CLAIM NO. F000066
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 16, 2001
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE MARCIA BRINTON, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. Based upon our de novo review of the record, we find that the claimant has failed to meet her burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge.
The claimant worked for the respondent-employer as an order puller. This job required her to retrieve small boxes of Christian greeting cards and place them into larger boxes for shipment. The claimant would fill the box with packing paper after she finished the order and tape the box shut if it was required. The claimant would then push the box from her station onto a conveyor belt. The claimant contends that on March 31, 1999, her back began to hurt. She testified that she told her co-worker of her back pain, but did not tell any supervisor. The claimant thought that she was suffering from a urinary tract infection. The claimant presented to Dr. Charles Stinnett on April 2, 1999, with complaints of low back pain. The claimant indicated to Dr. Stinnett that her back had been hurting for a week and that she did not know of any injury that she had sustained. The claimant was not suffering from a urinary tract infection. Dr. Stinnett provided the claimant with medication and instructed her to return if the pain persisted. It was at this time, after consulting with Dr. Stinnett, that the claimant reported a work-related injury to the respondent employer.
The claimant returned to Dr. Stinnett on April 14, 1999, with complaints of pain in her neck and shoulder. A CT scan was ordered. On May 13, 1999, the claimant presented to Dr. Luke Knox, a neurologist, for complaints of back and right leg pain following her CT scan. Dr. Knox reported that the claimant’s CT scan revealed significant Knuttson’s phenomenon with disc changes and bulge at L4-5. The claimant was prescribed medication and instructed to begin physical therapy. Dr. Knox allowed the claimant to return to work with restrictions against prolonged sitting and standing, bending, reaching, or pulling and pushing.
On June 24, 1999, the claimant again sought treatment from Dr. Knox. Dr. Knox noted that the claimant had no improvement with physical therapy and then ordered an MRI. A note from Dr. Knox of July 8, 1999, states that the MRI revealed significant disc change at L5-S1 and L4-5. Dr. Knox opined:
I would certainly recommend an extensive conservative trial and that she continue with her current job restrictions. She has to pursue a weight loss program, in hopes that that may help alleviate her continued difficulties. If indeed she got down to the 145 or 150 pound range and continued to have significant back symptoms, I believe surgical stabilization and fusion is a possibility. I do not believe it would come to that, however, as I think simple weight loss should offer benefits to her difficulties.
The claimant testified that on March 31, 1999, she weighed 200 pounds.
The claimant sought treatment from Dr. Anthony Billings, a neurologist, on August 6, 1999. Dr. Billings opined that the claimant had pre-existing degenerative disc disease at L5-S1 and a herniated disc on the right at L5-S1. Dr. Billings also opined that the claimant had a pre-existing condition. Dr. Billings allowed the claimant to return to work with significant restrictions which included no bending, lifting over 15 pounds, twisting, climbing, and prolonged sitting/standing.
The respondent-employer accommodated the claimant’s work restrictions and the claimant continued to work until September 9, 1999, when she began receiving short-term disability benefits. During this time period, the claimant continued to coach her daughter’s softball team.
The medical evidence shows that the claimant had a prior history of back problems that required medical attention. In 1985, the claimant injured her lower back while bowling. In 1993, she re-injured her lower back while employed at Hardees. The claimant received medical treatment and was off work for a period of time following the 1993 injury.
The claimant contends that she sustained a gradual onset low back injury as a result of her employment with the respondent. The respondent contends that the claimant has failed to meet her burden of proof that she sustained a compensable injury. We agree with the respondents.
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. 1999). 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) (Repl. 1999). (Emphasis added.)
In our opinion, the claimant has failed to prove that she sustained a compensable injury on March 31, 1999. The claimant’s own testimony is detrimental to her claim. The claimant testified that she did not even know she had hurt her back at the time. She failed to report any work-related injury to her supervisor, but thought she had a urinary tract infection instead. It was not until after the claimant sought treatment from Dr. Stinnett that she reported a work-related injury to the respondent. Dr. Stinnett’s April 2, 1999, office notes indicate that the claimant did not know of any injury she sustained. Upon her first visit with Dr. Stinnett, the claimant clearly could not relate any work-related injury to her current problems.
The medical evidence indicates that the claimant suffers from Knuttson’s phenomenon with disc changes and bulges at L4-5. It was not until she reported to Dr. Knox on May 13, 1999, when the claimant stated that she had a problem following an incident at work where she was bending forward and packing boxes, that the claimant’s history changed regarding the cause of her alleged back injury. She initially reported to Dr. Stinnett that she could not recall that any injury had occurred. The claimant then informed Dr. Knox that she had suffered an incident at work where she was bending forward and packing boxes that weighed 30 pounds. Further, the claimant reported to Dr. Billings that she injured her back while pushing a box to the center of a conveyor belt and experienced the sudden onset of a pulling sensation in her lower back.
Although we recognize that Dr. Billings stated in his report that the claimant had a pre-existing condition that was aggravated by the “bending over incident”, on March 31, 1999, and that the disc herniation occurred as a result of her moving the boxes, we give little weight to Dr. Billings report. 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). It appears that the claimant has told each of her treating physicians a different story about how she hurt her back. It appears that the claimant made up a story that allowed Dr. Billings to find that her current problems were caused by the March 31 incident.
There are a number of things that could have contributed to the claimant’s problems. The claimant has a history of prior back injuries dating back to 1985. Further, the claimant has a weight problem and Dr. Knox opined that if the claimant would lose weight, more than likely her back problems would go away. In addition, the claimant has coached her daughter’s softball team, which included physical activity. The medical evidence also reveals that the claimant has a pre-existing degenerative disc disease at L5-S1 and a herniated disc on the right at L5-S1. It requires conjecture and speculation on our part in order to determine that the claimant’s incident on March 31, 1999, was the cause of the claimant’s back problems. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction 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 MethodistHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable back injury. Accordingly, we hereby reverse the decision of the Administrative Law Judge. This claim is denied and dismissed.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
SHELBY W. TURNER, Commissioner dissents.
I must dissent from the majority opinion reversing the administrative law judge’s award of benefits. Upon my de novo review of the record, I find that claimant did prove by a preponderance of the evidence that she sustained a compensable gradual onset lower back injury while employed by respondent-employer.
Claimant began working for respondent in September of 1995 as an order puller. This required claimant to retrieve small boxes (up to 30) of Christian greeting cards ordered by customers and place them into larger boxes which were sent downline on a roller-type motorized conveyor belt. When the larger boxes were filled, claimant then pushed them forward off her roller line to a second motorized conveyor belt located directly behind the first. Each box weighed twenty-five to forty pounds. Claimant pulled approximately five to ten orders an hour and originally worked fourteen-hour days on a seasonal team. The work was constant with no deviations.
Claimant testified that on March 31, 1999, she had just finished loading a box. When she shoved the box onto the conveyor belt, she felt her lower back begin to hurt and mentioned the pain to a co-worker who was standing beside her. Claimant testified that although she continued to hurt, she worked the rest of the day and the next day. When her back continued to hurt, claimant decided to see a doctor believing that she might have urinary tract infection.(Record, p. 29). Claimant subsequently brought this claim for workers’ compensation benefits when she was diagnosed with back injury.
A claimant must prove entitlement to benefits by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677
(1998). To prove a compensable gradual onset type injury to the back, Ark. Code Ann. § 11-9-102 (Supp. 1999) requires that a claimant show:(1) an injury arising out of and in the course of employment; (2) the injury caused internal or external physical harm to the body that required medical services;(3) medical evidence supported by objective findings establishing the injury; and (4) the back injury was not caused by a specific incident and is the major cause of the disability or need for treatment. See Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).
Claimant has proven that her claim falls well within Ark. Code Ann. § 11-9-102. On March 31, 1999, claimant experienced back pain while performing employment duties for the respondent-employer. These duties consisted of bending, pulling, pushing and reaching for various objects. This injury required medical attention, which the claimant promptly sought, and which is well documented by the objective medical evidence of a CT scan and an MRI. Additionally, two neurologists opine that claimant’s injury was due to her continued bending as part of her employment duties. Although respondents claim that claimant suffered back injuries in the past, both doctors agree that claimant’s injury results from duties she performed at her job.
Dr. Luke Knox initially saw claimant on May 13, 1999. He attributed, within a reasonable degree of medical certainty, claimant’s pain and injury to her work-related activities. Claimant’s herniated lumbar disc and degenerative disc disease, both at the L5-S1 Level, were aggravated by her work activities and became symptomatic as of March 31, 1999. Dr. Billings opines that claimant’s injury requires surgical treatment. Claimant returned to work with restrictions, but Dr. Billings placed her on medical leave when respondent-employer failed to comply with her restrictions. Claimant began receiving short-term disability benefits on September 9, 1999.
Although the majority opinion places great emphasis on the fact that claimant initially believed that she had a urinary tract infection, I do not find that the claimant’s failure to properly diagnose her illness as fatal to her claim. Claimant’s medical report of April 2, 1999, indicated a normal urinalysis — so obviously claimant was not suffering from a urinary tract infection. (Joint Exhibits, p. 24). Claimant’s belief that she may have had a urinary tract infection, does not override the fact that she did suffer a work-related back injury.
The majority also emphasizes the fact that claimant continued her pre-injury activity of coaching her daughter’s softball team. However, claimant testified that because of her back injury she was no longer to coach in the traditional sense. She stated that her role was now more of a manager or supervisor of the team because she was no longer physically able to hit balls to the players or conduct various other physical aspects of coaching. (Record, p. 7).
It is my opinion that claimant has met her burden of proof that she suffers from a gradual onset back injury and, therefore, is entitled to receive worker’s compensation benefits.
Based on the foregoing reasons, I must respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner