HELEN M. BITTLE APPELLANT
WAL-MART ASSOCIATES, INC., AND CLAIMS MANAGEMENT, INC. APPELLEES
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Goldberg & Dohan, by: Andy L. Caldwell, for appellant.
Ledbetter, Cogbill, Arnold & Harrison, LLP, by: R. Scott
Zuerker and Joseph Karl Luebke, for appellees.
F. VIRDEN, JUDGE.
Helen Bittle appeals from the decision of the Arkansas
Workers' Compensation Commission (Commission), affirming
and adopting the administrative law judge's (ALJ)
opinion, finding that Bittle did not prove that she sustained
compensable injuries to her upper and lower back, right hip,
and coccyx on April 6 and 12, 2015, arising out of and in the
course of her employment with appellee Wal-Mart Associates,
Inc. (Wal-Mart). Bittle argues that there is no substantial
evidence to support the Commission's
decision. We affirm.
injury" means "an accidental injury causing
internal or external physical harm to the body . . . arising
out of and in the course of employment and which requires
medical services or results in disability or death. An injury
is 'accidental' only if it is caused by a specific
incident and is identifiable by time and place of
occurrence." Ark. Code Ann. § 11-9-102(4)(A)(i)
(Supp. 2015). A compensable injury must be established by
medical evidence supported by objective findings. Ark. Code
Ann. § 11-9-102(4)(D). "Objective findings"
are those findings that cannot come under the voluntary
control of the patient. Ark. Code Ann. §
11-9-102(16)(A)(i). Section 11-9-102(4)(E)(i) provides that
the employee has the burden of proving a compensable injury
by a preponderance of the evidence.
regard to an aggravation, an employer takes an employee as it
finds him or her, and employment circumstances that aggravate
preexisting conditions are compensable. Vaughn v. Midland
Sch. Dist., 2012 Ark.App. 344. A preexisting disease or
infirmity does not disqualify a claim if the employment
aggravated, accelerated, or combined with the disease or
infirmity to produce the disability for which workers'
compensation is sought. Id. An aggravation is a new
injury resulting from an independent incident, and being a
new injury with an independent cause, it must meet the
definition of a compensable injury in order to establish
compensability for the aggravation. Id.
testified that on April 6 and 12, 2015, she was working in
the receiving department at Wal-Mart as an inventory control
specialist. She described her job duties as pulling
merchandise off the shelves and putting it out for the
departments to place on the floor. On April 6, 2015, she said
that she was pulling a pallet down for an employee when her
shoe hung on a pallet nail. She said that this caused her to
release a button on the machine that she was using and that
the rollback from the machine pushed her flat on her back.
Bittle said that she felt pain in her chest, upper back, and
right hip. She explained that her walkie talkie had been on
her right hip and that she must have fallen on it. She said
that a Coca-Cola representative had helped her up and that an
assistant manager had helped her get to the human-resources
(HR) office. Bittle testified that she filled out an incident
report but did not ask to see a doctor because she
"wasn't sure what was hurting. [She] just wanted to
make sure that everything was okay." Bittle testified
that she had a bruise on her right hip the next day. Although
Bittle said that the pain from her injuries had gotten
progressively worse, she worked her normal job duties until
April 12, 2015.
testified that on April 12, 2015, she pulled a product off
the shelf to take to a cart but dropped it. She said that
when she bent over to pick up the product, the pain was so
severe in her lower back that she had to call an assistant
manager to help her get up. She stated that the manager and
another employee put her in a wheelchair and took her to the
HR office to fill out another incident report. Bittle said
that, while there, she suffered a muscle spasm such that she
had to lie down on the floor. Although she had asked to see a
doctor that day, her employer persuaded her to wait until the
summarize Bittle's medical visits, the evidence shows
that she first saw Dr. Michael Lack on April 13, 2015. Dr.
Lack later recommended physical therapy. Bittle had six
physical-therapy sessions, which she said had helped her
until the therapist tried to manipulate her leg, which caused
her to suffer an immediate onset of pain. Bittle did not
return to physical therapy. Bittle's employer directed
her to see Dr. Vestal Smith, and she saw him on three
occasions. The employer hired a "nurse case manager,
" who recommended that Bittle have an independent
medical examination (IME) by Dr. J. Justin Seale. Bittle also
intermittently saw Amy Johnson, an advanced practice nurse,
who treated her for osteoporosis, which was discovered
through x-rays taken after her second fall.
testimony at the hearing, Bittle denied having had any
problems with her back, shoulders, and hips, but she
acknowledged having had neck problems resulting from a
motor-vehicle accident in 2002. Bittle explained that her
husband had been driving when the driver's side door was
struck by another vehicle and that she, a passenger in the
car, had suffered whiplash. On cross-examination, Bittle
conceded that she had filed a lawsuit against the other
driver, but she expressed surprise that the complaint had
alleged injuries to her cervical spine, thoracic spine,
lumbar spine, shoulders, right hip and leg, and head.
testified that she resigned from her job at Wal-Mart in
November 2015. An exit interview shows that she did so for
health reasons. Bittle stated that her back pain had not
decreased but had not gotten worse. She said that she was
unable to bend and pick up an item; that she could not walk
very far; and that she could not even lift a gallon of milk.
Just after this testimony, Bittle was shown a video from
Wal-Mart, and she identified herself and her husband grocery
shopping. She agreed that the video showed her pulling
something down from an upper shelf, picking up a case of soda
and moving it in the cart, placing a gallon of milk on the
conveyor belt, and loading a bag containing two two-liter
bottles of soda into her cart. Bittle explained,
"Sometimes I can pick something up and sometimes I
can't. That particular day, I could." Lisa Lawson, a
protection manager at Wal-Mart, testified that the events
depicted on the video ...