she was trying to take a break. The respondent argues that the claimant actually hurt her back when she flinched on break even though the claimant had already hurt her back an hour earlier in the kitchen. Therefore, the respondent asserts that the claimant was not performing employment services when she sustained her “real” back injury, since the respondent asserts that the “real” injury occurred when the claimant flinched on break. I am not persuaded for the following reasons.
Notably, the Administrative Law Judge who heard the live testimony at the hearing and observed the demeanor of the witnesses was clearly not persuaded by the respondent’s theory as to “what happened.” To the contrary, the facts in this case establish that the claimant had commented on the chicken lifting and back injury before the “goosing” incident occurred an hour later. The main falacy in the dissent’s argument is, therefore, the fact that the claimant’s back was alreadyinjured performing work duties one hour before the goosing incident. To the extent that the respondent and the dissent argue that the claimant’s “true” injury occurred in some other manner, I note that the claimant’s credible testimony and medical evidence indicates that the claimant’s back became injured in the chicken lifting incident and that she thereafter felt increased symptoms during the goosing incident an hour later. Notably, Dr. Tyrer’s causation opinion, while somewhat mistaken as to the time interval between the two incidents, indicates that, contrary to the dissent’s argument, the claimant did advise Dr. Tyrer of both a lifting incident and a startle incident. The claimant also advised Dr. Tyrer of her increased symptoms after the startle/goosing incident. While Dr. Tyrer was under some mis-impression as to the time frame involved, I find that Dr. Tyrer had available to him a sufficiently accurate history as to “what happened” to render a competent medical opinion as to how the claimant’s physical injury occurred, and Dr. Tyrer’s opinion does not
support the respondent’s theory that the claimant’s back injury originated with the goosing incident instead of the earlier lifting incident. Instead, the claimant’s symptoms only increased after the goosing incident. To the contrary, Dr. Tyrer’s opinion is consistent with the claimant’s testimony, and her contemporaneous report to a co-worker, that she initially hurt her back lifting. The respondent’s contrary argument that the claimant’s real back injury occurred an hour later when the claimant was allegedly not performing employment services is simply not supported by a preponderance of the evidence. For all of the foregoing reasons, I concur in the principal opinion’s findings.
________________________________ ELDON F. COFFMAN, Chairman
MIKE WILSON, Commissioner dissents.
I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury on October 9, 1999. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
The claimant worked for the respondent as an aide in the kitchen. She testified that on October 9, 1999, she was putting meat to thaw in the bottom of the refrigerator when her back gave out. According to the claimant, the frozen meat weighed approximately 25 to 30 pounds. The incident happened on a Saturday and the claimant did not feel her condition was serious enough to file a written report. The claimant reported the incident to her co-worker, Darlene. However, Darlene did not witness the incident.
This incident happened at approximately 5:00 p.m. At 6:00 p.m., the claimant went to take a smoke break. She spoke with the charge nurse, Teresa Maxwell, while the two were out smoking. The claimant related to Ms. Maxwell that she thought her back would be alright. As she was taking her smoke break, a resident startled the claimant and she jumped. The claimant stated that she felt severe pain go through her back to her leg.
Claimant testified that before the incident, she experienced problems pertaining to standing on concrete seven or eight hours per day. She testified that her legs hurt, her feet hurt, and she was tired. The claimant stated that after the October 9 alleged incident, she felt that her back hurt badly and that she had pain in her left hip and it grew worse.
The claimant reported the incident to her supervisor, Ms. Debbie Russell, the following Monday. Ms. Russell testified that the claimant declined to complete an incident report.
The claimant did not seek medical treatment until October 18, 1999. However, she placed the visit on her group health insurance.
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 FrozenFoods, F.C. 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. 1999). 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).” 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.
Arkansas Code Ann. § 11-9-102(5)(B)(iii) (Supp. 1997) states:
An injury is not compensable if it was inflicted upon the employee at a time when employment services were not be performed, or before the employee was hired or after the employment relationship was terminated.
Although the statute does not define the term “employment services,” this Commission has previously held that an employee is performing employment services when he is engaging in an activity which carries out the employer’s purpose or advances the employer’s interest. Cheri Petteyv. Olsten Kimberly Quality Care, FC Opinion Sept. 13, 1995 (E405037) An employee carries out the employer’s purpose or advances the employer’s interest when he engages in the primary activity which he was hired to perform. Id.; Kenneth Behr v. Universal Antenna, FC Opinion Dec. 6, 1995 (E408376). When an employee engages in incidental activities which are inherently necessary for the performance of the primary employment activity, the employee carries out the employer’s purpose or advances the employer’s interest. Id.
The Commission has held that when an employee leaves work five minutes early to go to the bathroom and wash her face and clean her glasses after being sprayed with catfish intestines, that employee was engaged in incidental activities which were inherently necessary for the performance of her job as a catfish gut sucker. Joan Jones v. FF Services, Inc., FC Opinion April 23, 1996 (E409045). If the claimant in Jones were not a gut sucker, she would not accumulate blood and guts on her glasses necessitating the need to clean her glasses.
However, in Patricia McCool v. Disabled American Veterans, FC Opinion filed June 3, 1996 (E410491), we found that the claimant “was not engaged in any activity that carried out the employer’s purpose or advanced the employer’s interest when the claimant deviated from her duties to go outside and smoke before she got “real busy.” Likewise, in Carla Ann Colev. Prince Gardner, Inc., FC Opinion filed August 26, 1996 (E408046), we found that when a claimant has finished work and is injured while walking across the employer parking lot, the injury was not compensable since employment services were not being performed.
The evidence shows that there may have been an incident on October 9, 1999, while the claimant was putting chicken into the refrigerator to thaw. However, it appears that the incident that was the precipitating event that caused her to have her current problems was the incident that occurred at 6:00 p.m. while the claimant was taking a smoke break. Clearly, this was while the claimant was not performing employment services. A resident, Ricky, that normally teased the claimant, came up and goosed her. The claimant testified that she was startled and she jumped. She testified that she felt pain like electricity in her back which went from the low part of her back into the leg. The claimant described this pain as more severe than the pain from the incident with the pan of frozen chicken.
The medical records fail to mention the claimant’s incident with the resident. Dr. Shaneyfelt’s initial report of October 18, 1999, does not mention the incident with the resident, merely the incident with the pot of chicken. A medical opinion based solely upon claimant’s history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence. Brewer v.Paragould Housing Authority, Full Commission Opinion filed Jan. 22, 1996 (E417617). In addition, the Commission is not bound by a doctor’s opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant’s claim. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402
(1983). Further, the opinion of Dr. Tyrer relating the claimant’s condition is based purely on speculation. 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). DenaConstruction 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).
In my opinion, the claimant failed to meet her burden of proof. The claimant’s alleged incident with the pan of chicken seemed to be a minor incident. It was not until the claimant was goosed by the resident, Ricky, when she had the very painful incident with her back. Further, the claimant declined the offer of medical treatment or to even fill out an incident report at the time of the incident on October 9, when Ms. Russell asked her if she needed to complete an incident report the following Monday. In addition, the claimant did not seek medical treatment until
October 18, 1999, and then placed the visit on her group health insurance.
After you consider all the evidence, it is apparent that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on October 9, 1999.
Therefore, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner