CLAIM NO. F112313
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 29, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an Administrative Law Judge’s opinion filed May 29, 2002. The Administrative Law Judge found that the claimant failed to prove he sustained a compensable injury on October 15, 2001. After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge. We find that the claimant proved that he sustained a compensable injury, for which the claimant is entitled to reasonably necessary medical treatment and temporary total disability compensation from October 16, 2001 through January 9, 2002.
I. HISTORY
Ricky Wayne Bean, age 40, first reported back pain after an October 1992 motor vehicle accident. A physician’s impression was “acute cervical and lumbar strain,” and Mr. Bean reported complete recovery on or about October 27, 1992. The claimant reported in December 1992 that “he bent over to pick up some tools and was unable to get back up due to the pain in his back.” The claimant was treated conservatively.
An orthopaedist, Dr. Douglas W. Parker, Jr., wrote in April 1993:
The patient is here today in follow-up. The patient at this time has reached a treatment plateau. The patient has well-documented intervertebral disc derangement of L4-5 and L5-S1 as documented on MR scan performed 12/14/92 and right paracentral disc herniation at L4-5 and central disc herniation at L5-S1. The patient’s current physical impairment to the back is 15% to the back and therefore the body as a whole. He cannot return to a job which requires heavy lifting, pushing, pulling or repetitive bending. . . . He is not now or expected in the future to be a surgical candidate.
The claimant continued to periodically follow up for his lumbar pain with Dr. Parker and Dr. Michael R. Westbrook. The claimant was assessed with “Intervertebral disc derangement” in May 1993, July 1993, August 1993, April 1994, and May 1995.
Dr. Robert C. Thompson reported in August 1997:
I think that decompression of the foramina at 4-5 and 5-1 left and right in the lower most segments accomplished by a laminectomy of the L5 lamina would permit satisfactory exploration of this area, decompression of the cord in general, foraminotomies as required and lead to probable improvement of his pain. It is not likely this would change much of his instability, broad-based gait and so forth.
The record indicates that Dr. Thompson performed surgery in September 1997. Dr. Thompson testified, “we did laminotomy and excision of herniated disk at two levels, L4-5 and L5-S1, both of them on the left side.” Dr. Thompson released the claimant to return to light work in October 1997.
The claimant presented to Crawford Memorial Hospital on October 13, 2001: “Pt states that he was walking this am and coughed. And began having burning/sharp pain to back of left foot radiating to left hip. Pt standing at triage.” A doctor’s diagnosis was “pain (no known injury).” A lumbar spine x-ray taken October 13, 2001 showed “Degenerative disc disease of the lower 2 levels.” A physician’s impression was “Acute Sciatica L.” The claimant received an injection, was prescribed medication for pain, and was discharged from the hospital the same day, October 13, 2001.
The claimant testified that he went fishing with Lynn Ellison the next day, October 14, 2001. Mr. Ellison testified that he and the claimant went “jig fishing” on October 14, 2001, and that this sporting activity involved sitting, standing, and bending. Mr. Ellison testified that the claimant exhibited no physical problems with his back.
The parties stipulated that the employer-employee relationship existed on October 15, 2001. The claimant testified:
Q. Mr. Bean, did anything unusual happen to you on October 15 of 2001 while in the employment of Van Buren Tire Company?
A. Yes. . . . I hurt my back fixing a tractor flat.
Q. Tell us specifically what you were doing.
A. I was breaking it down using a tire bar, trying to pull the tire off the wheel. When I did, I felt something pull in my back. . . .
Q. What made you think at that time that you knew immediately that you had injured yourself?
A. Because when I did it, I felt something pull in my back, and when it did it shot a pain plumb to my foot and it’s been numb ever since.
The claimant testified that he reported the specific incident to James Henson and Keith Zimmerman. Mr. Zimmerman testified, “I heard him say that, you know, he had hurt his back on a tractor tire — working on a tractor tire.”
The record indicates that the claimant presented to Dr. Thompson on October 17, 2001. A handwritten note on a progress sheet stated, “On 10/15/01, pt re-injured his LB changing a tractor tire. He knew he was hurt immediately with pain numbness down his L leg into his foot. RCT did L L4-5, L5-S, HNP on 9/8/97, doing well until injury.” Dr. Thompson testified that his assistant entered this note. Dr. Thompson noted on October 17, 2001:
Patient was injured changing a tractor tire, and has recurrence of the severe pain in the back radiating down the left leg, numbness of the great toe and foot, which actually persists up his leg. We will schedule him for a new MRI. . . .
IMPRESSION: Recurrent herniated disc, probably at L4-5 left. A new MRI is definitely indicated.
The respondents initially accepted the claim as compensable, providing medical treatment and temporary total disability compensation.
A lumbar spine MRI was taken on October 18, 2001, with the following impression:
1. Recurrent central left paracentral disc protrusion at L4-5 with post laminectomy changes on the left.
2. Predominately central disc protrusion at L5-S1 with enhancement surrounding the recess and nerve root on the left and probable recurrence of the left lateral recess of disc protrusion with recess stenosis.
Dr. Thompson noted on October 22, 2001:
Patient’s MRI definitely shows a recurrence of L4-5 and L5-S1, with more scarring at the 5-1 level. Both are protruding, and I think some of each is causing his difficulties. He has a lot of numbness and pain radiating down his left leg. We talked about the possibility of surgery. He is going to think about it. . . . I really think it is impossible for him to go back to the heavy work that he has gone back to. He states that it is all he knows.
Dr. Thompson planned to perform surgery in November 2001, but surgery was cancelled. Dr. Thompson noted on January 9, 2002:
Patient’s surgery has been delayed again for uncertain reasons. Apparently, he is anxious to go back to work. It should be understood that the patient was set up for surgery, which I really feel is indicated particularly in view of his severe neurological problems. . . . I think we could allow him to work provided he does not do any heavy lifting, carrying, prolonged standing or walking. . . . I am disappointed that we are not able to proceed with the planned surgery to correct the known herniated disc at this time. A full discussion regarding these issues will be carried out with the patient at which time he wishes to obtain his release.
Mr. Bean claimed entitlement to additional worker’s compensation. The claimant contended that he sustained a compensable injury while changing a tractor tire on October 15, 2001. The claimant contended that he was entitled to temporary total disability compensation from October 16, 2001 through January 9, 2002. The claimant contended that he was entitled to reasonably necessary medical treatment and an attorney’s fee. The respondents controverted the claim.
The parties deposed Dr. Thompson on April 23, 2002. Dr. Thompson testified that he was unaware the claimant had gone to an emergency room on October 13, 2001 before presenting to him on October 17, 2001. The respondents’ attorney questioned Dr. Thompson with regard to the claimant’s October 13, 2001 emergency room visit:
Q. Well, let me ask you, the symptoms of burning, sharp pain down to the left foot, is that similar to what you saw him for on October 17th?
A. Yes.
Q. And that sounds like something that could be related to a disk, does it not?
A. Yes.
Q. Doctor, with this type of history, if these are indeed his symptoms on October 13th and he has a lifting incident on October 15th, can you relate the actual disk herniations and the need for the surgery to either one of these instances?
A. I don’t know how to precisely quantitate which of what instances ultimately precipitate surgery. This gentleman has had a known herniated disk for a very long time at two levels. That’s the problem. . . .
Q. Well, I’m talking about the actual condition, the disk herniation that you’re wanting to do surgery on?
A. It’s been there for eight years, I don’t see how you would talk about it.
Q. All right. So the lifting incident did not cause the problem that you’re wanting to do surgery on?
A. The problem was in existence eight years earlier. . . .
The claimant’s attorney queried Dr. Thompson:
Q. Mr. Bean testified that — well, that the 13th was on a Saturday and that by Sunday he was completely asymptomatic, and that he and a friend of his actually went fishing on Sunday, and that he considered himself recovered from this episode. If, in fact, it is correct that his symptoms disappeared within 24 hours, is there any way that you could diagnose that he had a herniated disk on October the 13th?
A. No, if the symptoms truly disappeared in that short of time, it’s highly unlikely that he had a herniated disk as the cause of those symptoms. . . .
Q. All other things being equal, Doctor, is it more likely that handling a truck tire would herniate a disk or just coughing would herniate a disk? In terms of probabilities, which is more probable?
A. The truck tire. . . .
Q. If the symptoms that Mr. Bean presented to the emergency room on January — I’m sorry, on October the 13th of 2001 truly cleared within 24 hours, do you have an opinion in regard to whether the tire incident on October 15th likely caused the herniated disk?
A. Based on the comparison of the two events, the tire incident is more likely —
Q. Because?
A. Within a reasonable medical probability is far more likely to have caused a new herniated disk.
After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove he sustained a compensable injury to his back on October 15, 2001. The Administrative Law Judge stated, “My decision is based in large part upon the fact that claimant sought medical treatment from the hospital emergency room following an incident at home on October 13, 2001.” The Administrative Law Judge did not believe the claimant’s testimony “that he was asymptomatic less than 48 hours later when he alleges he injured himself shortly after beginning work on Monday.” The Administrative Law Judge found that the claimant failed to prove his disc herniations were causally related to the October 15, 2001 specific incident. The Administrative Law Judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.
II. ADJUDICATION
The claimant contends that he sustained a compensable injury on October 15, 2001. The claimant has the burden of proving the compensability of his claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). For an accidental injury to be compensable, the claimant must show that he sustained an accidental injury; that the injury caused physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16).
In the present matter, the Full Commission finds that the claimant proved by a preponderance of the evidence that he sustained a compensable injury on October 15, 2001. The claimant testified that he felt a pull in his back while using a tire bar in the course of his employment. Keith Zimmerman corroborated the claimant’s testimony. The medical records from Dr. Thompson’s clinic corroborate the claimant’s testimony. Dr. Thompson specifically noted that the claimant was injured while changing a tractor tire at work. Dr. Thompson’s impression was “recurrent herniated disc” at L4-5, and a subsequent lumbar MRI confirmed Dr. Thompson’s impression of this objective medical finding.
The dissent would affirm the Administrative Law Judge’s finding that the claimant was not a credible witness. The Administrative Law Judge essentially determined that the claimant’s symptoms began at home on October 13, 2001, and that the October 15, 2001 workplace incident merely increased those symptoms. The determination of witnesses’ credibility and the weight to be given their testimony are matters exclusively within the province of the Commission. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). An Administrative Law Judge’s findings on credibility are not binding on the Full Commission. Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).
We recognize that the claimant presented to a hospital on October 13, 2001, two days before the October 15, 2001 specific incident. The claimant stated on October 13, 2001 that he felt a pain in his back while walking at home, with no known injury. The claimant was prescribed medication for pain and was discharged on October 13, 2001. The claimant testified that his symptoms dissipated, and that he was able to engage in physical activities the next day. The Commission may not arbitrarily disregard the testimony of any witness. Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). The claimant’s testimony was corroborated by Lynn Ellison.
In addition, Dr. Thompson testified that it was “highly unlikely” that the claimant’s at-home activities on October 13, 2001 were the cause of the claimant’s recurrent herniated disk. Dr. Thompson found it probable that the disk herniation he observed was caused by the claimant’s workplace activities on October 15, 2001. Dr. Thompson further testified that the October 15, 2001 specific incident “Within a reasonable medical probability is far more likely to have caused a new herniated disk.” The respondents suggest that the recurrent herniated disk was actually caused at home on October 13, 2001. Based on the evidence before the Commission, we find the respondents’ suggestion in this regard to be based on speculation and conjecture, which can never be substituted for credible evidence. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980).
The Commission is entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and the medical evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467
(2000). Based on a preponderance of the evidence, we attach significant weight to Dr. Thompson’s opinion that the claimant’s recurrent herniated disk was caused by the October 15, 2001 specific incident. The Full Commission finds that Dr. Thompson’s opinion was based on an accurate history provided him by the claimant, who was a credible witness. We also find that Dr. Thompson’s opinion was stated within a reasonable degree of medical certainty.
Based on our de novo review of the entire record, the Full Commission reverses the opinion of the Administrative Law Judge. We find that the claimant proved he sustained a compensable injury on October 15, 2001, for which he was entitled to reasonably necessary medical treatment provided in connection with the compensable injury. Based on the claimant’s work duties for the respondents, the claimant’s credible testimony, and the expert medical reports of Dr. Thompson, we find that the claimant proved that he remained within his healing period and totally incapacitated to earn wages from October 16, 2001 through January 9, 2002. The claimant therefore proved entitlement to temporary total disability compensation from October 16, 2001 through January 9, 2002.
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 $500.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 2002).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I respectfully dissent from the majority opinion. The Administrative Law Judge was in the best position to observe the demeanor of the claimant and he obviously found the claimant’s testimony to be less than credible. At the October 13 emergency room visit, the claimant described the pain in his back as severe, sharp, and radiating. An MRI and a follow-up with an orthopedic surgeon were recommended by emergency room personnel that day. The Administrative Law Judge found the claimant’s testimony that he became asymptomatic within hours after that visit to be “too convenient.” He found the witnesses who corroborated the disappearance of symptoms, the claimant’s wife and friend, to be biased. Further, the witness who offered testimony to corroborate the occurrence of an incident at work on October 15 was not even present at the time of the alleged incident, but merely related what the claimant had told him.
I disagree with the majority’s findings that the medical records of Dr. Thompson corroborate the claimant’s testimony and that Dr. Thompson’s opinion was based on an accurate history provided by the claimant. Dr. Thompson clearly stated during his deposition that the claimant had not told him about the October 13 emergency room visit. Dr. Thompson also testified that the results of the MRI he had performed were compatible with the claimant’s reported symptoms on October 13, and that the October 13 and October 17 symptoms were similar. Because I agree with the Administrative Law Judge’s analyses of the facts and evidence in this case, I would affirm his finding that the claimant failed to prove by a preponderance of the evidence that he suffered a compensable back injury while employed by the respondent on October 15, 2001. Therefore, I must respectfully dissent from the majority opinion.
_____________________________ JOE E. YATES, Commissioner