Opinion
CLAIM NO. E705491
ORDER FILED OCTOBER 6, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by PAUL BYRD, Attorney at Law, Little Rock, Arkansas.
Respondent represented by FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.
ORDER
[2] This matter is currently before the Commission on a motion filed by the respondent. The respondent has filed a motion with the Commission requesting that the Commission make a finding on remand that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. The claimant has filed an objection to the motion. Based upon our review of the record, we find that the respondent's motions should be granted.On April 28, 1999, the Arkansas Court of Appeals issued an opinion reversing and remanding the Commission's decision in this case. At issue is the compensability of an injury to the claimant's right foot. The claimant sustained an admittedly compensable injury to his right thigh. He contended that he also sustained a compensable injury to his right foot in the form of ganglion cysts. The Administrative Law Judge found that the injury was not compensable and the Commission affirmed and adopted the Administrative Law Judge's findings as its own.
The Administrative Law Judge's opinion contained a quote from Dr. Kilgore's December 11, 1997, letter and December 12, 1997, report. The Administrative Law Judge noted that Dr. Kilgore stated it was his opinion "within a reasonable degree of medical certainty, that the injury described by Johnny Estrada could have caused the formation of a ganglion cyst." The Administrative Law Judge, however concluded as follows:
While I agree with Dr. Kilgore that the incident in question, if occurring as the claimant described, could in deed (sic) eventually cause a ganglion cyst, however, I am inclined to disagree that one could develop so quickly and readily following the traumatic event. It has been my experience, that a ganglion cyst takes some time to develop and form to its surgical size, after the stressful or traumatic event occurs.
The claimant argued before the Court of Appeals that the Commission arbitrarily disregarded objective medical evidence. The Court of Appeals noted that the Commission, "Is not granted leeway to arbitrarily disregard the testimony of any witness, nor may it reach outside the record for facts that may or may not exist." Boyd v. Dana Corp., 62 Ark. App. 78, 84, 966 S.W.2d 946, 949-50 (1998). The Court of Appeals found that the Commission disregarded Dr. Kilgore's conclusion that the ganglion cyst could have developed in the manner described by the claimant. Specifically, the Court found that the Administrative Law Judge's determination was made by relying on facts that were not in evidence. Although the Commission cannot arbitrarily disregard the testimony of a witness, the Commission is allowed to weigh medical evidence. The Commission has the duty of weighing the medical evidence as it does any other evidence, and the resolution of any conflicting medical evidence is a question of fact for the Commission to resolve. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of workers' compensation law. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). As the Supreme Court has stated:
The Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant's injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as well as lay testimony and the testimony of the claimant himself. Further . . . while medical opinions are admissible and frequently helpful in workers' compensation cases, they are not conclusive.
A.G. Weldon v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179 (1996). The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict.McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989).
Because of the concern of the Court that the Commission arbitrarily disregarded the statement of Dr. Kilgore, and its' concern that the Administrative Law Judge relied on facts not in evidence, we have reviewed the entire record and it is our opinion that the decision of the Administrative Law Judge should be affirmed.
The claimant states in his answer to the respondent's motion that the Court of Appeals had the opportunity to review the record de novo. We remind the claimant that it is theCommission that performs a de novo review, not the Court of Appeals. The claimant also stated:
It is incredulous that the Court of Appeals sent this case back to the Commission with instructions with the Opinion only to have the Commission to again deny the claimant's claim. The doctrine of the law of the case closes this matter except for proceeding consistent with the Court of Appeals Opinion.
The claimant's argument is extremely misplaced. The Court didnot remand this matter to the Commission for an award of benefits. The remand was for the sole purpose of ordering the Commission to consider evidence it had previously disregarded. Even after we consider Dr. Kilgore's statement, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury.
The claimant is a forty-three year old male, who is a painter by trade. The claimant testified that he was working for the respondent on April 1, 1997, when he was asked to assist in unloading a truck. His regular duties were that of a kitchen cook. Due to a shortage of help in the labor that normally unloaded the trucks, he agreed to help in unloading the truck. He took a position in line whereby several employees had formed a chain to pass boxes from one to the other. The claimant stated that during the passing of the boxes, he was turned to his right when a co-worker named "Hutch" whistled at him. As he turned back, a box struck him on his right thigh causing him to fall backwards on some other boxes. The box slid down to the floor striking his ankle and foot.
The claimant's supervisor inquired if he was all right, and the claimant stated that he thought he was okay. The claimant finished working the rest of the day which lasted about one and one-half hours. The next day, the claimant called in and stated that he could not come to work because of the injury to his thigh and ankle. After a three day scheduled off period, the claimant called back and was told that he had been replaced. He then went to the emergency room at Baptist Memorial Hospital where he saw Dr. Bethell. The claimant gave a history of his injury, then subsequently was referred to Dr. Kilgore, an orthopedist. Dr. Kilgore eventually performed surgery on the claimant's foot to remove a ganglion cyst.
Jessica Estrada, the claimant's wife, testified that when she picked the claimant up from work he told her about both the thigh and ankle injury, and his ankle had begun to swell.
Chris Krenn and Thomas Owens, employees of respondent, testified that the claimant complained only of a thigh injury on the date that he was struck by the box. They stated that the box weighed fifteen to sixteen pounds, and not forty pounds as the claimant had asserted. In addition, they testified that the claimant had made statements prior to the injury that the reason he had quit painting and gone to work for the respondent employer was because he had injured his right foot on a ladder while painting.
The claimant has the burden of proving by a preponderance of the evidence the compensability of his claim. Jordan v. Tyson Foods, 51 Ark. App. 100, 911 S.W.2d 583 (1995); Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995). The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is compensable, that the claimant's injury is job-related or that a claimant is entitled to benefits. Crouch Funeral Home v. Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977); O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). In determining whether a claimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); andFowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
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 Frozen Foods, Full Commission 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. 1997). 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.
When subsequent complications are the natural and probable result of the original injury, the employer remains liable. However, the claimant must show, by a preponderance of the evidence, that there is a causal relationship between the compensable injury and the subsequent complications. Shirley A. Mitchell v. Circle K Corp., Full Commission Opinion October 21, 1998 ( E608414).
The claimant testified he did not immediately complain of a foot injury because he was focused on the intense pain in his thigh. Both the claimant and his spouse testified they noted swelling to his ankle the night of the injury and the following morning. However, the claimant's first medical treatment occurred seven days later, on April 8, 1997.
Dr. Bethell examined the claimant on April 8, 1997. He stated after examination of the claimant:
"Right lower extremity: examination reveals minimal tenderness over the right quadriceps but with no swelling. There is no swelling over the right ankle. He has essentially full range of motion. Pulses are good. Color is good. There are no other findings."
The medical evidence indicates that the claimant's ankle was essentially normal at the time he sought medical treatment.
It appears that the claimant suffered ankle problems prior to going to work for the respondent employer. Mr. Thomas Owens, the claimant's supervisor, upon questioning testified as follows:
"Q. . . . Did you ever have a conversation with Mr. Estrada after he went to work in December of 1996 about any of his physical ailments?
"A. I basically had a conversation with him about why he had quit contracting.
"Q. Okay. Tell the judge about that conversation.
"A. He had told me he quit contracting because he couldn't get up and down on ladders anymore due to falling off a ladder and hurting his right ankle."
Mr. Krenn testified that he had just taken a box from the claimant and was walking around the other side, when he heard the claimant exclaim "Ow". Mr. Krenn came back around, which took about twenty seconds. He saw the claimant leaning back on some boxes. The claimant was holding a box in his hands against his right thigh. If this sequence of events is correct, the claimant would have had a period of approximately twenty seconds, after being struck by a box on the thigh and then on his foot, to bend over and retrieve the box. This seems highly unlikely. In order for us to believe that the claimant picked up the box after being struck on the ankle would require conjecture and speculation. 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). It seems more plausible that the claimant had only been hit in the thigh. This injury was accepted by the respondent as compensable.
The claimant was evasive when asked to explain his failure to fully answer interrogatories about his previous employment. This is significant in view of the testimony of respondents' witnesses Mr. Owens and Mr. Krenn that the claimant had reported to them that he had abandoned his painting business to go to work for the respondent employer at substantially reduced compensation because of a fall from a ladder in which his right ankle was injured. Both Mr. Owens and Mr. Krenn had good working relationships with the claimant. Mr. Owens described the claimant as a good worker. In fact, the claimant had performed the duties of a translator in Mr. Owens' dealings with Spanish speaking employees. Neither Mr. Owens nor Mr. Krenn was shown to have a bias that would lead them to fabricate a story about the claimant reporting a pre-existing injury.
Both Mr. Owens and Mr. Krenn testified that the claimant never mentioned having right ankle pain on the day of the injury. They did testify that he was complaining of right thigh pain and did in fact appear to have pain in his thigh. We find the testimony of Mr. Owens and Mr. Krenn to be more credible than the claimant's. 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). Furthermore, 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 it deems worthy of belief.Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).
The claimant argued that the report of Dr. Reed W. Kilgore, claimant's treating orthopedic surgeon, should not have been disregarded. In his report, Dr. Kilgore stated that the type of injury reported by the claimant "could have" caused his condition. The doctor found that the claimant's condition was "consistent of a direct blow." The only injury reported to Dr. Kilgore was being struck by a box landing on the top of the foot. The claimant did not report the ankle injury he sustained in the fall from the ladder. There is nothing in the medical record even suggesting that the claimant's ganglion cyst was not consistent with the ladder type of injury. Dr. Kilgore's reports are persuasive only if one assumes the claimant gave him an accurate account of what caused his condition. The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of workers' compensation law. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). As our Supreme Court has stated:
The Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant's injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as well as lay testimony and the testimony of the claimant himself. Further . . . while medical opinions are admissible and frequently helpful in workers' compensation cases, they are not conclusive.
A.G. Weldon v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179 (1996).
The Arkansas Supreme Court stated:
Now, medical opinions addressing compensability under Section 11-9-102(5)(A)(i) must be stated in terms expressing a medical expert's reasonable certainty that the claimant's internal or external physical harm was caused by his accidental injury.
In addition, a succinct and specific medical opinion meets the reasonable certainty requirement. Service Chevrolet v. Atwood, 61 Ark. App. 190, ___ S.W.2d ___ (1998). We find that Dr. Kilgore's opinion is entitled to little if any weight. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). Dr. Kilgore's opinion that the box "could have" caused the claimant's condition fails to satisfy the requirement that a medical opinion be stated within a reasonable degree of medical certainty.
The overwhelming evidence shows that the claimant had a prior ankle injury as a result of falling from a ladder and the ganglion cyst was a result of that fall, not from the box incident. Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury in the form of a ganglion cyst. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
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DISSENTING OPINION
[33] I must respectfully dissent from the majority opinion finding that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury to his right foot. In my opinion this motion is precluded by the law of the case doctrine and therefore we should hold claimant's injury to be compensable. However, even if I accept that this argument is not precluded, a preponderance of the evidence establishes that claimant suffered a compensable injury to his right foot on April 1, 1997.Respondent has raised the argument that the accident did not occur as described by claimant. This argument is however precluded by the law of the case doctrine. In Washington v. State, 278 Ark. 5, 643 S.W.2d 255 (1982) the court wrote "[t]he doctrine of the law of the case is that the decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review". In this matter respondent presented the identical argument in its original appeal to us and to the Court of Appeals as an alternative basis for affirming our original opinion. Respondent now raises this argument for a third time. Implicit in the Court of Appeals' decision to remand the case was its rejection of this argument. Since this argument has already been presented in an earlier appeal, and rejected, we are precluded from using it as a basis for a new opinion.
The majority's decision to deny claimant benefits for his ankle injury is based upon the conclusion that claimant was not struck in his foot by the falling box. In order to reach this conclusion the majority has determined that claimant was not truthful when he testified that the box hit him in the foot. The majority has also determined that the emergency room records, which report that claimant was struck on the foot by a falling box and suffered a contusion, are inaccurate. In order to accept the conclusion that claimant was not truthful in his testimony it is also necessary to dismiss as unreliable the testimony of his wife that she observed, and he complained of, an ankle injury on the date of his accident.
The majority relies upon the testimony of two employees of respondent who testified that claimant did not specifically complain of foot pain during the last ninety minutes that they worked together. Because claimant had just suffered a significant thigh injury I do not find this curious and it does not constitute a preponderance of the evidence on this issue.
Unlike the majority I do not find it highly unlikely that a man would pick a box up off of his foot after dropping it. To the contrary it seems the most likely course of action. Claimant was working with a group men unloading a truck by forming a chain and tossing the boxes down the chain. In that setting it is entirely reasonable that claimant would pick up the box and try to keep the chain going rather than idle his co-workers and risk upsetting his supervisors.
The majority decision also relies upon secondhand evidence supplied by employees of respondent that claimant had suffered an ankle injury from a fall at his previous employment and this was the true cause of his complaints. Claimant had been in the employ of respondent for two months on the date of his injury. When this testimony is considered along with the emergency room records it appears highly unlikely that the testimony is reliable. Claimant was first examined and X-rayed on April 8, 1997 and he was diagnosed at that time as suffering a contusion of the right ankle. The April 8th report does not however indicate the presence of any evidence of a ganglion cyst. When claimant returned to the emergency room on April 29, 1997 the examination now revealed a "3 cm area of localized swelling" and he was diagnosed as suffering "right foot trauma".
I do not believe that claimant suffered an ankle injury which lay mysteriously dormant and undetected for over two months. It is simply too speculative to accept as coincidence the conclusion that a dormant injury suddenly became problematic only after claimant suffered his thigh injury and concocted a tale about injuring his ankle. I do not find it plausible that claimant had the cunning and good fortune to take advantage of an accident at work to perfectly time his symptoms from a pre-existing condition to worsen in a steady progression to make them appear to come from his on the job accident. I do not believe that it would even be possible for claimant to manipulate his symptoms in that manner. It is more probable that claimant's injury occurred exactly as described and the resultant cyst arose in the manner described by Dr. Kilgore.
Ultimately, it does not require speculation or conjecture to conclude that claimant suffered a compensable injury to his foot. We need only consider the credible and consistent testimony and evidence from claimant, his wife and his medical care providers. Against this body of evidence stands the bald assertion that it is highly unlikely that a man would pick a box up off his foot. By my estimation the preponderance of the evidence comes down overwhelmingly in claimant's favor. Accordingly, I would deny respondent's motion and award the appropriate benefits.
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