Opinion
CLAIM NO. E412030
OPINION FILED SEPTEMBER 7, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE C. BURT NEWELL, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on April 27, 1995. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. After conducting ade novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. Therefore, we find that the administrative law judge's decision must be affirmed.
The claimant was employed by the respondent employer as a sewing machine operator, and her duties involved sewing leather for shoes. According to her testimony, she averaged sewing 400 to 500 pairs of shoes per day. She contends that she sustained a repetitive trauma injury to her shoulder as a result of her employment duties, which resulted in her disability on or about June 28, 1994.
Since the claimant contends that she sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers' Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirements for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers' Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). In the present claim, the claimant does not contend that her injury was caused by a specific incident and identifiable by time and place of occurrence. Instead, she contends that he sustained an injury as a result of rapid and repetitive motion. Consequently, the requirements of Ark. Code Ann. § 11-9-102 (5) (A) (ii) (a) (Cumm. Supp. 1993) are controlling, and the following must be satisfied:
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102 (5) (A) (ii) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5) (E) (ii) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Cumm. Supp. 1993));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body (see, Ark. Code Ann. § 11-9-102 (5)(A)(ii) (Cumm. Supp. 1993));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury (see, Ark. Code Ann. § 11-9-102 (5)(D) (Cumm. Supp. 1993));
(4) proof by a preponderance of the evidence that the injury was caused by rapid repetitive motion (see, Ark. Code Ann. § 11-9-102 (5)(A) (ii)(a) (Cumm. Supp. 1993));
(5) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment (see, Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Cumm. Supp. 1993)).
If the employee fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied. Reed, supra.
In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that her condition arose out of and in the course of her employment. Instead, we find that a preponderance of the evidence indicates that the claimant's physical problems were unrelated to her employment. In this regard, when the claimant first reported her shoulder problems to her foreman, Betty Stanley, who is also the claimant's sister-in-law, she told Ms. Stanley that she was not sure about the cause of her problems and that she thought she had injured herself at home. Likewise, Florence Irons, a floor supervisor for the respondent employer, testified that the claimant related her shoulder problems to work she was doing at her personal residence when Ms. Irons first noticed that the claimant was having difficulties. Furthermore, the claimant did not report the condition as work-related until August 3, 1994, over one month after she became disabled.
In short, the preponderance of the evidence shows that the claimant initially attributed her problems to an injury which occurred outside of the work-place. In fact, she did not relate her condition to her employment until after she sought medical treatment and became disabled. While her primary treating physicians, Dr. Patricia McClard and Dr. Robert Kleinhenz, have opined that the claimant's condition was caused by her rapid, repetitive work, there is no indication that they were aware that the claimant initially attributed the condition to an injury occurring outside of the work-place. Thus, their opinions are based on an incomplete history, and, consequently, their opinions are entitled to little weight. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that her shoulder problems were caused by an injury arising out of and in the course of her employment.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. Therefore, we find that the administrative law judge's decision must be, and hereby is affirmed. This claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.