Pamela Lockhart v. St. Edward Mercy Medical Center

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CA 05-106

August 31, 2005





David M. Glover, Judge

Appellant, Pamela Lockhart, appeals the Workers' Compensation Commission's denial of her claim for benefits. On appeal, she argues that she sustained a compensable lumbar injury on August 21, 2002, due to a specific incident and/or a compensable gradual-onset injury to her lumbar spine and that she was entitled to a ten-percent whole-body impairment rating. We reverse and remand this case to the Commission because it made no findings with regard to appellant's gradual-onset injury argument.

Appellant worked for St. Edward Mercy Medical Center as a certified dietary manager. One aspect of her job entailed delivering food trays to patients' hospital rooms. Testimony from appellant and her supervisor indicated that the food carts weighed anywhere from 350 to 800 pounds and that the carts were difficult to maneuver. Appellant was required to make frequent stops with the carts while delivering the meals for breakfast and lunch. About three months prior to appellant's alleged injury, she began having to deliver more food carts during her shift, and approximately three weeks before her alleged injury, she began having problems with her back, but she was generally able to treat this pain with over-the-counter medication and only missed one day of work due to these problems. However, appellant testified that around 9:45 a.m. on August 21, 2002, while pulling or pushing a food cart on one of the hospital floors, she felt "excruciating" pain down her left leg; that she could not bear any weight on her left leg; and that she was hurting across her lower back. She completed her shift, but she testified that she told her supervisor, Marty Hoyt, that she had hurt her back and needed to go to the doctor. Appellant did not seek care at St. Edward's because she was concerned that if she received a shot, she could not drive herself home; she went home and tried over-the-counter pain relievers, but when she could no longer stand the pain, her husband took her to the Choctaw Nation Indian Hospital, where range-of-motion and neurological tests were performed, and an MRI of the lumbar spine was ordered from St. Edward's.

Appellant's workers' compensation claim was denied, but she was subsequently referred to Dr. Mark Hayes for an orthopaedic evaluation. Dr. Hayes ordered a lumbar myelogram and post CT, which showed a herniation at L4-5; Dr. Hayes subsequently performed a lumbar laminectomy at L4-5 on October 21, 2002, and kept appellant off work until December 18, 2002, when he released her to work with the restriction that she not lift more than forty pounds. Appellant was not offered work by the appellee that was within her restrictions.

Appellant appealed the denial of her workers' compensation claim, and the administrative law judge awarded her benefits, finding that appellant had suffered a compensable specific-incident injury. St. Edward's appealed the ALJ's decision, and the Commission reversed, finding that appellant had not suffered a specific-incident injury. However, the Commission made no findings with regard to appellant's alternative assertion that she had suffered a gradual-onset injury. Appellant now appeals the Commission's denial of benefits to this court.

As Commissioner Turner pointed out in his dissent to the Commission's opinion, the Commission failed to address appellant's alternative argument that she had suffered a gradual-onset injury when it reversed the ALJ's finding that appellant had suffered a specific-incident injury. While we do not defer to the Commission on questions of law, we also do not act as the fact finder; therefore, this case must be remanded for the Commission to make findings with regard to appellant's gradual-onset injury argument. See Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003).

Reversed and remanded for the Commission to make findings with regard to appellant's argument that she suffered a gradual-onset injury.

Griffen and Roaf, JJ., agree.