Opinion
CLAIM NO. E306807
OPINION FILED NOVEMBER 1, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by KEITH RUTLEDGE, Attorney at Law, Batesville, Arkansas.
Respondent represented by K. MAX KOONCE, II, Attorney at Law, Bentonville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on June 24, 1994, finding that claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable injury on or about October 13, 1992 or that her subsequent high blood pressure difficulties are causally related to more than ordinary day-to-day stress to which all similarly situated workers are subjected.
Claimant maintains that on October 13, 1992 she sustained a compensable injury while working for respondent. As a result of said injury, she contends that she is entitled to medical benefits, temporary total disability benefits from October 14, 1992 to December 10, 1992 and from January 8, 1993 through May 6, 1993, and attorney's fees. Respondent maintains that claimant did not sustain a compensable injury. In the alternative, respondent maintains that if claimant did sustain a compensable injury, they are not liable for any benefits prior to February 6, 1993 when she reported her claim. A hearing was held and an Administrative Law Judge found that claimant had failed to meet her burden of proof. It is from this decision that she has appealed.
The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. Faulkner Radio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H. Knight Co., 220 Ark. 333, 248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Additionally, for a stress injury to be a compensable work-related injury, the claimant must prove that the job she or he was performing was subjecting him or her to more than ordinary stress to which all similarly situated workers are subjected. Barrett v. Ark. Rehab. Services, 10 Ark. App. 102, 661 S.W.2d 439 (1983); Owens v. National Health Laboratories. Inc., 8 Ark. App. 92, 648 S.W.2d 829 (1983). Furthermore, when determining the compensability for a nontraumatically induced stress claim, the issue is whether the stress constitutes an abnormal working condition for that type of employment. City of Ft. Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992;McClain v. Texaco. Inc., 29 Ark. App. 218, 780 S.W.2d 34, 1989).
After a de novo review of the record, we find that claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable back injury on October 13, 1992. Therefore, we affirm this portion of the Administrative Law Judge's decision.
As stated, claimant contends that she sustained a work-related back injury on October 13, 1992 while lifting solar units at a new store. However, there is insufficient corroborating evidence to support claimant's contention. For example, claimant testified that she told Mr. Wilson, the day after the accident that she'd injured her back while lifting solar units. However, Mr. Wilson testified that it was not until February 6, 1993 that the first he knew that claimant was maintaining that her back difficulties were the result of a work injury. He also testified that he had spoken with claimant towards the end of January or 1993 and, at that time, she specifically stated that she did not have a work-related injury. Furthermore, Ms. Cathy Chatman, claimant's immediate supervisor, offered testimony that claimant had telephoned her and stated that she could not come into work because of a back injury. Ms. Chatman testified that she specifically asked claimant if her back difficulties were work-related. Ms. Chatman further testified that claimant denied that her back difficulties were work-related. Lastly, testimony was offered by Ms. Barbara Gennett. Ms. Gennett testified that claimant had told her that she injured her back while unloading a delivery truck at the store where her husband worked. Obviously, the lay testimony does not corroborate claimant's version of the facts.
The medical documentation does not support claimant's allegation. The medical reports show that claimant did not report her back difficulties as being the result of a work-related injury. The medical records from Dr. Ron Williams upon her admittance into the hospital do not indicate that she sustained any injury at respondent's or anywhere. Additionally, the physical therapy records which give a history do not indicate that it was a work-related injury or that "an injury" occurred at all. The history indicates that claimant stated that her back difficulties were not the result of an injury. The above-referenced does not support claimant's opinion that she sustained a work-related injury on October 13, 1992.
Furthermore, there is additional evidence contradicting claimant's contention. Claimant originally filed this claim with her group health insurance. It was not until after she stated that it was work-related that her group health insurance began to deny her claim.
We also have found from a review of the evidence that claimant has not proven by a preponderance of the credible evidence that her high blood pressure was causally related to her employment with respondent. It is undeniable that on January 8, 1993, claimant was moved from a customer service manager job to a cashier job. Claimant maintains that as a result of this move, she suffered a high blood pressure attack and that respondent is responsible. However, this is not consistent with Arkansas law.
A review of the evidence indicates that nine employees were pulled from the position of customer service managers to become cashiers. This was done because the lack of sales after the Christmas holidays. Claimant was not under any more stress than any of the other eight employees.
Claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable accident on October 13, 1992 or that her subsequent high blood pressure difficulties are the result of more than ordinary day-to-day stress to which all similarly situated workers are subjected. Therefore, we affirm the decision of the Administrative Law Judge.
IT IS SO ORDERED.
Commissioner Humphrey dissents.