Opinion
CLAIM NO. F014209
OPINION FILED JANUARY 16, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by HONORABLE TOD BASSETT, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal to the Full Workers' Compensation Commission an administrative law judge's opinion filed June 12, 2001. The administrative law judge found that the claimant proved by a preponderance of the evidence that she suffered a compensable injury to her right index finger while employed by the respondents. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Peggy Ruth Wilkins, age 63, began working for Brookstone Assisted Living, owned by Washington Regional Medical Center, in June, 2000. Ms. Wilkins stated that she was assistant to the respondent-employer's marketing director, and that her work included clerical duties. The employee testified that she sustained an accidental injury on a Monday, on or about November 27, 2000:
A. To the best of my memory, I cut my finger on an envelope, a big brown envelope that they use for inner-office mail from Washington Regional. I was talking at the time, and I just — I looked down and I remember cutting it, didn't think that much about it. That's not — You get a lot of paper cuts in secretarial work, and I looked down and it was bleeding. . . . it was on my knuckle. . . .
Q. All right. So then what happened?
A. Well, I looked down and my finger was bleeding, and I asked — Marilyn was standing there talking to me, and I asked her for a Band-Aid, and she got some antibiotic cream and put on it and put a Band-Aid on it to keep the blood from — keep it from getting blood all over everything. . . .
Q. When did you notice it getting worse?
A. Wednesday night. Well, Wednesday during the afternoon, I noticed it was getting a little swollen and red, and then by Wednesday night, it started very rapidly getting worse.
The claimant presented to Dr. John D. Gaston on November 30, 2000:
PATIENT STATEMENT OF THE PROBLEM — Here with cut to right index finger 2 days ago and either cut it on paper or hit it against a door. . . .
Right hand and arm: dorsum of index finger with small laceration over PIPJ and severe bullous eruption and swelling of entire finger, with erythema and swelling of hand proximal to the finger, and red streaks extending up her arm. The blisters are "blood blisters."
Dr. Gaston assessed "Severe cellulitis right index finger and hand, with lymphangitis of left arm." Dr. Gaston sent the claimant to Washington Regional Medical Center emergency room for antibiotic treatment. Dr. R. Bryan Benafield performed an "Irrigation and debridement, right index finger and hand" on November 30, 2000.
The claimant was assessed with "Right index finger cellulitis" on December 2, 2000. After diagnosing "Soft tissue defect, right index finger," Dr. Robert G. Taylor performed a "Reverse island radial forearm flap. Full Thickness skin graft to donor site 10 sq cm." The claimant signed a WCC Form N on December 12, 2000 and described the cause of injury:
I cut my knuckle on paper or hit it on something. I looked down it was cut bleeding. I was talking to Marilyn Rowan asked her for a band aid antibiotic cream. Two days later it was infected.
The claimant was discharged from Washington Regional on December 15, 2000.
Ms. Wilkins claimed entitlement to worker's compensation. The claimant essentially contended that she had sustained a compensable injury, and that she was entitled to temporary total disability compensation and medical treatment. The respondents controverted the claim.
Dr. Taylor corresponded with the claimant's attorney on March 14, 2001:
I had the pleasure of seeing Ms. Peggy Wilkins back in the office on 03-09-01. As you recall, she is now three months status post a beta streptococcus infection of her right index finger, as the result of a paper cut she received at work.
The items that we can state with medical certainty are that Peggy did have a severe beta streptococcal infection which required multiple surgeries and eventually some soft tissue coverage of her right index finger. Also, with medical certainty, we can say that she suffered a paper cut in the same area as her initial infection. As a result of this, I believe that her beta streptococcal infection was as a result of her initial injury and that the two are related, both temporally and causally.
After a hearing before the Commission, the administrative law judge found that the claimant proved that she suffered a compensable injury to her right index finger while employed by the respondents. The administrative law judge found that the claimant was entitled to temporary total disability compensation from December 3, 2000 through January 2, 2001. The administrative law judge found that the respondents were liable to pay all reasonable and necessary medical expenses, including the surgeries performed on the claimant's right upper extremity. The respondents appeal to the Full Commission.
II. ADJUDICATION
The claimant contends that she sustained a compensable injury as the result of a specific incident occurring on or about November 27, 2000. The claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2001). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that the injury caused internal or external physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement 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).
In the present matter, the Full Commission affirms the administrative law judge's finding that the claimant proved, by a preponderance of the evidence, that she suffered a compensable injury to her right index finger while employed by the respondents. It is the Commission's exclusive function to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). The Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony deemed worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).
In asserting that the present claimant was not a credible witness, theDissenting Opinion suggests that the record is replete with inconsistencies between the claimant's testimony, her medical records, and the Form N the claimant completed on December 12, 2000. The Full Commission is unable to find such repleteness, as we cannot locate a single report of record that does not corroborate the claimant's testimony. The claimant credibly testified that she cut her right index finger while performing her work duties for the respondents on or about November 27, 2000. Dr. Gaston reported on November 30, 2000 that he was treating the claimant for "cut to right index finger 2 days ago and either cut it on paper or hit it against a door." The fact that Dr. Gaston may have thought the claimant's workplace accident occurred on November 28, 2000, rather than November 27, 2000, does not diminish the claimant's credibility regarding the circumstances of her accidental injury.
The Full Commission recognizes that the first treating surgeon, Dr. Benafield, wrote on November 30, 2000 that the claimant "sustained a cut to the dorsum of her right index finger approximately 4 days ago." In a second report dated November 30, 2000, however, Dr. Benafield noted, "According to her husband, who is the historian, she reportedly bumped her right index finger on something several days ago sustaining a small cut to the top dorsal aspect of the proximal interphalangeal joint. She did not seek treatment for her cut at that time because she thought it was minor." This report does not diminish the claimant's credibility, in that the claimant's husband did not personally witness the workplace accident. A treating physician reported on November 30, 2000, "The patient has been given morphine sulfate and Phenergan, and is therefore unable to answer questions secondary to sedation." It is clear that the claimant was rendered unable to provide an accurate history to the medical providers on November 30, 2000, due to medication given to the claimant for her accidental injury. The Full Commission also notes that even if the claimant's husband did consider the claimant's injury to result from a "bump," the claimant's condition was still work-related.
The claimant completed and signed a WCC Form N on December 12, 2000, where she reported a work-related accident occurring on Monday, November 27, 2000. The claimant wrote the cause of injury: "I cut my knuckle on paper or hit it on something." We recognize that the Form AR-C signed by the claimant on January 11, 2001 does not describe the cause of injury. Nevertheless, the claimant still claimed workers' compensation benefits for an accident occurring November 27, 2000.
Dr. Robert G. Taylor reported on March 14, 2001:
The items that we can state with medical certainty are that Peggy did have a severe beta streptococcal infection which required multiple surgeries and eventually some soft tissue coverage of her right index finger. Also, with medical certainty, we can say that she suffered a paper cut in the same area as her initial infection. As a result of this, I believe that her beta streptococcal infection was as a result of her initial injury and that the two are related, both temporally and causally.
We disagree with the contention of the Dissenting Opinion that Dr. Taylor's March 14, 2001 report was based on insufficient independent knowledge upon which to corroborate the claimant's claim. Based on a preponderance of the evidence before us, the Full Commission finds that Dr. Taylor's opinion was based on the correct history and was stated within a reasonable degree of medical certainty. See, Wentz v. Service Master, 72 Ark. App. ___, ___ S.W.3d ___ (2001).
Finally, in addition to the medical records corroborating the claim, the Full Commission finds the claimant's testimony to be credible. The Commission may not arbitrarily disregard any witness's testimony.Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). The claimant testified in a deposition taken April 26, 2001, "I cut my finger on an envelope, a big brown envelope" at work on or about November 27, 2000. The claimant testified at the May 16, 2001 hearing, "I cut my hand on one of the big brown envelopes that we use from inneroffice mail from the hospital." Although the Dissenting Opinion seems to suggest that the claimant was hurt off the job or at lunch, and much later "made up" an injury on the job, we point out that Marilyn Rowan, a supervisorwas present when the claimant saw that she was bleeding, and Ms. Rowan gave the claimant a Band-Aid and antiseptic cream. The record also indicates that the claimant's supervisors were Ms. Rowan and Charlotte Shannon. They left together Monday evening to attend class in Little Rock and did not return until Wednesday evening. The claimant noticed her finger getting a little swollen and red Wednesday afternoon, and the finger got worse rapidly on Wednesday night. The claimant was at her doctor's office at 8:00 a.m. waiting for his office to open, and he immediately sent her to the emergency room. The claimant worked in a secretarial capacity. She has had many paper cuts through the years. When she went to her doctor's office, she assumed he would just give her something and her finger would be okay. Of course, the claimant instead had developed beta streptocccal infection.
In summary, clearly the claimant sustained what would normally be expected to be a minor paper cut which the average person would expect to heal without treatment in excess of the Band-Aid and antiseptic cream provided by Ms. Rowan. In addition, when complications did set in, they progressed rapidly. On Thursday morning, the claimant stopped by the office, spoke to Ms. Rowan, and advised her that she was going to the hospital for her finger. Notably, the Dissenting Opinion has failed to acknowledge Ms. Rowan's involvement in "what happened" in suggesting that the claimant "made up" a work-related injury several weeks after the fact. In addition, we note that Ms. Rowan, Ms. Shannon, and the claimant all three still work for the respondent employer, and neither Ms. Rowan nor Ms. Shannon were called as witnesses to rebut the claimant's hearing testimony as to what happened. Like the Administrative Law Judge who heard the claimant's live testimony and observed her demeanor, we find that the claimant has established her work-related injury by a preponderance of the credible evidence of record.
Based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant proved by a preponderance of the evidence that she suffered a compensable injury to her right index finger while employed by the respondents on or about November 27, 2000. We find that the claimant proved entitlement to temporary total disability compensation from December 3, 2000 through January 2, 2001. We find that the respondents are liable for payment of all reasonable and necessary medical treatment provided in connection with the claimant's compensable injury. The Full Commission therefore affirms the opinion of the administrative law judge. 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, the 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 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant sustained a compensable injury to her right index finger and awarding temporary total disability benefits from December 3, 2000, through January 2, 2001, and ordering all medical treatment provided to the claimant as a result of her right finger problems. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
In my opinion, the claimant has failed to prove by a preponderance of the evidence that she suffered a compensable injury to her right index finger while in the course and scope of her employment for the respondent. The record is completely void of any credible evidence substantiating an actual specific incident identifiable by time and place of occurrence wherein the claimant's finger was cut. First, the actual cause of claimant's cut has not been pinned down as of yet. At the hearing in this matter, the claimant testified she was certain she cut her knuckle on a manila envelope. However, Dr. Gaston's November 30, 2000, report noted, "Here with cut to right index finger . . . and either cut it on paper or hit it against door." When being examined by emergency room physician, the claimant's husband was reported as saying that the claimant had "received a small laceration from an unknown source to right second finger. After being examined by Dr. Strain upon admission to the hospital on November 30, 2000, Dr. Strain reported that the claimant's husband stated the claimant "bumped her finger a few days ago." Later, Dr. Benafield reported the claimant "reportedly bumped her right index finger on something."
In her Form N completed December 12, 2000, the claimant reported "I cut my knuckle on paper or hit it on something." In her Form AR-C executed on January 11, 2001, the claimant failed to respond whatsoever to the inquiry on the form requesting a description of the cause of injury. At the hearing, the claimant testified she recalled hitting her finger on something, but she thought it was a counter. Yet, at her deposition, the claimant testified she did not recall hitting her hand on anything. In fact, at her deposition, the claimant could not testify under oath whether she even injured her hand by a paper cut. The claimant testified she did not know for sure whether the cut was actually a paper cut. There was only a three-week differential in time between when the claimant was deposed on April 26, 2001, and when she testified under oath at the hearing on May 16, 2001.
Clearly, the record is replete with inconsistencies regarding the actual cause of the claimant's initial cut. There has been evidence of a paper cut, a laceration from an unknown source, a bump on a door, a bump on a counter, no bump at all, and no knowledge of a paper cut — at least six different scenarios. It requires conjecture and speculation to figure out how the claimant hurt her finger. 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 Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970).Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). The claimant has failed to prove by a preponderance of the evidence that her injury was caused by a specific incident.
Second, the claimant has also failed to provide consistent evidence of the actual date and time the alleged cut occurred. In her Form N completed on December 12, 2000, the claimant reported that she injured the knuckle on her right index finger on November 27, but could not recall the exact time. At the hearing of this matter, the claimant testified that she cut her hand on Monday, November 27, 2000, at 2:00 p.m. Yet, Dr. Gaston's November 30, 2000, report noted the claimant cut her finger "two days ago", making the date of injury November 28. The Washington Regional Medical Center Admission Form notes the date of the accident as November 28, 2000, but shows the time of the accident as 12:00 p.m., which would have been during the claimant's thirty-minute lunch break. In both Dr. Strain and Dr. Benafield's initial reports, it was noted that the claimant bumped her finger a few days ago, providing no exact date at all. However, Dr. Benafield's surgery report noted the claimant cut her right index finger "aproximately 4 days ago", making the date of injury November 26 (Sunday) when the claimant was not even working.
The claimant's explanation at the hearing was that the hospital historian made a mistake when she recorded that the claimant stated her injury occurred on November 28, 2000, at 12:00 p.m. The claimant denied ever telling Dr. Benafield her injury occurred "4 days ago" as reported. The claimant denied telling Dr. Gaston that she had hit her finger on a "door". At the deposition, the claimant testified she thought she had said "cabinet-desk thing", while at the hearing, the claimant testified it was a counter. The claimant even questioned the accuracy of the deposition transcript on several occasions when confronted with inconsistent statements she had previously made as to how the finger cut occurred.
Finally, the evidence is lacking and inconsistent that the claimant's injury occurred while actually in the course of her employment with the respondent. While the claimant contends she told every single one of her doctors that her injury occurred at work, the record is void of any such medical record. Furthermore, when the claimant presented to the hospital on November 30, 2000, she set up her stay under her own group insurance. The claimant also apparently advised the Admission Clerk that her medical problem was not a work-related one because the Workers' Compensation box on the Form was not checked and the clerk typed in "other accident". It should also be pointed out that the claimant's first stop for treatment was with her own family physician, Dr. Gaston.
The claimant confirmed that prior to completing the Form N on December 12, 2000, she had filled out no paperwork indicating she hurt herself on the job. The claimant readily agreed that she could have made that request at any point in time before then. In fact, it was not until the claimant's thirteenth hospital day that she requested that a Form N be brought to her hospital room for execution. It was the day the claimant underwent the third major surgical procedure that required the transfer of an artery from the upper arm down to the subject finger. The claimant executed the necessary paperwork in her hospital room that morning and underwent the surgical procedure that afternoon. In fact, the claimant does not dispute that she decided to file for workers' compensation benefits only after being in the hospital for two weeks with no end in sight, and knowing her personal insurance was not going to cover everything.
Dr. Taylor's report of March 14, 2000, opines that the claimant's right index finger problems were related to her work. There is absolutely no way Dr. Taylor can state with any degree of medical certainty that the etiology of the claimant's cut was work related. Dr. Taylor obviously had no personal knowledge at the time he authored his report of the many inconsistent histories contained within the various medical records. 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).
Therefore, after I consider all the evidence and the inconsistencies contained throughout the record, I simply cannot find that the claimant has proven by a preponderance of the evidence that she sustained a compensable injury. The record is void of consistent evidence regarding how the claimant actually received the initial cut to her right index finger. The record is also void of any credible evidence regarding the actual date and time of the claimant's injury. Further, the claimant failed to provide evidence that she informed anyone that her injury was work related until after spending several weeks in the hospital and after undergoing a number of surgical procedures, the full extent of which the claimant knew her own group insurance would not cover. With all the various inconsistent histories contained within the record on causation, it would be nothing but pure speculation and conjecture for the Commission to select one over the others as being the correct one. 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 Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Accordingly, I must respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner