Opinion
CLAIM NO. E809731
OPINION FILED NOVEMBER 4, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by CHRIS PAUL, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by MARK MAYFIELD, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] The respondent appealed a decision of the Administrative Law Judge filed on April 12, 1999, that claimant proved by a preponderance of the evidence that she sustained a compensable injury in the course and scope of her employment, that respondents are responsible for reasonable and necessary medical costs associated with the injury, that she is entitled to temporary total disability benefits for July 24, 1998 to March 1, 1999 less 2 days in August 1998, and that her temporary total disability rate is $144.00.Respondent argued that claimant did not prove by a preponderance of the evidence that she suffered a compensable injury, based upon the inconsistencies in her testimony and therefore her lack of credibility. Respondent in its brief stipulated to the compensation rate of $144.00. Claimant argued in support of the Administrative Law Judge. Respondent's reply brief again reviewed the inconsistencies of claimant's case.
After a de novo review of the entire record we find that claimant is not entitled to any benefits under the Arkansas Workers' Compensation Act because she failed to prove by a preponderance of the evidence that she suffered a compensable injury, and therefore we reverse the decision of the Administrative Law Judge.
The record contains an "Occurrence Report" used by respondent and completed by claimant which states that claimant hurt her lower back on July 15 (16 is crossed out) at approximately 4:30 AM in a patient room at the hospital when she was "pulling a patient up in bed." The form states that a physician was not called. The "evaluated by" line was signed by Marla Mosley on August 10, 1998 who stated that she would follow up with a physician. There is a handwritten notation at the top of the form which states "received in payroll 8-11-98" and a date stamp stating received August 11, 1998.
The record also contains a page from respondent's "Administrative Policy and Procedure Manual, Subject #051, Occurrence Report, Employees which states:
1. Employee will complete the Occurrence Report as soon as an accident occurs and contact the Administrative Coordinator who will assess the injury and decide if Emergency Room treatment is needed. . . .
4. It is the employee's responsibility to notify payroll of any anticipated time loss and/or prescriptions given due to injury. . . .
5. If employee should return to work and have to be off again due to same injury this employee is responsible for notifying the payroll office at that time.
6. If employee injury requires Workman's Compensation a note for the Workman's Compensation is required on the first day of lost time. . . .
8. All occurrence Report forms will be sent immediately to the Employee Health Nurse for necessary action and later forwarded to appropriate departments.
9. All employees who have received Workman's Compensation benefits must report to Employee Health Nurse prior to returning to work.
10. Due to type of work required in a hospital setting, an employee cannot return to work on a limited or light duty status without prior approval from Administration.
11. Occurrence Reports should be received in payroll within 24 hours of the time of injury if Workman's Compensation Benefits is involved [sic]. These will be paid by Workman' Compensation guidelines. . . .
Claimant Mary Reed testified on direct that she was working for respondent as a monitor technician and nurse's aide in July 1998 on the 11 p.m. to 7 a.m. shift and that she was paid $5.40 per hour and usually worked 40 hours per week.
On the morning of July 15, claimant "went around" at 4:00 a.m. to check blood pressures, temperatures and vital signs on her patients. After that she checked on patients with diapers and made "turns."
And I was the only aide on the floor at that time, but they had called Martha Tucker from another floor up to help me that night. . . . I went into, Mr. Ryan's a patient of ours, to pull him up in bed `cause he had scooted down. And Martha had helped me to pull him up. And as we was pulling him up, I felt a pull in my back. And I kinda slumped over some and I told Martha, I said, I think I've hurt my back, or you know, strained my back. And nothing else was said inside the patient's room. And after we finished our turns and all the work then, I went back up to the nurses' station. Then I had told the nurse in charge that I had hurt my back, or I had strained my back. And nothing else was said to that effect or anything.
Claimant stated her back hurt early that morning "real bad" and the next night when she came in to work it also hurt, but around 4 or 5 a.m. on the 16th it "got to hurting worse." She continued to work. She did not seek medical attention right after it happened, but called Dr. Crawley, her family physician the next day, and could not get in to see him until July 24.
Claimant testified that she told the nurse at the charge desk that she hurt her back. "I thought that that was [Alissa Long], but I'm, that's been a long, six months, seven months now. I really don't know. Can't remember who it was that I told, but yes, sir, I did tell the charge nurse when I got to the desk." Claimant worked until she saw Dr. Crawley on July 24. At that time, "my back was hurting. It was going, the pain was going down into my left leg and it was beginning to tingle all the way down. And at times it would even go numb." Between July 15 and 24, claimant testified that she told Sarah Hitt, her supervisor, about her back injury. Claimant mentioned it to Marla Mosely, the 11:00 p.m. to 7:00 a.m. coordinator on July 15, when she came to claimant's floor that night. "I had told her that I thought I had strained my back or hurt my back." Johnny Butler knew as well and he "even come up on the floor to check to see how I was doing."
On Friday, July 24, Dr. Crawley put claimant on bed rest for one week according to claimant. At that time claimant stated that she called up to the floor then "and that's whenever I talked with Alissa Long. . . . I had told her that I had went to see Dr. Crawley that day and that he had put me on strict bed rest for one week. And if that it got worse, then I was to call him back and that I didn't know when I would be able to come back to work or anything until after I saw Dr. Crawley again." Alissa Long was claimant's charge nurse, an RN. Claimant believed she called Long on July 26.
Claimant stated that she had not filled out an accident report before she went to see Dr. Crawley. "I had mentioned something to the charge nurse. I don't remember who it was at that time. About the night that, the second night I came back I had asked about where the occurrence reports was and the charge nurse didn't know. I believe she, she was a LPN, and I'd asked her and she said she didn't know where they were at. So then, when I went to Dr. Crawley, when I called up to the floor to tell Alissa that I would have to be off for that week, that Dr. Crawley put me off, she asked me if I had filled out an occurrence report. And I had told her no, that no one had told me where they were at or anything to that effect."
Claimant stated that she returned to work on August 3, spoke with Alissa Long and filled out an accident report. Claimant does not exactly remember whether she filled out the accident report before she was off work or after, but she believes it was after she came back. Claimant kept the report at her work station, completed it and handed it to Sarah Hitt, the head nurse on days, when she came in. Hitt put it on her desk, and that was the last Claimant saw of the report.
Claimant testified that she was in "a lot of pain" when she returned to work and that it was worse in the early morning after she had been on her feet for awhile. Alissa Long sent claimant home on her second day back because she was in so much pain she could not lift patients or bend down and had trouble walking.
Claimant explained that Dr. Crawley referred claimant to Dr. Tuck after an MRI. Dr. Tuck ran a myelogram and other tests on claimant and determined that she had ruptured discs and needed surgery. Dr. Tuck kept claimant off work. Dr. Tuck was considering releasing claimant on March 1, 1999. Her surgery was October 4, 1998, and then she underwent four weeks of physical therapy. Dr. Tuck recently referred claimant to Dr. Hackbarth for pain management with cortisone shots. Claimant stated she was still having a lot of pain and had not been able to return to work.
Claimant testified on cross-examination that she went through a training process when she became an employee of respondent in which she was told "that when you were hurt you was to tell the charge nurse on this and to do an occurrence or an accident report. But at the time, the ones I was working with, the nurses, they didn't know where the reports were." Claimant stated that she did not know how quickly the reports needed to be completed.
Claimant testified that she really could not remember who the charge nurse was on the night she was injured. "But I did tell the charge nurse, whoever it was there. I first said that I though it was Alissa, but I've got those dates mixed up. Alissa was there that I had called to report that Dr. Crawley had me off." Claimant admitted that during her deposition, she testified that it was Alissa Long who helped her and that she reported her injury to Long and that Long was the charge nurse. Claimant also admitted that now she knows Long was not on duty that night. Claimant stated that she made a mistake with the dates but remembered "talking to Alissa to tell her that Dr. Crawley had me off from work with my back." Long was off work when claimant was injured and they worked together the two days claimant returned to work on August 3 and 4.
Claimant explained that when she testified that Long had helped her lift and turn patients the day she was injured, she was mixed up. Long helped her do the lifting and turning when claimant returned to work on August 3 and 4.
Claimant testified that she did not remember completing the workers' compensation form N on August 11, 1998. On that form, claimant put Alissa Long as the charge nurse.
Claimant explained that Marla Mosely was the 11 p.m. to 7 a.m. supervisor. When she came on claimant's floor the morning of July 15 to get the census sheets, claimant told her that she thought she had hurt or strained her back. Claimant could not remember seeing Sarah Hitt that morning. "I believe that I had, I believe that I did see her that morning, but I, I can't recall right now. . . Well, I `m sure I did tell her when I saw her" if she saw her.
Claimant testified that one night she had some car problems. Claimant did not recall if that happened on July 16. She was not sure whether she did not come in to work July 16 at 11:00 p.m. or later. "I, well, I get my — I believe that I did come in to work that night." Claimant believed she moved residences after her injury. Claimant "can't really recall" when she moved. "I do remember telling Sarah Hitt at that time that we moved, that we were moving. And give her my new address, where we were moving to." Then claimant testified that the back problems came up before the move, "because at the time that we were, I was moving, my husband and my son and his girlfriend had to do all the moving and lifting `cause I wasn't able to do that."
Claimant testified that by the time she made an appointment with Dr. Crawley, she had told the RNs who were working that night, two or three, that she had hurt her back. However, she never was seen by a doctor. "No one even asked me to go down to see one of the doctors." Claimant could not get in to see Dr. Crawley for nine days after her injury. Dr. Crawley has an urgent care clinic. When claimant called, she was told she would not be able to see him until July 24, even though the place has seven days a week service, because she worked nights and was told she had to report to work.
Claimant stated that after she was injured, one night she was pulled to the "Rehab" floor but she did not do the heavy work usually required on that floor because of her back.
Claimant stated that Dr. Crawley's notes do not mention a work injury. She also stated that she filled in the occurrence report on August 3, when she returned to work after Dr. Crawley had taken her of work. Claimant gave it to Hitt that day, at the end of the shift in the morning at 7:00 a.m.
Claimant testified about an incident where she fell at home:
My leg went numb when I called, I believe, I want to say October the 1st. `Cause I was, my leg was going numb, I was having tingling in it. And my leg had went numb, and yes, I had fell, but I had caught myself before I hit the floor. And I'm sure that that's probably on patient transfer. They came after me and they'd asked me that.
Claimant remained in the hospital and then had her previously scheduled surgery.
Claimant explained that her car trouble was a flat tire at her home in the driveway. Claimant stated that her husband and son were not home and she could not change the flat herself because of her back.
Claimant stated that her pain got worse as time passed and she also began to suffer numbness and tingling. It was not "unusual" that she did not see Dr. Crawley until July 24. Claimant did not know how badly she was hurt on July 15. During the period that she worked after she was hurt and before she saw Dr. Crawley, claimant was not on light duty or restricted duty. Actually there were several nights that claimant was the only aide on the floor. "I tried to do what I could do and if it got to hurting too bad, that's when I had told the nurse that was on the floor or the other aide."
Claimant testified on rebuttal that she has never seen the policy and procedure sheet describing the incident or occurrence report requirement. She stated in regard to the policy, "they said in orientation that we was to tell our charge nurse. The nurse that was on with us that night, and that she would have us to fill out a report. But at that time no one knew where the report was." The charge nurse, whose identity claimant cannot remember, did not know where the forms were.
Claimant testified that Alissa Long mentioned that the charge nurse was Shannon Mitchell which could be correct because of the 11 p.m. to 7 a.m. shift. "We only had at that time 3 RNs — Alissa Long, Sherry Collins and Shannon Mitchell."
Claimant stated that the work schedule changes. She was asked "And they're not documented right sometimes?", to which she responded "Yes, sir, they are. If one needs off and the other, if someone will trade with them then they do that." Claimant's response is unclear. Debbie Vasser explained in her testimony that the staffing schedule shows where employees are actually placed during the shift, not where they were planned to be placed.
Martha Tucker testified at the hearing that she only worked with claimant one night when they were moving — lifting and turning — patients. Tucker stated she was "lifting a patient with her and she did say something to the effect that her back was hurt. . . . She put her hands on her back. The best I can remember she put her hands on her back." Tucker did not remember a conversation, just that claimant said something about her back. Later claimant went into the restaurant where Tucker also works and told Tucker that she had hurt her back.
Alissa Long testified at the hearing that she was the charge nurse for claimant's shift. On July 26, claimant called Long at the hospital during the 11 p.m. to 7 a.m. shift saying that claimant "was seeing a doctor, that she was going to be on bed rest until the 3rd, and wanted me to pass it on to Sarah, our unit coordinator. . . . And I asked her what happened. She said she hurt her back. . . . I asked her if she filled out a incident report. She said no, that she didn't know she was supposed to. And I believe I asked her who was the charge nurse that night because that's a big deal, filling out a incident report." Long testified she did inform Sarah.
When Claimant returned on August 3, Long gave her the occurrence form to fill out, and then claimant gave it to Sarah on August 4. Long did not have any trouble finding the occurrence report forms, "because I'm familiar and I've worked there longer than Mary."
On August 3, when claimant returned, "you could tell from her expressions and stuff that it hurt for her to even sit in a chair. I tried to help her as much as possible. I think she only worked two days and I sent her home the next night because it was obvious she couldn't hardly stand up. And she was almost in tears. . . ." Claimant has not returned since then.
Long was off of work herself from July 9, 1998 through July 25 because she fell into an open manhole. Long found out from Ms. Vasser that claimant had written Long's name down as the charge nurse on July 15, 1998 even though Long had been at home that night. Since Long was off on the 15th, she asked claimant who the charge nurse was, and claimant indicated it was Shannon Mitchell.
Long testified that claimant stated she did not know she was supposed to fill out an occurrence form. "Which, as a charge nurse, if somebody . . . complained of back pain, I would make sure that they filled out an incident report. That's why I asked her."
Betty Easley, a co-worker of claimant, testified at the hearing that she could remember that claimant had problems. When they worked together before she hurt her back, "we done okay." Claimant told Easley that she had hurt her back on a patient. Easley was not working on July 15. Easley worked one more night with claimant before she went off on sick leave, working with a patient, "but she couldn't lift. So I did most of it. And I noticed that she had put her hands on her back like that [demonstrating], just kinda grunted a little bit. But other than that that's it."
Sherry Collins testified that she worked with the claimant after she hurt herself and noticed that claimant "walked stiffly" and "complained of back pain." Collins stated that when a nurse's aide reports an injury "we tell them to fill out an incident report immediately." Collins was not at the hospital July 15, and so claimant could not have reported the injury to her that night.
Terri Schultz testified that the occurrence report form, described above, was the policy in effect at the time of claimant's alleged injury on July 15, 1998. Schultz testified that when employees are injured, "they're supposed to be reporting to a charge nurse, department head or unit coordinator or supervisor." There are two doctors, Dr. Shedd and Dr. Mitchell, specified as workers' compensation doctors by the hospital for employees. Dr. Crawley is not one of those specified doctors. If an employee gets hurt at night, sometimes he or she will be sent down to the emergency room. That is up to the people on duty that night. If he or she requires further treatment then they have to go see Dr. Shedd or Dr. Mitchell. Usually the department head or Schultz sends them to Shedd or Mitchell. Debbie Vasser is Claimant's department head. Claimant had one address before she was injured and a new one afterwards. Employees are supposed to learn about policies and procedures through the orientation process, where they show new employees how to complete the occurrence or incident form.
Marla Mosley testified that on July 15, 1998, she was a supervisor, also called administrative coordinator, on the 11 p.m. to 7 a.m. shift. She stated that she was not made aware of claimant's work injury on the July 15 11 p.m. to 7 a.m. shift. She testified that she became aware of the injury when she received the incident report sometime in August, 1998, but not before. If Mosley is told that an employee is injured, she sends them to the emergency room and tells them to complete an incident report: "That's mandatory." Mosely stated that she has sent Alissa Long and Shirley Flannery to the emergency room in those circumstances in the past. Mosley stated that this is what is done even if the employee does not want to go to the emergency room. If claimant had told Mosley that she was not sure how serious her injury was, "what I've done before is put them in wheelchair and taken them to the ER myself." The form must be filled out immediately.
Mosely testified that claimant did not come into work at all on July 16 because she had car trouble. "I was told that she would be, in shift report, that she would be late or she would call and let me know if she could not come in. I was under the impression that they were moving a trailer." The supervisor from the 3 p.m. to 11 p.m. shift told Mosely about the trailer when she gave her the report about who had called in for the 11 p.m. to 7 a.m. shift. Mosely testified that she could not recall claimant having any physical problems on the job between July 15 and August 3, 1998. Claimant did not talk to Mosely on the morning of July 15, 1998.
Sarah Hitt testified that she was the unit coordinator in claimant's area in July 1998 and that her responsibilities included hiring, staffing, organizing and advising. "If an employee was injured during the hours that I was at work, then I would have them fill out the incident report and I would send them to the ER or call on one of the doctors, Dr. Mitchell or Dr. Shedd and make an appointment and send them." If Hitt is not there, the supervisor on duty handles the incident reports and should sign them. Hitt reviewed the incident reports from the 11 p.m. to 7 a.m. shift at 6:30 a.m. the same morning. Claimant could have gone to Hitt the morning of July 15 about her injury. If claimant had gone to Hitt, Hitt would have asked for the incident report and sent her to the emergency room, if she was hurting, or the doctor. Hitt would have needed to know when she was hurt, what she was doing, if she filled out a report, and if she had been to the emergency room. If a report had not been completed, Hitt would have done so.
Hitt testified that she was not made aware of claimant's injury when she came in on the morning of July 15, 1998. She also testified that she was not aware that claimant was having problems during July 15 through 24, 1998.
Hitt's job involves staffing. If an employee is on light duty, then Hitt would have to find someone else to do the job the employee is unable to do. "If I am made aware that someone can't do the lifting, I would have to question them as to why they weren't able to do their job if I didn't already know, and I would still have to find somebody who could help to do that job."
The first time Hitt heard that claimant had hurt her back was when Alissa Long told her that claimant had called and talked to her. Hitt could not remember the date that Long told her this except that it was after Long had returned from her leave. Long told Hitt that "Mary called and she was having problems with her back and that she would be off until, I don't remember when it was."
Claimant did not say anything to Hitt about her injury until she gave Hitt the incident report. It could have been in early August, August 3 or 4. Hitt sent the report to the administrative coordinator, Johnny Butler, in an envelope with his name on it. The envelope was put in the messenger's rack to be delivered to Johnny Butler. The envelope or report did not sit on Hitt's desk for a few days before it was sent to Johnny Butler.
Hitt did not recall whether claimant left the report for her or handed it to her. "If Mary said anything to me about it, which I don't recall her telling me about it but if she did, it was when she gave me the incident report. I don't really remember Mary ever talking to me about it."
Hitt stated that she never talked to claimant about her injury before she was off work from July 24 to August 3, 1998. Hitt tried to contact claimant but could never get in touch with her. Hitt did speak with a man at claimant's phone number, to whom she indicated that Hitt needed to speak to claimant about when she would be able to return to work. Hitt did not recall when she spoke to this person. Hitt did not threaten or imply that claimant was going to lose her job. "I said she needs to call us and let us know. I did not threaten her job."
Johnny Butler testified that he was the nursing supervisor on weekends in July 1998. Butler testified that he never saw the incident report. He stated that since the injury did not occur on his shift, he would not have been the one to sign it. Butler could not recall claimant having any problems after July 15, 1998, but that she may very well have had problems.
Butler said that Hitt stated she routed the incident report to him, but that he never saw it and that sometimes things get lost. Butler would not have signed the report because the incident did not occur on his shift. Butler stated that the "received August 11" stamp on the report was put there probably by the administrative coordinator downstairs in the office once they received it.
Butler stated that he might have checked on claimant but that he does not recall doing so, and that he does not recall her having any problems.
Debbie Vasser testified that she is the Director of Nurses and that when she is not there, the supervisor on duty is the administrative coordinator, the acting administrator. Vasser's record shows that Martha Tucker did not work on the evening of July 14 and the morning of July 15, 1998. "I have a staffing sheet for that night and it did not show Martha Tucker on the night of the 14th." She went on to state that if Martha Tucker had been moved from one floor to claimant's floor the night claimant was injured:
It would have been shown on the staffing sheet like it says, shows this one went to OB, wherever this one went. And this one was scheduled there but she went to OP. It shows you where that person went. I do not see Martha's name on there anywhere showing she was on that night. It is not possible that she was on and it not be reflected on the staffing schedule.
Vasser described what happens if an employee is injured on the job:
If they have an injury at work, they go to their charge nurse who notifies the supervisor and lets them know that someone's been hurt at work. She comes and she evaluates the employee. There's incident reports on every floor. They get an incident report and fill it out. At that time, the supervisor makes a decision, or the administrative coordinator makes a decision whether that employee needs to go to the emergency room or not. Sometimes the employee says I'm not hurt, I don't want to go to the emergency room. Well, you know, they still have to fill out an incident report regardless.
Vasser explained that the August 11 stamp on the incident report is the date she received the report in her office. Vasser did not know where it was between August 3 and August 11, 1998.
Claimant's medical records make up the rest of the hearing record. Dr. Crawley's office notes begin with an entry on July 24, 1998, which merely states "thinks she pulled muscle in lower back L side," and reflects that he ordered a lumbar spine series and prescribed some medications. Conspicuously absent are any references to how or when claimant was injured. Dr. Crawley completed an off-work slip stating that claimant was "off work 8-3-1998; was sick for . . . 7-24 — 8-3." Another of Dr. Crawley's off work slips states that claimant was seen on August 16, 1998, and was released to work on August 27, 1998. In Dr. Crawley's office note for August 19, 1998, he stated that claimant still complained of lower back pain and of left hip and leg pain, again with little else said other than she needed an MRI and prescriptions. That is the last entry from Dr. Crawley, a man of few words.
On August 21, 1998, claimant underwent an MRI of the lumbar spine at Methodist Hospital to rule out a herniated nucleus pulposus. She complained of left leg pain. The results of the MRI were:
There is central to left paramedian protrusion of disc with disc material extending inferiorly posterior to the upper portion of S1 consistent with herniated disc at L5-S1 on the left with extruded fragment. No other abnormalities noted. Impression: Herniated disc L5-S1 on the left with extruded fragment.
On August 28, 1998, claimant was seen at Neurosurgical Associates of Northeast Arkansas by Dr. Barrett-Tuck. Dr. Barrett-Tuck's office notes state:
This is a very pleasant 42 y/o nursing assistant who reported that on July 15, 1998 she was pulling a patient up in bed when she felt a pull in her back. The first couple of days she thought she had simply pulled a muscle, however, the pain increased and began to radiate to the left and down the left lower extremity. She only took a couple of days off work to begin with, however, the pain continued to increase to the point that it was unbearable. She has been treated with heat, ice, non-steroidals, muscle relaxants and pain medication and has been off work for 2 weeks now with no relief.
ROS: Headaches. Tingling in the left leg. Limited movement. Inflammation. Frequently irritable. . . .
Back: Mild paraspinous spasms. SLR is positive on the left side at 90 degrees, negative on the right. Tone and bulk is normal.
Neurological: Reflexes are 2+ at the knees, 2+ at the ankles. Strength is 5/5 in all major muscle groups. She is able to stand on her heels and her toes. There appears to be sensor loss in the S1 distribution on the left pin and touch.
I have reviewed the MRI of the lumbar spine. Dr. Aston felt that there was a left sided disc rupture with extruded fragment. The images, however, are really quite fuzzy. I do not feel comfortable proceeding without a more clear cut look at the anatomy. I have therefore requested a myelogram and post-myelogram CT scan of the lumbar spine. This will be done on Tuesday. I have tentatively posted her for surgery on Thursday.
Dr. Tuck completed an off-work slip for claimant on September 1, 1998, stating that she will be able to return to work on September 9, 1998.
Dr. Tuck's office notes of September 10, 1998, reflect that:
Ms. Reed underwent a myelogram and post-myelogram CT scan on 9/10/98. She left the hospital after the study, therefore, I did not get to discuss the myelogram with her. Post-myelogram CT scan indeed does show a disc herniation diffusely at L5-S1 eccentric to the left. There does appear to be significant compression of the left S1 nerve root. I do believe that surgery would be indicated. If Ms. Reed would like to schedule L5-S1 partial hemilaminectomy and discectomy on the left, we can go ahead and do that at the next available slot.
The conclusions drawn on the report of the post-myelogram CT scan of claimant's lumbar spine on September 10, 1998, were:
1. Moderate-sized broad-based posterior disc bulge versus HNP noted at the L5-S1 level with associated mild bilateral compromise of the S1 nerve roots within the lateral recess areas (left greater than right).
2. L1-L2 through L4-L5 intervertebral disc levels demonstrate no signs of disc herniation, abnormal posterior disc bulges, or stenosis.
The report of the lumbar myelographic procedure performed on claimant on September 10, 1998 states that:
Lateral myelographic film demonstrated mild anterior extradural defect of the L5-S1 level. Minimal anterior extradural defect noted at the L4-L5 level. There appears to be slight asymmetry in the degree of opacification of the S1 nerve roots with associated slight incomplete filling of the left S1 nerve root as compared to the right. The lumbosacral nerve roots otherwise appear to opacify symmetrically. No other signs of nerve root swelling or nerve root compromise identified on the examination.
Claimant underwent a partial hemilaminectomy and diskectomy on the left on October 4, 1998 according to the operative report completed by Dr. Tuck. The report described the procedure and states in part:
This 43 year old lady suffered an injury to her back on 7/15/98 when pulling a patient up in bed. She was treated conservatively without relief and on myelogram and post-myelogram CT scan was found to have a disc rupture at L5-S1 on the left. Informed consent was obtained for partial hemilaminectomy and diskectomy.
Claimant was discharged on October 4, 1998. Dr. Tuck completed a discharge summary which states:
Final Diagnosis: Herniated nucleus pulposus at l5-S1 on the left.
History of Present Illness: Ms. Reed is a very pleasant 42-year-old nursing assistant who reported that on 7/15/98 she was pulling a patient up in bed when she felt a pull in her back. She was initially seen in our office on or around 9/28/98 for evaluation of back and left leg pain associated with this accident. She reported the first couple of days she thought she had simply pulled a muscle, however, the pain increased and began to radiate to the left and down the left lower extremity. She only took a couple of days of work to begin with, however, the pain continued to increase to the point that it was unbearable. She had been treated with heat, ice, non-steroidals, muscle relaxants, pain medications and had been off work for two weeks with no relief. She presented herself to the Emergency Room on 10/1/98 because of severe increase in her left lower extremity pain. Her pain was quite significant when she would try to weight bear on the left. She reported on the day of her presentation that she fell landing on her left side. She stated it was not a hard fall. She sort of lowered herself to the ground, however, she was complaining of severe pain. She complained of severe pain down the left posterior extremity to the left foot with associated tingling down the left lower extremity in the posterior aspect.
Physical Examination: Was significant for tenderness in the left SI area. She had no significant paraspinous spasm. There was decreased sensation in the left L4, L5 and S1 dermatomes. Reflexes were 2+ in the knees and 1+ at the ankles and symmetrical. Strength was decreased in the plantar flexion of the left foot and the left anterior tibialis. Any movement of her left lower extremity caused her pain to increase. . . .
The patient was scheduled to undergo surgery, however, her pain became unbearable and thus she had to be admitted for pain management while awaiting surgical intervention. . . .
The patient tolerated the above noted surgical procedures on 10/04/98 without any postoperative complications and indeed following surgery was ready to go home with relief of her leg pain.
She is given limited activity restrictions. Specifically, she should do no heavy lifting until further instructed and is not to drive a car for two weeks. She is to initiate physical therapy on the third postoperative day and is to go daily until see back in follow up in our office in approximately four weeks. . . .
On November 10, 1998, Dr. Tuck's office notes reflect that claimant returned for a follow up visit.
She complains of severe left lower extremity pain. She feels that it began during manipulation by one of the therapists. She report that the first two weeks that she did well. I would like for her to wait a couple more weeks, do some walking and see if the pain doesn't get better. She is instructed to call if she is unimproved within two weeks and we will get a follow up MRI done at that time.
Claimant underwent a lumbar spine MRI with and without contrast on December 3, 1998. The report states:
Findings: There is normal alignment of the lumbar vertebra. Normal signal is identified within the lumbar vertebral bodies. T2-weighted images show the spinal cord to terminated at a normal level with normal signal within its substance.
Correlation with axial imaging demonstrates the following:
L2-L3: Mild degenerative changes with no herniation or stenosis.
L3-L4: Mild degenerative changed with mild bulging annulus and no evidence of focal herniation or stenosis at this level.
L4-L5: Degenerative facet change. Degenerative disc with mild bulging annulus. Mild bilateral ligamentum flavum buckling. No clear evidence of focal herniation or stenosis at this level.
L5-S1: There has been previous surgery on the left side at this level. There is substantial mildly enhancing abnormal soft tissue within the surgical laminectomy defect on the left and surrounding the left aspect of the thecal sac. This extends into the posterior aspect of disc and probably represents scar tissue. No definite residual or recurrent fragment can be identified.
Dr. Tuck's office notes from December 10, 1998 reflect that claimant was still complaining of left lower extremity pain.
This is a pleasant 43 year old nursing assistant who suffered a disc rupture on July 15, 1998 when she was pulling a patient up in bed. She has failed conservative treatment and underwent lumbar laminectomy and discectomy at L5-S1 on the left 10/4/98. She has failed to experience complete relief of pain and in fact still has a lot of left sided sacroiliac region and buttock pain, although not a lot of pain down the leg. She is having difficulty staying on her feet for a significant length of time and remains very concerned. MRI did not show a definite recurrent disc, although there did appear to be some mass effect from soft tissue. She is brought to the hospital for myelogram and post-myelogram CT scan to rule out recurrent disc rupture.
ROS: Headaches. Tingling in left leg. Limited movement. Inflammation. Frequently irritable. . . .
Back: Well healed midline scar. She is mildly tender in the lower lumbar are. SLR exam elicits right sacroiliac region pain. . . .
Neurological: Reflexes are 2+ at the knees, the right ankle jerk is absent. Strength is grossly intact.
Assessment: Persistent left lower extremity pain.
On December 15, 1998, a myelogram was formed which produced the following findings:
Small anterior epidural defects at L2-L3, L3-L4, and L4-L5. No clear nerve root swelling can be identified. There is some deformity of the lower thecal sac, probably due to previous surgery. Mild lateral lumbar curvature.
On December 15, 1998, a post-myelogram CT scan was also performed on claimant, which resulted in the following findings:
L2-L3: Mild degenerative changes with no focal herniation or stenosis.
L3-L4: Mild degenerative changes with minimal bulging annulus and no focal herniation or stenosis.
L4-L5: Mild bulging annulus and mild degenerative changes with subtle ligamentum flavum buckling. No clear evidence of focal herniation or stenosis.
L5-S1: Post operative changes on the left at this level. There is normal soft tissue within the left lateral spinal canal surrounding the left S1 rootlet. However, there faint opacification of this rootlet. The abnormal soft tissues most likely represents [ sic] scar tissue. There is some mild mass effect upon the thecal sac with some subtle deformity of the lower sac. This is predominantly demonstrated upon the posterior left thecal sac subjacent to the laminectomy defect. The left S1 rootlet does not appear to be severely compromised.
Conclusion: Degenerative disc disease with postoperative changes detailed above.
Claimant's discharge summary following her myelogram and post-myelogram on December 15, 1998, completed by Dr. Tuck states that her tests showed no nerve root compromise but did reveal mild degenerative changes and disc bulging at several levels but no recurrent disc herniations.
Dr. Tuck's office notes from claimant's January 19, 1998 appointment state:
Ms. Reed returned for follow up today. She reports that she has been having some good days and some bad days, still not doing very well. Today in fact she twisted and has had some sharp sacroiliac region pain on the left, but no real radicular pain. . . .
SLR exam does elicit sacroiliac region pain. Ms. Reed underwent a myelogram just about a month ago which did not show a recurrent disc.
I am going to send Ms. Reed to Dr. Hackbarth for lumbar epidural steroid injections and/or sacroiliac injections. I am hopeful that she can get some relief. If not, I will be glad to see her back and re-evaluate. I have given her a prescription for Naproxen and Lorcet as well as a release to remain off work for six weeks. I do not think she is going to be able to do aide work at this time. I was hopeful that she could return to desk work and monitor work but she tells me the hospital will not have that type position for her.
On January 19, 1999, Dr. Tuck completed a work release form taking claimant off work for six weeks until the first week of March.
The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and 102(5)(E)(i) (Supp. 1997).
Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury "by medical evidence supported by `objective findings' as defined in § 11-9-102(16)." If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra.
"In determining whether a party has met the burden of proof on an issue, Administrative Law Judges and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party." Ark. Code Ann. § 11-9-704(c)(4); 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). The burden of proof rests upon the claimant to prove the compensability of her claim by a preponderance of the evidence. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993); Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996); Jordan v. Tyson Foods, 51 Ark. App. 100, 911 S.W.2d 583 (1995); Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995). There is no presumption that a claim is compensable, that the claimant's injury is job-related or that a claimant is entitled to benefits. Crouch Funeral Home v. Crouch, 262 Ark. App. 417, 557 S.W.2d 392 (1977); O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979).
There is no doubt that claimant suffered a herniated disc — internal harm — which required medical treatment and surgery, which satisfies the element that the injury caused claimant internal or external harm, and the element that claimant's injury required medical treatment or resulted in death. Reed, supra. Claimant must prove these elements by the preponderance of the evidence, which is "evidence of greater convincing force."Brewer v. Paragould Housing Authority, Full Commission Opinion Filed January 22, 1996 (WCC No. E417617) ( citing A.C.A. § 11-9-102 and Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947)). The injury which caused this harm and need for treatment has not been proven to have occurred during, or to be related to, claimant's employment.
In regard to the element requiring that claimant's injury arise out of and in the course of her employment, there can be no doubt that, if claimant hurt her back as she described, by moving a patient up in his bed, then this element is met. Deffenbaugh Indus. v Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). "Arising out of the employment" refers to the origin or cause of the accident while the phrase "in the course of the employment" refers to the time, place, and circumstances under which the injury occurred. Id., Jones v. City of Imboden, 39 Ark. App. 19, 21, 832 S.W.2d 866 (1992) ( citing Franklin Collier Farms v. Bullard, 33 Ark. App. 33, 800 S.W.2d 438 (1990); Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987); Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985); Owens v. National Health Laboratories, Inc., 8 Ark. App. 92, 648 S.W.2d 829 (1983)). Claimant's difficulty lies in proving the remaining element, that she actually suffered an accidental injury in which she was moving a patient up in his bed while on duty as a nurse's aide employed by respondent.
The remaining element is that claimant prove by a preponderance of the evidence that she suffered an accidental injury. Claimant has failed to prove that she was injured while engaged in her employment as she described. An accidental injury is one caused by a specific occurrence and identifiable by time and place. Ark. Code Ann. Sec. 11-9-102(5)(a)(1). Claimant has failed to prove by a preponderance of the evidence that she suffered an injury to her back on July 15, 1998. The record contains a great deal of contradictory and unconvincing evidence on this question. Because of the discrepancies, inconsistencies and illogical statements in claimant's case, as described below, we cannot credit claimant's testimony as truthful.
Of course, claimant stated that she was injured when moving a patient on July 15, 1998 sometime around 4:00 a.m. To corroborate her testimony, she presented the testimony of Martha Tucker who stated that she remembered moving a patient with claimant and that claimant said that her back hurt. Tucker did not testify that claimant indicated that she hurt herself at that instant or how she hurt herself. Interestingly, the staffing records for that night show that Tucker was not working that night and that the staffing schedule would definitely show her presence with claimant if she actually was with her. Claimant tried to contradict this testimony, made by Debbie Vasser, the Director of Nurses, by stating that the work schedule changes. She was asked "And they're not documented right sometimes?" To which she responded "Yes, sir, they are. If one needs off and the other, if someone will trade with them then they do that." This statement, while a negative answer, or at least unresponsive, to the question in the first place, does not negate what Vasser stated. Vasser explained that all staffing assignments changes are noted on the staffing schedule. Claimant was speaking to employees taking off and Vasser was referring to staff assignments and locations and to situations where employees are moved to other areas to help out.
Claimant testified that she informed all the RNs on her shift that night, however, the witnesses at the hearing were unaware of her injury at that time or unable to testify to the actual event of injury as claimant has described. Johnny Butler, the weekend nursing supervisor, stated that he could not recall claimant having problems after July 15 or checking on her in regard to those problems. He stated that she might have had problems and he might have checked on her but he could not recall it. Marla Mosely could not recall claimant having any physical problems between July 15 and August 3, 1998. Sarah Hitt, unit coordinator testified that she was not aware that claimant was having physical problems between July 15 and 24 and that they never discussed her injury before August 3.
Of the witnesses who were aware of her back problems, no one can say as an eyewitness or with any clarity or knowledge that claimant injured her back or acted like she injured her back when she was moving Mr. Ryan up in his bed. Martha Tucker, a fellow nurse's aide, merely stated that claimant put her hands on her back and said it hurt, not that she said that she hurt her back just then. Even when Tucker testified that claimant told her at the pizza restaurant that she had hurt her back, there was no explanation as to how. Alissa Long, charge nurse, was informed of the injury on July 26 when claimant called her to report that she was on bed rest due to her injury, and Long observed claimant in apparent pain when she returned on August 3 and 4. Long could not testify as to how claimant was injured. Sherry Collins, another charge nurse, noted claimant's apparent discomfort and complaints of back pain, but did not testify as to a cause.
Only Betty Easley, claimant's co-worker, mentioned the method of claimant's injury, and that was merely to repeat what claimant had told her that she had hurt her back working with a patient. Easley testified that she did not work the 11 p.m. to 7 a.m. shift on July 15, that claimant did not have trouble before July 15 when they worked together but that she did the one day claimant and Easley worked together before she went off work. Easley observed claimant rubbing her back and "grunting."
Claimant also testified that she was in the process of moving from one residence to another, with the help of her husband, son and son's girlfriend. Marla Mosely, a supervisor or unit coordinator, and two employees were under the impression that claimant's absence on July 16 was due to her moving a trailer in conjunction with the move, despite claimant's testimony that she was absent because she had a flat tire which she could not change because of her back and no one was home to help her. Note that claimant's shift is from 11 p.m. to 7 a.m. Note also that claimant stated that at the time she was injured she was not aware whether it was serious or not and she in fact worked until July 24, 1998, sometimes as the only aide on her floor and sometimes in the Rehabilitation area, where aide duties are more strenuous. Claimant's duties on her regular floor included checking patients' vital signs and monitors, checking and changing diapers (on adult heart patients), and moving and turning patients. Despite her ability to perform at work and the fact that claimant testified that her pain gradually increased, claimant was unable to change her tire the evening after her alleged injury. On top of all that, claimant also testified that she was at work on the morning of the 16th in increasing pain, and later that she did come into work that night, even though she also testified that she did not work on the 16th. Claimant also testified that she could not recall exactly when she moved but that she "believed" it was after her injury.
Also, claimant stated that she told her charge nurse about her injury on July 15 before she left work. She identified the charge nurse as Alissa Long on the incident report completed on August 3, her AR-N form and apparently at her deposition. Claimant admitted that she thought it was Alissa Long, but explained that she confused a later conversation with Long on July 26 with her initial report to the charge nurse. (This July 26 conversation was over the telephone.) Long could not have been the charge nurse to whom claimant reported on July 15, 1998 because Long was off work for injuries related to falling in an open manhole. Claimant explained at the hearing that there were two other people who could have been the charge nurse that night, Shannon Mitchell and Sherry Collins, but given the choice between only these two, claimant could not recall with whom she spoke about her back injury on the morning of July 15, 1998. Interestingly, Alissa Long testified that when claimant called her on July 26, Long asked if she had filled out an occurrence form, which she had not. Long asked who the charge nurse was because filling out an occurrence form is "a big deal." Claimant indicated to Long that the charge nurse was Shannon Mitchell. At the hearing, claimant could not say who the charge nurse was, and at the hearing Shannon Mitchell was not produced for testimony or by affidavit or deposition. Sherry Collins testified at the hearing that she did not work on July 15 and so was not the charge nurse in claimant's area that evening, and that an occurrence report must be filled out immediately when an injury is reported.
Claimant testified that she did not fill out an occurrence form on July 15 because the charge nurse did not know where they were. The Director of Nurses, Debbie Vasser stated that there are forms on every floor, and that the charge nurse is supposed to notify the supervisor. Long indicated that the occurrence forms are "a big deal." Even though the forms are a mandatory part of the established procedure for handling employee injuries, and even though the charge nurse is responsible for making sure the policy is followed by notifying the supervisor and having the form filled out, the anonymous charge nurse ignored policy and procedures and her job responsibilities because she did not know where the forms were, without notifying a supervisor or the unit coordinator who was in at 6:30 that morning. Even claimant knew the policy regarding occurrence forms, even though she told Long that she did not know she needed to fill one out when they spoke on the July 26. Of course that statement to Long contradicts her statement that she did not fill out a form because when she reported her injury to the mystery charge nurse, the mystery charge nurse did not know where the forms were located.
Claimant testified at one point in the hearing that she told Sarah Hitt about her injury between July 15 and 24, and later she testified that she believed that she saw Hitt the morning of the 15th, but she could not recall, and that she was sure she did tell her about the injury when she saw Hitt. Hitt testified that if claimant had come to her with a report of injury, which she could have done on that morning because Hitt came in at 6:30 a.m., but did not, Hitt would have asked her for the incident report and sent her to the emergency room or the doctor. Hitt testified that she was not aware that claimant was having problems during the period of July 15 through 24. Hitt testified that claimant did not make her aware of the injury until Hitt received the incident report on August 3, and she did not recall ever actually speaking with claimant about it.
Claimant testified that she also told Marla Mosely that she thought she hurt her back on the morning of July 15, 1998. However, Mosely testified that on July 15 she was not made aware that claimant had injured her back, that claimant did not talk to her on the morning of July 15, that when she is informed that an employee is injured she makes them see the emergency room staff and has them fill out an occurrence report, and that the report has to be completed immediately.
Claimant stated that she made an appointment with her family doctor, Dr. Crawley at an urgent care clinic, but that she was told the earliest she could get an appointment was on July 24. This despite the fact that the clinic is an "urgent care" clinic and had seven days a week service. Claimant explained that it was because she worked nights and had to be at work. We are confused by this explanation because if she worked 11 p.m. to 7 a.m., it certainly seems that she would have the entire regular day to schedule an appointment. Certainly, this late appointment is indicative of the less than serious nature of her complaints at that time, since she did not seek medical attention from the emergency room of her employer or from the medical staff of her employer, or from anyone else, instead being content to wait nine days.
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).
The only reference to the cause of claimant's injury is in the history portions of the office notes of Dr. Crawley and Dr. Tuck. Dr. Crawley merely repeats that claimant thought she pulled a muscle, without indicating how or when or much of anything at all. Dr. Tuck repeats claimant's story that she was pulling up a patient. However, claimant apparently did not mention that at the exact same time she was in the process of moving. Dr. Tuck's recital of claimant's story is not enough to prove the causal relationship between her injury and her employment necessary for compensability. In fact claimant's description of the period after her alleged injury on July 15 does not follow her other testimony and records. Dr. Tuck's notes state that "she only took a couple of days off work to begin with, however, the pain continued to increase to the point that it was unbearable." The record reflects that claimant did not take off any time for nine days until she was taken off work for two weeks by Dr. Crawley. While this may not be the most significant discrepancy in the record, it is indicative of the lack of attention to detail and the lack of veracity in claimant's story.
Claimant has proven that she hurt her back and that it required surgery, however, there is a dearth of evidence in the record to show that this occurred at work, and not while she was moving her home. Considering her lack of credibility and the fact that she is the only person to testify to her actually suffering an injury in the patient's room on July 15, we cannot credit her explanation and therefore her claim must fail. For the foregoing reasons, we find that claimant has failed to prove by a preponderance of the evidence that she suffered a compensable injury which arose out of and in the course of her employment, and we reverse the opinion of the Administrative Law Judge.
IT IS SO ORDERED.
_______________________________
MIKE WILSON, Commissioner
DISSENTING OPINION
[96] I must respectfully dissent from the majority opinion in this case. In my opinion, claimant has proved by a preponderance of the evidence that she sustained a compensable injury. Therefore, I would affirm the decision of the Administrative Law Judge.In my opinion, claimant offered credible testimony of a specific incident injury, the occurrence of which she reported on July 15, 1998. Assuming without conceding that claimant did not report the injury until July 25, 1998, this temporal gap is inconsequential. Moreover, the compensability of a specific incident injury is not contingent upon timely reporting. This is so regardless of an employer's internal policy governing the reporting of work-related injuries.
In reaching my decision, I find Ms. Martha Tucker's testimony persuasive. Although she is unable to recall the precise date that she was assigned to assist claimant, the evidence shows that the pair worked together only once. I interpret Ms. Tucker's testimony to mean that claimant's complaint of back pain was contemporaneous with the lifting incident.
The first medical report, authored by Dr. Crawley, failed to include any reference to a work-related injury. However, the deficiencies in his chart notes cannot be overstated. In place of a patient history, Dr. Crawley recorded claimant's theory with respect to the nature of her medical condition. He failed to use a complete sentence.
By contrast, Dr. Barrett-Tuck's office notes are illuminating. The chart note she authored on August 28, 1998, showed a history that is entirely consistent with claimant's hearing testimony. Following additional testing, Dr. Barrett-Tuck stated that: "Post-myelogram CT scan indeed does show a disc herniation diffusely at L5-S1 eccentric to the left. There does seem to be significant compression of the left S1 nerve root. I believe that surgery would be indicated." The Operative Report showed that on October 4, 1998, Dr. Barrett-Tuck performed a "L5-S1 partial hemilaminectomy and diskectomy on the left." That report also stated that claimant's suffered a work-related injury. Therefore, the first thorough report contains a history that mirrors the hearing testimony of claimant and Ms. Tucker.
I recognize that this case is not free of inconsistencies. It is my opinion, however, that claimant offered credible testimony. Thus, I would award medical benefits and temporary total disability benefits in accordance with the Administrative Law Judge's opinion.
Based on the foregoing, I respectfully dissent.
_______________________________ PAT WEST HUMPHREY, Commissioner