CLAIM NO. F108243
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 17, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE MARK MARTIN, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE NEAL HART, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent appeals a June 20, 2002 opinion of the Administrative Law Judge finding that claimant’s back difficulties subsequent to April 2001 are causally related to the January 4, 2000 work-related injury.
Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). After our de novo review of the entire record, we find that claimant has met his burden of proof and, accordingly, affirm the opinion of the Administrative Law Judge.
Initially, it is noted that the only issue argued by respondent on appeal is whether claimant’s condition subsequent to April 2001 is causally related to the compensable injury. Respondent has not argued that the Administrative Law Judge erred in any other finding.
Claimant sustained an admittedly compensable lumbar injury on January 4, 2000. This injury resulted in a herniated nucleus pulposus at L5-S1. Dr. Arthur Johnson, a neurosurgeon, has been claimant’s treating physician. Dr. Johnson performed the first surgery in August of 2000 in the form of a lumbar diskectomy. Thereafter, claimant suffered significant pain and was diagnosed with failed back syndrome.
Claimant returned to light duty work with the employer. However, he continued to experience debilitating symptoms. After additional diagnostic tests, including repeat MRI scan, electrodiagnostic studies, and a discogram, Dr. Arthur performed a fusion of claimant’s lumbar spine in October 2001. Claimant has since returned to work for the employer in a sedentary position.
Claimant has the burden of proving by a preponderance of the evidence that his physical difficulties subsequent to April 2001 (when respondent suspended the payment of benefits) are causally related to the prior compensable injury. Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974). Respondent argues that there must be some sort of independent intervening cause of claimant’s condition. However, there is insufficient credible evidence of an independent intervening cause in this case.
If there is a causal connection between the primary compensable injury and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of claimant which is unreasonable under the circumstances. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998); Guidry v. J R Eads Const. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).
Respondent first points to an incident in April 2001. Prior to clocking in for work with the employer, claimant was in a locker room putting on his uniform, when the bench flipped over and he fell down. Respondent asserts that claimant was not performing employment services. However, the employer furnished the locker room and required claimant to put on the uniform prior to beginning his job duties. Even if claimant actually sustained an injury during this incident, he was performing employment services at the time. Further, and more importantly, claimant credibly testified that he experienced only a temporary worsening of his symptoms. He added that he had returned to his pre-incident condition after about 24 hours. Thus, claimant’s current difficulties were not “triggered” by this incident and his condition remained causally related to the prior compensable injury.
Respondent also questioned claimant about falling at home. Claimant acknowledged that he had fallen, and had gone to see the doctor on occasion after these falls. However, claimant insisted that he only consulted the doctor to learn why he fell, not to receive treatment. There is insufficient evidence of any causal connection between these falls and claimant’s lumbar difficulties. Additionally, claimant presented credible testimony that there are no nonwork-related explanations for his back condition.
Finally, the only medical opinion in this case was given by Dr. Arthur Anderson in a report dated February 5, 2002.
This letter is concerning the surgery that was performed on Mr. Dean E. Bryant, the transforaminal lumbar interbody fusion. The patient initially had a lumbar diskectomy at L5-S1 on 8-16-00. He continued to have a significant amount of pain that had gotten progressively worse since the initial surgery. Work up following initial pain and initial surgery did indicate that the patient continued to have discogenic type pain from the L5-S1 level, secondary to ruptured annulus. This is a definite connection between the initial problem that the patient had as it is located at the same disc space as the original surgery was performed. The discogram that was performed confirmed that the pain was indeed coming from the L5-S1 level and therefore surgery was definitely indicated for treatment of this discogenic pain by removing the entire disc and fusing this level, both anterior and posterior approach. This problem was a definite surgical indication.
Based on the above evidence, claimant has proven by a preponderance of the evidence that his back condition subsequent to April 2001 is causally related to the prior compensable injury. Accordingly, the opinion of the Administrative Law Judge is affirmed. Respondent is directed to comply with the award set forth therein. 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. 2002). For prevailing on this appeal before the Full Commission, 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
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I respectfully dissent from the majority opinion.
The claimant’s initial surgery performed in August 2000 repaired a herniated disc at L5-S1. A follow-up MRI performed in February 2001 showed “no evidence of recurrent disc herniation and no significant nerve root compression,” and the claimant was released by Dr. Johnson in April 2001. The evidence reveals that after this time the claimant was involved in several falls at his home which required him to seek medical care. I do not find credible the claimant’s testimony that these repeated falls, which caused him to seek medical treatment, did not cause any injury, as diagnostic testing after these episodes revealed a disc herniation at L5-S1. This injury was clearly new, as it was not revealed in the February 2001 MRI. Based on these findings, I conclude that the claimant’s need for medical treatment following April 2001 was not related to his compensable injury of January 2000 and therefore that the claimant is not entitled to additional benefits. Therefore, I respectfully dissent from the majority opinion.
_____________________________ JOE E. YATES, Commissioner