Opinion
CLAIM NO. F809107
OPINION FILED NOVEMBER 2, 2009
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Honorable Theodor Stricker, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by Honorable Melissa Wood, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals and the claimant cross appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury. The respondents appealed the finding that the claimant proved he sustained a compensable injury. The claimant cross appealed on the finding that the claimant's attorney was awarded an attorney fee only on the indemnity benefits awarded to the claimant. The claimant contends that the statutory provisions of Ark. Code Ann. § 11-9-715(a)(1)(B) and (a)(4) violate the Arkansas Constitution and the United States Constitution as it interferes with the claimant's right to contract thereby denying the claimant due process and equal protection. After conducting a 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. Therefore, the constitutional challenge is rendered moot as we find that the claimant should not be awarded any benefits.
The claimant began working for the respondent employer in August of 2008. The claimant would sandblast trucks and do odd jobs including painting, and other manual labor. The claimant testified that he had problems with dehydration and complained of the heat and cramps. The last day the claimant worked for the respondent employer was September 4, 2008.
On September 9, 2008, the claimant sought treatment from Dr. Terry Kosinski at the First Care Matthews Clinic for a swollen arm. The chart note reflects that the claimant's chief complaint is right arm and shoulder pain which started "hurting this weekend". The note indicates that the claimant told Dr. Kosinski that he "woke up today with pain and very swollen" and that the pain was there for three days. The claimant was diagnosed with a blood clot and admitted to the hospital to break up the clot. He was ultimately diagnosed with deep venous thrombosis and thoracic outlet syndrome. The claimant filed a claim for an injury to his shoulder contending he injured his shoulder on August 28, 2008.
The respondents offered the testimony of Mr. William Sykes, the owner of the respondent employer. Mr. Sykes testified that the claimant never told him about his shoulder problems. Mr. Sykes testified as follows:
Q. Did he ever complain to you about his shoulders?
A. No. It was cramps.
Q. What did you associate those cramps with?
A. Dehydration, which causes cramps.
On cross-examination, Mr. Sykes made it perfectly clear that the claimant never told him about his shoulder:
Q. And did he ever say well, I'm having a lot of trouble with my shoulder cramping?
A. No.
Q. He never told you that?
A. No.
Q. Just told you cramps?
A. He said cramps. I told him to get some V-8 Juice and drink water.
Mr. Sykes testified that the claimant carried a bottle of water around with him all the time. Mr. Sykes testified:
Cramps. But from the first day he working there, it was in the summer and he was carrying bottles of water around with him. And I said why is this? And he said well, I get cramps. And I even told him one day to please, if you want to drink water sit down and drink it. You can't work with one hand and have a bottle of water in the other. And the only complaints that I ever heard was that he sat down a lot because he was heat exhausted. And he — that's basically it.
Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2005) defines "compensable injury" as "[a]n accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002). The phrase "arising out of the employment" refers to the origin or cause of the accident, so the employee is required to show that a causal connection exists between the injury and his employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). An injury occurs "in the course of employment" when it occurs within the time and space boundaries of the employment, while the employee is carrying out the employer's purpose, or advancing the employer's interest directly or indirectly. City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).
In addition to establishing the general requirements for compensability set forth in § 11-9-102(4)(A)(i), the claimant must establish a compensable injury by medical evidence, supported by objective findings as defined in § 11-9-102(16). That a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury.Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). "Objective findings" are those that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). Moreover, objective medical evidence, while necessary to establish the existence and extent of an injury, is not necessary to establish a causal relationship between the injury and the work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. App. 443, 990 S.W.2d 522 (1999). The onset of pain does not satisfy our statutory criteria for benefits. Test results that are based upon the patient's description of the sensations produced by various stimuli are clearly under the voluntary control of the patient and therefore, by statutory definition, do not constitute objective findings. Duke v. Regis Hair Stylists, 55 Ark. 327, 935 S.W.2d 600 (1996). Finally, medial opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16)(i)(B); Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).
There is no presumption that a claim is indeed compensable.O.K. Processing, Inc., et al v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). Crouch Funeral Home, et al v. Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977). The injured party bears the burden of proof in establishing entitlement to benefits under the Workers' Compensation Act, and must sustain that burden by a preponderance of the evidence. See Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002); Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001). In other words, in a workers' compensation case, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable, ie., that his injury was the result of an accident that arose in the course of his employment and that it grew out of, or resulted from the employment. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001); Ringier Am. v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993). Further, the claimant must show a causal relationship exists between his condition and his employment.Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974).
It is well established that the party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 2002). A preponderance of the credible evidence of record means "evidence of greater convincing force." Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); See also, Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 42 (1947). In determining whether a claimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; 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).
A review of the evidence demonstrates that the claimant cannot prove by a preponderance of the evidence that he sustained a compensable injury. By the claimant's own admission, he never complained to Mr. Sykes about a work-related problem. The claimant went home early on September 4, 2008, and told the receptionist that he was leaving. However, he did not tell her anything about a work related injury. Further, the claimant admitted that he did not report his problem as being work-related until he got out of the hospital. The claimant's witness and co-worker, Nathan Hutcheson, testified that he recalled the claimant complaining of shoulder problems but he did not recall the claimant ever saying anything to Mr. Sykes about it.
The medical records are also inconsistent with a work-related injury. A review of the records reveals that the claimant told Dr. Kosinki on September 9, 2008, that his arm and shoulder started hurting over "this weekend." The claimant had not worked for five days, since September 4, 2008, when he woke up on the morning of September 9th with pain and swelling. The intake records from St. Bernards Hospital show that the claimant's problems were not due to an accident. The history given to the hospital show that the claimant reported "redness, swelling and pain, stiffness to his right arm for the past three days. He has never had anything like this before." On September 10, 2008, while he was hospitalized, the claimant gave the following history to Dr. Hurst:
The patient is a 26-year-old mail who presented to the First Care Clinic with right upper extremity pain and swelling and redness for approximately three days prior to presentation. Patient denies any precipitating injury or traumatic event to cause this. The patient states that his shoulder began to hurt Saturday and just thought that he slept on it wrong and then approximately Monday or Tuesday of this week, it began to swell and he presented to First Care.
It is clear that the claimant gave a history to his treating physicians that the problems started the Saturday before he sought medical treatment on September 9, 2008. The claimant had not worked since September 4, 2008. It is clear from the medical records that the claimant's problems started after he slept on his arm wrong, not in August while the claimant was working. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury.
Even if we were to find that the claimant sustained a compensable injury, a finding which we do not make, we find that the claimant failed to give notice until after he was hospitalized. The respondents raised the notice defense because of the claimant's failure to notify the respondent employer of a work related injury until after his hospitalization. Ark. Code Ann. § 11-9-701 provides:
(a)(1) Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer on a form prescribed or approved by the Workers' Compensation Commission and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to receipt of the employee's report of injury.
(2) All reporting procedures specified by the employer must be reasonable and shall afford each employee reasonable notice of the reporting requirements.
(3) The foregoing shall not apply when an employee requires emergency medical treatment outside the employer's normal business hours; however, in that event, the employee shall cause a report of the injury to be made to the employer on the employer's next regular business day.
(b)(1) Failure to give the notice shall not bar any claim:
(A) If the employer had knowledge of the injury or death;
(B) If the employee had no knowledge that the condition or disease arose out of and in the course of the employment; or
(C) If the commission excuses the failure on the grounds that for some satisfactory reason the notice could not be given.
(2) Objection to failure to give notice must be made at or before the first hearing on the claim.
The evidence demonstrates that the claimant did not require emergency treatment. In fact, he did not obtain treatment until September 9, 2008, which was approximately twelve days after he alleged he was injured. The Administrative Law Judge found that the claimant was excused because he had "registered physical complaints relative to his shoulder to supervisory personnel of respondent on or before September 4, 2008". We note that the claimant was the only one who says he complained about his shoulder to his employer. Mr. Hutcheson could not confirm the claimant reported problems to the respondent employer. Further, Mr. Sykes consistently testified that the only physical problems the claimant complained about were heat related cramps. Moreover, Mr. Sykes confirmed that the workers' compensation notice poster for reporting injuries hangs by the time clock the claimant used to clock in and out every day. We find the testimony of Mr. Sykes should be given more weight than the testimony of claimant. Uncorroborated testimony of an interested party is always considered to be controverted. It is not arbitrary to choose not to credit such testimony. The testimony of an interested party is taken as disputed as a matter of law whether offered on his own behalf or on the behalf of another interested party. Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989). In our opinion, to find that the claimant reported an injury on September 4, 2008, requires speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991); Dena Constr. Co., et al v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979);Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
As to the constitutional challenge brought by the claimant's attorney on appeal, we find that the issue is rendered moot by our finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Although the issue is moot, we further find that the argument lacks merit.
The claimant's attorney failed to raise this issue before the Administrative Law Judge. The claimant's attorney did not request an attorney's fee for any medical benefits that might be awarded to the claimant. Further, he did not argue that the statute governing the award of attorney's fees was unconstitutional until the respondent's filed an appeal on the issue of compensability and the argument was made for the first time on appeal to the Full Commission. Accordingly, we find that the claimant did not properly raise and preserve this issue before the Administrative Law Judge and as such did not properly develop the record for appeal.
It is well settled that there is a presumption of validity attending every consideration of a statute's constitutionality; every act carries a strong presumption of constitutionality, and before an act will be held unconstitutional, the incompatibility between it and the constitution must be clear.Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002). Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. Id. The heavy burden of demonstrating the unconstitutionality is upon the one attacking it.Id. Whorton v. Dixon, 363 Ark. 330, 214 S.W.3d 225 (2005). If possible, the courts will construe a statute so that it is constitutional.
The purpose of the Workers' Compensation Law is to change the common law by shifting the burden of all work-related injuries from individual employees and employers to the consuming public. See, Vanderpool v. Fidelty Casualty Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1977). Attorney's fees in workers' compensation cases are provided by statute in Arkansas as a matter of public policy to enable an injured worker to obtain the services of an attorney. ALCOA v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982).
Moreover, the legislature has the right to determine if fees must be paid by the losing party. Arkansas follows the American Rule that attorney's fees are not chargeable as costs in litigation unless permitted by statute. See Love v. Smackover Sch. Dist., 329 Ark. 4, 946 S.W.2d 676 (1997); City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). InChrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990), the Court stated that attorney's fees are not allowed except where expressly provided for by statute. Attorney's fees for workers' compensation claims are specifically set forth in Ark. Code Ann. 11-9-715.
The Workers' Compensation statute is a break from common law and addresses a compelling public policy. The Legislature specifically enumerated a compelling state interest of the Workers' Compensation Act to ". . . curtail the rise in medical costs associated with the provision of workers' compensation benefits; and to emphasis that the workers' compensation system in this state must be returned to a state of economic viability." Ark. Code Ann. § 11-9-101(b). This stated purpose has been found to be rationally related to a legitimate government interest on several occasions. See, Dooley v. Automated Conveyor Sup. Inc., 84 Ark. App. 412, 143 S.W.3d 585 (2004); Ester v. National Home Centers, Inc., 335 Ark. 352, 981 S.W.2d 91 (1998). Act 1281 of 2001 increased the percentage allowed for attorney's fees from approximately 10% to 25% of compensation for indemnity benefits and specifically set forth a provision to allow a claimant's attorney to voluntarily contract with the medical care providers to recover disputed bills. Act 1281 specifically addresses the stated purpose of the Workers' Compensation Act to emphasis that the Workers' Compensation system must be returned to a state of economic viability while addressing the needed public policy of ensuring payment of a claimant's attorney's fees without drastically reducing a claimant's recovery of benefits to pay an attorney's fee. Accordingly, we find that a rational basis exists for the attorney's fee statute. Accordingly, even assuming the issue is not moot and was properly raised, we find that the statute is constitutional.
IT IS SO ORDERED.
_____________________________________ A. WATSON BELL, Chairman
_____________________________________ KAREN H. McKINNEY, Commissioner
CONCURRING AND DISSENTING OPINION
The majority is reversing an Administrative Law Judge's finding that the claimant sustained a compensable injury. The majority is further finding that the claimant's constitutional argument as applied to the Administrative Law Judge's award of attorney's fees is without merit. I agree with the majority's conclusion regarding the claimant's constitutional argument and, therefore, concur in that portion of the Opinion. However, I find the claimant met his burden of establishing a compensable injury and, for that reason, must dissent from the balance of the majority's decision.
The claimant alleges he developed thoracic outlet syndrome and a blood clot in his shoulder as a result of a job-related accident on September 4, 2008. At the time of his injury, the claimant's job duties required him to engage in heavy manual labor, primarily using his hands and arms. As explained by the majority in their Opinion, his job involved the use of sandblasting equipment, swinging a heavy hammer, frequent lifting, and an significant amount of overhead work.
One of the primary factors cited by the majority for denying this claim is their finding the claimant did not report an injury to his employer until after he began seeking medical treatment. However, the record clearly refutes that finding. The claimant testified that he advised Mr. Will Sykes, the owner of the respondent-employer, of a problem he had regarding cramps. This testimony was corroborated by Mr. Sykes, who testified on behalf of the respondent. At the time, both the claimant and Mr. Sykes thought the problems the claimant was having with his shoulder and arm were the result of dehydration. Not until the claimant began undergoing medical treatment and receiving diagnostic tests was it determined his shoulder ailment was caused by a blood clot. Shortly after that, the claimant was also diagnosed as having thoracic outlet syndrome.
An injured worker is not obligated to diagnose the specific nature of his injury. Here, the claimant knew he was having pain and functional problems in his shoulder. He reported this to his employer. Both the employer and the claimant believed the claimant's shoulder pain and other symptoms were caused by muscle cramps from dehydration. That conclusion is not unreasonable, given the circumstances of the claimant's work. However, medical providers, during the course of treating the claimant, correctly determined the claimant's problems were not from dehydration, but were the result of deep vein thrombosis and thoracic outlet syndrome.
I also find that the evidence establishes both of those conditions were the result of the claimant's job-related activities. The claimant's job was physically demanding, requiring frequent overhead use of his arms. The claimant credibly testified as to a specific incident in which he felt a sudden onset of pain in his shoulder. I believe his testimony is sufficient to establish the occurrence of a specific incident injury. In fact, this claimant's situation is remarkably similar to that of the claimant in Cedar Chemical Company v. Knight, 372 Ark. 233, ___ S. W. 3rd ___ (2008). In that decision, the claimant injured his knee while he was climbing a staircase at work. While the claimant cannot pinpoint exactly when the injury happened, he testified that, while climbing stairs, he felt a sudden onset of pain in his knee. The Arkansas Supreme Court held this was sufficient to establish the occurrence of a specific incident injury.
I believe the testimony presented in this case is, likewise, sufficient to establish this claimant sustained a specific incident injury. As such, I do not believe it would be necessary for the claimant to prove the action was occasioned by rapid and repetitive motion or that his disability or need for treatment was the major cause of his injury.
In conclusion, I find that the claimant presented more than sufficient evidence to meet his burden of proof. For that reason, I must respectfully dissent from the majority's Opinion.
_____________________________________ PHILIP A. HOOD, Commissioner