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Dempsey v. Ballard Nursing Center9/16/2003
Mandate Issued: 02/12/2004
This case concerns the denial of the workers' compensation claim of Ladonna Dempsey. A trial judge of the workers' compensation court ruled "claimant did not sustain an accidental personal injury [to her back] arising out of and in the course of employment with [Ballard Nursing Center], as alleged in the claim for compensation ." This was the only reason given by the trial court for the denial of the claim. Upon Ms. Dempsey's appeal to a three-judge panel of the workers' compensation court, a majority of the judges affirmed the denial, finding it was "not against the clear weight of the evidence nor contrary to law."
Here on review, Ms. Dempsey contends that the orders of the workers' compensation court should be vacated, because they are unsupported by competent evidence. In particular, she argues that (1) uncontroverted evidence established an injury to her back from lifting patients in the course of her employment with Ballard Nursing Center on July 12, 2002, and (2) the medical evidence she presented showed an aggravation of pre-existing spondylolisthesis in her back, while the medical evidence of employer and insurance carrier did not address aggravation of the pre-existing spondylolisthesis.
In response, Employer and Insurance Carrier have noted that (1) the nurse aid with whom claimant worked on the day of her injury contradicted many of the details in claimant's account of being injured, and (2) the medical expert they presented found that claimant's need for surgery was due to her pre-existing spondylolisthesis and not the injury.
In reviewing the record, we note that there are differences in the testimony of claimant and the nurse aid with whom she worked about (1) how many employees were involved when they lifted a patient who weighed in excess of three hundred pounds, (2) whether claimant had difficulty straightening up after lifting this patient, and (3) discussions between the two about claimant's back hurting. However, none of these differences are material to the question of whether lifting this particular patient and other patients the remainder of the day produced strain on claimant's back. On this material point, there was no disagreement.
Claimant testified that lifting patients did hurt her back, while the nurse aid with whom she worked observed: "If you're not used to lifting hundred to 200 pound people your back's going to hurt. My back hurt for two weeks after I started working. It's something that just, if you're not used to lifting you're going to pull muscles and your back is just going to be sore." The nurse aid added that "you eventually condition to it and you get used to it," but did not indicate whether she knew how such stress and strain would affect a person with spondylolisthesis. Significantly, even the medical expert offered by Employer and Insurance Carrier referred to the "injury [claimant] sustained on July 12, 2002, while working for Ballard Nursing Home."
Based on the foregoing, we agree with claimant that it was uncontroverted that she lifted patients in the course of her work, such lifting involves strain that can hurt a person's back, and claimant experienced a hurt back injury that required medical attention after lifting patients at work. It appears that the trial court and three-judge panel treated these facts as uncontroverted in view of the fact that neither made a finding that claimant lacked credibility, that her testimony had been impeached, or that she failed to carry her burden of proof and persuasion.
When there is no conflict in the evidence, the question of whether an employee has sustained an accidental injury arising out of
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