Opinion
CLAIM NO. E911404
OPINION FILED FEBRUARY 1, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on July 11, 2000. In that opinion and order, the Administrative Law Judge determined that claimant sustained a specific incident injury. It was also determined that the notice provision is not a bar to benefits in this case. Also, claimant was awarded all reasonably necessary medical benefits. Since medical benefits were paid in accordance with a group health plan, respondents were ordered to comply with Ark. Code Ann. § 11-9-411 (Repl. 1996). The issue of permanency was specifically reserved. Based on our de novo review of the record, we find that claimant proved by a preponderance of the credible evidence that she sustained a specific incident injury identifiable by time and place of occurrence. Further, we find that the notice provision is not a bar to an award of benefits. Moreover, claimant is entitled to all reasonably necessary medical care for the treatment of her injury. Also, we find that respondents must comply with Ark. Code Ann. § 11-9-411 (Repl. 1996). Therefore, we must affirm the Administrative Law Judge's decision.
Claimant was hired as Director of Nursing for respondents. Subsequently, she was promoted to CQI (continuous quality improvement) Director. In that capacity, claimant was responsible for six nursing homes in southern Arkansas. She testified that she was injured at Stillmeadow Nursing Rehab in Malvern, Arkansas. At the time of the injury, claimant was acting Administrator, and DON at Stillmeadow. However, she continued performing her duties as CQI Director.
Claimant contends that the injury occurred on or about March 3, 1999, but conceded that she is unsure of the precise date. However, she is certain with respect to the circumstances surrounding the injury. In this regard, claimant testified that she had developed packets for three new nursing directors, which included portions from the CQI manual. She stated that she spread the material on the floor, copied selected text from the CQI manual, and then reassembled it. Claimant testified that she was on her knees, and when she stood up with a completed manual she heard a "pop" in her back.
Claimant informed co-workers of her injury, and a heating pad was secured from the physical therapy department for her use. She testified that she informed her supervisor, Patti Faenger, of the accident the following day. She stated that Ms. Faenger pointed out that claimant had a history of back complaints. According to claimant's testimony, she informed Faenger that she had suffered a new injury. She stated that the remainder of the conversation addressed an upcoming business trip to a facility in Mena.
Claimant testified that she experienced low back pain immediately after the incident. Thereafter, she developed symptoms in her lower right extremity. Although she did not seek immediate medical treatment, claimant called her family physician, Dr. Ferdinand T. Roda, and informed him of the accident. She stated that she requested medication. The pain intensified, and claimant consulted Dr. Roda. He referred her to Dr. John R. Pace, a neurosurgeon, and he performed surgery.
Claimant stated that she received an e-mail message from Ms. Loren S. Martin, an insurance representative of respondent employer, concerning her claim. That message, dated August 3, 1999, was introduced into evidence by claimant and provided:
Betty, Ron is on the final stages of reviewing your claim he needs only to get the medical records and your last medical records of prior back related issues. He's is [sic] pursueing [sic] this ardently and will advise, If you get further bills send to him directly. Or call doctor and advise you are getting these. Because the claim was late to Wausau, it took more time to get past records. Patty's statement did validate your claims, just looking at past history and bills to see what should be paid. Loren.
According to claimant's testimony, she returned to work twenty-two days after back surgery. She stated that she was concerned about losing her job. Claimant testified that two months after her return to work, Ms. Faenger informed her the company was downsizing. She was asked to sign a document to that effect. However, the document claimant signed indicated that she had resigned her post.
On cross-examination, claimant conceded that she did not complete an injury report until June 24, 1999. She did so based upon a request from David Barker, Employee/ Client Relations Manager. However, claimant maintained that she fulfilled the notice requirement by reporting the incident to Patti Faenger the day after it occurred. Moreover, she stated that she disagreed with Dr. Roda's chart note dated March 5, 1999, which reflected that the injury occurred three weeks earlier. Upon questioning from the administrative law judge, claimant acknowledged that she could not be sure precisely what she told Dr. Roda.
Todd McClain testified in claimant's behalf. He is a weekend charge nurse with respondent employer. Mr. McClain testified that claimant informed him of the injury in early March of 1999. He stated that within a few days of the incident, he advised his roommate, David Barker, of claimant's injury. Claimant also introduced a statement from McClain dated June 23, 1999, which is consistent with his hearing testimony.
Neta Coston, an employee of respondent employer, testified as well. Moreover, claimant offered a statement signed by Coston and Cindy Hooks dated June 20, 1999, which is in accord with her testimony. According to Ms. Coston, claimant explained that she experienced a pop in her back as she lifted a book in the administrator's office. On cross-examination, Ms. Coston stated that the request to complete a witness statement originated from another department within respondent employer's company. Although certain that claimant's injury occurred in March; however, she is unsure of the date. Ms. Cindy Hooks, with whom Ms. Coston shares an office, offered corroborative testimony.
Respondents offered the testimony of Patti Faenger, Regional Vice President. She denied that claimant reported a work-related injury in February or March of 1999. Ms. Faenger stated that David Barker informed her of claimant's claim in June of 1999. She testified that she has no recollection of a conversation during which claimant reported a work-related back injury.
Ms. Faenger testified that during the business trip to Mena on February 11, 1999, claimant complained of back pain. Also, claimant indicated that the pain occurred frequently. Ms. Faenger testified that she did not return to Mena with claimant on March 11, 1999. She stated that her records show that she was in Hot Springs on March 11, 1999.
On cross-examination, Ms. Faenger could not explain why none of the witnesses with whom claimant regularly worked ever noticed back problems prior to the injury. She insisted that she would recall if claimant reported a work-related injury in March of 1999.
Ron Gangluff, Senior Claims Adjuster, also testified in behalf of respondents. He indicated that he obtained a recorded statement by telephone on July 1, 1999. Mr. Gangluff testified that claimant provided an injury date of March 1, 1999. He stated that claimant testified that she reported the injury to her supervisor, but did not request the filing of a workers' compensation claim. According to Gangluff, claimant explained that her reluctance to file a claim was premised on abuses in the workers' compensation system she had observed as a management representative.
On cross-examination, Mr. Gangluff agreed that the witnesses' statements appeared to validate claimant's claim of a work-related injury. He stated that he discussed the incident with Ms. Hooks. He testified he that he had a written statement from Ms. Faenger. Also, Mr. Gangluff stated that he has spoken with Ms. Loren Martin on several occasions. He testified that he reviewed claimant's prior medical records. Mr. Gangluff conceded that the decision to deny claimant's claim was not based upon the presence of a pre-existing condition.
The medical evidence showed that Dr. Roda attempted to treat claimant conservatively for ten weeks, without success. He ordered a MRI, which demonstrated abnormalities. On May 21, 1999, a lumbar myelogram was done. The impression of the radiologist was a disc herniation at L5-S1 on the right, and a possible free fragment. Claimant was admitted to National Park Medical Center on May 24, 1999, and Dr. John Pace performed a microdiscectomy the following day. She was discharged on May 26, 1999. After a brief period of recuperation, claimant returned to work.
Claimant contends that she sustained an accidental injury. Ark. Code Ann. § 11-9-102 (4) (A) (i) (Supp. 1999), provides that: "An injury is `accidental' only if it is caused by a specific incident identifiable by time and place of occurrence." Respondents have advanced the argument that claimant's lack of definiteness is fatal to her claim. In this regard, respondents and the dissent assert that a calendar date is necessary in order to establish the occurrence of an accidental injury. We have confronted this question previously. In Debra Wright v. Dewitt Footwear, Full Workers' Compensation Commission Opinion filed Feb. 5, 1999 ( E418808 E603880), we relied on a previous opinion for the proposition that evidence of contemporaneous events may be used to satisfy the time requirement for accidental injuries.See, Nathan Sheppard v. Calion Lumber Co., Full Workers' Compensation Commission Opinion filed Oct. 6, 1995 ( E320270). Once again, we decline the invitation to adopt the strict interpretation advanced by respondents.
The resolution of this case turns chiefly on credibility. The administrative law judge observed the demeanor of the witnesses, and he found claimant ". . . to be a most credible witness." We agree with this assessment, and specifically find that claimant's testimony is credible. In judging credibility, we considered the fact that claimant's account of the accident is bolstered by the corroborating testimony of disinterested parties. Moreover, the accident description contained in the initial medical report comports with claimant's hearing testimony. This is significant since claimant was unaware of the seriousness of her injury when she first consulted Dr. Roda.
Claimant and Ms. Faenger testified diametrically regarding whether the accident was reported the day after it occurred. The e-mail from Loren Martin on August 3, 1999, stated that "Patty's" statement validated claimant's claim. Although "Patty" is not identified more specifically, Mr. Gangluff testified that Ms. Faenger furnished a written statement. From this evidence, we infer that Martin was referring to Faenger. Since the statement was made during the investigation phase of the claim, it is entitled to greater weight than Faenger's contradictory hearing testimony. We specifically find that Ms. Faenger's testimony is unworthy of belief.
To support their position, respondents rely on the court's opinion in White v. Frolic Footwear, 59 Ark. App. 12, 952 S.W.2d 190 (1997). We are not persuaded for the cases are clearly distinguishable. In White, the Court of Appeals affirmed our determination that claimant failed to offer credible evidence of the specific time, date or place of occurrence of the injury. The court's opinion pointed out that evidence of an alternative cause of claimant's injury was introduced at the hearing. Our determination that claimant failed to prove the requisite causal connection was affirmed.
The White decision does not preclude a finding of compensability here. A preponderance of the credible evidence established that the injury date is the date immediately prior to the date claimant reported the incident to Ms. Faenger. In our opinion, claimant has adequately established the time element. Thus, we hold that claimant sustained an accidental injury caused by a specific incident, which is identifiable by time and place of occurrence.
Respondents also argued in the alternative that claimant failed to furnish notification of the injury until June 24, 1999. We disagree. Claimant testified that she advised Ms. Faenger of the injury the day after it occurred. Although the precise injury date has not been established, the evidence supports a finding that it occurred in February or March of 1999. Thus, the injury was reported well before June of 1999. Once claimant informed her of the injury, it was incumbent upon Ms. Faenger to pursue the matter further. Yet, she did nothing. Under these circumstances, we are unsympathetic to the complaint of respondents that claimant cannot recall the injury date. We are mindful that Ms. Faenger's testified that she had no knowledge of the injury until June of 1999. As previously noted, we find her testimony unworthy of belief.
Claimant also seeks an award of medical benefits. Respondents must provide all reasonably necessary medical treatment in connection with the injury received by claimant. Ark. Code Ann. § 11-9-508 (a) (Repl. 1996). The evidence showed that claimant pursued a course of conservative treatment spanning approximately ten weeks. Instead of showing improvement, claimant's condition deteriorated. Diagnostic testing revealed abnormalities, and a microdiscectomy was eventually done. In a chart note dated June 1, 1999, claimant reported that Dr. Pace "did a job" with respect to surgery. Moreover, claimant returned to work after a recuperative period of only three weeks. Post-surgical improvement is a proper consideration when determining the reasonableness and necessity of the operative procedure. Winslow v. D B Mechanical Contractors, 69 Ark. App. 285, ___ S.W.3d ___ (2000). In our opinion, the treatment claimant received following her compensable injury, including surgical intervention, was reasonably necessary.
As a final matter, the evidence revealed that claimant's medical expenses were paid pursuant to the employer's group health plan. Accordingly, we find that Ark. Code Ann. § 11-9-411 (Repl. 1996) is applicable. Respondents must comply with this provision.
Accordingly, based on our de novo review of the record, and for the reasons discussed herein, we find that claimant has proved the occurrence of a specific incident injury for which she is entitled to receive reasonably necessary medical expenses. Moreover, we find that § 11-9-411 is applicable to this claim.
All accrued benefits shall be paid in a lump sum without a 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 in accordance with Ark. Code Ann. § 11-9-715 (b) (Repl. 1996). IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
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 she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her 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. 1999). She 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, she fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed, supra.
There are a variety of dates in the record that could have been the date that this alleged incident happened. The claimant testified that she did not know exactly when the incident happened, although she contends that she was lifting a manual from the floor and this caused her condition. The claimant presented testimony of three witnesses and none of them could state exactly when the incident occurred. It is of note that the majority cannot come up with a specific date of the claimant's alleged injury.
The claimant contends that she called Dr. Roda on the day of the incident and received some prescription medication in the form of muscle relaxers. However, Dr. Roda's notes of March 5, 1999, when the claimant initially sought treatment, indicate that the claimant had been suffering from back problems for three weeks prior to the incident. Claimant contends that she knows that it now happened on March 3, 1999, because she talked to her supervisor, Patti Faenger, that day and told her that her back hurt. However, Ms. Faenger testified that the claimant never told her about a work-related accident. The claimant did tell her that her back was hurting, but did not tell her that it was related to the job. In addition, the claimant stated that she and Ms. Faenger went to a nursing home in Mena around the time that she injured her back. However, the expense records indicate that this trip took place some time around the 11th of February, 1999.
The evidence in this case fails to show a specific identifiable date of injury. The claimant's testimony that she does not remember the exact day it happened, the claimant's failure to report a specific work-related injury to Ms. Faenger, and the testimony of three witnesses, Cindy Hooks, Neta Coston, and Todd McClain, all do not establish that the claimant hurt her back on any specific date. These witnesses testified that the claimant told them of an incident, but they do not recall the date or the time when the incident happened. Therefore, I find that the claimant has failed to establish by a preponderance of the evidence that the injury was caused by a specific incident that is identifiable by a time and place of occurrence.
Even if I were to find that the claimant established a specific incident identifiable by time and place, which I do not find, it is my opinion that the claimant failed to give notice of the injury until June 24, 1999. The claimant did not complete a written accident report until June 24, 1999, after she returned to work, and after she had surgery. The claimant is a former nursing home administrator and has knowledge of the importance of filing workers' compensation claims accurately. The claimant contended that she told Patti Faenger, her supervisor, about the incident the day after it occurred. However, Ms. Faenger testified that the claimant never told her about a work-related accident. Claimant did tell her that her back was hurting, but she did not tell her that it was related to the job. It is also of note, that the claimant filed this claim under her group health insurance benefits. Accordingly, I find that the claimant failed to give notice of the injury until June 24, 1999. Therefore, in my opinion, the claimant is not entitled to any benefits until after that date.
Therefore, for all the reasons set forth herein, I respectfully dissent from the majority opinion finding that the claimant sustained a compensable injury.
_______________________________ MIKE WILSON, Commissioner