NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION IV

JAMES EDENS,

APPELLANT

V.

SUPERIOR MARBLE AND GLASS,

APPELLEE

CA00-689

FEBRUARY 28, 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. E903271 ,

REVERSED AND REMANDED

James Edens, a shop foreman and eleven-year employee of Superior Marble & Glass, appeals a decision of the Workers' Compensation Commission that denied him benefits for a back injury that he claimed was caused by a lifting incident at work. As his sole point of appeal, he contends that he fulfilled all statutory requirements to prove a compensable specific-incident injury.

An employee who asserts that a specific-incident injury is compensable must prove that the injury meets the following specifications of Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1993)1:

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[.]

(Emphasis added.) The compensable injury further must be established by medical evidence supported by "objective findings," which are defined as "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102(5)(D)2 and (16) (Supp. 1993).

In the case before us, the Commission adopted and affirmed the decision of the administrative law judge. The Commission stated this basis for denying the claim:

At the hearing before the administrative law judge, Edens testified as follows regarding the lifting incident and the date on which it occurred. In January of 1999 he and his wife, a co-employee at Superior, were working together and lifting a 125-pound mixing pot of synthetic marble. He felt a pull in his back, followed by a sharp pain that went down his leg. He did not stop work, but did what he "had to do" and finished the day. That evening when he went home, he "hurt."

Edens testified that the incident occurred on January 19 or possibly January 18, andthat he sought medical treatment on the 20th or 21st, or possibly the 19th. He did not remember the specific dates of reporting his injury to the owner of the business or to the secretary, but he felt like "it was early into it." He acknowledged that he had pulled muscles previously, and that he had sustained a lower-back injury while working for another employer in 1989, but he testified that the pain of January 18 or 19, 1999, was not one he had experienced before.

On cross-examination, Edens said that he did not know the specific date of his January 1999 accident, but that it was on the 18th , 19th, or 20th. On re-direct examination, he said that there had been pain-free periods in the years since the 1989 injury; that he had to work for a living; that he had been working for those ten years, "slinging marble the whole time"; and that the present injury was different because it still hurt and had not left. Finally, he stated that if medical records showed January 19, 1999, as the first medical consult about this injury, then the injury likely had occurred on the 18th or 17th.

Edens's wife testified she had worked with her husband; that she remembered that somewhere around January 17, 18, or 19, he told her that he hurt his back at work; that he specifically said that he hurt his back picking up the pot of marble; and that she always picked up the pot with him. Susan Johnson, the company secretary, testified that she handled the workers' compensation claims; that her report showed that Edens's injury occurred on January 20, 1999; and that she was notified of it on February 22, 1999, after Edens had seen a doctor. She said that Edens was a good employee who had never been dishonest with her, and that she had no reason to believe that he would fabricate a workers'compensation claim. An MRI of February 18, 1999, was introduced into the record. Joe Hobbs, owner of Superior Marble & Glass, testified that although he was told about the back injury, he did not remember that Edens had sustained it while lifting marble. Hobbs stated that over the years Edens had mentioned a sore back or pulled muscles, and that there was no reason to believe that his workers' compensation claim would be falsified.

Edens's medical records were also made a part of the evidence. The records include letters regarding the 1989 injury, notes of Dr. Kyle Roper, the MRI impression, the deposition and office notes of orthopedist Dr. Michael Young, physical therapy records and a report by therapist Martin Milner, and notes from the Hot Springs Mercy Pain Clinic.

We now examine the statutory requirements regarding proof of a specific incident and of objective medical findings, and the Commission's application of those requirements to the evidence that Edens presented at the hearing. The Commission's decision set forth the pertinent parts of Ark. Code Ann. § 11-9-102, discussed the testimony by Edens and his wife, mentioned the MRI, and stated that Edens reported "increased pain sometime after January 17, 18, 19, 20, 1999" following sporadic difficulties. The denial of Edens's claim, as noted earlier, was based upon the Commission's findings that he was not specific about the date of injury and that there were no objective findings in the medical evidence.

Although the Commission is not bound by medical testimony, it may not arbitrarily disregard any witness's testimony. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). The requirement is not that the medical testimony be expressly or solely based on objective findings, but only that the record contain supporting objective findings. Id.

First, it appears in the present case that one basis for the Commission's denial of the claim is because Edens was unable to remember the exact date of the accidental injury. Under Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1993), an accidental injury is compensable only if it is caused by a specific incident and is identifiable by time and place of occurrence. We do not interpret this section to require, as a prerequisite to compensability, that the claimant identify the precise time and numerical date of the month upon which an accidental injury occurred. Rather, we believe that the requirements of this section have been met when the claimant proves that he was injured as the result of a specific incident, and the occurrence of the injury is susceptible to identification as to a time and place. While a claimant's inability to specify the date and time of an accidental injury might go to the weight to be given to his testimony, we cannot interpret section 11-9-102(5)(A)(i) to mean that a claimant fails to establish the compensability of his specific-incident claim merely because he cannot remember the precise date upon which the accidental injury occurred. Therefore, we must reverse and remand the Commission's denial of this claim insofar as it was based on Edens's failure to provide an exact date of injury. The Commission is directed to make specific findings regarding the compensability of Edens's claim consistent with our interpretation of section 11-9-102(5)(A)(i).

Second, the Commission's finding that there are no objective findings in the medical evidence, as required by Ark. Code Ann. § 11-9-102(5)(D) and (16)(Supp. 1993), ignores a notation in the medical record by physical therapist Milner on April 5, 1999, that thepatient exhibited "tight musculature and spasm activity in the lower back." In University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997), we expressly held that muscle spasms can constitute objective medical evidence. Because the Commission has arbitrarily disregarded the physical therapist's notation regarding muscle spasms, we reverse on this point.

We reverse and remand for findings consistent with our interpretation of section 11-9-102(5)(A)(i) and (5)(D).

Reversed and remanded.

Stroud, C.J., and Vaught, J., agree.

1 Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1993) has been re-codified as Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999).

2 Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1993) has been re-codified as Ark. Code Ann. § 11-9-102(4)(D)(Supp. 1999).