Opinion
CLAIM NO. E505581
OPINION FILED NOVEMBER 13, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BRIAN RATCLIFF, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents have appealed the administrative law judge's decision dated May 13, 1997. In that decision, the administrative law judge held that the statute of limitations defense does not bar this claim and that the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his ankle as a result of prolonged standing, walking, and other job related activities. Based upon our de novo review of the record, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury arising out of his employment with the respondent. Therefore, we find that the decision of the administrative law judge in this regard must be reversed.
The claimant has alleged that he suffered a gradual onset injury while employed at the respondents' machine shop. The claimant has alleged that as a result of frequent walking and standing on a flat concrete floor, and other strains placed upon his ankles while acting in the course and scope of his employment, he has developed a bone spur condition, tumor growth, and other problems in both of his ankles, more particularly on the right. The claimant filed a claim for benefits in this case on June 23, 1995.
The claimant contends that this claim is governed by the law in effect prior to July 1, 1993. The claimant testified that he sought medical treatment for this condition prior to that time, and had missed short periods of time from work (usually less than half a day) because of his ankle problems. The claimant also asserts that since he did not become disabled from this injury until April of 1995, the applicable statute of limitations on his claim did not begin running until then. The respondents contend that the actual date of the claimant's injury is July 27, 1993, and that the provisions of Act 796 therefore apply. The respondents are basing this argument upon their contention that the claimant received medical care on that date, that Act 796 of 1993 would make that date the date of injury, and that the provisions of Act 796 apply. Alternatively, the respondents contend that if the alleged date of injury is prior to June 23, 1993, then the statute of limitations would act as a bar to any benefits sought by the claimant since the claimant did not file a claim until June 23, 1995. The respondents further contend that if the statute of limitations does not bar this claim, then the claimant did not establish the occurrence of the compensable injury under the law regardless of whether the date of injury is before or after July 1, 1993. Because we find that the claimant failed to prove by a preponderance of the credible evidence that he sustained an injury arising out of his employment (regardless of whether the date of injury was before or after July 1, 1993), we find that the respondents' other contentions are moot.
The medical records in this case are somewhat limited. They consist in their entirety of two progress notes dated July 27, 1993 and August 17, 1993, from Dr. D'Orsay Bryant, an orthopedist in El Dorado, Arkansas. There is also a patient history information sheet from Dr. Bryant's office as well as a fill in the blank questionnaire from Dr. James Naples, a podiatrist which appears to be dated January 1, 1995. Dr. Bryant's earlier progress note indicates that the claimant is in fact suffering from bone spurring in his right ankle. Dr. Bryant's latter progress note indicates that the claimant is improving and that he was pleased with the claimant's progress. The questionnaire filled out by Dr. Naples consists of four statements that the doctor was requested to check either yes or no, and another statement requesting the doctor set out the objective findings to support his medical opinion. Dr. Naples checked the "yes" blanks indicating that he believed the claimant's right and left ankle injuries were work related and that the work-related injury accounts for more than 50% of the claimant's need for medical treatment, that the opinion is stated within a reasonable degree of medical certainty and is supported by objective findings, and that the doctor is of the opinion that the claimant was totally disabled from April 10, 1995 to May 15, 1995. In response to the statement requesting an objective basis, Dr. Naples wrote the following: "Posterior traumatic lesion while (illegible) both feet."
The administrative law judge held that the claimant had established the occurrence of a compensable injury that was governed by the laws in effect prior to July 1, 1993. The administrative law judge further held that the statute of limitations would not have begun running until the claimant began missing work in April of 1995, and that, accordingly, the statute did not act as a bar to the claimant's claim. The administrative law judge's order required the respondents to pay the claimant TTD benefits from April 10, 1995 to May 15, 1995, and all other reasonable and necessary medical expenses arising as a result of the claimant's injuries.
Before discussing the merits of the claim, an evidentiary question must first be resolved. At the hearing, the respondents tendered as evidence, a statement from the claimant taken by an insurance adjuster employed by the respondent carrier. The claimant's attorney objected to the admission of the statement arguing that it was hearsay. In his opinion, the administrative law judge found that the statement was hearsay and ruled that it was inadmissible.
The administrative law judge's decision as to the admissibility of this document was in error as the evidence in question is clearly not hearsay. Rule 801 of the Arkansas Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The rule goes on to state that a statement is not hearsay if it is a prior statement of a witness. In this case, the statement in question was offered not for the truth of the matter asserted, but to demonstrate that the claimant had given inconsistent statements in the past in regard to the cause of his injury. Also, the claimant was a witness at the trial and was subject to cross examination regarding those alleged inconsistent statements. Lastly, the statement was clearly one made by a party to the claim. Therefore, we reverse the administrative law judge's finding that the statement was inadmissible and find that it is included in the record in this case.
In addition, we find that the claimant has failed to establish the occurrence of a compensable injury arising out of his employment with the respondent. The medical records provided by the claimant are insufficient to meet his burden of proof. While the claimant did testify that he believed that his injury was the result of prolonged standing and walking on a hard concrete surface, he has failed to provide any medical evidence to support that theory of causation. Specifically, there are no reports from any of the claimant's treating physicians as to what would cause the bone spur to develop in the claimant's ankles, nor are there any detailed medical reports indicating how long the claimant suffered from this condition, why the claimant might be at greater risk than the general public for this type of condition as a result of his job duties, nor what course of treatment the doctors have prescribed for it. Even though the claimant testified at the hearing that surgery had been performed on his right ankle, the record does not contain any medical records or reports from any doctors referring to any such surgical procedure. In short, the claimant has the burden of establishing that an alleged compensable injury arose out of the course and scope of the claimant's employment duties, and that a causal connection between the job related activities and his condition exists. In the present case, the claimant has not established that any job related activities he may have undertaken played any causal role in the development of his ankle condition, and we therefore reverse the administrative law judge's decision in this case, and deny and dismiss the claim.
Based upon our de novo review of the evidence contained in the record, we find that the claimant has failed to establish by a preponderance of the evidence that he sustained a compensable injury under the provisions of the Workers' Compensation Act, as they were applied either prior to, or after, July 1, 1993. Therefore, the claim in this case is respectfully denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.