Opinion
CLAIM NO. E510191
OPINION FILED FEBRUARY 27, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GREGORY GILES, Attorney at Law, Texarkana, Arkansas.
Respondents represented by the HONORABLE HOWARD MOWERY, Attorney at Law, Texarkana, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on April 11, 1996. In that opinion and order, the administrative law judge found that the claimant sustained a compensable back injury arising out of and during the course and scope of his employment on May 11 or 12th of 1995. In addition, the administrative law judge found that the claimant is entitled to temporary total disability compensation for that portion of the period between May 12, 1995 and July 17, 1995, that the claimant was off work for physical therapy, and that the claimant is entitled to temporary total disability compensation from July 17, 1995, to a date yet to be determined. The administrative law judge also found that the respondents are entitled to a credit for any weeks that the claimant worked for Southern Refrigerated after November 10, 1995. In addition, the administrative law judge directed the respondents to pay all reasonable and necessary medical charges which have been incurred and which may be incurred by the claimant as a result of his compensable back injury.
After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed as modified.
Since the claimant contends that he 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 requirement 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 alleges that he sustained a compensable back injury as a result of a specific incident which occurred on May 11, 1995. Therefore, the requirements of Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996) are controlling, and the following requirements 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)(i) (Repl. 1996); Ark. Code Ann. § 11-9-102 (5)(E)(i) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102 (5) (A)(i) (Repl. 1996));
(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) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996)).
In the present claim, we find that the claimant established each of the requirements necessary to establish a compensable injury. In that regard, objective medical findings establish that the claimant has sustained an injury causing internal harm to the body which required medical services and which has resulted in disability. A MRI of the claimant's lower back performed on July 3, 1995, revealed a disc herniation at the L4-5 level of the claimant's spine with an extruded disc fragment displaced internally along the right lateral recess and posterolateral to the vertebral body. In addition, Dr. Thomas Fletcher, a neurosurgeon, indicated in a report dated July 27, 1995, that surgery will be necessary for treatment of the claimant's condition.
The respondents assert on appeal that the claimant's injury is causally related to a bathtub incident which occurred after May 12, 1995, and that the claimant fabricated the alleged work-related incident. However, we find that the preponderance of the evidence establishes that the claimant's back injury is causally related to a specific incident which arose out of and during the course of the claimant's employment on May 11, 1995.
In this regard, the claimant testified that he slipped while operating a piece of heavy machinery on Thursday (May 11, 1995), and reported his back problems briefly to his supervisor, Brian Blair, on Thursday and on Friday. According to the claimant, Mr. Blair did not express an interest in the claimant's problem. Significantly, the claimant first sought medical treatment for his back from Dr. Kenneth Bown on May 17, 1995. Dr. Bown's notes from that examination indicate lower back and right leg involvement, and Dr. Bown diagnosed right sided sciatica. In addition, Dr. Bown took a history on May 17, 1995, that the claimant had been having low back discomfort since the prior week, and that the claimant had "had a rough time on his tractor."
In addition, we find no merit in the respondents' assertion that the claimant's present problems are causally related to a bathtub incident. With regard to the bathtub incident, the claimant received physical therapy prescribed by Dr. Bown between June 9, 1995, and June 28, 1995. A June 12, 1995, physical therapy note states: "My back is doing better. I'm making progress." A June 13, 1995, physical therapy note states:
I hurt my back last night. I put my foot on the bathtub wall and reached down to wash my leg and hurt my back. I felt a pull or slip in my [right] low back; since then my pain has been an 8.5/10.
While the claimant's physical therapy notes may indicate that the claimant reported some increased pain levels after the tub incident, we note that the claimant was already in physical therapy for low back and sciatica when the bathtub incident occurred, and that Dr. Bown had already diagnosed right side sciatica over three weeks prior to the bathtub incident.
In short, we find that Dr. Bown's May 17, 1995, documentation of a work-related injury the week before causing sciatica is entitled to significant weight. The May 17, 1995, note was prepared long before workers' compensation benefits became an issue in the claimant's treatment, and the May 17, 1995, examination (indicating symptoms consistent with a disc abnormality) occurred before the bathroom incident. Therefore, after a de novo review of the entire record, we find that the greater weight of the evidence establishes that the claimant sustained a compensable injury.
The respondents assert for the first time on appeal that the claimant is not entitled to the two weeks of temporary total disability compensation awarded for the period prior to July 17, 1995, because the claimant allegedly failed to give notice. As we interpret the respondents' brief on appeal, the respondents are referring to statutory notice provided for in Ark. Code Ann. § 11-9-701 (Repl. 1996). However, Ark. Code Ann. § 11-9-701 (b)(2) provides:
Objection to failure to give notice must be made at or before the first hearing on the claim.
After a de novo review of the entire record, we find that the respondents failed to adequately object to the claimant's alleged failure to give notice "at or before the first hearing on the claim." Moreover, the "lack of notice" defense cannot be raised for the first time on appeal before the Full Commission. See, International Paper Co. v. Langley, 251 Ark. 859, 475 S.W.2d 686 (1972).
The respondents also assert on appeal that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional TTD after November 10, 1995, because the claimant engaged in some degree of employment as a trucker for Southern Refrigerated Transport (SRT) beginning November 10, 1995. Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury.Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (B) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities.
In the present claim, Dr. Fletcher determined in July of 1995, that the claimant will require surgery to address his L4-5 disc abnormalities. However, the respondents controverted the claimant's claim for benefits, and the claimant testified that he has been unable to return to Dr. Fletcher for additional treatment since July of 1995. Therefore, the evidence establishes that the claimant's back condition will not be as far restored as the permanent nature of his injury will permit until the claimant receives an opportunity for the indicated surgery. Consequently, we find that the claimant remains within his healing period until the claimant has had an opportunity for the indicated surgery.
The medical evidence indicates that the claimant has sustained a rather severe low back disc herniation with nerve root involvement and radicular symptoms which will require additional medical treatment to stabilize the claimant's condition. Although the claimant has attempted to engage in work as a trucker, the claimant's trucking employer was not made aware of the claimant's injury, and the medical evidence indicates that the claimant's attempt to engage in this employment in his present medical state presents a risk to himself and to others pending additional treatment for his back and lower extremity symptoms. Moreover, we find that the medical evidence and the claimant's testimony indicate that the claimant is not capable of engaging in any gainful employment pending an opportunity for additional medical care to stabilize the claimant's documented disc abnormality. Therefore, for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he is entitled to temporary total disability from July 17, 1995, to a date yet to be determined, although the respondents are entitled to a credit for temporary total disability compensation for those periods that the claimant was employed.
However, we find that the administrative law judge's award of medical benefits must be modified. In this regard, the claimant has submitted some medical bills which pre-date the alleged May 11, 1995, injury. Obviously, the respondents are not liable for the claimant's medical expenses incurred prior to May 11, 1995, since these expenses are not causally related to the alleged May 11, 1995, work-related injury. Likewise, the respondents are not obligated to repay the claimant (or the claimant's medical providers) for any medical expenses which have already been paid by the claimant's group health insurance.See, Ark. Code Ann. § 11-9-411 (Repl. 1996).
Therefore, after a de novo review of the entire record and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he sustained a compensable back injury. In addition, we find that the claimant is entitled to temporary total disability compensation for that portion of the period between May 12, 1995, and July 17, 1995, that the claimant was off work for physical therapy, and that the claimant is entitled to temporary total disability compensation from July 17, 1995, to a date yet to be determined. We also find that the respondents are entitled to a credit for any weeks that the claimant worked for Southern Refrigerated after November 10, 1995. In addition, we find that the respondents are not required to reimburse the claimant or his medical providers for any medical services provided prior to May 11, 1995, or for any medical services which have already been paid by the claimant's group health insurance carrier. However, the respondents are otherwise ordered to comply with the award of benefits in the administrative law judge's opinion and order in all respects.
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. 1996). 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 (b) (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant sustained a compensable injury. Based upon my de novo review of the entire record, I find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on May 12, 1995.
Claimant denied that his back problems were work-related when asked by his employer. Claimant's employer was aware of the fact that claimant needed time off from work to see a doctor, chiropractor, or physical therapist for a pre-existing back problem. When directly questioned about the cause of claimant's problem, claimant advised his employer that it was not work-related. Claimant's employer did not learn about claimant's allegation that his problems were work-related until claimant filed a workers' compensation claim in July of 1995, almost two months after the alleged incident occurred. While claimant did make comments to his employer such as "the dozer was hurting me," there is no evidence that claimant actually sustained an injury on the dozer aside from claimant's own self-serving testimony. A claimant's testimony is never considered uncontroverted.Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). Even the Administrative Law Judge could not find that claimant actually told his employer of a specific incident in May of 1995. It is also important to note that when claimant first sought medical attention he did not claim his problem to be work-related but rather filed it on his health insurance. It was not until claimant was diagnosed with a herniated nucleus pulposus at L4-5 and he knew the severity of his problems that claimant miraculously remembered a workers' compensation injury and filed a claim.
I cannot place any weight on Dr. Bone's May 17, 1995, medical report with regard to the history of claimant's back problem. Claimant merely advised Dr. Bone of a week long history of back discomfort. He did not identify a specific incident where he "fell off the dozer" as claimant contends actually happened. The only connection to work noted in Dr. Bone's May 17, 1995, medical report is the indication that claimant had a rough time on a tractor. In my opinion, a rough time on a tractor does not equal a specific incident nor does it equal a fall off a dozer.
Accordingly, I find that claimant's testimony regarding how the injury occurred lacks credibility. Since claimant is the only witness to testify regarding a specific incident, and since I find claimant's testimony to lack credibility, I find that claimant has failed to meet his burden of proof that he sustained a compensable injury during the course and scope of his employment. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner