CLAIM NO. E118347
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 16, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by MARK J. FREEMAN, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by JOSEPH E. KILPATRICK, JR. and C. TIMOTHY SPAINHOUR, Attorneys at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed, as modified.
[1] OPINION AND ORDER
[2] Respondents appeal an opinion of the Administrative Law Judge awarding claimant additional benefits.
Q Do you have an opinion as to whether this surgery was necessitated by a fall that occurred three months before you saw her?
A Well, sir, my position is this. You know, if she states that she got along fine with her back, before the fall, and there’s objective evidence of derangement associated here and, as I mentioned, the possible fracture, I would say, yeah, that’s related, based on the veracity of her statements.
Q Okay. She said before this fall her back didn’t hurt, and after the fall her back hurt, is that correct?
A I’m not sure if she said that clearly, but she may have.
Q I mean, is that the basis of your opinion? That’s what I’m trying to find out.
A My opinion about what?
Q Whether the condition you treated was related to the fall?
A Well, it’s not my job to say that their condition is caused by the fall. My job is just to evaluate the patient and render a proper diagnosis and proper treatment. You’re asking questions about liability that really are difficult for me.
However, I will say this, if she says that she got along fine before the fall, she suddenly has back pain, an incapacitating pain, which is corroborated by an examination and a credible pain drawing and objective derangements to the spine, I have to give credibility to her belief that it was caused by the fall.
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[8] The greater weight of the evidence indicates that claimant’s lumbar condition was latent prior to the compensable injury. Claimant presented credible testimony that she had no back difficulties prior to the compensable injury. This testimony is corroborated by that of Jimmy Bowerman, Oneal Hill, and Corinna Bowerman. When a compensable injury aggravates, accelerates or precipitates a disability from a latent prior condition, the entire disability is compensable. Conway Convalescent Center v.Murphree, 266 Ark. 985, 588 S.W.2d 462 (1979). [9] Based on claimant’s credible testimony and the opinion of Dr. Green, we find that claimant has proven by a preponderance of the evidence that her preexisting lumbar condition was aggravated by, and thus, causally related to, the compensable injury sustained in October 1991. [10] When Dr. Green recommended lumbar surgery, respondents required claimant to be examined by Dr. Steven Cathey and subsequently, by Dr. Joe W. Crow. Dr. Cathey opined that surgery was not necessary and Dr. Crow reported that claimant could return to gainful employment. There is some dispute in the record as to just how thorough claimant was examined by these physicians. Notwithstanding the extent of these examinations, we find that the opinion of Dr. Green, as claimant’s treating physician over a prolonged period of time, is entitled to greater weight. Dr. Green opined that surgery was necessary after conservative treatment was unsuccessful. Additionally, claimant’s disability improved significantly following lumbar surgery. Based on this evidence, we find that the lumbar surgery performed by Dr. Green was reasonable and necessary. [11] The Administrative Law Judge awarded temporary total disability benefits from August 3, 1992, the date of the surgery, to September 1, 1993. However, Dr. Green clearly testified that claimant’s healing period ended as of August 10, 1993. Accordingly, we modify the opinion of the Administrative Law Judge to award benefits for temporary total disability from August 3, 1992 to August 10, 1993. [12] Dr. Green opined that based on the anatomical derangement of claimant’s disc, claimant’s permanent anatomical impairment would be 20% to the body as a whole. Based on this evidence, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for a permanent anatomical impairment of 20% to the body as a whole. [13] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant’s preexisting condition was aggravated by the compensable injury; that the lumbar surgery was reasonably necessary and related to the compensable injury; and that claimant is entitled to benefits for a permanent anatomical impairment of 20% to the body as a whole. Additionally, we modify the opinion of the Administrative Law Judge to award benefits for temporary total disability from August 3, 1992 to August 10, 1993. Respondents are directed to comply with the award set forth in the opinion of the Administrative Law Judge, as modified herein. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [14] IT IS SO ORDERED.A Well, I don’t know that — I think her instability could have been worsened by the fall, and that if it was slipped three millimeters, it could now be slipped four millimeters. But what’s really interesting about it is, when I reviewed her x-rays, I think that she even had a little fracture of that hypertrophied facet, which was likely traumatic in origin and which would give a lot of credibility to her complaints that her problem came from a fall.
Now, to me as a doctor, I don’t care where she fell or who was taking care of her or who is responsible for her medical care. Again, my job is to take their word for the history. She fell, she hurt herself, she’s got credible pain complaints that don’t seem to be exaggerated, she’s got objective derangements on the x-ray. So from my standpoint as a doctor — now, I’m not a lawyer, of course, I’m just a doctor — but from my standpoint, that’s clear, a clear case.
Q When you say clear, you’re saying, clearly, the need for her treatment was caused by the fall?
A Well, that’s pretty clear. What’s really clear, from my standpoint as a doctor, is trying to make a correct diagnosis and give her the correct treatment.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[15] Commissioner Tatum dissents.[16] DISSENTING OPINION
[17] I respectfully dissent from the majority’s opinion finding that claimant has proven by a preponderance of the credible evidence that her lumbar condition was a latent condition that was aggravated by her work-related injury; that the treatment rendered by Dr. Green including the surgical procedure was reasonable and necessary; that claimant is entitled to additional temporary total disability benefits from August 3, 1992 through August 10, 1993; and, that claimant is entitled to a 20% to the body as a whole permanent anatomical impairment rating.