COVERDELL v. ST. MARY'S HOSPITAL

St. Mary's Hospital appeals an opinion and order filed by the administrative law judge on July 12, 1994. In that opinion and order, the administrative law judge found that the claimant sustained an injury arising out of and in the course of her employment with St. Mary's Hospital. 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 an injury arising out of her employment with either respondent.

At the time of the hearing, the claimant was 61 years old. She began working in the dietary department of St. Mary's Hospital in 1986, and she was transferred to the housekeeping department in 1991. In the housekeeping department, she was responsible for cleaning patient rooms, including cleaning, mopping, and dusting rooms. She was also required to change the water in a four to five gallon bucket every second or third room, and this involved bending and lifting the bucket off of a cart to dump it. She also emptied trash and washed windows, and she cleaned the bathrooms. She testified that she began to experience back problems approximately six months after transferring to the housekeeping department, and she testified that a Dr. Moffitt ordered a MRI as a result of these problems. None of Dr. Moffitt's records are in evidence, and the claimant could not recall what his diagnosis was. However, a June 9, 1993, report by Dr. Susan Raben, an orthopedist, indicates that the MRI showed "degenerative disc disease at multiple levels, spinous stenosis at L3/4, greater than L2/3 and L1/2, and disc herniation on the right at L3/4." In any event, Dr. Moffitt apparently released the claimant to return to work with no restrictions. The claimant underwent two back surgeries in the 1970's.

In February of 1993, the claimant also began working for TLC Home Health Care in the evenings as a nurse's assistant. In this position, her duties included helping change the patient, assisting with medication, doing light housework, helping the patient from his bed to a wheelchair or from the bed to a potty chair. She testified that she was not injured during the course of her employment with TLC Home Health Care. However, she also conceded that her duties at this job were more strenuous than her duties at St. Marys.

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. Cavenaugh's, 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 he 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, the claimant testified that she bent over to pick up a trash can on May 30, 1993, during the course of her employment with St. Mary's Hospital, when she felt a sharp pain in her back. A MRI subsequently revealed "significant disc space herniation with stenosis at L-3/4 and L-2/3 interspaces, moderate stenosis at L-5/S-1, fairly significant moderate stenosis at L-4/5." When conservative measures did not relieve the pain and discomfort the claimant was experiencing as a result of these problems, Dr. Cyril A. Raben, an orthopedic surgeon, performed a multi-level decompression of her spine.

The claimant testified that she reported the May 30, 1993, incident to the weekend supervisor, Frank Dillihunty, and she testified that Mr. Dillihunty said that he was not feeling well and that he would have the regular supervisor complete the accident report later. One of the claimant's co-employees and friend, Maxine Ramey testified that the claimant told her that she had hurt her back shortly after the alleged incident. Ms. Ramey also testified that she was with the claimant when she talked to Mr. Dillihunty and that she heard the claimant report the accident.

However, other evidence is inconsistent with the claimant's contention that she immediately related her back problems to her employment with St. Mary's Hospital and that she immediately reported this incident. Mr. Dillihunty is now deceased. However, Gracie Pace, the claimant's regular supervisor testified that she talked with the claimant on several occasions regarding when she could return to work, and she testified that the claimant did not indicate at any time that she considered the condition to be work related. In fact, Ms. Pace testified that she talked to the claimant when she was in the hospital after the surgery, and she testified that the claimant did not even mention that she considered the condition to be work-related at that time. In this regard, we would note that she signed a request for a leave of absence on August 3, 1993, due to the surgery. However, this request does not indicate that the surgery was work related, and the request indicates that the claimant understood that she would not receive any employee benefits during the leave of absence, which would be inconsistent with the claimant's contention that she expected workers' compensation benefits for the condition.

Furthermore, there is other evidence indicating that the claimant did not relate her back problems to her employment with St. Mary's Hospital until some time later and that she really was not sure where she hurt her back. In this regard, the claimant called Gwyndol Hampton, an employee of TLC Home Health Care, on June 11, 1993, to advise that she was not coming to work that day due to her back problems, and Ms. Hampton testified that the claimant told her that she did not know how she hurt her back. In addition, Ramona Meeker, also an employee in the housekeeping department of St. Mary's Hospital, testified that the claimant told her that she had hurt her back lifting a patient during the course of her employment with TLC Home Health Care. According to Ms. Meeker, this conversation occurred two to three weeks before May 30, 1993.

The evidence also indicates that the claimant was concerned about the source of payment for the expenses related to her back problems. In this regard, Gene Ingram, the director of purchasing and environmental services at the time of the claimant's alleged injury, testified that he saw the claimant in the physical therapy department, and he testified that she asked him whether the hospital was going to pay for medical expenses. He testified that he responded by telling her that he understood that she was hurt at another job, and he testified that she did not respond either way to this. In addition, Ms. Hampton testified that the claimant called her around the end of June or the first of July of 1993, after it became apparent that the claimant's problems were serious, and asked whether TLC Home Health Care had workers' compensation coverage. The claimant admitted making this telephone call, but she testified that she made the call for another employee of TLC Home Health Care, Louise Fant, based on a discussion between herself and Ms. Fant. According to the claimant, Ms. Fant "kind of wrenched her back," but she asked about workers' compensation coverage "more or less for her." However, Ms. Fant denied injuring her back, and she denied ever talking about the workers' compensation coverage of TLC Home Health Care.

Moreover, the statements made by the claimant to her medical care providers is not consistent with her contention regarding the onset of her problems in May 30, 1993. She was first treated by Dr. Robert Hull, a general practitioner, and Dr. Hull's June 1, 1993, report indicates that the claimant told him that the problems had "started 3 wks ago after lifting a trash can at work." While Dr. Hull's report does make reference to lifting a trash can at work, it does not identify which employer, and the time is not consistent with the claimant's contention. Furthermore, Dr. Susan Raben's reports do not make any reference to a work-related injury whatsoever. Instead, Dr. Raben's reports state that the claimant related a history of "pain in her low back and right lateral leg for at least a year." Likewise, Dr. Cyril Raben testified that he had no information regarding the etiology or the onset of the claimant's problems. Dr. Raben also could not give an opinion regarding the causal relationship of her problems with her employment at St. Mary's Hospital. In this regard, Dr. Raben testified that the claimant has an underlying degenerative disease of the spine, and he testified that an acute injury probably caused the herniation. However, he also testified that the acute injury could have been anything from bending over to pick-up a tissue from the floor to sneezing.

In short, the claimant's testimony regarding the occurrence of the May 30, 1993, injury and her report of this injury to St. Mary's Hospital is corroborated by the testimony of Ms. Ramey. Likewise, the June 1, 1993, report of Dr. Hull indicates that the claimant did relate a history of lifting a trash can. However, Dr. Hull's report indicates that this incident occurred three weeks before the date of the report, not two days as the claimant contends. Moreover, the claimant's duties with TLC Home Health Care also involved lifting trash cans, and Dr. Hull's report does not specify which employer the claimant was working for when this occurred. Also, the history found in Dr. Raben's report is not consistent with that contained in Dr. Hull's report or with the claimant's contention. Furthermore, the evidence shows that the claimant made other statements and engaged in other actions which suggest that she was uncertain about the cause of her problems and which are inconsistent with her contention that she hurt her back lifting a trash can during the course of her employment with St. Mary's Hospital on May 30, 1993. While the claimant subsequently did make some statements indicating that she related her problems to her employment with St. Mary's Hospital, these were not made until after it became apparent that she was suffering from extensive problems which would require extensive medical care.

We note that the claimant seems to suggest that the nature of her duties with St. Mary's Hospital were such that they could have caused the gradual onset of her problems, culminating in the May 30, 1993, incident. Certainly, the evidence shows that the nature of her employment duties with St. Mary's Hospital could have caused her problems. However, there is no evidence to support a conclusion that these duties were in fact the cause of her problems. While the claimant testified that she began to experience problems when she was transferred to housekeeping, the evidence also establishes that she has a long history of back problems. Moreover, after the brief period of treatment in 1991, the claimant performed her housekeeping duties without complaint until 1993. Significantly, these complaints did not arise again until after she began working for TLC Home Health Care in the evenings, for the evidence establishes that her duties with respondent involved the lifting of a patient weighing approximately 150 pounds, as well as significant bending. In fact, as discussed, the evidence indicates that the claimant attributed her problems to her employment with TLC Home Health Care at times, although at the hearing she contended that she did not injure her back while working for TLC Home Health Care. Consequently, her problems could have just as easily have been caused by her employment with TLC Home Health Care.

Therefore, carefully weighing the evidence impartially, without giving the benefit of the doubt to either party, we find that the claimant failed to prove by the greater weight of the evidence that her back problems are causally related to her employment with St. Mary's Hospital. Likewise, in light of the claimant's admission that she did not injure her back in the course of employment with TLC Home Health Care, we find that respondent No. 2 has no liability.

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 an injury arising out of and in the course of her employment. Therefore, we find that the administrative law judge's decision must be, and hereby is, reversed. This claim is denied and dismissed.

IT IS SO ORDERED.