BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G STEVEN BROWNING, EMPLOYEE CENTRAL ADJUSTMENT COMPANY, INC.

Transcription

1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G STEVEN BROWNING, EMPLOYEE COOPER TIRE & RUBBER COMPANY, SELF-INSURED EMPLOYER CENTRAL ADJUSTMENT COMPANY, INC., TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED JULY 15, 2016 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Texarkana, Miller County, Arkansas. The claimant was represented by HONORABLE PAUL MILLER, Attorney at Law, Texarkana, Arkansas. The respondents were represented by HONORABLE FRANK NEWELL, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on May 19, 2016, in Texarkana, Arkansas. A Prehearing Order was entered in this case on March 29, The following stipulation was submitted by the parties and is hereby accepted: 1. The employer/employee/ carrier relationship existed as of August 4, By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: 1. Compensability of claimant s claimed August 4, 2015 lumbar injury. 2. Entitlement to medical care. 3. All other issues are reserved. The record consists of two volumes: (1) the May 19, 2016, hearing transcript and the exhibits contained therein,

2 2 and (2) Respondents Exhibit 2 (the April 11, 2016, oral deposition of the claimant). FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The claimant has failed to establish by a preponderance of the credible evidence that he sustained a compensable lumbar spine injury on August 4, DISCUSSION Mr. Browning had worked as a tire builder for Cooper Tire for approximately four year when, according to Mr. Browning, he injured his back on the morning of August 4, 2015, lifting a particular tire carcass while working on the night shift. (T. 8, 10-11) Mr. Browning reported an injury to his supervisor. He was taken to the emergency room at Christus St. Michael Health Hospital early that morning where he was treated and released. Mr. Browning was also seen later that day at HealthCare Express, the respondents approved healthcare facility. Mr. Browning returned to work on light duty for a period until terminated by Cooper Tire on or about August 21, 2015, for reasons unrelated to this claim. (T. 8, 24) The respondents ended Mr. Browning s medical treatment on or about September 23, (R. Exh. 2 p. 119) Mr. Browning has not treated with any physician since that time, and Mr. Browning currently takes Ibuprofen to treat his pain. (R. Exh. 2 p. 42, 45) Mr. Browning has performed some painting

3 3 work for his father s business after he was terminated by Cooper Tire. (R. Exh. 2 p ) In the present claim, Mr. Browning seeks additional medical treatment including but not limited to an MRI to his lower back that was ordered by Healthcare Express on September 9, 2015, but never approved by the respondents. (R. Exh. 1 p. 101) The respondents contend that Mr. Browning did not sustain a compensable back injury and is therefore not entitled to any additional treatment at the respondents expense. To prove the occurrence of a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence: (1) that an injury occurred arising out of and in the scope of employment; (2) that the injury caused internal or external harm to the body which required medical services or resulted in disability or death; (3) that the injury is established by medical evidence supported by objective findings, as defined in Ark. Code Ann (16); and (4) that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). In the present case, the evidence which most supports Mr. Browning s claim that he injured his back at work on

4 4 August 4, 2015, as he contends, includes his own hearing testimony that he experienced sharp back pain and extreme right leg pain while picking up a tire carcass off of the carcass rack at work and then carrying the carcass to the carcass loader. (T ) Mr. Browning testified at the hearing that this was probably the biggest tire that he had ever built on his machine. (T. 10) Mr. Browning also testified in his deposition taken on April 11, 2016, that his only prior lumbar pain was just straining his back while working at White Signs in Mr. Browning testified that nothing came up on an MRI performed after for the White Signs injury. Mr. Browning testified in April of 2016, that it was Probably a year ago when asked to clarify when he had last seen a chiropractor before the deposition. (T ) Mr. Browning also testified in that deposition that he had not had any right leg pain before the incident at work and that he was not having any back pain before his shift started. (T. 34) However, medical reports in evidence, which I find credible, strongly contradict Mr. Browning s hearing and deposition testimony in several important regards. First, I note that treatment records from a chiropractor, Dr. Cris Bookout, indicate that Mr. Browning first treated with Dr. Bookout in 2002, at the age of 21, for what was described in the handwritten Patient Information sheet as two sliped [sic] disc in lower lumbar

5 5 region due to a fall at home several days earlier. (R. Exh. 1 p. 9) More importantly, contrary to his deposition testimony, Mr. Browning last treated with Dr. Bookout on August 3, 2015, i.e., on the day before Mr. Browning allegedly injured himself at work. (R. Exh. 1 p. 55) Mr. Browning s Chief Complaint at that time was marked as Low Back Pain. (R. Exh. 1 p. 55) A report from Dr. Bookout for Mr. Browning s treatment approximately one week before the alleged injury at work, dated July 28, 2015, includes the following notations: RT. Leg has tingling & numbness. Low back has been hurting. (R. Exh. 1 p. 55) A report from Dr. Bookout s treatment dated July 7, 2015, includes the following notations: Very Painful & Lots of Pressure in Rt Hip. (R. Exh. 1 p. 54) A report from Dr. Bookout dated May 28, 2015, contains the handwritten notations R & L hips and Started having pains shooting into arms & legs - started low back. (R. Exh. 1 p. 53) Contrary to several aspects of Mr. Browning s testimony, the history contained in these reports indicate that Mr. Browning had reported pain in his hips and legs, in addition to reporting pain in his low back, to Dr. Bookout or to his staff within the ten weeks immediately preceding his alleged injury at work. Contrary to Mr. Browning s testimony that he was not having any back pain before his shift started, HealthCare Express staff on August 4, 2015, the date of the alleged

6 6 injury, recorded a history that He reports starting his shift with just a twinge in my back but I kept working through it. As the shift progressed, he reports the twinges became more frequent and intensified in severity. He reports he bent over to pick a carcass up and it felt like something was stabbing me in the back and pushing through to my right toes. (R. Exh. 1 p. 65) Notably, Dr. Bookout s medical records from August 28, 2010, nearly five years prior to the alleged incident on August 4, 2015, makes reference to tingling in toes sometimes. (R. Exh. 1 p. 41) Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). When there are contradictions in the evidence, it is within the Commission s province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id. In light of the significant relevant discrepancies between Mr. Browning s testimony and the reports of Dr. Bookout regarding Mr. Browning s medical history, I find that the claimant has failed to establish by a preponderance

7 7 of the credible evidence that he sustained a low back injury from lifting a tire carcass at work on August 4, 2015, as he contends. The claimant has therefore failed to establish that an injury occurred arising out of and in the scope of employment as a result of a specific incident or that an injury at work caused internal or external harm to the body which required medical services or resulted in disability or death. In reaching this conclusion, I note that staff at HealthCare Express on several occasions noted the presence of spasm in the right side muscles of Mr. Browning s lumbar spine on and after August 4, 2016, upon physical examination of Mr. Browning s back. (R. Exh. 1 p. 66, 75, 98, 112) Muscle spasms observed by a physician or a physical therapist are objective medical findings that can support the existence of an injury or an aggravation of a preexisting condition. Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999). However, a claimant is required to establish a causal connection between any objective finding in the record and the alleged compensable injury, even if the alleged compensable injury is an aggravation of a preexisting condition. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). In the present case, Dr. Bookout s records contain no indication that Dr. Bookout ever performed physical

8 8 examinations of Mr. Browning s lower back before August 4, Therefore, Dr. Bookout s reports contain no specific indication whether or not muscle spasms were already present in Mr. Browning s spine immediately before August 4, However, Dr. Bookout s records do note a complaint of back spasms in a report of treatment received somewhere between February and August of (R. Exh. 1 p. 46) In addition, as noted previously, Mr. Browning treated with Dr. Bookout complaining of low back and/or right hip and/or right leg symptoms most recently on June 2, 2015, on July 3, 2015, on July 7, 2015, on July 28, 2015, and on August 3, the day before the alleged injury at work. In light of this course of medical treatment immediately prior to August 4, 2015, and the relevant inconsistencies between Mr. Browning s testimony and his medical reports, I find that Mr. Browning has failed to establish by a preponderance of the credible evidence that the muscle spasms noted at HealthCare Express on and after August 4, 2015, are more likely than not related to an alleged injury sustained at work on August 4, ORDER For the reasons discussed herein, this claim must be, and hereby is, respectfully denied and dismissed. 1 The date on the relevant report on page 46 is missing due to facsimile information that over-wrote the date.

9 9 The respondents are directed to pay the court reporter s fees and expenses within thirty (30) days of billing. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge