BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G KENNETH L. SLATER, EMPLOYEE HORTON ORTHOTIC LAB, LLC, EMPLOYER

Transcription

1 BEFORE THE RKNSS WORKERS COMPENSTION COMMISSION CLIM NO. G KENNETH L. SLTER, EMPLOYEE HORTON ORTHOTIC LB, LLC, EMPLOYER HRTFORD INSURNCE COMPNY OF THE MIDWEST, INSURNCE CRRIER/TP CLIMNT RESPONDENT RESPONDENT OPINION FILED PRIL 27, 2017 Hearing before Chief dministrative Law Judge David Greenbaum on March 13, 2017, at Little Rock, Pulaski County, rkansas. Claimant represented by Ms. Brooklyn R. Parker, ttorney-at-law, Conway, rkansas. Respondents represented by Mr.. Gene Williams, ttorney-at-law, Little Rock, rkansas. STTEMENT OF THE CSE hearing was conducted on March 13, 2017, to determine whether the claimant sustained a compensable injury within the meaning of the rkansas workers compensation laws. This claim was the subject of a prehearing conference on February 22, Prehearing Order was filed on February 23, t the hearing, the parties announced that the stipulations, the issues, as well as their respective contentions were correctly set out in the Prehearing Order. copy of the February 23, 2017, Prehearing Order was introduced, without objection, as Commission s Exhibit 1. It was stipulated that the employee/employer/carrier relationship existed at all relevant times, including June 24, 2016; that the claimant s average weekly wage

2 2 was sufficient to entitle him to compensation rates of $ per week for temporary total disability and $ per week for permanent partial disability; and that the claim had been controverted in its entirety. By agreement of the parties, the primary issue presented for determination concerned compensability. If overcome, claimant s entitlement to associated benefits must be addressed. Claimant contended, in summary, that he sustained a compensable injury arising out of and during the course of his employment with Horton Orthotic as the result of a specific incident identifiable in time and place of occurrence on June 24, 2016; that he was entitled to temporary total disability benefits beginning June 25, 2016, and continuing through an undetermined date while maintaining that his healing period had not ended; that respondents should be held responsible for all outstanding medical treatment, together with continued, reasonably necessary medical treatment; and that a controverted attorney s fee should attach to any benefits awarded. The respondents denied compensability of the claim, maintaining that the claimant could not prove a compensable injury within the meaning of the rkansas workers compensation laws. The claimant testified in his own behalf. Gary Horton was called as a witness by the respondents. The record is composed solely of the transcript of the March 13, 2017, hearing containing numerous exhibits, including a joint medical packet

3 3 consisting of thirty-four (34) pages introduced as Joint Exhibit, together with the claimant s discovery deposition, introduced as Respondent s Exhibit C and retained in the Commission file in bound form. From a review of the record as a whole, to include medical reports, documents and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witnesses and to observe their demeanor, the following findings of fact and conclusions of law are made in accordance with rk. Code nn : FINDINGS OF FCT ND CONCLUSIONS OF LW 1. The rkansas Workers Compensation Commission has jurisdiction over this claim. 2. The stipulations agreed to by the parties are hereby accepted as fact. 3. The claimant has failed to prove, by a preponderance of the credible evidence, that he sustained a low back injury as the result of a specific incident arising out of and during the course of his employment on June 24, The claimant has failed to prove, by a preponderance of the credible evidence, that his physical problems, need for treatment, and disability, if any, are causally related to an injury sustained at work. DISCUSSION The record in this claim is replete with inconsistencies and contradictions. This claim turns entirely upon the claimant s credibility. claimant s testimony is never considered uncontroverted. The testimony of an interested party is always considered controverted. Furthermore, uncorroborated testimony of an interested

4 4 party is always considered to be controverted. Lambert v. Gerber Products Co., 14 rk. pp. 88, 684 S.W.2d 842 (1985); Nix v. Wilson World Hotel, 46 rk. pp. 303, 879 S.W.2d 457 (1994); Continental Express v. Harris, 61 rk. pp. 198, 965 S.W.2d 84 (1998); Burnett v. Philadelphia Life Insurance Company, 81 rk. pp. 300, 101 S.W.3d 843 (2003). gain, this claim relies totally upon the claimant s credibility. It appears undisputed that on or about June 24, 2016, the claimant reported feeling a cramp in his leg while at work without reporting any work-related accident and/or trauma. However, as will be set out further below, the claimant s subsequent course of conduct, together with his failure to report an injury to either his employer or to various medical providers, renders the claim highly suspect, at best. Further, the history contained in the medical records both by the initial medical provider, as well as the claimant s primary care physician clearly reflect that the claimant s symptoms existed prior to June 24, 2016, and were unrelated to any trauma both within or outside the workplace. In my opinion, it would require sheer speculation and conjecture to find that the claimant sustained a work injury on June 24, Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. Dena Construction Company v. Hearndon, 264 rk. 791, 575 S.W.2d 155 (1979); rkansas Methodist Hospital v. dams, 43 rk. pp. 1, 858 S.W.2d 125 (1993). The claimant, Kenneth L. Slater, testified in his own behalf. The claimant is

5 5 fifty-three (53) years old. He has a high school education. The claimant began working for Horton Orthotic Lab on January 5, His job duties consisted primarily of janitorial, maintenance and general labor for the employer. The claimant stated that prior to going to work for the employer, the claimant performed various personal services for Mr. Gary Horton, the owner of the company, specifically, yard, garden, and farming labor activities at Mr. Horton s personal properties. The record reflects that the claimant lived next door to the employer s business. Mr. Horton hired the claimant to work on a part-time basis for the business beginning January 5, The claimant s description of the alleged activities on June 24, 2016, his initial symptoms, as well as the reporting and/or lack thereof related to the within claim is set out below: Okay. Now, when you were injured on June 24 th, what did you injure? I was taking files upstairs in the attic, and all of a sudden I noticed what I assumed was a cramp that started radiating from my back and going down. So I took the files on up, and once I got through doing all that there task, I come down and I checked with Mr. Horton and just let him know that I got a lot of stuff taken care of, that I had a cramp in my leg I was under the assumption I had a cramp and it just wouldn t go away. Normally, I had never caught a cramp doing that kind of work. Had you ever had symptoms like this before in the past? No, ma am. Now, you said that you talked to Mr. Horton about this injury, so you reported it to him? Yes, ma am. MR. WILLIMS: Object to form.

6 6 BY MS. PRKER: What did you tell Mr. Horton? I said to him, I said, Boss, I got that put away. I got a cramp and it just seem like it won t go away, so I m just going to sit down and rest for a minute and hopefully it will go away, but it never did. Do you remember about what time of the day this was when you reported it? It was afternoon, a little bit after 2:00 o clock, around about 2:15, 2:20, somewhere along in there. nd what time did you typically work until? I worked till 3:00 o clock, from 8:00 o clock in the morning until 3:00 at noon. Okay. Did you continue to work after you reported your injury to Mr. Horton? Yes, ma am. Okay. So you finished out your day? Yes. Now, did you fill out any paperwork after you informed Mr. Horton? No, ma am. ny incident or accident report or any kind of report? No, ma am. Okay. Did your employer ever send you to a doctor or tell you that you needed to go see a doctor? No, ma am. Did your employer ever inform you about how to file a workers comp claim? No, ma am.

7 7 Did you figure that out on your own? When I went to Department of Human Service to apply for SNP benefits and I had took my I had to take my doctor s papers and everything from what Dr. Raghavon had diagnosed JUDGE GREENBUM: Let me stop you. You went to DHS to apply for what? THE CLIMNT: SNP benefits. Food stamps, sir. JUDGE GREENBUM: Okay. BY MS. PRKER: You can continue. I took the paperwork to verify that I was not able to work and the lady, she looked my caseworker, she looked at everything and she seen where I had been denied unemployment and everything, and she said, You need to file workmen comp. So that triggered you to go file a claim? Yes, ma am. Did you ever go back to work after your injury on June 24 th? No, ma am. (Tr.14-16) The record reflects that the claimant did not report a work-related injury to his employer. In fact, the claimant failed to associate the alleged cramp in his leg to any employment activity. In his discovery deposition, the claimant was inconsistent when questioned concerning whether he related his physical problems, specifically, the cramp in his leg to his work activities. Initially, the claimant stated that he did not recall. However, when questioned further, the claimant candidly acknowledged

8 8 that he never told Mr. Horton that he had injured himself at work on June 24, (Resp. Ex. C, pp.21-22, 24) In addition, the claimant s course of conduct and work history after June 24, 2016, is inconsistent with the claim. On June 25, 2016, the claimant performed some personal work for Mr. Horton at his farm in Wrightsville, rkansas, the activities including pulling grass, chopping, de-weeding with the use of a hoe, activities which the claimant indicated took about six (6) hours on Saturday, June 25, The claimant stated that he contacted Mr. Horton on Monday and told him he was not feeling well and was advised to take a couple of days off, but, again, the claimant failed to report any injury the prior week related to his employment. (Resp. Ex. C, pp.25-27) The claimant first sought medical treatment at UMS on June 29, 2016, complaining of right-sided back pain for months with no trauma. The claimant also apparently stated that he had been attempting to make an appointment with his PCP, but was unable to have one scheduled for three (3) weeks which is why he went to the emergency room. The claimant was advised that he could return to work on June 30, (Jt. Ex., pp.1-7) The claimant was next seen for a follow-up examination by his primary care physician, Dr. Senthil Raghavan, on July 5, 2016, at which time Dr. Raghavan noted the following history: History of present illness Kenneth Slater is a 52 year old male. Source of patient information

9 9 was patient. Est MD. Pain to right side and back. Pain 10 out of 10 on pain scale. Taking tramadol 50 mg and Ibuprofen 600 mg both q 6 hours PRN. Not helping. Increased pain with activity. Pain going on for several months slowly getting worse, sharp moderate with radiation to rigt [sic] leg. Denial of any significant medical history. (Jt. Ex., p.8)(emphasis supplied) Dr. Raghavan took the claimant off work for the period beginning July 5, 2016, through July 19, 2016, while permitting the claimant to resume his regular duties and/or activities on July 19, The record reflects that the claimant apparently took the off work slips to Mr. Horton, but, again, never related his medical treatment to any work injury. Dr. Raghavan referred the claimant to Radiology Consultants for diagnostic studies which were performed on July 11, The claimant returned to Dr. Raghavan on July 19, 2016, for a follow-up examination. The doctor noted that the x-ray studies were normal except for loss of lumbar lordosis and constipation. The claimant reported that he was not having back pain at that time, but, rather that his pain was in his perineal area on the right side. Because the claimant was reporting chronic constipation and had never had a colon scope, Dr. Raghavan referred the claimant to Dr. lonzo Williams with rkansas Diagnostics for a gastro-intestinal evaluation. The claimant was evaluated by Dr. Williams on September 29, (Jt. Ex., pp.12-20) In addition, the claimant was referred to Baptist Health for an MRI of the lumbar spine which was normal, save a shallow broad base disc protrusion at L5-S1 which prompted

10 10 Dr. Raghavan to refer the claimant to Dr. William Blankenship, an orthopedic surgeon, for an evaluation. The claimant was seen by Dr. Blankenship on October 14, 2016, at which time the claimant, by history related his symptoms back to June, Dr. Blankenship s physical exam is set out below: Patient is a 52-year-old male. Lumbar spine-scoliosis paraspinal muscle spasm. Patient moves about quite guardedly uses a cane to ambulate with. Patient also has a right knee brace on which she [sic] states she [sic] uses to help relieve his back and leg pain. Knee and ankle jerks however are normal active and equal bilaterally. Straight leg raising is negative bilaterally. There is no weakness of the anterior tib us [sic], extensor longus, short toe flexors, or peroneals on either side. Both thighs measure 17 inches both calves measure 12-1/2 inches. (Jt. Ex., p.23) Dr. Blankenship recommended a physical medicine and rehabilitation referral. I feel compelled to point out that it appears that the claimant first attributed his alleged injury to work during an office visit to Orthorkansas on November 2, 2016, and then, subsequently, gave Dr. Midema a history with a specific date of June 24, 2016, during the initial evaluation by Dr. Midema on January 3, (Jt. Ex., p.29)(jt. Ex. B, pp.35-37) The only logical conclusion is that after learning the nature of his injury, the claimant decided to attribute his need for treatment by history to his employment, despite the fact that the medical clearly indicates a pre-existing condition without trauma which was getting progressively worse. It must further be noted that although the claimant has requested payment

11 11 of all outstanding medical and related expenses, together with continued reasonably necessary medical treatment, he acknowledged that all of his medical bills have been paid by Medicaid. Gary Wayne Horton was called as a witness by the respondents. Mr. Horton is the owner and President of Horton Orthotic Lab. Mr. Horton conceded that the claimant reported experiencing a cramp in his leg on Friday, June 24, 2016, while maintaining that the claimant never related any physical problems to an incident at the workplace. Mr. Horton explained that because the claimant was a part-time employee, he did not qualify for group health insurance. Mr. Horton stated that he provided workers compensation coverage for all employees and would have promptly filed a claim on behalf of the claimant had any work injury been reported. Mr. Horton stated that he first learned that the claimant wanted to make a workers compensation claim during October, 2016, when the office lady that takes care of all the company s HR needs advised him that the claimant wanted to submit a workers compensation claim. Mr. Horton promptly reported the claim to his carrier which, in turn, following an investigation controverted the claim in its entirety. DJUDICTION rk. Code nn (4)()(i)(Repl. 2015) 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. n injury is accidental only if it is caused by a

12 12 specific incident and is identifiable by time and place of occurrence. Wal-Mart Stores, Inc. v. Westbrook, 77 rk. pp. 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 was required to show that a causal connection existed between the injury and his employment. Gerber Products v. McDonald, 15 rk. pp. 226, 691 S.W.2d 879 (1985). n 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 rk. pp. 143, 729 S.W.2d 430 (1987). Under the statute, for an accidental injury to be compensable, the claimant must show that he sustained an accidental injury; that it caused internal or external, physical injury 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. dditionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings as defined in (16). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Crudup v. Regal Ware, Inc., 341 rk. 804, 20 S.W.3d 900 (2000). The injured party bears the burden of proof in establishing entitlement to benefits under the Workers Compensation ct and must sustain that burden, by a preponderance of the evidence. See, rk. Code nn (4)(E)(i)(Repl. 2015); Clardy v. Medi-Homes LTC Servs., 75 rk. pp. 156, 55 S.W.3d 791 (2001).

13 13 It is well-settled that the claimant has the burden of proving the job-relatedness of any alleged injury, without the aid of any kind of presumption in her favor. Pearson v. Faulkner Radio Service, 220 rk. 368, 247 S.W.2d 964 (1952); Farmer v. L.H. Knight Company, 220 rk. 333, 248 S.W.2d 111 (1952). The burden of proof claimant must meet is preponderance of the evidence. Voss v. Ward s Pulpwood Yard, 248 rk. 465, 425 S.W.2d 629 (1970). Under prior law, it was the duty of the Commission to draw every legitimate inference in favor of the claimant and to give the claimant the benefit of the doubt in making factual determinations. However, current law requires that evidence regarding whether or not a claimant has met the burden of proof be weighed impartially, without giving the benefit of the doubt to either party. rkansas Code nnotated (c)(4); Wade v. Mr. C.Cavenaugh s, 298 rk. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 rk. pp. 196, 737 S.W.2d 663 (1987). s previously noted, the record in this claim is replete with inconsistencies and contradictions. The claimant never reported an work injury to his employer. The claimant s course of conduct is inconsistent with this claim. The claimant worked on Saturday, June 25, 2016, performing non-work related duties, including strenuous activities without reporting an injury to his employer. The initial medical histories provided to both the emergency room, as well as to his primary care physician reflect that the claimant s symptoms had manifested themselves months before June 24, 2016, and were growing progressively worse. The claimant did not

14 14 attribute his symptoms to an employment related event until October, The claimant has simply failed to prove a causal connection between his need for medical treatment and a work injury. fter reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, I find the claimant has failed to prove that he sustained a compensable injury within the meaning of the rkansas workers compensation laws. ccordingly, the within claim is hereby respectfully denied and dismissed. IT IS SO ORDERED. DVID GREENBUM Chief dministrative Law Judge