Opinion
CLAIM NO. E612677
OPINION FILED FEBRUARY 5, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; affirmed as modified in part.
OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on May 28, 1997, finding that claimant sustained a compensable injury on August 14, 1996, and is entitled to an award of temporary total disability benefits from October 1, 1996, through February 6, 1997.Respondents now appeal from that opinion and order, essentially contending that claimant's eventual disability and need for treatment resulted not from a work-related accident but from an intervening cause.
Following our de novo review of the entire record, we specifically find that claimant did sustain a compensable injury on August 14, 1996, to which her eventual disability and need for treatment are attributable. We accordingly affirm this aspect of the Administrative Law Judge's decision. However, as discussed below, we affirm as modified the decision of the Administrative Law Judge with regard to temporary total disability benefits.
This claim turns largely on matters of credibility, given that several witnesses testified and the medical evidence is both sparse and straightforward. Claimant herself provided the following account of an injury which occurred on August 14, 1996, as she attempted to retrieve supplies to refill an empty soft drink dispenser:
I went back to get a Coke case and CO2 bottle. We were terribly busy at the time and needed it right then, because we had customers waiting. I reached in, picked it up, sat it down on the floor, and when I did, I felt a sharp pain in my back.
Claimant further explained that the canister weighed "around 50 pounds," and stated that she had experienced no difficulties with her back prior to August 14, 1996, though she did have some prior neck trouble (not involved in this claim). Claimant reported her injury to respondent employer's personnel manager, Ms. Mary Petty, but declined medical treatment owing to her perception that respondent employer lacked available personnel. Claimant also assumed that the injury "was just a pulled muscle and it would go away." Unfortunately, claimant's difficulties did not diminish, though she continued to work over the next few weeks. She did not, however, engage in lifting any more Coke canisters and limited other heavy activities such as mopping (claimant explained that she simply "dry mopped" after her injury). Claimant acknowledged that her family moved during early September, 1996, but denied any participation in the moving activities beyond packing dishes into boxes, and further denied that said activities negatively affected her back.
By September 9, 1996, claimant found it necessary to obtain medical care, and consulted Dr. John Simpson. A short time later, Dr. Simpson referred claimant to Dr. Steven L. Cathey, a Little Rock neurosurgeon, who eventually performed an L5-S1 laminectomy and diskectomy on December 4, 1996. On January 6, 1997, Dr. Cathey stated that: "In my opinion, Ms. Johnson suffered a disc herniation at the L5-S1 interspace on the left as a result of an injury sustained at work at Wal-Mart." We note at this point that the history claimant presented to Drs. Simpson and Cathey is consistent with what she described at the hearing, and that she gave the same account to Ms. Petty on August 16, 1996. Ms. Petty herself testified that she asked claimant how her back was doing on several occasions, and that claimant never reported being asymptomatic after her injury. (Claimant testified that she would tell Mr. Brett Holzhauser, an assistant manager for respondent employer, "that it hurt" when he inquired about her back, though Mr. Holzhauser denied any knowledge of claimant's continuing difficulties until she sought medical treatment on September 9).
Ms. Crystal Scarbrough testified as an eyewitness to claimant's injury, and recalled that:
She was lifting a box of Coke syrup to load into the fountain drinks, and she lifted it out — she's got to lift it out of the buggy and then lift it into the under the counter. And I guess when she lifted it out, she turned the wrong way or something and she said, "Ouch," and said she had hurt her back.
Ms. Scarbrough also stated that claimant had no difficulty with her work duties prior to the above-described event, nor did she complain of any problems with her back. However, after the injury, "she couldn't hardly get up and down. You could tell she was in pain because of the expressions on her face . . ." In addition, Ms. Scarbrough lived with claimant's family at the time of the latter's relocation in early September, and assisted with the move. According to Ms. Scarbrough, claimant did not move any heavy objects or otherwise assist.
Claimant's son, Mr. Kenneth Johnson, also testified and confirmed that his mother had no difficulty with her back prior to August 14, 1996, but that after that date she "wasn't moving around too well." Mr. Johnson stated that his mother took no part in helping the family move, and that only his father and a friend tore down a number of sheds on the family's former residence.
Mr. Kenneth Lawson, a family friend, also could not recall claimant ever experiencing prior back problems, but testified that claimant told him "she was at work . . . and picked up that Coke container, and she strained her back when she was picking up on it." Mr. Lawson too, participated in the Johnsons' exodus, and stated that claimant basically sat at a table with his mother-in-law "discussing stuff" during that event. Finally, Mr. Lawson acknowledged helping claimant's husband tear down a shed, but denied that claimant participated in that activity. Yet another Kenneth, this one claimant's husband, also took the stand and denied that claimant had taken part in the move.
Ms. Mary Petty testified as well, and indicated that claimant had not mentioned a lack of personnel as one of her reasons to delay seeking medical treatment; instead claimant simply "wanted to see how she got along before she went to see the doctor." Ms. Janell Adams, one of claimant's co-workers, explained that claimant "always complained about her back hurting," even before the canister-lifting episode. Ms. Adams further indicated that her own work activities were essentially unaffected by claimant's injury, and denied mopping for claimant or helping her with loading an ice machine.
Another witness, Mr. Dewayne S. Neubauer, lived near claimant prior to her family's relocation, with only one other trailer between them. Mr. Neubauer recalled that one day during the time in which claimant's family was moving, he came home from work, alighted from his truck, and "just glanced over there and she was carrying something out." Mr. Neubauer could not, however, tell what it was: "I just knew she was carrying something. I had no idea what it was."
Claimant, on recall, served as the final witness, and once again denied having any back problems prior to August 14, 1996, though she admitted that she might have complained of her previous neck problems to Ms. Adams. Ms. Shellie Hamilton, claimant's former next door neighbor, stated by way of deposition that she had observed claimant take part in moving a couch and in moving "some stuff" out of two sheds before they were torn down.
Because claimant asserts the occurrence of a compensable injury after July 1, 1993, the provisions of Act 796 of 1993 are controlling. Claimant must thus demonstrate that she has sustained "an accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death." In addition, an injury will be considered "accidental" only if it is "caused by a specific incident and is identifiable by time and place of occurrence." Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996).
Also, a compensable injury "must be established by medical evidence, supported by `objective findings.'" Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). In turn, "objective findings are those findings which cannot come under the voluntary control of the patient . . . Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty." Ark. Code Ann. § 11-9-102(16) (Repl. 1996). A claimant's burden of proof concerning these elements is to demonstrate them by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(5)(E)(i) (Repl. 1996).
I.
Respondents assert that "some intervening cause," rather than the episode of August 14, 1996, is responsible for claimant's ultimate disability and need for medical care. However, this assertion appears bare in the absence of some evidence of what that "intervening cause" might have specifically been. The fact that claimant may have been observed carrying an unidentified object from her home, or removing some "stuff" from a shed, does nothing to establish an intervening cause between her August 14, 1996, injury and eventual need for treatment on September 9, 1996. Such observances only establish the possibility that some intervening event may have occurred. However, it is well settled that ". . . conjecture and speculation, however plausible, cannot be permitted to supply the place of proof." Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1980) (citing Sadler, Trustee v. Scott, 203 Ark. 648, 158 S.W.2d 411 (1942)). This rule is not limited to claimants attempting to meet their burden of proof, but applies with equal force to respondents seeking to employ what amounts to an affirmative defense. In the instant claim, we believe that our only means of finding that some intervening cause is responsible for claimant's need for treatment is to resort to impermissible speculation and conjecture, or to allow respondents the benefit of the doubt (which we are likewise precluded from doing by Ark. Code Ann. § 11-9-704(c)(4) (Repl. 1996).
As a final point regarding the issue of an intervening cause, we would point out again that Dr. Cathey considered claimant's injury to be the product of her employment, and we are persuaded to grant his opinion considerable weight in light of his role as claimant's treating and operating physician.
II.
A party's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994) (citing Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985)). However, determinations of the weight and credibility to be accorded a particular witness' testimony are an exclusive function of this Commission. Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996) (citing Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989)). Also, the Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony deemed worthy of belief. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989) (citing Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989)).
Our review of the record persuades us that claimant has presented credible testimony (corroborated by an eyewitness) regarding a low back injury which occurred during the course of her employment on August 14, 1996. In addition, we accept claimant's account of continued difficulties after August 14, 1996, as credible, and note that Ms. Petty's testimony further indicates that claimant remained symptomatic after her injury. Accordingly, from claimant's credible and corroborated testimony, as well as Dr. Cathey's opinion, we find that claimant sustained an accidental injury as the result of a specific incident identifiable by time and place of occurrence on August 14, 1996, which arose out of and in the course of her employment. We also find that claimant's injury has been established with medical evidence supported by objective findings, given the presence of a herniated disc at the L5-S1 level, which further demonstrates an internal physical harm to claimant's body. Finally, claimant's medical records amply demonstrate that her injury required her to obtain "medical services." Based on the foregoing, we find that claimant sustained a compensable injury on August 14, 1996.
III.
The Administrative Law Judge awarded temporary total disability benefits from October 1, 1996, through February 6, 1997, but did not discuss the factual basis of this award. We note that the Commission must find as facts the basic component elements on which its conclusion is based. Shelton v. Freeland Pulpwood, 53 Ark App. 16, 918 S.W.2d 206 (1996) (citing Cagle Fabricating Steel, Inc., v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992)). Accordingly, we would point out that in cases involving temporary total disability, it is necessary to analyze the duration of claimant's healing period and his or her capacity (or complete incapacity) to earn wages. Put another way, "temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages." Arkansas State Highway and Transp. Dep't. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).
Claimant's healing period began on the day of her injury: August 14, 1996. We do not believe it would have ended any earlier than January 20, 1997, the target date which Dr. Cathey assigned for claimant's return to work (and a date which was only six weeks post-surgery). Accordingly, we find that claimant's healing period extended until at least January 20, 1997.
On September 9, 1996, Dr. Simpson removed claimant from work for four days pending follow-up, and held her off work an additional five days beginning on September 13, 1996. It does not, however, appear that claimant was permitted to attempt working until October 10, 1996, when Dr. Cathey stated that he was "going to leave her on `light duty' status at work." On October 24, 1996, Dr. Cathey removed claimant from work "for the next month," but on November 25, 1996, he expressed his intention to proceed with surgery. There is thus little or no indication that Dr. Cathey permitted claimant to return to work prior to her surgery of December 4, 1996.
Based on the foregoing, we find that claimant remained in her healing period and totally incapacitated to earn wages, and is entitled to a corresponding award of temporary total disability benefits, for the following periods: September 9, 1996, through October 10, 1996 and October 24, 1996, through January 20, 1997.
From our de novo review of the entire record, and for the reasons stated herein, we specifically find that claimant sustained a compensable injury on August 14, 1996, to which her subsequent periods of disability and ultimate need for surgery on December 4, 1996, are attributable. We further specifically find that claimant is entitled to an award of temporary total disability benefits as set out within this opinion. The decision of the Administrative Law Judge is therefore affirmed in part, and affirmed as modified in part.
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 (Repl. 1996).
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
[31] I respectfully dissent from the majority opinion finding that claimant sustained a compensable injury on August 14, 1996, which resulted in disability or need for medical treatment and that respondent is responsible for claimant's medical treatment and disability. Based upon my de novo review of the entire record, I find that claimant has failed to meet her burden of proof.Claimant contends that on August 14, 1996, she sustained a compensable injury to her lower back when she was lifting a Co2 canister during the course and scope of her employment. Respondent contends that claimant cannot meet her burden of proof with regard to the compensability of her claim and specifically contend that claimant's disability and need for medical treatment is the result of an independent intervening cause.
Even assuming that claimant sustained a minor injury to her back on August 14, 1996, in the incident described by claimant, I cannot find that that incident resulted in disability or need for medical treatment. Claimant refused medical treatment when it was offered by respondent. The record reflects that it was not until after claimant moved her residence and traveled from her home in Hot Springs, Arkansas to visit her son in Kentucky that she first needed medical treatment or was unable to work. The essence of this case boils down to whether one believes claimant and claimant's witnesses over the testimony of respondent and respondent's witnesses.
The findings of the Administrative Law Judge on issue of credibility are not binding on the Commission. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983), Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). 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). Moreover, 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).
When I weigh the evidence in this case impartially without giving the benefit of the doubt to either party, I cannot find claimant's witnesses to be credible, impartial witnesses. Each witness who testified on behalf of claimant was either a family member or clearly a close personal friend of claimant. The close relationship between claimant and each of her witnesses leads me to find that each of claimant's witnesses are less than credible witnesses when it comes to ascertaining the truth of claimant's condition and claimant's activities. This is seen in each witnesses testimony through their attempt to portray claimant in a light which they each felt to be favorable to the claimant, but was contradicted by even the claimant's testimony.
However, the same cannot be said for respondent's witnesses. While several of these witnesses continue to work for respondent, Shelly Hamilton, an eyewitness to claimant's activities when claimant moved, is clearly a disinterested witness and confirms the testimony of Mr. Dewayne Neubauer. These two witnesses testified that claimant actively participated in moving objects, to include furniture and boxes, out of her residence when she and her family were moving. Although it is unknown how much each object weighed, the fact remained that their testimony, that claimant participated in helping her family move, clearly contradicts claimant's testimony and that of Crystal Scarborough and Kenneth Lawson. As noted above, Ms. Scarborough and Mr. Lawson are close personal friends of claimant and I find that their testimony is not entitled to any weight, particularly in light of the testimony to the contrary from a disinterested witness. Ms. Hamilton's testimony is also inconsistent with claimant's testimony that she did not help move anything out of her home.
In my opinion if claimant is not straightforward and truthful regarding her activities when her family moved, I cannot find that her testimony regarding the status of her condition following the August 14, 1996, incident and prior to her need for medical treatment on September 9, 1996, which coincidentally occurred after claimant moved, is entitled to any weight. Likewise, I can place no weight on the testimony of claimant's witnesses who corroborated claimant's testimony which has been contradicted by a disinterested witness. Since I find that claimant is not a credible witness, I cannot find that claimant has met her burden of proof with regard to the compensability of her claim. Claimant has failed to prove that the incident on August 14, 1996, resulted in a disability or need for treatment. In my opinion, any disability or need for medical treatment arose not from claimant's incident on August 14, 1996, but from some other activity, Therefore, I find that respondent is not liable for claimant's disability or medical treatment. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner