Opinion
CLAIM NO. F100288
OPINION FILED OCTOBER 24, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented at the hearing by HONORABLE STEVEN JENNINGS, Attorney at Law, Magnolia, Arkansas. Claimant appeared PRO S.E. on appeal.
Respondents represented by HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals an opinion and order of an Administrative Law Judge finding that he did not sustain a work-related injury to his left foot.
Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). After our de novo review of the entire record, we find that claimant has met his burden of proof and, accordingly, reverse the opinion of the Administrative Law Judge.
The employer drills oil wells. Claimant contends that he sustained an injury to his left foot while working particularly hard and fast on August 30, 2000. Claimant presented credible testimony that he had not experienced any foot problems prior to that date. Claimant noticed left foot pain sometime around the middle of the shift and continued to work the rest of the day. Claimant was eventually diagnosed as having fractured bones "[w]here the toes join onto the foot." Claimant testified that he had to use his feet to kick and push the drilling pipe or apparatus into place. He explained his job duties on August 30, 2000 in the following manner:
Q. Sometime working that shift, what happened?
A. I just got a pain in my foot, I started limping, and I told my co-worker, I said, "I have hurt my foot some way or other." I didn't know how. Didn't nothing fall on me, I didn't fall down.
Q. What specifically, though, during the shift do you do with your foot while working on the floor of that rig that night?
A. You kick those slips in the hole with it.
Q. You actually kick?
A. Yes, sir, put your foot on the slips and kick them in the hole.
Q. Slips are iron?
A. Yes, sir, all iron.
Q. And this tool weighs, what you just stated, at least 150 pounds?
A. Yes, sir.
Q. So every time you need to connect a joint, you kick these slips in the hole?
A. Yes, sir, you have got to kick the slips to hold the pipe.
Q. Do you know which foot you kicked with?
A. Left. I'm left-handed, left-footed, left-eyeballed.
Q. Basically over and over, you kick these slips with your foot, is that correct?
A. Yes, sir.
Q. Do you know how long it takes or the interval is in between each time you had to kick these slips? How long does it take to take one joint of pipe out and do it over again?
A. Probably three or four minutes.
Q. So every three or four minutes, you were kicking 150-pound block of iron into a hole, is that correct?
A. Yes, sir.
Q. Sometimes during this shift, first half, middle, end, when did you first recognize or identify pain in your foot?
A. Probably about the middle of the shift.
Q. Did you tell anyone that at that time?
A. Tommy, he was on the floor with me, and I told him, I said, "I have hurt my foot some way or other," and I was limping on it.
* * *
Q. Typically, we think about somebody breaking some bones and that hurts and you know when you did it, but from what you have told us, you don't know when you did this, do you?
A. I don't know the exact time, no, sir. I know I had pain and started limping on it during the night. That's all I can tell you.
Q. But as far as something happening to your foot where you said, "Uh-oh"?
A. No, sir, nothing fell on it and I didn't fall or anything like that.
Q. Did this thing happen gradually? The Workers' Comp Act requires that it be a specific incident or a gradual incident.
A. It wasn't gradual. It was during an eight-hour period.
Q. Did it happen gradually over the eight-hour period?
A. Like you are all right this instant, the next instant you are having pain and then you start walking on it and start limping. That's the best I can explain it.
Q. But you don't know what happened to those bones to cause them to be broken?
A. No, sir. It was either from pushing the pipe — you are in a big strain with your feet — or kicking the slips in. I don't know what it was. Sure don't.
* * *
Q. Even though there is not a specific event, I mean, some weight or something did not fall on your foot, you did kick these slips over and over, is that correct?
A. Over and over.
Q. And you did have to move pipe. When you move a piece of pipe over from out of the hole onto the rack, what parts of your body do you use doing that?
A. You are using all of it. You have the pipe in your hands and you are using your feet to push with. You have got to get it over there. The driller is coming down all the time with it, and you have got to get it over there before he sets it down on the floor.
Q. So you are using your feet in that process, too?
A. Yes, sir, very much so.
In the present case, dissent contends that claimant cannot prove a specific incident injury. However, we understand claimant's quoted description regarding his job duties and the development of pain in his left foot to adequately constitute an "accidental injury" (i.e., caused by a specific incident and identifiable by time and place of occurrence) within the meaning of Act 796 of 1993. See Huffy Service First v. Ledbetter, 76 Ark. App. 533, ___ S.W.3d ___ (March 13, 2002). The primary issue on appeal is whether claimant's foot problems arose out of his employment.
Dr. Greg J. Smolarz, an orthopedic surgeon, offered his opinion on causation in the following manner:
This letter is in reference to Mr. Ronald Creech, a 52 year old, white male who I've been seeing for problems with his left foot. The basic question as far as I can tell that you need to know is whether or not I feel like this is an injury that was work-related. As I had indicated in my note on 1-30-01, I feel like this injury was caused on the night in question when Mr. Creech felt like he had injured his foot. By history he saw his local physician the following day and no fractures were noted, but this did not indicate that he did not have an injury. Basically I feel like he sustained a ligamentous injury to the mid-foot and unfortunately due to the fact that he was a diabetic and was unaware of this, he had decreased sensation in his foot leading up to his continued walking and weight bearing on his foot. This led to the collapse of the arch of his foot with multiple fractures.
The bottom line is, I feel like this is a work-related injury complicated by the fact that he has diabetes. If I can be of further assistance, please contact me.
The dissent contends that even claimant disagreed with Dr. Smolarz's theory on causation. However, claimant only disagreed with the inaccurate characterization of this theory as involving an assumption that claimant did not feel pain on August 30, 2000. Claimant repeatedly testified that he felt pain that night. Additionally, compensation will not necessarily be denied because claimant's preexisting diabetes may have complicated the injury. See Doris Marshall v. East Arkansas Area Agency on Aging, Full Commission Opinion filed June 7, 1999 ( E807342).
Based on the evidence that claimant had no prior foot problems, claimant's testimony that he began experiencing pain in his left foot during a night of using the foot to kick and push pipe in a strenuous and fast paced manner, and the opinion of Dr. Smolarz that a causal connection exists, we find that claimant has met his burden of proving by a preponderance of the evidence that his foot problems are causally related to the employment.
For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury to his left foot. 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. 2002). 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 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury. Based upon my de novo review of the record, I find that the claimant failed to meet his burden of proof.
The medical evidence in this case is sketchy at best. The record contains some reports from Dr. Roberts and from Dr. Alexander. The only medical report introduced into evidence which is clearly identified as being prepared by Dr. Alexander was the AR-3, Physician's Report completed by Dr. Alexander on November 15, 2000. In this report, Dr. Alexander described the accident as follows; "Approximately 6 weeks ago was working of (sic) floor of drilling rig and ankle started hurting that night." This report does not contain a description of Dr. Alexander's diagnosis or treatment. The record contains an Office Visit report dated November 13, 2000, which appears to be from Dr. Alexander; however, the provider is not clearly identified. In this unidentified November 13, 2000, office visit report, the claimant's chief complaints are recorded as follows; "c/o [Left] foot/ankle swollen — reports no known trauma, but works on floor of rig X wk." The physician examining the claimant noted edema of the claimant's left foot and ordered a doppler study of the claimant's left leg. There is no evidence that new x-rays were ordered or that old x-rays were reviewed at that time. The claimant returned to that same clinic on November 17, 2000, for a follow-up on his doppler study. The claimant was diagnosed with lower leg arterial stenosis, and high cardiovascular [illegible] assessment. A referral was made to Dr. Hurley in Texarkana and mention was made of a possible need for a cardiac consult.
The record does not contain any medical records from Dr. Hurley or Dr. Tompkins. Dr. Tompkins referred the claimant to Dr. Greg Smolarz, who x-rayed the claimant's foot and detected fractures in his mid-foot. Dr. Smolarz offered an opinion that the claimant's injury to his foot must have happened on August 30, 2000, because the claimant's diabetes had an impact on his ability to feel. Dr. Smolarz's theory was that the claimant was unaware that he sustained a ligamentous injury due to his diabetes and decreased sensation. However, the claimant disagreed with that. The claimant testified that he felt pain on August 30, and that he was limping because of the pain. On a scale from 1 to 10, the claimant estimated that the pain was probably an 8. The claimant disagreed with Dr. Smolarz's theory of how he injured his foot. On cross-examination, the claimant again testified that he felt pain in his left foot on that night of August 30th. The claimant could not describe when or how he injured his foot other than to say that his foot began hurting him half-way through his shift on August 20, 3000. When asked for more details about the onset of his pain, the claimant testified that he did not know the exact time, and that all he can say is that his foot began hurting that night. The claimant further testified that the injury was not gradual, but occurred "during and (sic) eight-hour period." In this regard, the claimant testified:
Q. Did it happen gradually over the eight-hour period?
A. Like you are all right this instant, the next instant you are having pain and then you start walking on it and start limping. That's the best I can explain it.
Q. But you don't know what happened to those bones to cause them to be broken?
A. No, sir. It was either from pushing the pipe — you are in a big strain with your feet — or kicking the slips in. I don't know what it was. Sure don't.
The claimant again testified that he did not agree with Dr. Smolarz's theory of how he injured his foot.
The claimant described his work in the oil fields to including "walking, pushing, stooping, bending, kicking slips. You do a little of everything in the oil field." The claimant agreed on cross-examination that he did not do "something where you are repetitively using your foot doing the same thing all day long; you are doing a bunch of different things" with your feet.
Although Dr. Smolarz stated in his May 17, 2001, correspondence to the claimant's attorney that x-rays were taken of the claimant's foot the day after the alleged injury, the claimant testified that x-rays were not taken of his foot at that time. The claimant further testified that although Dr. Alexander ordered x-rays on November 13, 2000, the x-rays were not in the area of his foot in which Dr. Smolarz eventually discovered the fractures. The medical records introduced into the record do not reflect the existence of any x-rays prior to those taken by Dr. Smolarz in January of 2001. Dr. Smolarz's causation opinion, in my opinion, poses more questions than it answers when the claimant's test is considered.
Section 11-9-102(4)(A)(i) specifically defines a compensable injury as an injury "caused by a specific incident and . . . identifiable by time and place of occurrence." In Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 26 S.W.3d 777 (2000), the Arkansas Supreme Court affirmed the Full Commission's finding that when a claimant cannot recall anything specific happening, did not know how she was injured, did not associate her pain with any particular, specific incident, then a specific incident injury claim is meritless. In Hapney v. Rheem Manufacturing Co., Full Commission opinion filed May 12, 1998 ( E311438 E602464), the Full Commission found:
An increase or onset of pain after a long day of work is not identifiable enough to meet the definite requirement for a specific incident injury . . . The claimant in the present case cannot identify a specific incident identifiable by time and place of occurrence which precipitated her increased neck pain . . . In our opinion, simply pinpointing one day when the symptoms increased is not sufficient evidence that a specific incident identifiable by time and place of occurrence occurred. The exact day and time is not necessary, but a specific incident does require more definiteness than just an increase in pain after working.
The Full Commission likewise found in Ruth Howard v. Wal-Mart, Full Commission opinion filed November 3, 1999 ( E814194) that the claimant had failed to satisfy the specific incident element of compensability when she was "unable to identify any particular activity which caused her symptoms, and testified that she was merely hurting at the end of a long work day, and that there was no specific work-related incident."
Like the claimants in Hapney and Howard, the claimant in the present claim has not offered any evidence of a specific work-related incident. The claimant candidly admitted that he does not know what happened to his foot on August 30, 2000, to cause it to start hurting. The claimant offered alternative explanations that his foot was either injured when pushing the pipe or kicking the slips, but he was only guessing, since he cannot stated that he injured his foot or that his foot began to hurt after performing either one of these activities. The claimant's inability to even determine whether his foot was injured from a direct push or shove of the slips or from pushing the pipe prevents, in my opinion, a determination of whether a specific incident caused the claimant's injury. The claimant's testimony simply belies the existence of a specific incident injury. Moreover, when questioned by his treating physicians, the claimant consistently denied the existence of a trauma to his foot. In my opinion, the facts of this claim are substantially similar to the facts in both Hapney and Howard in which the Full Commission found that hurting during or after work is not sufficient evidence to establish the existence of a specific work-related injury. Accordingly, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury to his left foot on August 30, 2000, as the result of a specific incident.
In reaching this finding, I acknowledge Dr. Smolarz's causation opinion in which he opined that the claimant's diabetes prevented the claimant from being aware of an injury. In this regard, Dr. Smolarz opined that the claimant had previously injured the ligaments in his foot, was unaware of the damage, continued to talk and bear weight on his foot, leading to the collapse of the arch and multiple fractures. I am not persuaded by Dr. Smolarz's theory. First, there is no evidence that x-rays were taken of the claimant's foot at any time prior to the January 2, 2001, x-rays ordered by Dr. Smolarz. Second, the claimant himself is not convinced that he fractured his foot sometime after August 30th, as a result of walking on an injured foot. Third, the claimant testified he felt pain in his foot and that he did not have a decrease in sensation; that he was always aware of the pain. Therefore, when I consider all the evidence, I cannot find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury on August 30, 2000. Therefore, I must respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner