CLAIM NOS. F100706, F114022
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 1, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by HONORABLE R. SCOTT MORGAN, Attorney at Law, Pine Bluff, Arkansas.
Respondent No. 2 represented by HONORABLE MICHAEL E. RYBURN, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent No. 1 appeals an Administrative Law Judge’s opinion filed August 23, 2002. The Administrative Law Judge found that the claimant had suffered “recurrences” of his compensable injury, and that Respondent No. 1 remained liable for the claimant’s medical treatment. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
The record indicates that Van Alexander, Jr., age 35, was assessed with lumbar strain after falling in March 1994. The claimant was assessed with “acute lumbar strain” in March 1995. The claimant complained of low back pain in June 1996, “original injury caused by a fall.” A physician assessed “Contusion of left hip region” after the claimant fell in January 1999.
The parties stipulated that the claimant sustained a compensable injury on December 21, 2000. The claimant testified, “I was cutting a tree limb down. It swung over and hit the ladder rack that I was standing on, threw me across, and I flipped out of the truck.” The parties stipulated that Respondent No. 1, AIG Claim Services, Inc., was the carrier on December 21, 2000.
Dr. J. Mitchell Cook, an osteopathic physician, saw the claimant on December 21, 2000 and assessed the following:
1. Acute lumbar strain, work-related 12/21/00.
2. Muscle spasms of thoracolumbar spine.
3. Radiculopathy left lower extremity.
Dr. Cook treated the claimant conservatively. Dr. Cook saw the claimant on January 4, 2001 and observed “Mild muscle spasms of the thoracolumbar muscles of the paravertebral muscles bilaterally.” Dr. Cook assessed “Acute lumbar strain with lower extremity radiculopathy without improvement with oral medications,” and “Low back pain.”
An MR of the lumbar spine taken February 6, 2001 showed “Disc degeneration at the L4-5 level with a moderate size central herniated nucleus pulposus causing mild to moderate effacement of the thecal sac.”
Dr. Cook examined the claimant on or about February 8, 2001 and assessed “Acute lumbar pain secondary to fall at work 12/21/00.” Dr. Cook planned to refer the claimant to Dr. Cathey or Dr. Russell. The respondents instead sent the claimant to Dr. Jim J. Moore, a neurological surgeon, who evaluated the claimant on February 27, 2001:
I have received and reviewed the medical information provided along with some radiographs which includes an MRI. I have also obtained a history from the patient who tells me his problems developed on or about 12-21-00 when at work in his occupation with Lakewood Properties he was cleaning up some of the debris from the ice storm at that time and he was on a ladder rack on the back of a pickup truck. A tree limb fell and hit the back support of the ladder rack. This knocked the patient across to the other side landing on his back. He then fell to the ground landing on his knees and this was about a seven foot fall. Since that time he has had complaints of low back pain with radiational pain into primarily the left lower extremity to the knee, occasionally to the right. . . .
I reviewed the MRI and there does appear to be certainly some bulging centrally at the L4/5 level on both sagittal and axial views although I am not sure that it would be particularly a disk herniation. It certainly is a bulge at least.
Dr. Moore recommended conservative treatment modalities and kept the claimant off work. Dr. Moore performed a “Lumbar epidural steroid injection” on March 7, 2001. Dr. Moore diagnosed “Lumbar radiculitis” and “Herniated nucleus pulposus.”
Dr. Moore stated that the claimant could return to full working activities on April 18, 2001. Dr. Moore planned to see the claimant again in about one month. The claimant testified that he returned to his full-time work with Lakewood Property Owners. The claimant testified:
Q. Tell us what happened to you on May 2, 2001.
A. We had had a lot of rain the day before and that morning, and I was trying to get the ballfields ready. I was having to lift a 50 pound bag of field dry to dry the fields out.
Q. Did you again notice that you were having some problems?
A. Yes.
The parties stipulated that Respondent No. 2, Cannon Cochran Management Services, was the carrier on May 2, 2001. The record indicates, however, that Respondent No. 1 resumed providing benefits on or about May 2, 2001.
Dr. Moore noted on May 9, 2001:
He comes in today earlier than scheduled because of an episode which occurred about a week ago that has precipitated some increase in pain in the back with a radiational tingling into the right lower extremity. The circumstances essentially that he was required to do some lifting of 50 lb bags of field rye from a pallet to the back of a truck, then taking the truck and the bags smoothing them over a ball field to dry out the field. He experienced rather significant pain at that time and these symptoms have persisted to the present. . . .
There is, however, some spasm of the lumbar paraspinous muscles right sided.
Dr. Moore planned a repeat lumbar epidural steroid injection, and “In the meantime, work restriction will be instituted to avoid excesses of 25 lb weight. Otherwise he can continue to work.”
Dr. Moore noted on May 15, 2001, “I am not sure I can palpate any great deal of spasm.” Dr. Moore planned additional conservative treatment and kept the claimant “in an off work situation.”
At Dr. Moore’s referral, Dr. Reginald J. Rutherford provided an EMG report on May 30, 2001:
Mr. Alexander reports for electrodiagnostic testing low back and right leg referable to complaints eminating (sic) from an industrial injury in December, 2000. . . .
The nerve conduction study and needle examination are normal. There is no evidence of lumbar radiculopathy, lumbosacral plexopathy or peripheral neuropathy.
The claimant followed up with Dr. Moore on May 30, 2001. Dr. Moore planned use of a TENS unit and kept the claimant “in an off work situation.” The claimant reported benefit from the TENS unit but also reported continued pain. Dr. Moore planned on June 20, 2001:
I think this patient is getting closer probably to a point of myelographic survey but at this time I want him to continue his current program and I want to set up in a few days another LESI which would be his third LESI. He did get very good results from the initial one, less good results from the second. Hopefully this third will accomplish a better long term response. After this has been accomplished, I will see him in follow up.
The record contains video surveillance from Veracity Research Company, dated June 25-26, 2001. The video generally shows the claimant tossing a softball, demonstrating batting motions, occasionally bending and twisting at the trunk, and performing all of these activities for an extended time with no apparent physical difficulty. Respondent No. 1 stopped paying benefits after June 26, 2001.
On July 5, 2001, Dr. Moore signed a form releasing the claimant to return to regular work effective July 6, 2001. The claimant testified that he had called Dr. Moore “So that I could possibly go back to work.” However, the claimant told the respondent-employer he could not perform his full duties, so the employer would not let him come back.
The claimant testified that he began performing part-time work for a friend on September 2, 2001. The claimant testified that he began working full-time for another employer on November 5, 2001.
Mr. Alexander claimed entitlement to additional worker’s compensation. The claimant contended that he was entitled to reasonably necessary medical treatment. The claimant contended that he was entitled to temporary total disability compensation from June 26, 2001 through September 1, 2001, and that he was entitled to temporary partial disability from September 2, 2001 until a date yet to be determined.
Respondent No. 1 contended that it had paid all appropriate benefits. Respondent No. 1 contended that the surveillance videotape showed that the claimant’s healing period had ended, and that the claimant was not entitled to additional benefits. Alternatively, Respondent No. 1 contended that the claimant sustained an aggravation on May 2, 2001, for which Respondent No. 2 was liable.
Respondent No. 2 contended that the claimant had sustained a recurrence, and that there was no objective medical evidence of a new injury or aggravation. Alternatively, if the claimant did sustain an aggravation on May 2, 2001, it was temporary and the claimant had returned to “his previous status.”
Hearing before the Commission was held on May 28, 2002. The claimant testified that he had received a “nerve block” from Dr. Moore in March 2002, which had provided temporary relief. The claimant testified that he was scheduled for another nerve block.
The Administrative Law Judge found that Respondent No. 1 remained liable for the claimant’s medical treatment. The Administrative Law Judge found that the May 2001 bag-lifting incident was a “recurrence” of the first injury. The Administrative Law Judge determined that the claimant’s healing period ended on July 6, 2001, when he was released to return to work by Dr. Moore. The Administrative Law Judge summarized:
[T]he evidence of record shows the claimant was diagnosed with an (sic) herniated nucleus pulposus after a rather dramatic compensable accident cutting trees. Since then, his symptoms have improved with treatment and temporarily worsened with physical activity, such as lifting heavy bags or twisting activities. Dr. Moore’s treatment has been directed to pain management and there is no medical evidence excusing him from work after July 6. The claimant has demonstrated an ability to work and continue participating in sports. Therefore, the claimant is not entitled to additional indemnity benefits. However, the claimant is entitled to additional medical treatment as recommended by Dr. Moore at the expenses of respondents no. 1, and may re-enter another healing period depending on Dr. Moore’s recommendations. There is no medical evidence that the incident lifting bags, during the coverage by respondent no. 2, caused a new injury at a different disc level or that the incident worsened the preexisting herniated nucleus pulposus at L4-L5.
The Administrative Law Judge dismissed Respondent No. 2 as a party to the claim and directed Respondent No. 1 to provide reasonably necessary medical treatment. The Administrative Law Judge found that the claimant’s healing period ended on July 6, 2001, and found that Respondent No. 1 was not liable for temporary disability. Respondent No. 1 appeals to the Full Commission.
II. ADJUDICATION A. Medical Treatment
An employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). The present employee sustained a compensable injury in December 2000. The claimant was assessed with “acute lumbar strain” after falling out of a truck. A February 2001 MRI showed “central herniated nucleus pulposus” at L4-5. Dr. Moore examined the imaging and was not sure there was a herniation, but “It certainly is a bulge at least.” Dr. Moore did note that the claimant fell seven feet from a truck, and he subsequently diagnosed “herniated nucleus pulposus.”
Dr. Moore began a regular treatment regimen in connection with the compensable injury. The claimant returned to work in April 2001. The claimant reported renewed pain after lifting “a 50 pound bag of field dry” during his employment on May 2, 2001. The claimant continued to treat with Dr. Moore. On June 20, 2001, Dr. Moore wrote, “I think this patient is getting closer probably to a point of myelographic survey.” Dr. Moore also planned another steroid injection. The respondents at about this time hired Veracity Research to observe the claimant’s activities.
1. Video Surveillance
The claimant was filmed at a softball practice on June 25-26, 2001. The video indicated no apparent physical problems, and the respondents cut off the claimant on June 26, 2001. However, the Commission normally does not attach more weight to surveillance footage than we do medical reports from treating physicians. For instance, in Salley v. Love Box Co., Workers’ Compensation Commission E913211 E913896 (Sept. 1, 2000), we noted that a claimant’s activities depicted in a surveillance video did not exceed a physician’s medical restrictions. In the instant matter, the claimant argues that his softball activities did not contravene the 25-pound lifting restriction which had been assigned by the treating physician, Dr. Moore. The Commission entered findings similar to Salley, supra, in Sanders v. Dixie Gin, Workers’ Compensation Commission E802819 (June 25, 1999).
The respondents argue that the surveillance video diminishes the claimant’s credibility. We agree with the respondents, at least with regard to the claimant’s contention that he was incapacitated from earning wages. However, the record still shows that the claimant was diagnosed with a herniated disc following his compensable injury. Dr. Moore had planned additional treatment, which included myelography testing, but the respondents cut the claimant off after the June 2001 surveillance. The Full Commission finds that the surveillance video is probative with regard to the claimant’s entitlement to temporary total disability, rather than the claimant’s entitlement to additional medical treatment in connection with the compensable injury. Accord, Davis v. Instrumental Control Service, Inc, Workers’ Compensation Commission E510863 (April 11, 1997).
Therefore, the Full Commission affirms the Administrative Law Judge’s finding that the claimant proved he was entitled to additional medical treatment. The preponderance of evidence before the Commission shows that additional medical treatment as recommended by Dr. Moore is reasonably necessary in connection with the claimant’s compensable injury. We find that the claimant failed to prove he was entitled to additional temporary total disability compensation.
B. Recurrence/Aggravation
The Full Commission affirms the Administrative Law Judge’s finding that the claimant sustained a “recurrence,” for which Respondent No. 1 is liable. Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship. Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996).
The present claimant sustained a compensable injury to his lower back in December 2000. The claimant reported renewed pain after lifting a bag at work in May 2001. Respondent No. 1 resumed providing benefits. Dr. Rutherford subsequently reported that the claimant’s pain emanated “from an industrial injury in December, 2000.” The preponderance of evidence before us indicates that the claimant indeed sustained a “recurrence” in May 2001 of his compensable injury. We therefore affirm the Administrative Law Judge’s decision that Respondent No. 1 remains liable for additional medical treatment as recommended by Dr. Moore.
C. Temporary Disability
An injured employee is entitled to temporary total disability compensation during the time that he remains within his healing period and is totally incapacitated to earn wages. Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). In the present matter, the Administrative Law Judge found that the claimant’s healing period ended on July 6, 2001, “and respondent No. 1 is not liable for additional indemnity benefits based on the current medical evidence of record.” The claimant asks the Full Commission to affirm the Administrative Law Judge’s opinion.
The preponderance of evidence clearly shows that the claimant was no longer incapacitated to earn wages as of June 26, 2001. As we discusse supra, the surveillance video readily shows that the claimant was physically able to perform remunerative labor. The Full Commission affirms the Administrative Law Judge’s decision that the claimant was not totally incapacitated from earning wages after June 26, 2001. Therefore, the claimant failed to prove he was entitled to additional temporary disability, whether or not the claimant remained within his healing period.
Based on our de novo review of the entire record, the Full Commission finds that on May 2, 2001, the claimant sustained a recurrence of his December 21, 2000 compensable injury. The Full Commission finds that Respondent No. 1 is liable for benefits related to the claimant’s compensable recurrence. We find that the claimant proved he was entitled to additional reasonably necessary medical treatment, as recommended by Dr. Moore. We find that the claimant failed to prove he was entitled to additional temporary total disability compensation, because the preponderance of evidence shows that the claimant was not totally incapacitated to earn wages after June 26, 2001. The Full Commission therefore affirms the Administrative Law Judge’s award of additional benefits.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
______________________________ JOE E. YATES, Commissioner