CLAIM NO. F005443
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 16, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed
OPINION AND ORDER
Respondents appeal an award of benefits for a back injury claimant sustained while employed by respondent employer filed March 3, 2001. Respondents contend that claimant failed to prove by a preponderance of the evidence that he sustained a compensable back injury supported by objective medical findings. Based on our de novo review of the record, we find that claimant has met his burden of proof, and hereby affirm Administrative Law Judge’s decision.
Claimant injured his back on May 1, 2000, while installing a lavatory for respondent employer. He testified that at approximately 8:30 or 9:00 a.m. he was kneeling to install a lavatory and felt a pop in the middle of his back. Claimant informed supervisors Bobby Walton and Bart Stark of his injury and continued to work until about 11:00 a.m. Claimant was later seen that day by Dr. Smart, his family physician.
Claimant was eventually referred to and treated by Drs. Thomas Rooney, John Wilson, Jim Moore, and Reginald Rutherford. He stated that he continues to have pain and numbness in his right leg.
Claimant has a history of two ruptured discs (which were repaired) in his low back from a nonwork-related injury. He testified that symptoms from that condition prior to corrective surgery included pain and numbness in his left leg. Claimant further stated that prior to his May 1, 2000 injury, his right leg was asymptomatic and he had no pain after his disc surgery. Claimant also had prior neck surgery.
Respondents argue that claimant failed to prove that he sustained a compensable injury on May 1, 2000. To be compensable, an injury must be established by medical evidence supported by objective findings, which are defined as findings that cannot come under the voluntary control of the patient. Continental Express,Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). Ark. Code Ann. § 11-9-102(5) (Supp. 1999) further provides in pertinent part:
(a) “Compensable injury” means an accident injury causing internal or external physical harm to the body . . . arising out of an in the course of employment which requires medical service or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.
For claimant to establish a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the following requirements of Ark. Code Ann. § 11-9-102(5)(a)(i) (Supp. 1999) must be established:
(1) Proof by a preponderance of the evidence of an injury arising out of and in the course of employment;
(2) Proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death;
(3) Medical evidence supported by objective findings as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and
(4) Proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1999). If claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of a claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
Objective findings are those findings which cannot come under the voluntary control of the patient. Claimant’s medical records indicate that Dr. Wilson noted muscle spasms on June 14, 2000. Dr. Wilson further noted that claimant walks with an antalgic bent forward gait and suffered from muscle spasms and restriction of motion of the lumbar spine. He also noted that claimant complained of “pain in his mid-back radiating down toward his lower back.” Dr. Wilson again noted muscle spasms to claimant’s back on October 17, 2000.
Respondents argue that claimant’s spasms to his lumbar spine did not constitute objective evidence of injury to his thoracic, where he apparently complained of pain. However, claimant testified that he felt pain in the middle of his back, specifically around the fourth or fifth rib from the bottom of his rib cage. This Commission finds that claimant’s described injury and pain is located in the region in which the muscle spasm was found to exist. The thoracic spine is located in the chest area, and the lumbar spine is located between the thoracic and pelvic area. Accordingly, we find that the claimant has provided objective medical evidence of the existence of a compensable injury.
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, 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.
______________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
MIKE WILSON, Commissioner
I agree with the principal opinion’s findings. I write separately to address an argument in the dissenting opinion.
As I understand the dissenting opinion’s argument, the dissenting opinion argues that the claimant asserts that he sustained an injury to the thoracic spine. The dissenting opinion acknowledges that there are objective medical findings of muscle spasm in the lumbar spine in the record of this case, but the dissenting opinion asserts that there are no objective medical findings of any injury in the thoracic spine. After reviewing the claimant’s contentions in the prehearing order and at the start of the hearing, I really do not see where the claimant has ever asserted that the back injury he sustained was to the thoracic spine. Moreover, based on my review of the reports of various physicians in this case, I also note that the symptoms relayed by different physicians at different times appear to encompass various ascribed regions in the mid to low back, including the thoracic and the lumbar spine.
Specifically, I note that a chart note from Rebsamen Medical Center on May 15, 2000 indicates that the claimant was experiencing mid-back pain. Dr. Wilson’s June 15, 2000 letter indicates pain in the claimant’s “mid-dorsal spine.” Dr. Wilson’s June 21, 2000 office note indicates that the claimant continues to have pain in his dorsal spine, the claimant has some pain down his right leg, and that the claimant has tenderness but no muscle spasm. During a July 19, 2000 functional capacity evaluation, the claimant indicated that he had of pain in the center of his back that radiated down his right leg to his foot. In his July 26, 2000 neurosurgical evaluation, Dr. Moore indicates that the claimant reported having developed a popping sensation in the “upper lumbar/lower thoracic region,” and the claimant indicated that he had experienced persistent pain since that time developing from the back, radiating to the right hip, and into the right foot. Dr. Moore’s August 16, 2000 letter indicates that on right lateral bending, the claimant complained of pain in the upper lumbar/lower thoracic region. Dr. Wilson’s September 21, 2000 letter suggests that Dr. Wilson is not aware of any objective findings in this case sufficient to support pain management. However, shortly thereafter on October 17, 2000, Dr. Wilson indicated that examination revealed muscle spasm and restriction of motion of the claimant’s lumbar spine. Due to the claimant’s persistent muscle spasm and restriction of motion in his back, Dr. Wilson continued the claimant’s prior restrictions.
A May 2, 2000 progress note from Jacksonville Medical Clinic diagnoses the claimant with back pain/thoracic strain. Another progress note from the Jacksonville Medical Clinic dated May 9, 2000, indicates the claimant had a tender spinous process and ligament at the T-12 L-1 level and also had diffuse muscle tenderness. The claimant was diagnosed with thoracic back strain under these conditions. A May 10, 2000 progress note from McCain Orthopedic Clinic describes the claimant’s incident at work as the claimant having felt something “give in his mid and lower thoracic area.” This report describes the claimant’s tenderness at the T7-8 level of the spine. However, a subsequent note from McCain Orthopedic Clinic dated May 18, 2000 indicates that the claimant’s pain starts around T7-8 and goes down the lower back into the right hip. According to this report, the claimant had “exquisite tenderness” to light touch in the skin throughout the lower thoracic and lumbar areas. A May 15, 2000 emergency room report from the Rebsamen Medical Center indicates that the claimant was experiencing “exquisite tenderness” to very light skin palpation to the paraspinal muscles in the T7-12 region of the spine.
In short, the various medical reports from various physicians describe the claimant’s persistent but diffuse symptoms of back strain as originating in various portions of the back including the mid-thoracic spine, the lower thoracic spine, and the upper lumbar spine. The claimant has been treated for what appears to be a persistent strain-type injury, and there is no question that there are objective medical observations of muscle spasm in the record consistent with the claimant’s diagnosis of a strain-type injury. Although the dissenting opinion attempts to assert that the claimant is seeking benefits for an alleged thoracic spine injury, it appears to me that the claimant’s symptoms as documented above have encompassed both the thoracic and lumbar areas, and under these circumstances, I am not persuaded by the dissenting opinion’s argument that Dr. Wilson, in fact, observed objective medical findings of muscle spasm in a region of the claimant’s back separate and apart from the area of the back in which the claimant has sustained his strain-type injury. Instead, the claimant has established his back strain injury with objective findings observed by Dr. Wilson.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
I must respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that the he sustained a compensable injury on May 1, 2000. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
Dr. Thomas Rooney, an orthopedic surgeon, ordered a bone scan, which did not show anything abnormal. On May 15, 2000, the claimant was seen in the emergency room at Rebsamen Regional Memorial Center. The evaluation recognized the claimant’s normal bone scan, negative straight leg raising, lack of edema or ecchymosis, but found “exquisite skin tenderness to very light skin palpitation.” The impression was musculoskeletal back strain. The claimant refused admission to the hospital for pain control. On June 5, 2000, the claimant was evaluated by Dr. John Wilson. This examination only revealed tenderness. The claimant saw Dr. Wilson again on June 7, 2000, with only the indication of tenderness. Dr. Wilson indicated in his medical reports that the dorsal spine films and bone scan were both normal.
On June 14, 2000, the claimant was again evaluated by Dr. Wilson. Dr. Wilson noted a “tremor” and “antalgic bent forward gait” and “muscle spasms and restriction of motion of thelumbar spine.” Dr. Wilson opined that the claimant seemed to have a great deal of subjective complaints in excess of Dr. Wilson’s physical findings. This is the first indication that we have of muscle spasms, but they are noted in the claimant’s lumbar spine, not his thoracic spine, where the claimant contends he was injured on May 1, 2000. These spasms apparently were in the location of the claimant’s prior lumbar surgery.
On June 21, 2000, the claimant saw Dr. Wilson. Dr. Wilson noted good range of motion in the claimant’s lumbar spine with tenderness. He noted “no muscle spasm”. The straight leg raising tests were negative and the neurological examination was normal. Dr. Wilson recommended a functional capacity evaluation which was started on July 20, 2000. The testing only lasted one day because the claimant was self-limiting with complaints of pain. The physical therapist noted that the claimant exhibited exaggerated pain behaviors. The physical therapist noted “client exhibited exaggerated pain behaviors, including long pauses between lifts, shaking of extremities, and breathing heavily with minimal exertion.” The therapist further noted “subjective complaints of pain with no significant change in objective signs.” The claimant failed to perform on the second day of the testing. It was the physical therapist’s impression that the claimant’s
“subjective complaints did not correlate well with objective findings due to the inability to determine accurate maximum lifting capabilities because of the claimant’s self-limiting on seven of ten tests; the claimant’s demonstration of 3/5 Waddel’s signs for non-organic source of symptoms; and the claimant’s lack of logical and consistent relationship between symptoms and activities.”
The claimant’s inability to give his full effort resulted in the physical therapist being unable to make any recommendations or accurate assessments of the claimant’s capabilities.
The claimant eventually came under the treatment of Dr. Jim Moore, a neurosurgeon. Dr. Moore reviewed the claimant’s records and x-rays and examined the claimant. Dr. Moore noted no palpable spasm when he examined the claimant. He recommended an EMG/NCV test to determine whether additional investigation was necessary. Dr. Reginald Rutherford performed this test on August 14, 2000. The results were consistent with the claimant’s prior surgery and did not indicate any new nerve root compression.
On August 16, 2000, Dr. Moore released the claimant stating that he did not believe any further treatment was necessary. On August 23, 2000, Dr. John Wilson again evaluated the claimant and released him to return to work without any objective evidence of permanent impairment. Dr. Wilson released the claimant with a twenty pound lifting, pushing and pulling restriction.
The claimant returned to Dr. Wilson’s office on September 13, 2000, complaining of pain in his back, right leg, and knee. This examination revealed no spasm and a normal neurological examination. Dr. Wilson released the claimant prn and stated that there was no evidence of nerve damage. In a subsequent report, Dr. Wilson indicated that pain management was not necessary since the claimant’s complaints of pain were purely subjective. On October 17, 2000, Dr. Wilson again examined the claimant and noted that there was muscle spasm and a restriction of he lumbar spine. He also found no objective evidence of a neurological deficit.
In my opinion, the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on May 1, 2000, supported by objective findings. Objective findings are defined at Ark. Code Ann. § 11-9-102(16) (Supp. 1999) as:
. . .those findings which cannot come under the voluntary control of the patient. When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.
The claimant has sought treatment from many different doctors and there has been no record of any objective findings of injury. The claimant relies on the examination of Dr. Wilson on June 14, 2000, where Dr. Wilson noted a muscle spasm. However, I would note that that muscle spasm was in the claimant’s lumbar spine. The claimant was seeking treatment for an injury to his thoracic spine. In addition, Dr. Wilson had noted on the claimant’s June 14 visit that the claimant seemed to be exhibiting a great deal of subjective complaints in excess of his physical findings.
The claimant has been seen by numerous physicians and has had normal x-rays and a normal bone scan. The claimant was examined by Dr. Wilson on two separate occasions before any spasm was found and this spasm was identified in the lumbar spine.
When I consider all the evidence, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury supported by objective findings. Therefore, I must dissent from the majority’s opinion.
_______________________________ MIKE WILSON, Commissioner