Opinion
CLAIM NO. F105116
OPINION FILED JUNE 11, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals to the Full Commission an Administrative Law Judge's opinion filed September 20, 2001. The Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that she suffered a compensable injury to her back while employed by the respondent. After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge. We find that the claimant sustained a compensable injury to her back, for which she is entitled to reasonably necessary medical treatment.
I. HISTORY
Claudine Christie, age 34, became employed full time with McKee Foods Corporation in March 1994. The claimant worked as a "feeder," which duties included bending, lifting, carrying, twisting, and reaching. The claimant also worked as a "cripple hauler," carrying large barrels of cake with a two-wheel dolly. The claimant began working as a part-time "feeder," 20 hours weekly, in 1998.
The claimant testified that she began a new full-time job for the respondent, that of "packaging tech," on January 14, 2001. The claimant described these duties at hearing:
A. The packaging tech, you could sit or you could stand. And the cake came down. It was wrapped. It come down in front of you. The cartons come down right here. (She indicates.) This line is moving and they have — it's like a little station. The metal piece comes up to about right here (pointing on chest) and your arms have to go over like this (demonstrating) and you've got to put that cake in the box (demonstrating), and I'm not sure how many cakes you get per minute, but some of them run fairly fast. And then when they're put on that, they go on down. And then when you're finished doing that for 20 minutes, you're off the line and the bad cake that you've got you've tossed in a tray to the right of you up above — over the line. When you get off, the person who takes your place — you get off, you lean over, and you grab that tray and you take it and dump it and then you dump — if there's any below you, you bend down and you pull those trays out and you take those and dump them.
The claimant testified that this job required more lifting and leaning than her previous work duties for the respondent, and that she began hurting after about two days. The claimant sought emergency treatment on January 25, 2001, at which time she complained of low back pain radiating to the left hip and leg for one to two days. "That's how long it had hurt bad enough to complain about it," the claimant testified. The physician diagnosed "low back pain" and treated the claimant conservatively. The claimant testified, "They gave me a shot and the pain went away." The claimant testified that she returned to her packaging tech duties, but that her condition worsened. The claimant presented to Siloam Springs Memorial Hospital on January 29, 2001. She complained of pain in the left side of her spine, low back, "progressive over almost two weeks." The claimant denied specific trauma, but reported an increase in job duties with more bending and upper body work. The physician's diagnosis was "Lumbar pain — muscle spasm." The claimant was treated conservatively, and a physician reported on January 29, 2001:
Claudine was seen in the E.D. today. I think she has a work related condition. She should be on limited activity — no bending from the waist or lifting this week.
Dr. George H. Benjamin reported to the respondent-employer on February 1, 2001:
The patient presents with low back pain for several days. The patient remembers waking up January 22, 2001 with severe back pain, and since that time she's been in the Emergency Room twice for Emergency Room care. She has been on muscle relaxers and anti-inflammatory medications and cortisone.
She continues to have low back pain, although she's improved. She seems to feel that leaning over a work table and having to reach seems to precipitate muscle spasm.
My examination is essentially unremarkable at this point. X-rays are done and show no major problems.
I am recommending that she go back to full duty with the suggestion that she be given a job that does not involve her leaning far over a table and reaching out.
Dr. Vincent B. Runnels, a neurological surgeon, wrote regarding the claimant on May 4, 2001, "I have advised her to quit her job due to the fact that it aggravates her back problem." The claimant testified that she did not return to work for the respondent-employer after May 2001.
Ms. Christie claimed entitlement to workers' compensation. The claimant contended that she sustained a compensable injury on January 22, 2001, and that she was entitled to temporary total disability compensation, reasonably necessary medical treatment, and an attorney's fee. The respondent contended that the claimant did not sustain a compensable injury.
Dr. Runnels wrote to the claimant's attorney on August 16, 2001:
Claudine Christie was seen on 8/7/01 in follow-up. She has worked at McKee Foods for seven years. Before that, she was a pack technician. Prior to that, she was in the feeding department, where she put cakes onto a track for packing. Gradually, she has gotten low back pain with occasional soreness off and on in her low back. The leg pain now is gone on the left. . . .
I believe the Americans with Disabilities Act requires that a "reasonable" effort be made to find a patient a job compatible with her disability. I think such a job would be office work, running a computer, etc. However, in the long-term, she needs to do back exercises, lose weight, watch her posture, and I think the antidepressants will help in that effort. I have gone over the back exercises with her again. I am certain her years of working as a pack technician, etc., have contributed somewhat to her back problems but, as to exactly how much they contributed and is it compensable, I cannot say. Certainly, she does not need surgery at this time. I told her other factors equally important are her weight, genetics, posture. Other factors have nothing to do with work.
In answer to your question, I cannot rate her as having permanent disability related to her work unless there is some specific event, something to operate on, and something more definite than just gradual backaches but I do think it is incumbent on McKee's to make some reasonable effort to find her a job compatible with her disc disease. She certainly knows how to do work that she could accomplish there, such as mentioned, in running a computer.
After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that she suffered a compensable injury while employed by the respondent. The claimant appeals to the Full Commission.
II. ADJUDICATION
The requirements to establish a "gradual onset" injury pursuant to Act 796 of 1993 are codified at Ark. Code Ann. § 11-9-102(4) (Supp. 2001):
(A) "Compensable injury" means:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence. . . .
(E)(ii) For injuries falling within the definition of compensable injury under subdivision
(4)(A)(ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.
An employee must establish the compensability of her claim with medical evidence, supported by objective findings. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999).
In the present matter, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a back injury which caused physical harm to her body and arose out of and in the course of her employment with the respondent. The claimant, who the Full Commission finds was a credible witness, began working full time for the respondent in 1994 before going to part time in 1998. Although theDissenting Opinion states that the claimant remained a part-time employee, the record indicates that the claimant returned to full-time work for the respondent in January 2001. The Dissenting Opinion has determined that the claimant performed her packaging tech duties for five minutes during the first week of these duties and then only eight to ten minutes the second week. However, the claimant credibly testified that she performed these duties for the full 20-minute shift before rotating to another manual labor job, and that her new full-time work required more lifting and leaning than her previous work duties for the respondent.
The claimant sought emergency treatment and was diagnosed with low back pain on January 25, 2001. The Dissenting Opinion notes that the claimant did not expressly report her increased job duties to the emergency physician on January 25, 2001, but the claimant's report at that time of when her symptoms began corroborates the claimant's credible testimony. The claimant benefitted from conservative medical treatment, but her low back pain increased after returning to work. The claimant sought additional medical treatment on January 29, 2001, complaining of progressive pain in her low back for the previous two weeks. As with the January 25, 2001 medical report, the claimant's description on January 29, 2001 of the onset of her symptoms corroborates the claimant's testimony. The claimant also reported to the physician the increase in job duties which had required more bending and upper body work. The physician examined the claimant and diagnosed "Lumbar pain — muscle spasm." A physician's report of muscle spasm is of course an objective medical finding. University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997).
The claimant's treating physician reported on January 29, 2001, "I think she has a work related condition." On February 1, 2001, Dr. Benjamin recommended that the claimant return to full duty, but he suggested that the respondent-employer provide work which did not involve reaching and leaning. Dr. Runnels expressly opined in May 2001 that the claimant's job "aggravates her back problem." The Full Commission finds that the reports by the treating physicians and the claimant's credible testimony establish that the claimant sustained an injury which arose out of and in the course of her employment with the respondent.
The Full Commission recognizes Dr. Runnels' August 16, 2001 letter, where Dr. Runnels stated, "I am certain her years of working as a pack technician, etc., have contributed somewhat to her back problems but, as to exactly how much they contributed and is it compensable, I cannot say." The Dissenting Opinion concedes that this language from Dr. Runnels' letter is not controlling, but contends that Dr. Runnels' opinion does not support a finding that the claimant sustained a compensable injury. However, as we interpret the text of his August 16, 2001 letter, Dr. Runnels asserts that he cannot say that the claimant's work was the major cause of her back condition. The provisions of Act 796 of 1993 do not require that the claimant prove that her work was the major cause of her back condition. Rather, Act 796 requires the claimant to prove that her compensable injury is the major cause of her disability or need for treatment. See, Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. 17, 977 S.W.2d 239 (1998).
The Full Commission has determined from a preponderance of the evidence cited supra that the claimant proved that she sustained an injury arising out of and in the course of her employment with the respondents. We note from the record that there are no medical opinions stating that the claimant's condition is not work related. The record shows that the claimant's back problems began within a week after she became a packaging tech for the respondent, which position required more reaching, leaning, and lifting than her previous work duties. We note that the respondent-employer provided a transitional period to allow employees to become accustomed to this strenuous work. The record does not indicate any sort of symptomatic preexisting condition or any sort of lower back pain prior to the claimant beginning these new work duties. (We recognize that there was an isolated event which occurred six years earlier while the claimant was playing softball.) We can find no other source for the claimant's pain other than her work for the respondents. Further, the claimant's objectively-demonstrable lower back spasms did not occur until she began performing her new work duties for the respondent.
From the preponderance of evidence before us, the Full Commission finds that the claimant proved that she sustained a back injury which was not caused by a specific incident and was not identifiable by time and place of occurrence. We find that the injury caused physical harm to the claimant's body, and that the injury arose out of and in the course of the claimant's employment with the respondent. We find that the claimant's compensable injury was the major cause of her need for medical treatment. Finally, the Full Commission finds that the claimant established the compensability of her claim with medical evidence, supported by objective findings.
Therefore, based on our de novo review of the entire record, the Full Commission reverses the opinion of the Administrative Law Judge. We find that the claimant proved by a preponderance of the evidence that she sustained a compensable injury to her back while employed by the respondent, and that the claimant proved that she was entitled to reasonably necessary medical treatment. Because the claimant did not prove that she was ever totally incapacitated to earn wages, the Full Commission finds that the claimant failed to prove that she was entitled to temporary total disability compensation.
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 Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
The claimant attributes her back problems to the change in job duties which occurred when she began performing the job as a pack tech in January, 2001. The claimant's testimony left the impression that she performed this job for 20 minutes at a time before she was rotated off of the job for 20 minutes. However, cross-examination revealed that the claimant was not always performing this job for 20 minutes at a time. First, it is of note that the claimant was a part-time employee, working only 20 hours per week. When the claimant was moved to the pack tech job, she went through a training period with Rhonda Bennett. Individuals performing the pack tech would normally perform the job for 20 minutes before rotating off for 20 minutes; however, during the first week the claimant worked as a pack tech, she performed the job for only five minutes before she rotated off for the remaining 15 minutes of the 20-minute period and then had an additional 20-minute period off. Therefore, out of 40 minutes, the claimant was performing the job on the pack tech line, only 5 minutes during her first week of work. When the claimant was not performing the job as a pack tech and was rotated off, she had various responsibilities which included simply watching Ms. Bennett perform the job, dumping plastic trays of cake, and cleaning the floor.
During the second week the claimant performed the job as pack tech, Ms. Bennett was gone and the claimant would perform the job for anywhere from eight to ten minutes before she rotated off.
The amount of time the claimant spent performing the job as a pack tech is important when the remaining evidence is considered. The claimant did not seek any medical treatment for a back condition until Thursday, January 25, 2001. On the night of January 25, the claimant attended a cousin's basketball game and had a hard time sitting through the game because of pain. On the way home from that basketball game, the claimant sought medical treatment from the Tahlequah City Hospital. The emergency room report indicates that the claimant gave a history of pain in her lower back which had an onset of approximately two weeks ago when she woke up with pain. The claimant did not give any indication whatsoever that her back pain was related to her job activities.
Following the visit to the Tahlequah City Hospital on January 25, the claimant next worked for the respondent on Sunday, January 28. When the claimant reported to work on Monday, January 29, she told her supervisor that she was not feeling good and that she would be unable to work. The claimant admitted that she did not report any work-related injury to her supervisor at that time or indicate why she needed to leave.
Q. And you told Steve Snow, your supervisor, you weren't feeling good, didn't you?
A. Correct.
Q. You didn't tell him exactly why you weren't feeling good, did you?
A. No.
Q. You just told him you needed to go; isn't that right? He let you go?
A. Correct.
Q. And then you went to the Siloam Springs Memorial Hospital emergency room from there, didn't you?
A. Yes.
Q. You didn't tell anyone at McKee that you were leaving to go to the emergency room, did you?
A. No.
The claimant also admitted that at the point in time when she went to the emergency room on January 29, that she had never told anyone, including her supervisor, the plant nurse, or co-employees, that she was having physical complaints related to her job activities. The claimant did not consider her injury to be related to her work until it was suggested by a physician at the hospital. While it is true that the claimant's job duties had changed, there is no indication that this physician was aware of the time the claimant actually spent performing this job.
Following the claimant's visit to the emergency room, she was next evaluated by Dr. Benjamin on February 1, 2001. The claimant did not give Dr. Benjamin a history of a work-related condition, but instead indicated that she woke up on the morning of January 22, 2001, with severe back pain. In fact, the claimant testified that she woke up with back pain on the morning of January 22.
Q. Essentially you woke up with back pain on January 22nd; isn't that right?
A. Yes.
Q. When you woke up on the 22nd, you could hardly move; isn't that right?
A. Yes.
In short, the claimant contends that she suffered a gradual onset injury to her back as a result of a change in job activities which began in January, 2001. However, a review of the evidence reveals that the claimant performed very little of these job activities before she sought medical treatment for problems with her low back. Furthermore, the claimant admittedly did not mention any work-related problems to the respondent until a treating physician mentioned her job activities. Instead, the claimant initially sought medical treatment after she had difficulty sitting during a basketball game. Furthermore, when the claimant initially sought medical treatment, she indicated that she had awoke with back pain. The claimant also gave a history of having awoken with back pain to Dr. Benjamin and during her testimony at the hearing.
Further, to the extent that it could be argued that the claimant's job activities aggravated her back condition, I note that since the claimant is contending that she suffered a gradual onset back injury, that she has the burden of proving by a preponderance of the evidence that her injury is the major cause of her disability or need for medical treatment. I also find that the claimant has failed to prove by a preponderance of the evidence that she suffered a compensable injury which is the major cause of her disability or need for medical treatment. In a letter report dated August 16, 2001, Dr. Runnels stated:
I am certain her years of working as a pack technician, etc., have contributed somewhat to her back problems but, as to exactly how much they contributed and is it compensable, I cannot say.
While Dr. Runnels' opinion is not controlling, his opinion does not support a finding that the claimant suffered a compensable injury with the respondent which is the major cause of her disability or need for medical treatment. There being no other credible evidence, I find that the claimant has failed to satisfy the major cause element of compensability.
The claimant has the burden of proving by a preponderance of the evidence that her gradual onset injury arose out of and in the course of her employment with the respondent. Here, the onset of the claimant's back problems occurred when she awoke on the morning of January 22, 2001. The claimant did not report any work-related problems to her supervisors, the plant nurse, or even to her co-employees. It was not until work was mentioned by a physician at the emergency room that the claimant began considering this is a work-related injury. Therefore, I find that the claimant has failed to meet her burden of proof. Accordingly, I must respectfully dissent from the majority opinion awarding benefits.
_______________________________ JOE E. YATES, Commissioner