SHAFER v. G M INSULATION

Respondent appealed and claimant cross-appealed from a decision filed January 29, 1998, of the Administrative Law Judge finding that claimant sustained a compensable injury to his left shoulder while employed by respondent on September 3, 1996. Based upon our de novo review of the entire record, we find that claimant has failed to prove the compensability of his injury by objective medical evidence. Therefore we find that the decision of the Administrative Law Judge must be, and hereby is, reversed.

At the hearing held on January 7, 1998, claimant contended that he sustained a compensable injury to his left shoulder when he was attempting to put a hanger back under a steam pipe by lifting it with his shoulder. Conversely, respondent controverted claimant's claim in its entirety. After reviewing the record impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to prove the compensability of his injury by objective medical evidence.

The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, F.C. Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and § 11-9-102(5)(E)(i) (Supp. 1997). He must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(5)(A)(i). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury "by medical evidence supported by `objective findings' as defined in § 11-9-102(16)."

If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra.

Even assuming, arguendo, that claimant has shown by a preponderance of the evidence that he sustained an injury identifiable by time and place of occurrence which caused internal or external physical harm to the body which required medical services or resulted in disability or death, we find that claimant has failed to present medical evidence supported by objective findings supporting his claim. In the initial history form setting forth the history of claimant's injury, claimant described the injury as follows:

Left shoulder — on ladder working on steam line trying to get it back into the socket. Now having trouble lifting arm and severe spasms in shoulder and upper back.

In her medical report dated October 10, 1996, Dr. Alice Martinson recorded a history as follows:

He was working with his arms overhead insulating a steam line when a pipe started to fall. He propped it on his left shoulder and arm and held it there for some time so that he could finish securing it. Following that incident he has had pain in the left shoulder with movement and spasms in the muscles of the left shoulder girdle.

In response to questioning from respondent's counsel, Dr. Martinson explained:

The spasms Mr. Shafer referred to in his initial history form and which I documented in my 10/10/97 report were stated complaints. At no time did I observe or document any spasms in his shoulder.

See Dr. Martinson's October 3, 1997, correspondence to respondent's counsel. In that same correspondence, Dr. Martinson outlined her findings with regard to claimant's alleged shoulder injury as follows:

The only physical findings which bear on Mr. Shafer's shoulder injury were tenderness and a very particular specific pain pattern which together were characteristic of rotator cuff tendinitis, also known as impingement syndrome. This is a condition which never has objective physical findings, and is always diagnosed on the basis of the pattern of the patient's complaints. His characteristic and appropriate response to subacromial injection may be considered a finding as well which, although subjective in nature, is also totally consistent with the expected pattern of responses in this condition. (Emphasis in original)

It is acknowledged that muscle spasms are considered objective findings sufficient to support the presence of an injury. See University of Arkansas Medical Sciences v. Hart, 59 Ark. App. ___, ___ S.W.2d ___, (December 22, 1997). However, there is no evidence in the record that muscle spasms were ever observed or diagnosed by Dr. Martinson outside of merely recording the claimant's complaints. In Sheila Mollock v. Altheimer Public Schools, Full Commission Opinion filed January 6, 1998 (Claim No. E610213) we found that a prescription of scalaxin "as needed when she has muscle spasms associated with her low back pain" is a statement which implies a claimant might be suffering from muscle spasms but, "in our opinion, is short of a specific finding that she is suffering from a muscle spasm or any other objective finding." Likewise, in the present claim, a recorded complaint of spasms is merely a statement that a claimant might be suffering from muscle spasms, but is far short of a specific finding that muscle spasms were in fact detected or that the claimant was suffering from muscle spasms or any other objective finding. Consequently, we find that we cannot rely upon Dr. Martinson's recorded complaints of muscle spasms as an objective medical finding in this claim.

After treating with Dr. Martinson, and undergoing an injection in his shoulder, Dr. Martinson noted on October 28, 1996,:

His left shoulder symptoms completely resolved following injection. . . . on physical exam, his left shoulder has a full range of motion without crepitus or residual tenderness. He has no pain or weakness with resisted abduction or rotation. . . . from the standpoint of his left shoulder, I think he had a minor impingement syndrome which is now resolved. He needs no further orthopedic treatment or follow-up for his left shoulder, and he has no ratable permanent impairment in this left shoulder. (emphasis added)

While claimant continued to treat with Dr. Martinson for an unrelated problem, Dr. Martinson did make comments in her medical reports regarding claimant's left shoulder condition. Specifically, in her November 18, 1996, report, Dr. Martinson stated:

His shoulder symptoms remain relieved after an injection; however, I believe that if he were to return to activity overhead use of arms his pain would return in fairly short order.

On June 30, 1997, some 10 months after claimant's incident involving his left shoulder, and 8 months after having been examined by Dr. Martinson and found to have no residuals from the left shoulder incident, claimant was examined by Dr. Kenneth Rosenzweig at the request of his attorney. In his report, Dr. Rosenzweig noted:

On examination, x-rays reveal a type II acromion with possible proximal migration of the humerus. Clinical exam reveals full passive motion with grossly positive impingement and grossly positive drop arm. He's unable to maintain flexion at 90 degrees. He has palpable crepitation. He has a moderate amount of effusion in the bursa today, consistent with chronic inflammation.

Based upon his examination, Dr. Rosenzweig diagnosed claimant with a global rotator cuff tear which was proved incorrect after an MRI. Admittedly, Dr. Rosenzweig's examination on June 30, 1997, did reveal objective medical findings. However, due to the length of time between claimant's initial incident on September 3, 1996, and Dr. Rosenzweig's examination, as well as the reports from Dr. Martinson in October and November of 1996 reporting that claimant's left shoulder symptoms have completely resolved, we cannot find that the objective findings noted by Dr. Rosenzweig are causally related to claimant's alleged injury in September of 1996. The record reveals that claimant remained physically active after having been found by Dr. Martinson to have a negative physical examination of the left shoulder with symptoms which have completely resolved. In fact, Dr. Rosenzweig acknowledged in his December 6, 1997, correspondence to respondent's counsel:

The answer is that it is possible that any and all of these activities could have aggravated his shoulder condition that was predisposed to inflammatory changes. It is certainly possible that without predisposition these activities can cause shoulder complaints. It is also possible that if a person had had a shoulder injury that had resolved, that these activities could re-aggravate an underlying condition.

In light of claimant's numerous activities which include operating a carpet cleaning business, lifting equipment weighing up to 75 pounds, mowing his lawn, working in the garden, and riding a mule, among other things, and in light of Dr. Rosenzweig's acknowledgment that each of these activities could cause the objective findings he noted in his June 3, 1997, examination, together with the negative examinations by Dr. Martinson in October and November of 1996, we find that claimant has failed to prove by a preponderance of the evidence a causal relationship between the objective findings noted by Dr. Rosenzweig in June of 1997 and the incident on September 3, 1996, involving claimant's left shoulder. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on September 3, 1996, to his left shoulder supported by objective medical findings. Therefore, we find that the decision of the Administrative Law Judge must be reversed.

IT IS SO ORDERED.

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