Opinion
CLAIM NO. E305029
OPINION FILED JANUARY 4, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by KEITH BLACKMAN, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by J. ROBIN NIX, II, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an opinion of the Administrative Law Judge filed on November 29, 1993.
The Administrative Law Judge found that claimant's back difficulties are causally related to an admittedly compensable injury sustained on March 16, 1993. Claimant has the burden of proving such a causal connection by a preponderance of the evidence. Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974). Questions of credibility and the weight and sufficiency to be given evidence are matters with the province of the Workers' Compensation Commission. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). After our de novo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
Claimant sustained his compensable injury when he fell from a scaffold. Claimant's right foot became trapped in the scaffolding during the fall and then claimant fell to the concrete on his buttocks and tailbone. Claimant testified that he experienced pain in his right ankle, right knee and lower back. Respondent has accepted the compensability of the right ankle condition.
Although the medical evidence does not note complaints concerning his lower back until April 28, 1993, claimant testified that he mentioned his back difficulties to the physicians but his more pressing concern and extreme pain related to his ankle. Claimant presented credible testimony that especially after a cast was put on his ankle, his back pain gradually worsened.
Based on claimant's credible testimony, we find that he has proven by a preponderance of the evidence that his back difficulties are causally related to the compensable injury.
Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that his back difficulties are causally related to the compensable injury. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant has proven by a preponderance of the credible evidence that his back condition is causally related to his admittedly compensable ankle injury occurring on March 16, 1993.
In my opinion, claimant has failed to prove by a preponderance of the credible evidence that he sustained a back injury during his compensable injury on March 16, 1993.
A review of the medical evidence indicates that claimant first sought medical treatment for his ankle injury on March 17, 1993. Claimant was seen by Dr. McDaniel. The medical records indicate that claimant relayed a history of falling off some scaffolding at work. X-rays were taken which showed that claimant had not broken his ankle or his leg. Dr. McDaniel initially prescribed Tylenol #3 and referred claimant to Dr. Shanlever. Dr. McDaniel's medical evidence does not indicate that claimant relayed any history of back difficulties.
Claimant was seen by Dr. Shanlever on March 25, 1993. He relayed the same history of injuring his ankle and right foot during a fall off some scaffolding. There is no evidence that claimant told Dr. Shanlever about a back injury. Claimant was x-rayed again by Dr. Shanlever and there were no fractures noted. Dr. Shanlever placed claimant in a walking cast and released claimant to light duty on April 20, 1993.
On April 28, 1993, claimant first began to complain of back difficulties. This was approximately six weeks after his ankle injury and eight days after being released to return to work. Testimony from respondent's witnesses also indicate that claimant did not complain of any back difficulties prior to April 28, 1993. Claimant himself indicated that it was not until summer when he told respondent's witnesses that his back was bothering him. Also, it was on June 28, 1993, that claimant on his own without a referral went to see Dr. Tyrer. This is after Dr. Shanlever had released him to return to work without restrictions. In my opinion, claimant's actions show that he was content to stay at home and collect workers' compensation benefits.
Additionally, the medical records of Mr. Keller, the man who performed claimant's functional capacity evaluation, indicate that claimant was exaggerating his pain condition in relationship to his disability.
The foregoing indicates that claimant's alleged back difficulties and his March 16, 1993 ankle injury are not causally connected. Over six weeks had lapsed before claimant began to complain of back difficulties. Claimant talked to a neurosurgeon after he had been released to return to full duty, and claimant's functional capacity evaluation indicates that he is exaggerating his pain symptoms in relationship to his disability. This along with the coincidental time shows that claimant is not motivated to return to work. Therefore, in my opinion, claimant has failed to prove by a preponderance of the credible evidence that his back difficulties were causally related to his work-related injury. Therefore, I dissent in the majority's decision.
ALLYN C. TATUM, Commissioner