Opinion
CLAIM NO. E904378
OPINION FILED MARCH 21, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RICHARD S. MUSE, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
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 on April 6, 1999. Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge.
The claimant was employed by the respondent employer as a laborer. The claimant also performed some welding as part of her job duties. On April 6, 1999, the claimant was dispatched to the Potlatch Sawmill in Prescott to perform clean-up work. The claimant and a co-worker, Andrew McKim, were charged with the responsibility of picking up scrap metal. The claimant testified that the alleged injury occurred when she and Andy McKim were loading steel onto a forklift. The claimant testified that she told Mr. McKim that she thought that she had pulled a muscle in her back.
The claimant sought medical treatment from Dr. Robert White on April 8, 1999. Dr. White's records indicate that the claimant complained of back pain, abdominal pain, and left-sided pain. Dr. White's report indicates that the claimant denied any injury. The claimant was off work after April 6, 1999 until she returned to work for another employer in March of 2000.
At the heart of this claim, the claimant contends that she sustained a compensable injury on April 6, 1999. The claimant requests benefits for temporary total disability from April 7, 1999 through March of 2000. The respondent contends that the claimant has failed to prove by a preponderance of the evidence that she sustained an injury in the course and scope of her employment on April 6, 1999. There is also a dispute as to the computation of the average weekly wage.
For the claimant 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. 2001), 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 in 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).
In the present case, there is no dispute that the record contains objective medical findings indicative of back injury. The issue is whether or not the greater weight of the evidence establishes that the claimant sustained her injury at work, as she asserts and as the Administrative Law Judge found.
The claimant testified that she told Andy McKim that she thought she had pulled a muscle in her back. However, the claimant indicated on cross-examination that she did not tell Andy McKim that she had injured her back that day. The deposition of Andy McKim was taken, and he indicated that the claimant had mentioned that she had hurt her back at work, but, while unsure, he did not believe that she had hurt her back on the same day that the two discussed the work-related injury:
Q. Did she tell you how she had injured her back?
A. I think she said that she had hurt her back a couple of days before or a day before while we were moving some heavy stuff — equipment, metal, something like that.
Q. Do you know where you had been working a few days before?
A. I think we were in Potlatch down in Prescott at the time.
Q. Were you with her — let me ask you like this. Did you witness her injury?
A. Uh-huh.
Q. Sir?
A. No.
Q. Were you working with her when she said, "I've injured myself on the job" at a particular moment?
A. Was I working with her when she said she injured herself?
Q. Right.
A. I was working with her whenever she said she had hurt her back, but I didn't see any injury.
Q. And you understood that she said she thought she hurt her back, but it wasn't on the day she was talking to you; do you understand my question?
A. Yeah.
Q. So do you know when she was injured?
A. No.
Andy McKim testified that he did not notice any physical problems with the claimant performing her job duties that day, nor did he hear the claimant report a back injury at work to either Steve Walker or Jerry McKim of the respondent employer.
The claimant testified that after she picked up scrap metal she went back to the gangbox, where Mr. Walker and Mr. Jerry McKim, Andy McKim's father, were present. The claimant stated that she had the following additional conversation with co-workers that day:
Q. When you left or before you left did you have any conversations with anybody on the job other than Andy McKim about an injury to your back?
A. Yes, sir. I talked to Ron and Steve. They were over at the — our gang box, you know, when everybody says we are going home, that's where everybody joins up and puts all the tools away so that they can get locked up. We were all standing around over there and I couldn't straighten up. I was all bent over and they were asking me what was wrong, and I told them, I said, I think I pulled a muscle in my back. Anyway, Jerry came over and said he could make it feel better and he popped my back and it did feel better there for a little while. Then we all just chit-chatted around there about different things and then we went home.
However, the claimant has acknowledged that she did not report awork-related injury to Mr. Walker or to Mr. Jerry McKim in that conversation. The claimant testified:
Q. Now, Steve Walker was your supervisor, running that job, right?
A. Yes, sir.
Q. So he would have been the one that you would have reported any worker's compensation injury to?
A. Right.
Q. And you didn't report a worker's compensation injury or claim that you had been injured to Steve Walker on that particular day, did you?
A. Obviously, no.
Q. And you said that you had a conversation with Jerry. He's just a co-worker, right, or was?
A. Well, he's a co-worker but he's a leadman, too. If Steve's not around, Jerry's in charge.
Q. But if Steve's there, he's in charge and he's the person that you reported an injury to, or the person that you would have reported an injury to?
A. Yes, sir.
Q. Okay. And you said that you had a conversation with Jerry McKim and he popped your back, is that right?
A. Yes, sir.
Q. Now, you didn't tell Jerry McKim that you had injured your back on that job on that day, did you?
A. No, sir.
Mr. Jerry McKim and Mr. Walker both agreed with the claimant's testimony that she did not report a work-related injury to them that day. Mr. Jerry McKim testifies:
Q. And did the crew gather at the gangbox after that?
A. Yes.
Q. And was Teena there?
A. Yes.
Q. And did she say anything about any back problems?
A. I noticed her holding her back and she mentioned to me that she had hurt her back and didn't know whether she had done it at work or at home.
Q. Were those her exact words?
A. That's her exact words.
Q. She told you that she didn't know whether she had done it at work or at home?
A. Yes, sir.
Q. And this was on that last day at the Prescott job?
A. Yes, sir.
Q. Have you ever heard anything more from Teena about it?
A. No, sir.
Q. Do you know whether she has said anything to Steve Walker?
A. No, sir.
Q. Did you pop her back?
A. I don't — I tried. I attempted to but I don't know whether, you know, I popped it or not.
Q. Did she say anything about having lifted steel and hurt her back?
A. No.
Q. Did she mention anything about her back problems being related to her work that day or any day with Dub Clenney?
A. No, sir.
Q. She just said that she didn't know how she had injured her back?
A. Yes, sir.
Mr. Walker, superintendent for the Potlatch job, testified that he was the person to whom the claimant would report a workers' compensation injury. Mr. Walker argued that the claimant did not report an injury to him on April 6, 1999. Mr. Walker testified:
Q. Was Teena part of the crew?
A. Yes.
Q. Okay. And did she come to the gangbox or wherever you met to finish up that day?
A. Yes.
Q. Did she report any injury to you?
A. No.
Q. Did she complain of any back problems to you?
A. No.
Q. Did she say anything about any on-the-job injury?
A. No.
Q. Did she say anything about needing medical treatment?
A. No.
Q. Had she complained of back problems over the months that she had worked at Dub Clenney, just in general?
A. Yes.
Q. Tell the Court or the Commission about that.
A. Well, just this one instance, I know that she missed work a couple of days because of her back.
Q. Do you know when that was?
A. I don't recall the date.
Q. Now, on this particular day, she didn't say anything about any back problems?
A. No.
Q. Has she ever, at any time, reported any worker's compensation injury to you?
A. No.
Mr. Walker spoke to the claimant the night of April 6 regarding a new job assignment that the crew was going to the next day. He had told the crew to contact him by telephone that night. Mr. Walker testified that the claimant contacted him that evening, but there was no mention of a work-related injury. Three days later, the claimant called Mr. Walker and told him only that she was "down in her back."
When the claimant initially presented to her family physician, Dr. Robert White, his medical records indicate that a nurse took a history where the claimant denied any injury. Dr. White, who retired shortly after treating the claimant on April 8, 1999, also testified that no work-related injury was reported to him:
Q. All right, sir. There's no reference in the April 8, 1999, note of any specific incident at work; is that right, sir?
A. That's correct.
Q. Ms. Draper did not convey to either you or your nurse any specific history of having been injured as a result of lifting a 70-pound piece of steel? That specific history was not given, was it, sir?
A. No.
Oddly, however, a handwritten note under Dr. White's letterhead dated April 9, 1999 (i.e., the day after Dr. White's initial examination) states:
Patient called c severe back pain, request med, unable to set MRI till after hears from Workmen Comp Mon.
Mr. Ron Overton, a lead man with the respondent employer who was on the Potlatch job, testified that he did not see the claimant exhibit any problems or mention an injury on April 6, 1999. He did testify that the claimant mentioned a prior Taekwondo injury:
Q. Did she ever say anything to you about any back injury or problems?
A. Only once, but that was previous to that.
Q. She had complained in the past about her back?
A. Uh-huh, whenever we worked in Malvern. She was taking Taekwondo lessons and said she was showing out in front of a nice looking man and she went to kick over her head and her other foot come off the ground and she landed on her bottom.
Q. Did she say that she had hurt herself?
A. She said that she had hurt herself but she didn't specify where.
Q And that's the only complaint of any back problems that you ever heard from Teena?
A. Yes.
Q. And that wasn't on the job, that was — she told you that it happened at Taekwondo class?
A. No.
Q. Now, other than that, would you have even known that she was taking Taekwondo?
A. Other than that? No.
Q. You wouldn't have any reason to know that unless Teena told you, right?
A. Huh-uh.
Q. Sir?
A. No, sir.
Q. Exactly how did she tell you that this injury occurred?
A. She was more or less explaining how she done it and showing out in front of this nice looking man.
Q. She kicked?
A. She went to kick over her head and her other foot come off the ground and she landed on her bottom is what she said.
At one point in his testimony, Mr. Overton seems to suggest that this alleged conversation, or perhaps the purported Taekwondo injury, occurred two weeks before the Prescott job (T.84). However, at another point, Mr. Overton seems to suggest that the conversation regarding a Taekwondo injury occurred on the morning of April 6th, that the conversation involved a group of people, and that the claimant reported hurting her back in Taekwondo class the night before, on April 5th (T.88-89). We note that Mr. Overton's testimony about an alleged Taekwondo injury on April 5th, as allegedly discussed by the group on April 6th, clearly conflicts with the testimony of all other members of the group who testified by deposition or at the hearing in this case.
It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). The Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony deemed worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). The Administrative Law Judge's credibility findings are not binding on the Full Commission, since it is our duty to consider the entire record and determine the merits of a claim based upon a preponderance of the evidence. Ark. Coal Co. v. Steele, 237 Ark. 727, 375 S.W.2d 673 (1964). Nevertheless, "the Commission must be able to clearly state the reasons for its determination of credibility, especially when the determination is contrary to the findings of the Administrative Law Judge who actually observed the witnesses." Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999).
In the present case, the respondents and the dissent essentially assert on appeal that the claimant went to Dr. White on April 8, 1999 with back problems that were not work related, then later fabricated an alleged work-related injury when her problems turned out to be more severe than she initially anticipated. For the most part, the respondent's theory as to "what happened" appears consistent with the evidence in the record. After all, Dr. White's initial report contains the notation by Dr. White's nurse, "Denies any injury," and Dr. White's testimony was that the claimant did not describe the alleged work-related injury to him. In addition, there is no real question that the claimant did not report a work-related back injury to management in the group discussion at approximately 9 a.m. on April 6, 1999, or when she called in later. Further, Mr. Overton's testimony, if credible, would indicate that the claimant attributed her problems at the meeting on April 6, 1999 to a Taekwondo injury.
Of course, the problem with the respondent's theory as to "what happened" is that Andy McKim was the most "disinterested" witness who testified, and Andy McKim's testimony corroborates that the claimant did report to him a work-related injury that occurred in the manner she asserts. More importantly, the record also establishes that this conversation between Andy McKim and the claimant occurred before the claimant last worked for the respondent on the morning of April 6, 1999, and therefore also had to occur before the claimant presented to Dr. White on April 8, 1999. Unless Andy McKim either fabricated or fantasized a conversation with the claimant reporting her work-related injury to McKim on April 6, 1999, this record simply will not support the respondent's theory that the claimant fabricated a work-related injuryafter visiting Dr. White on April 8, 1999.
In addition, to Andy McKim's independent corroborating testimony supporting the claimant's account as to "what happened," we also note that the Administrative Law Judge, who heard the live testimony and observed the demeanor of the witnesses, found credible the claimant's testimony that she injured her back lifting a piece of angle iron on April 6, 1999. In addition, the Administrative Law Judge found credible the claimant's testimony that she did report to Dr. White on April 8, 1999 that she injured her back at work. In reaching this conclusion, the Administrative Law Judge apparently noted that, while one set of handwriting on Dr. White's April 8, 1999 report states "Denies any injury," another set of handwriting on that same report describes the claimant's job duties. In addition, as the Administrative Law Judge notes, the preponderance of the evidence in the record indicates that the claimant was not having any problems performing her work prior to April 6, 1999.
In affirming the Administrative Law Judge's finding that the claimant established the occurrence of her work-related injury by a preponderance of the credible evidence, we recognize that the claimant's course of action was certainly unorthodox in failing to officially report her work-related injury until after seeing Dr. White on April 8, 1999. However, we are also persuaded by Dr. White's testimony to the effect that the claimant is a very pain tolerant individual, testifying:
[I]t's going to take quite a bit to get her attention because she's a tough lady.
We also note from Dr. White's testimony that it is unlikely, because of the claimant's relatively young age of 33, that the claimant's disk herniation was caused by a degeneration. Finally, we recognize that Dr. White's April 8, 1999 report contains a notation of "Onset in Dec has been interm," apparently also recorded by Dr. White's nurse. Dr. White testified that he understood this note to refer to a history of the claimant's back pain. However, the claimant credibly testified that this notation refers to left abdominal pain caused by female problems, and the claimant's explanation certainly appears consistent with concurrent references to left-sided pain, urinary tract infection, and birth control pills, recorded by Dr. White's nurse, in the April 8, 1999 report.
In summary, the respondents have presented an abundance of evidence and a very forceful argument through their attorney to the effect that the claimant fabricated an alleged work-related injury after visiting Dr. White on April 8, 1999. The claimant's explanations as to "what happened" standing alone, would appear rather difficult to believe when weighed against testimony and medical reports relied on by the respondents. However, as discussed above, the credible corroborating testimony of independent witness, Andy McKim, belies the respondent's theory that the claimant fabricated an alleged work-related injury after April 8, 1999. To the contrary, the preponderance of the credible evidence establishes that the claimant discussed her work-related injury with co-worker McKim on April 6, 1999, before she even saw Dr. White.
Therefore, for all of the foregoing reasons, we affirm the Administrative Law Judge's finding that the claimant established by a preponderance of the credible evidence that she sustained the work-related injury that she asserts.
Finally, we note that there is some discussion on appeal as to whether the $2 per hour the respondents paid the claimant, and characterized as "per diem" should be classified as "wages" for purposes of determining the claimant's compensation rate. The respondents cite a prior Full Commission opinion, Dennis v. D L Produce, Inc. 1997 A.W.C.C. 264 (Claim No. E505523), to support their argument that a $2 per hour per diem intended to cover expenses should not be included as part of the claimant's average weekly wage. We point out that the Commission's reasoning in Dennis, as adopted by the respondents in this case, was later rejected by the Arkansas Court of Appeals in Eckhart v. Willis Shaw Express, Inc. 62 Ark. App. 224, 970 S.W.2d 316 (1998). Consequently, the Administrative Law Judge correctly applied the law to the facts in this case in including the $2 per hour at issue in the claimant's wages.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, the decision of the Administrative Law Judge must be, and hereby is, 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 (Supp. 2001).
For prevailing on this appeal before the Full Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Supp. 2001).
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on April 6, 1999. Based upon my de novo review of the record, I find that the claimant failed to meet her burden of proof.
In my opinion, the evidence in this case fails to establish that the claimant sustained a compensable injury on April 6, 1999. The claimant testified that she told Mr. Andy McKim that she thought she had pulled a muscle in her back. However, the claimant admitted on cross-examination that she did not tell Mr. Andy McKim that she had injured her back that day. The deposition of Mr. Andy McKim was taken, and he indicated that the claimant had mentioned that she had hurt her back, but he did not believe that she had hurt her back that day. Mr. Andy McKim testified that he did not see any injury and that he did not notice any physical problems with the claimant performing her job duties that day, nor did he hear the claimant report a back injury at work to either Steve Walker or Jerry McKim of the respondent employer. The majority finds that Mr. Andy McKim's testimony rises to the level of independent corroborating evidence that the claimant sustained a work-related injury. The majority has, in my opinion, resorted to impermissible conjecture and speculation to come to this conclusion. 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 Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
Dr. White's medical records also support a finding that no injury occurred. Specifically, his records indicate that no injury was reported to him. In addition, he recollected that the claimant did not tell him she had a work-related injury. Dr. White has had a relationship with the claimant as patient her entire life. The claimant indicated that Dr. White "brought her into this world."
Mr. Ron Overton testified that he did not see the claimant exhibit any problems or mention an injury on April 6, 1999. He did testify that the claimant mentioned a Taekwondo injury. Mr. Overton testified that he believed that this injury occurred on the night of April 5, 1999. Although the claimant presented the testimony of Mr. Tony Kidder, her Taekwondo instructor, who stated that he did not see any injury at his Taekwondo class, it is of note that Mr. Kidder has a large facility in which he cannot keep up with and observe each of the students the entire time. Mr. Kidder testified that he had a "fairly good size" work-out area of 1300 square feet. In addition, he taught four classes back to back, and it was not uncommon for students to stay after class and practice their kicks.
Therefore, after I consider the testimony of Mr. Andy McKim, Mr. Jerry McKim, Dr. White, Mr. Steve Walker, and Mr. Ron Overton, the evidence reflects that the claimant failed to prove by a preponderance of the evidence the she sustained a compensable injury on April 6, 1999.
Accordingly, for all the reasons set forth herein, I must respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner