MADDEN v. NORTHEAST ARKANSAS COMPREHENSIVE

The claimant appeals an opinion and order filed by the administrative law judge on August 15, 1994. In that opinion and order, the administrative law judge found that the claimant failed to show that she sustained a compensable injury. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. Therefore, we find that the administrative law judge's decision must be affirmed.

The claimant was employed by the respondent employer as a teacher. She contends that she sustained a work-related injury on May 26, 1993, when she picked up a heavy, steel typewriter. According to her testimony, her back seemed to have locked, and she could not raise up for a period of time. She also testified that her employment required her to lift handicapped children regularly. Nevertheless, she testified that she was able to finish the spring term with no further problems. However, she testified that she again experienced excruciating pain in her back on August 17, 1993, two days after the summer break, as she was scooting her desk into position.

This Commission has a statutory duty to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704 (c) (2) (1987); see, Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704 (c) (4) (1987); Wade v. Mr. C. Cavenaughs, 198 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). In this regard, the claimant has the burden of proving by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). Consequently, the claimant must establish a causal relationship between the employment and the disabling injury. Lybrand v. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra.

In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on May 26, 1993. In this regard, the claimant admits that she did not report the May 26, 1993, incident. Moreover, although the claimant told her co-workers that she was experiencing back problems, she did not tell them of the alleged May 26, 1993, incident or that she related her problems to her employment. Furthermore, she continued working through June of 1993, without experiencing further problems, and she engaged in activities during the summer such as performing household duties, swimming, and other recreational activities without experiencing any further problems. The evidence also indicates that the claimant related her problems to other causes at various times, such as lifting children and kidney problems. In addition, she did not seek any medical treatment until September of 1993. Moreover, the claimant did not file any report of injury or claim until September, and then she indicated that she alleged May 26, 1993, as the injury date because she recalled lifting the typewriter on that date.

In short, although the evidence indicates that the claimant may have experienced some back problems in May of 1993, a preponderance of the evidence does not support a conclusion that these problems were caused by the lifting of a typewriter on May 26, 1993. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an injury on that date, as she alleges. Since we find that she failed to prove by a preponderance of the evidence that she sustained a compensable injury on that date, we also find that she could not have sustained a recurrence of that injury on August 17, 1993.

In addition, we also find that the claimant failed to show that she otherwise sustained a compensable injury on August 17, 1993. Since she contends that she sustained this injury after July 1, 1993, this portion of the claim is controlled by the Arkansas Workers' Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirements for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Aqra Frozen Foods, Full Workers Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that she sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102 (5) (A) (i) (Cumm. Supp. 1993) are controlling, and the following requirements must be satisfied:

(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102 (5) (A) (i) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5) (E) (i) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a) (1) (Cumm. Supp. 1993));

(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102 (5) (A) (i) (Cumm. Supp. 1993));

(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury (see, Ark. Code Ann. § 11-9-102 (5) (D) (Cumm. Supp. 1993));

(4) proof by a preponderance of the evidence 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) (Cumm. Supp. 1993)).

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

In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that her condition is related to any incident that occurred on August 17, 1993. Again, the claimant did not report this incident to anyone at the time. In fact, she admitted that she did not mention the incident to anyone for approximately two weeks later. The testimony of the claimant's co-workers indicates that the claimant first related her problems to a kidney problem and that she did not mention moving the desk until early September. Moreover, the medical evidence indicates that she related her problems to an incident in May of 1993, when she finally sought medical treatment in September of 1993.

In short, the preponderance of the evidence indicates that the claimant really does not know what caused her back problems. Although she contends that she experienced excruciating pain as a result of moving the desk, she did not mention the incident to her employer or co-workers' for over two weeks. Moreover, when she first discussed her back problems, she related the problems to other causes. Furthermore, when she first sought medical treatment for her back problems, the claimant did not mention the August 17, 1993, incident. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an injury on August 17, 1993, as she contends.

Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. Therefore, we find that the administrative law judge's decision must be, and hereby is, affirmed.

IT IS SO ORDERED.