Opinion
CLAIM NO. E510075
OPINION FILED DECEMBER 11, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAMES NOBLIN, Attorney at Law, Forrest City, Arkansas.
Respondent represented by DAVID WILSON, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
Respondent appeals a decision by the Administrative Law Judge finding that the claimant sustained a compensable injury on June 9, 1995. Based upon our de novo review of the record, we find that claimant has failed to meet his burden of proof and we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury on June 9, 1995. Accordingly, we hereby reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent in the maintenance department. The claimant's job duties required him to empty trash cans and do other general maintenance around the respondent employers place of business. The claimant testified that he injured his lower back while attempting to empty a 55 gallon barrel of oil dry and auto parts into a dumpster. The claimant testified that the injury occurred when he picked up the half-full barrel and lifted it over his head in order to empty the remaining contents into the dumpster. The claimant stated that he frequently emptied 55 gallon drum barrels of oil dry and auto parts in the manner described because it was part of his job duties. The claimant also testified that he always picked up the barrels by himself because nobody would ever help him. The claimant contends that he sustained an injury on June 9, 1995.
The claimant testified that just before the alleged incident, he asked the shop foreman, Mr. Charles Choate, to get him some help in emptying the barrels but Mr. Choate refused to do so. The claimant testified that he reported his alleged injury to Mr. Choate immediately after it happened but Mr. Choate ignored him. The claimant stated that he reported the injury to another supervisor in the front office on June 9, 1995, and was instructed to go see Dr. Trent Pierce.
The claimant sought treatment from Dr. Pierce and continued to work for two weeks following his alleged injury. The claimant testified that during this two week period he continuously reported his injury to Mr. Choate everyday but Mr. Choate would not pay any attention to him.
The claimant left his employment with the respondent on June 23, 1995. After leaving the respondent employer, the claimant began receiving treatment from Dr. John Dodson. Dr. Dodson released the claimant to return to regular duty work on August 16, 1995. The claimant testified that he was earning money mowing lawns during the time period following his injury. In addition, the claimant, after being released by Dr. Dodson, worked in a West Memphis car lot answering the telephone and keeping the office open. Dr. Dodson's office notes indicate that the claimant could go return back to work "cleaning cars." However, the claimant testified that his job duties only required him to answer the telephone and keep the office open. He denied that his work included cleaning cars.
The respondents offered the testimony of Ms. Debbie Cromeans. Ms. Cromeans was employed as the respondent employer's office manager and bookkeeper. Ms. Cromeans testified that she knew nothing about the claimant's alleged injury until Monday, June 26, 1995, when Dr. Pierce's office called requesting authorization for treatment of claimant's lower back injury. Ms. Cromeans testified that she was reluctant to provide such authorization until she conducted an investigation. After her investigation was complete, Ms. Cromeans failed to find anyone who knew anything about the claimant's alleged injury. Ms. Cromeans also testified that Dr. Pierce is not the company doctor and that the respondent employer would never have sent an injured worker to see Dr. Pierce but instead would have sent him to MediQuick.
Respondent also offered the testimony of Mr. Jeffery Sheehan, the assistant service manager. Mr. Sheehan stated that the claimant should have reported any work-related injury to either himself or Mr. Choate. He did not learn of the claimant's injury until June 26, 1995, when Ms. Cromeans asked him if he knew anything about the claimant being hurt on the job. Mr. Sheehan testified that at about a week before Ms. Cromeans made the aforementioned inquiry, the claimant had approached him to tell him that Friday, June 23, would be his last day of work because he had found a higher paying job in Memphis. He was not expecting to see the claimant at work on June 26, 1995.
Mr. Sheehan testified that he would never have asked the claimant to empty a 55 gallon barrel of oil dry and auto parts by himself. He stated that every technician in the service department was expected to empty these barrels and nobody was ever expected or instructed to empty them without assistance. Mr. Sheehan testified that a half-full barrel of oil dry and auto parts probably weighed in excess of 200 pounds and that it would take at least two people to empty a 55 gallon barrel, possibly even three or four. Mr. Sheehan stated that he never observed the claimant or anybody else attempting to empty one of these barrels without assistance. Mr. Sheehan also testified that when the dumpster was at least half-full two or three technicians would load barrels on the back of a truck and position their truck next to the dumpster lifting the barrels over the top of the dumpster.
Mr. Sheehan stated that he saw the claimant after June 26, 1995, when he came in to pick up his last paycheck. He testified that the claimant appeared to be uninjured at the time and was in fact hopping around. The claimant was not given his check at that time because he had not turned in all of his uniforms. The claimant got angry and paced back and forth. However, the claimant never once mentioned to Mr. Sheehan that he had a back injury.
Mr. Charles Choate, the service manager, testified that he was the claimant's supervisor and that the claimant was never instructed to empty the barrels by himself. Mr. Choate stated that two to four technicians would load the barrels onto a truck and park them next to the dumpster and lift them over the edge of the dumpster. In fact, Mr. Choate testified that he never saw the claimant empty a barrel by himself or even assist others emptying the barrels. In addition, he never observed anyone trying to empty these barrels by themselves.
Mr. Choate testified that the claimant was to report any work-related injury to him but the claimant never told him about any alleged incident on June 9, 1995, or any other date. Mr. Choate testified that he did not learn of the injury in question until June 26, 1995, when Ms. Cromeans made the inquiry. Mr. Choate stated that Mr. Sheehan told him that the claimant had taken another job in Memphis and had given a weeks notice. Mr. Choate never saw the claimant after the weeks notice was given.
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, 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. 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. The compensability of this claim rests solely upon the claimant's credibility. The only evidence that we have supporting a finding of compensability is the claimant's testimony. In our opinion, the evidence simply fails to support a finding that the claimant sustained a compensable injury on June 9, 1995, or any other date. In our opinion, the claimant's testimony is simply not credible. The claimant testified that he suffered an immediate onset of pain on June 9, 1995, and that he reported this injury to the respondent employer everyday after that date. However, the medical records reflect that the claimant told his treating physician that he did not begin having pain until June 23, 1995, which coincidentally was the claimant's last day working for the respondent employer. Further, the claimant failed to report an injury to his employer until June 26, 1995, after he took another job in Memphis. Further, the claimant testified that he went to Dr. Pierce's office the day the injury occurred. However, the medical records and the testimony of Ms. Cromeans established that the claimant did not go to Dr. Pierce's office for the first time until June 25, 1995.
In assessing the claimant's testimony, we find that it is entitled to little or no weight. The record is replete with inconsistencies. The claimant would have us believe that he reported an injury every single day to Mr. Choate and that Mr. Choate ignored the claimant. However, two other witnesses, Ms. Cromeans and Mr. Sheehan, both testified that they were unaware of the claimant's alleged injury as well until June 26, 1995, which is when Mr. Choate became aware of the injury. It is simply implausable that the claimant would report an injury every single day and not one single person knows about it until over three weeks later. We find Ms. Cromeans and Mr. Sheehan to be more credible. 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). A claimant's testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).
The claimant also testified that he was terminated. However, Ms. Cromeans, Mr. Choate, and Mr. Sheehan, all failed to support the claimants contention that he was fired. Mr. Sheehan and Mr. Choate both testified that the claimant gave notice that his last day would be June 23, 1995, because he was going to take a higher paying job in Memphis.
The medical evidence also fails to support a finding that the claimant sustained a compensable injury on June 9, 1995. The claimant initially sought treatment from Dr. Pierce on June 26, 1995, which is three weeks after the claimant contended that the alleged incident occurred. Dr. Pierce's medical records indicate that the claimant's injury occurred on June 23, 1995, not June 9, 1995. The claimant testified that he received treatment on the date of the injury, however, Dr. Pierce's records fail to corroborate this.
The record indicates that claimant began treating with Dr. Dodson on July 19, 1995. Dr. Dodson's notes indicate that the claimant injured his back on June 9, 1995, when he was lifting a 55 gallon drum. Dr. Dodson stated:
Radiographs of the lumbar spine reveals mild osteophyte formation on the anterior aspect of L3-L5. Slight invertebral disc space narrowing at L5-S1 was present. A decrease in the normal lumbolordosis was present, consistent with paraspinous muscle spasm.
Dr. Dodson released the claimant to full duty on August 19, 1995.
The claimant failed to seek any medical treatment between August 16, 1995, and April of 1996, when he returned to Dr. Dodson. Dr. Dodson's test results indicated that the claimant suffered from a herniated lumbar disc at L5-S1 with right S1 nerve root impingement. Dr. Dodson referred the claimant to Dr. Williams. Although Dr. Dodson indicated in his deposition that the claimant's herniated disc was the result of the lifting incident on June 9, 1995, there is no evidence in the record to support it. The only evidence we have is Dr. Dodson's statement that he thinks that there is a causal connection between the incident on June 9, 1995, and the claimant's herniated disc which was diagnosed on April 24, 1996. This is insufficient evidence and we give no weight to Dr. Dodson's opinion. 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). The claimant was asked by Dr. Dodson if he did anything after he left working for the respondent employer that could have caused him to injure his back and the claimant stated that he did not. Based upon this, Dr. Dodson opined that the claimant's herniated disc diagnosed in April of 1996 was related to the incident on June 9, 1995. However, 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). Further, 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).
In our opinion, in order for the claimant's herniated disc to be related to the alleged incident on June 9, 1995, would require us to resort to a 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).
Based upon our de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on June 9, 1995. Accordingly we hereby reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that claimant failed to prove that he sustained a compensable injury on June 9, 1995.
In reaching its decision, the majority determines that the opinion of Dr. Dodson is entitled to no weight, and that claimant is not credible. I disagree with respect to both points.
In my view, claimant offered a credible account of a work-related injury occurring on June 9, 1995. Dr. Dodson's deposition testimony reveals that he initially treated claimant on July 19, 1995. On that date, claimant indicated that he injured his back on June 9, 1995, as he was lifting a 55-gallon drum. He stated that claimant immediately experienced low back pain; however, he did not obtain medical treatment for 2-3 weeks following the injury. Further, claimant has not waivered with respect to the injury date or the manner in which the injury occurred.
With respect to Dr. Dodson's opinion, the majority states that: "The only evidence we have is Dr. Dodson's statement that he thinks that there is a causal connection between the incident on June 9, 1995, and the claimant's herniated disc which was diagnosed on April 24, 1996." (Emphasis original). I do not agree with the majority's characterization of Dr. Dodson's testimony. When questioned about causation, Dr. Dodson stated that "I feel fairly strongly that the precipitating factor was his initial insult of 6/9/95, given the history that the patient told me that there were no intervening precipitating factors." He testified that his opinion was being stated within a reasonable degree of medical certainty. In Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), the Court of Appeals considered the medical certainty requirement imposed by Act 796. In Atwood, a physician offered the following opinion with regard to causation: "[c]ertainly, an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like that present in [appellee]." The court determined that the opinion of the physician satisfied Act 796. Acknowledging the change in the law as a result of Act 796, the Court of Appeals held that: "[n]ow, medical opinions addressing compensability under § 11-9-102(5)(A)(i) must be stated in terms expressing the medical expert's reasonable certainty that the claimant's internal or external physical harm was caused by his accidental injury." In my view, the opinion offered by Dr. Dodson satisfies the medical certainty requirement.
Moreover, Dr. Dodson stated that he did not believe that claimant suffered a new injury in April of 1996. He opined that claimant's symptoms were a "progression of the initial insult." When questioned regarding whether it is typical for an individual to have a recurrence of an injury seven months after a complete abatement of symptoms, Dr. Dodson indicated it was an appropriate course of events. He elaborated on his response, stating that:
Many, many times the initial insult that a person will receive to the intervertebral disk space is simply a tear. It may be a partial or incomplete or even a complete tear of that dense fibrous band which we call the anulus fibrosus. In the event that it is an incomplete tear, what happens then is that the disk loses its integrity and it flattens out. Therefore, you see the narrowing of the disk space on x-rays.
The tear can do several things. Number one, it can eventually heal, but you still have the loss of the normal intervertebral disk space height. The tear can stay as it is and nothing changes, or it can progress. . . .
There can be a progression of that tear to the point that it's suddenly — not suddenly, but slowly continues to increase till it becomes a full thickness tear. And then because of the pressure, the intervertebral nucleus can then extrude through that tear, which is then considered a ruptured disk or herniated nucleus pulposus.
In my view, the medical evidence supports a finding that a causal connection exists between the June incident and claimant's herniated disc. The x-rays taken in close proximity to the work-related incident showed a narrowing of claimant's disc space at the L5-S1 level. Further, Dr. Dodson's credible testimony was unequivocal with respect to causation. Therefore, I find that claimant has met his burden of proof. Moreover, the medical care rendered by and at the direction of Drs. Pierce and Dodson was reasonably necessary. Finally, I would award temporary total disability benefits.
Based on the foregoing, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner