Opinion
CLAIM NO. F001497
OPINION FILED OCTOBER 18, 2002
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE SHANNON MUSE CARROLL, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury. Based upon our de novo review of the record, we find that the claimant has failed to meet his burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent-employer as a welder. The claimant had worked for the respondent-employer intermittently over the past 12 years. The claimant testified that he was working on a project in Bearden, Arkansas, when he was injured on Friday, January 7, 2000. The claimant testified that an employee named Craig Cranehorn was operating a manlift and it was operated in such a way that it caused the basket to jam the claimant into a beam. The claimant testified that he was struck on the right shoulder. The claimant finished work on Friday, but testified that he stayed in the hotel room that he shared with two other individuals over the weekend. The claimant reported to work on that Monday morning, but he got a phone call that his mother had suffered a heart attack and he left work. The claimant never returned to work for the respondent-employer.
The claimant first sought medical treatment on February 23, 2000, at the emergency room at Saline Memorial Hospital. The medical records from that visit indicate that the claimant denied any acute injury and described his pain as lasting for months. The claimant ultimately came under the treatment of Dr. John Pace, a neurosurgeon. The claimant first presented to Dr. Pace on December 7, 2000, and reported an injury three days after Christmas, 1999. Ultimately, Dr. Pace performed surgery at L5-S1 on June 20, 2001.
There is some confusion about the date of the claimant's injury. The claimant testified that the injury occurred on January 7, 2000, which was the date included in the pre-hearing order. However, the payroll records from the respondent-employer indicate that the claimant's alleged injury must have taken place on January 14, 2000, which was the date that the claimant last worked. That aside, the claimant still cannot prove by a preponderance of the evidence that he sustained a compensable injury on January 7 or 14, 2000.
The evidence demonstrates that the claimant failed to report an injury to Scott Hartsfield, his supervisor, over the weekend. The claimant stated that he called Mr. Hartsfield, but could not remember whether or not he discussesd a work-related injury. The claimant also did not report an injury to Mr. Hartsfield the following Monday morning. The claimant conceded that he had no contact with Mr. Hartsfield after the Monday morning when he left to be with his mother.
The respondents offered the testimony of Deana Cole, vice-president, who handles the workers' compensation matters for the respondent-employer. She testified that she had no knowledge of a work-related injury suffered by the claimant until his mother called on February 3, 2000, requesting a workers' compensation number. Ms. Cole testified that the claimant never called himself to report an injury. The respondent received a notice of claim on February 23, 2000, from the claimant's attorney, which caused Ms. Cole to fill out a first report of injury.
The respondents offered the testimony of Mr. Hartsfield, who testified that the claimant did not report an injury to him at all. He also testified that he discussed the matter with David Ross and Matt Driver, who were the lead men, as well as Craig Cummins, who the claimant conceded could have been the one operating the manlift. None of these men had any knowledge of the claimant's alleged injury.
The medical evidence demonstrates that the claimant did not seek medical attention until January 23, 2000. The claimant sought treatment from the emergency room at Saline Memorial Hospital. It is interesting to note that the claimant's mother was in the hospital at St. Joseph's in Hot Springs during the time period after the alleged injury with heart problems. The claimant did not seek any medical attention from that hospital, but instead waited until February 23, 2000. The admission report to Saline Memorial indicates that the claimant was intoxicated at the time of the admission and he did not report an injury. The history portion of the admission notes reads:
Randy is a 42 year old white male who presents to the emergency room complaining or right sided pain and numbness down his right leg. The patient states that this has been going on for a couple of months, but is getting markedly worse. Last week, he states he was so weak he could not get out of bed on the right side. The patient denies any bowel or bladder changes. The patient states it has gotten a little bit better today over the last couple of days, but it is still extremely painful. The claimant denies any acute injury, no acute strain. This has been getting worse and worse and markedly worse over the last month. (Emphasis provided).
Not only did the claimant deny acute injury, he also said that he had had pain for months and his pain had been getting worse over the last month. When confronted with this evidence, the claimant testified that the hospital employee who took this history was simply wrong.
The only evidence in the record that supports a causal relationship between the claimant's back problems and this alleged injury in January of 2000 is the testimony of Dr. Pace. Dr. Pace's opinion should be given little weight. Dr. Pace was told by the claimant that he had suffered an injury "three days after Christmas". This is clearly wrong. Dr. Pace's opinion is based upon the history that the claimant provided to him. 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). 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). 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, FC Opinion filed Jan. 22, 1996 ( E417617).
Therefore, when we consider all the evidence, we cannot find that the claimant has proven by a preponderance of the evidence that he sustained a compensable injury in January of 2000. The lack of notice provided to the respondent-employer, coupled with the medical evidence, do not preponderate in a finding in favor of the claimant. Accordingly, we hereby reverse the decision of the Administrative Law Judge. The claimant's claim is denied and dismissed.
IT IS SO ORDERED.
_______________________________ JOE E. YATES, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion's findings. I write separately to address the dissent's suggestion that the respondents failed to present adequate evidence to "rebut" the claimant's contention that his back problems at issue arose out of an injury at work sometime in January of 2000.
If the claimant in fact sustained a severe back injury at work on January 13, 2000 (a Friday) as the dissent asserts, I find it incredible that (1) he would not explain the situation to the boss when he laid in the motel room shared with co-workers at the Bearden site and did not show up for work on Saturday or Sunday; (2) conveniently, there is no documentation of any injury report until February 3, several days after the claimant went to the hospital on January 23 in Benton and learned he had a herniated disk in his back; (3) when the claimant went to the hospital for severe back symptoms which he now states occurred nine days previous, the hospital recorded a history of back symptoms for months, getting worse in the last month; and (4) when the supervisor conducted an investigation approximately one month after the alleged incident at the request of the company vice-president, he couldn't find anyone from the job site who had any knowledge of the alleged work injury.
I am frankly unclear what additional evidence the dissent might expect the respondents to present to more clearly rebut the claimant's contentions.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Turner dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion reversing the Administrative Law Judge's award of benefits. Upon my de novo review of the evidence, I would affirm this opinion.
Claimant contends that he suffered compensable injuries to his head, shoulder, and neck areas while working on January 7, 2000, and that he is entitled to temporary total disability benefits from that date until a date to be determined. Upon review of respondents' records, the Administrative Law Judge determined that claimant's date of injury was January 14, 2000, and that claimant is due temporary total disability benefits beginning January 23, 2000 and continuing through the end of his healing period, a date to be determined.
Claimant, 44, worked as a welder for respondent employer intermittently for 12 year. He stated that in January of 2000 he was pushed into a beam located under the second floor while he was standing on a GOG lift operated by coworker Craig Cummings.
Following the accident, claimant went back to his motel room. He called in sick the next day (Saturday), and stated that he informed supervisor Scott Hartsfield of his injury. Claimant remained off work for two days and reported to work the following Monday, but left the job site upon receiving notification that his mother had a heart attack. Claimant did not return to work for respondents.
Deana Cole, vice president, testified that claimant's mother first notified her of claimant's injury on February 3, 2000. Hartsfield initially stated that claimant never informed him of an injury, but admitted on cross examination that he did not recall whether claimant reported the accident to him that Saturday. He further testified that he knew claimant to be an honest person who had never before filed a workers' compensation claim.
Claimant first received treatment for his injury on January 23, 2000 at Saline Memorial Hospital. He stated he did not seek treatment earlier because he was taking care of his mother and could not afford a physician. Claimant next sought treatment with Dr. Tuberville, his family physician, who referred him to Dr. Arthur, a Hot Springs neurosurgeon. Dr. John R. Pace, also a Hot Springs neurosurgeon and Dr. Arthur's associate, performed a lumbar laminotomy and discectomy at L5-S1 on the right for a disc herniation on claimant on June 20, 2001.
Dr. Pace testified by deposition that claimant relayed a history of having been jammed into a ceiling while riding in a man-lift at work. Drs. Pace and Arthur opined within a reasonable degree of medical certainty that claimant's condition was caused by this accident. They further opined that claimant was unable to work from January 2000 to the present because of his impaired physical condition and that claimant has yet to reach maximum medical improvement.
There is obvious confusion over the actual date of claimant's injury. Claimant contended that he was injured on January 7, 2000, but also testified that he was injured the last day he worked for respondents (January 14, 2000). Accordingly, the Administrative Law Judge found January 14, 2000 to be claimant's date of injury. The majority opinion finds no causal connection between claimant's back problems and his "alleged" injury, placing little weight on Dr. Pace's expert opinion as being based on erroneous history, i.e., that the injury occurred "three days after Christmas." Notwithstanding the approximate two-week discrepancy in these dates, Dr. Pace appeared to based his opinion on a work-related injury, testifying that claimant provided the following history:
He stated that he had an on-the-job injury, three days after Christmas of 1999. He said that he was jammed into a beam in the ceiling of the building he was working on, struck his right shoulder, and after that, he complained of low back pain radiating to his right lower extremity. (Deposition, p. 8).
This account, as provided by Dr. Pace, is consistent with the testimony claimant provided regarding the circumstances of the accident.
It has long been recognized that a causal relationship may be established between an employment-related incident and a subsequent physical injury upon a showing that the injury manifested itself within a reasonable period of time following the incident, is logically attributable to the incident, and there is no other reasonable explanation for the injury. Hall v. Pittman Construction Co., 234 Ark. 104, 357 S.W.2d 263 (1962).
If the claimant's disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee's condition, we may say without hesitation that there is no substantial evidence to sustain the Commission's refusal to make an award. Id. But, if the disability does not manifest itself until many months after the accident, so that reasonable men might disagree about the existence of a causal connection between the accident and the disability, the issue becomes one of fact upon which the Commission's conclusion is controlling. Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (1962). See Wentz v. Service Master, 72 Ark. App. ___, ___ S.W.3d ___ (October 24, 2001). While medical evidence is not required to show a causal connection, claimant must show proof by a preponderance of the evidence. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
Claimant testified that he injured himself while riding a man-lift operated by a coworker. He further testified that this accident was "known" to the small crew who worked with him, and that he reported the incident to Hartsfield the following day.
Hartsfield testified that he could not recall whether or not claimant contacted him the following day with this information, maintaining that he really first heard of the accident nearly one month later from Cole. Cole, on the other hand, testified that she learned of claimant's injury on February 3, 2000 when claimant's mother called to request a workers' compensation number.
It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given to their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). When there are contradictions in the evidence, it is within the Commission's province to reconcile contradicting evidence and to determine the true facts. Arkansas Dept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). 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. Moorelock v. Kearney Co. v. Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
I find respondents' testimony to be insufficient rebuttal of claimant's contentions. Hartsfield testified that claimant was a 12-year employee whom he knew to be an honest and responsible worker. The fact that claimant was a long-standing, intermittent employee speaks to respondents' impression of claimant's character and work ethic.
The Administrative Law Judge, who is in the best position to judge the demeanor of the witnesses, addressed the issue of credibility and found claimant to be a credible witness. I also find that claimant presented the more credible and plausible testimony. Respondents had opportunity to provide rebuttal testimony negating claimant's contention that he was injured on the job, but instead provided one witness to testify that he was unsure whether claimant informed him of an accident. If any of claimant's co-workers had contradictory information, the respondents should have presented this evidence at the hearing. Based on a preponderance of the evidence, I find that claimant is entitled to workers' compensation benefits. I further find, based on Drs. Arthur's and Pace's medical opinions, that claimant is entitled to temporary total disability benefits from January 23, 2000 to a date to be determined. For the foregoing reasons, I respectfully dissent.
_______________________________ SHELBY W. TURNER, Commissioner