CLAIM NO. E115040

DAVID ADAMS, EMPLOYEE, CLAIMANT v. COMMERCIAL INTERIORS, EMPLOYER, RESPONDENT NO. 1, and AMERICAN STATES INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 1, and SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 2, 1995

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE SHERMAN KUSIN, Attorney at Law, Texarkana, Texas.

Respondents No. 1 represented by the HONORABLE RALPH BURGESS, Attorney at Law, Texarkana, Arkansas.

Respondent No. 2 represented by the HONORABLE MARK LONG, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on May 31, 1994. In that opinion and order, the administrative law judge found that the claimant sustained a permanent partial disability in excess of the 22% accepted by the respondents in an amount equal to 68% to the body as a whole. In addition, the administrative law judge found that the Second Injury Fund does not have any liability in this case, and the administrative law judge found that the respondents are liable for psychiatric treatment provided by Dr. William Granger.

[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he sustained any impairment to his earning capacity in excess of the 22% accepted by the respondents as a result of the compensable injury. Consequently, we find that the administrative law judge’s decision in this regard must be reversed. In addition, we find that the Second Injury Fund has no liability. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. Finally, we find that the claimant failed to prove by a preponderance of the evidence that Dr. Granger’s treatment was causally related to his compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed.

[4] The claimant contends that he is entitled to permanent disability compensation as a result of an injury to his low back which he sustained on August 5, 1991. At the time he was employed by the respondent employer, which is owned by his son, and he was working on the construction of a swimming pool at the Little Rock Air Force Base. On the date of the injury, he was helping a subcontractor install a drain line by digging a ditch, and he testified that he fell into the ditch. According to the medical records of Dr. Barry Green, the claimant did not experience anything unusual at the time of this incident, and he continued working. However, Dr. Green indicates that the claimant advised him that he first began to experience difficulties at approximately 2:00 the following morning, and he testified that he was treated at the emergency room of Baptist Hospital the following day, although there are no records in evidence of that treatment. In fact, there are no medical records in evidence pertaining to the treatment received for this injury prior to November 6, 1991, when Dr. Wilbur Giles, a neurosurgeon, performed a decompressive lumbar laminectomy at L2-3 and L3-4.

[5] Significantly, the claimant has a long history of severe low back and neck problems. In 1954, he sustained a compression fracture at L4 when he fell approximately 15 feet as the result of a work-related accident. Due to this injury, the claimant was hospitalized 10 days, and he was in a body cast for approximately 5 weeks, and x-rays subsequently showed evidence of further displacement of the avulsed fragment of the 4th lumbar vertebrae. The claimant was assigned a 10-15% impairment rating as a result of this injury, and he has experienced intermittent low back problems necessitating extensive medical treatment ever since that time. In 1955, he was involved in an automobile accident which aggravated his low back problems and resulted in severe muscle spasm. On January 4, 1958, he sought treatment for complaints of back pain, and x-rays at that time showed bony remains of fragments. Then, in July of 1960, he was treated for complaints of low back pain after being involved in another automobile accident. On October 17, 1974, he was treated for low back problems related to the L4 fracture in 1954, and he was placed on “longterm conservative back treatment.” A medical report dated January 25, 1976 indicates that the claimant could be expected to develop degenerative changes in the area of his lumbar spine.

[6] According to the medical history given by the claimant to Dr. Richard Hirshberg of the Houston Diagnostic clinic in 1983, he experienced two to three episodes of low back problems each year which produced severe muscle spasms and which required bed rest for approximately two weeks, and he related the onset of these problems to the 1954 injury. Moreover, in the early 1980’s, these problems increased in frequency and severity, and the claimant sought treatment from Dr. Freddie Contreras, a neurosurgeon. Dr. Contreras’ January 4, 1982, report indicates that the claimant advised him that his low back pain had been so intense that he had been unable to get out of bed to come to Dr. Contreras’ office for a few days, and Dr. Contreras’s report indicated that the claimant periodically experienced pain in his leg. Dr. Contreras’ neurological examination revealed some evidence of a reflex deficit, and the straight leg raising maneuver was positive bilaterally. Consequently, he performed a myelogram on February 22, 1982. However, this myelogram was normal except for some irregular flow in the mid lumbar area, which Dr. Contreras attributed to the compression fracture in 1954. Based on these findings, Dr. Contreras concluded that “this is a longstanding compression fracture that has altered the various curves in his spine and has produced some degree of a chronic mechanical low back pain type syndrome with a predisposition to acute flare-ups as he has experienced.” Dr. Contreras’s May 24, 1983, report indicates that the claimant had been seen by doctors in Dallas for this problem and that these doctors recommended surgery, but there is no other record of this treatment in the evidence. There are records indicating that the claimant was evaluated by Dr. Richard Hirshberg at the Houston Diagnostic Clinic in Houston, Texas, on December 29, 1983. Dr. Hirshberg’s records indicate that the claimant was complaining of chronic, severe pain which radiated into his left knee, and the report indicates that he admitted the claimant for further work-up. However, there are no other records of Dr. Hirshberg’s treatment at that time.

[7] According to the claimant’s testimony and the medical records, he came under the care of a Dr. Dyll in Dallas at some point. This evidence also indicates that Dr. Dyll performed a laminectomy at L3-L4 and a fusion operation at C5-C6 during 1985 due to instability in his neck. Due to the claimant’s complaints of groin pain, an inguinal hernia was also repaired in 1985. No medical records were submitted pertaining to Dr. Dyll’s evaluation and treatment. Nevertheless, the claimant testified that he did “reasonably well” after-these surgeries. Although he testified at times that he did not experience any low back problems after the surgery and that he did not receive any medical treatment until his subsequent injuries, he also testified at other times that he continued to experience intermittent low back problems after the surgeries.

[8] On August 20, 1987, the claimant was working for David Adams Olympic Pools, a company he owned, when he sustained an injury to his neck. At the time, he was using a fire hose attached to a fire hydrant when workers turned on the water with too much pressure, jerking the claimant and his neck. This injury is the subject of Claim No. E113361, which was consolidated with the claim currently under consideration for the hearing. Two weeks later, on September 5, 1987, the claimant was traveling to Dallas in the company truck to pick up supplies when he was hit from the rear by another vehicle. He continued to Dallas, but he was experiencing such problems when he arrived that he checked into the hospital. He attempted to see Dr. Dyll again, but, when he was unable to do so, he saw Dr. Dyll’s associate. According to the claimant’s testimony, this physician referred him to Dr. John Heuter in Texarkana. Again, the medical records pertaining to these injuries are grossly incomplete. The claimant indicated that he was treated at the emergency room after the August 20, 1987, injury, but there are no records in the evidence pertaining to this treatment. Likewise, there is some indication that he did subsequently come under the care of Dr. John Heuter, but none of Dr. Heuter’s records are in evidence.

[9] Nevertheless, the evidence in the record indicates that the claimant complained of very severe and disabling neck pain after these incidents. Although the claimant testified that he saw Dr. Contreras for these problems, there is only one report from Dr. Contreras in evidence which pertains to these injuries. In this regard, Dr. Contreras’ January 12, 1988, report contains the following:

Mr. Adams comes in today with all kinds of complaints. He complains of pain between his shoulders, pain in his neck, pain in his back, pain in his legs. He is not having any bowel or bladder problems, but just has this pain everywhere. He is currently being evaluated by Dr. Goodman for depression, and is on some kind of anti-depressant medication. He is not exactly sure what. Neurological exam is entirely normal. There is no evidence of weakness, numbness, reflex changes or anything of this nature. He brought with him an MRI Scan that was done following his neck surgery in Dallas. This does show some cervical spondylosis but it certainly does not show a frankly herniated cervical disc. I have told him that I do not think anything is going on, but we will go ahead and proceed with a thoracic MRI just to make sure he does not have a thoracic disc. If this is normal, I will tell him I have nothing to offer him.

[10] The MRI ordered by Dr. Contreras was normal.

[11] The claimant testified that he was involved in another rear end vehicular accident on February 2, 1988. Again, he was treated at the emergency room, but there is no record of this treatment in the evidence. Nevertheless, the claimant testified that the accident was not a “hard wreck,” and he testified that the emergency room physician advised him that he did not see any change in his condition.

[12] The first mention in the medical records of either the August 20, 1987, injury or the vehicular accidents is found in the March 11, 1988, report of Dr. Wilbur Giles, a neurosurgeon. Dr. Gile’s report indicates that the claimant was complaining of neck pain, suboccipital headaches, left shoulder pain, and bilateral arm pain. The report also indicates that the claimant advised him that he did well after the surgeries in 1985 until the August 20, 1987, injury and the vehicular accidents. After examining the claimant, Dr. Giles concluded that he did not have anything to offer neurosurgically. Dr. Giles indicates that the claimant was referred by Dr. Eugene Taylor, but there is no indication in the evidence regarding Dr. Taylor’s involvement with the claimant’s care. Dr. Giles recommended that the claimant see a rheumatologist. Dr. Giles also noted that the claimant appeared depressed, and he noted that the claimant had been diagnosed with depression in the past.

[13] Although the claimant apparently continued to receive regular treatment for these problems, the next record of medical treatment is found in records from the Houston Diagnostic Clinic. On February 6, 1990, Dr. Richard Zimmerman of the clinic indicates that the claimant was complaining of neck pain and headaches which began with the August 20, 1987, accident. Dr. Zimmerman indicates that the claimant had gradually become more disabled and that his business was failing because he was unable to properly supervise because of these physical problems. Dr. Zimmerman also indicated that the claimant was depressed because of these business problems, and he indicated that the claimant was seeing Dr. John Goodman, a neuropsychiatrist. The claimant was also evaluated by Dr. Donald J. Russell of the clinic on that same date, and Dr. Russell’s report indicates that the claimant was also complaining of low back pain as well as the other problems described by Dr. Zimmerman. In this regard, Dr. Zimmerman states that the claimant continues to experience low back pain but that the pain has been tolerable. On February 9, 1990, Dr. Zimmerman determined that the claimant suffered from degenerative joint disease in the neck, and he returned the claimant to the care of Dr. John Goodman.

[14] The claimant’s testimony and the medical records indicate that he was also treated by Dr. Warren Boop for his neck problems until January of 1991, but, again, none of Dr. Boop’s medical records are in evidence. Nevertheless, the claimant also testified that he returned to work after he was released by Dr. Boop. Although he testified that he continued to experience neck problems, he also testified that neither his neck nor his back problems affected his ability to perform his duties with the respondent employer. However, this testimony is not consistent with the severity of the condition he apparently described to his medical providers. In a letter to Dr. Goodman dated January 9, 1991, the claimant described severe pain in his neck and both shoulders, along with numbness in his arms and hand. In addition, he stated that he had trouble walking due to pain in his right hip and both knees. Likewise, a report drafted by Dr. Goodman shortly before the August 5, 1991, injury is inconsistent with the claimant’s contention that he was able to work without difficulty. In this regard, although the medical records indicate that the claimant received substantial treatment from Dr. Goodman, there is only one report from Dr. Goodman in the evidence. However, in that June 17, 1991, report, drafted less than two months before the injury currently under consideration, Dr. Goodman made the following statements:

The required use of medications at this time incapacitates his intellectual function and impairs his judgment. The impairment is sufficient to prevent his being able to drive safely. Thus, he cannot attend to his usual business. The business has been destroyed by his increasingly frequent absences.
He recognizes his impairment and handles the symptoms safely. However, his ability to be gainfully employed has been destroyed.
During the past four years, he has earnestly attended both diagnostic and pain relieving clinics in Dallas and Little Rock. His previous treatments have included both the physical and medical methods. None of these has provided relief for any extended period of time. Eventually, all of the modalities of treatment have been discontinued other than the medical.
Since he suffers from congenital and relatively severe nystagmus, the addition of medications has much more severe effects upon his ability to function than would be expected.
This destruction of his business has aggravated his major affective disorder, severe, without psychosis. More medication has been required for the treatment of that depression. With the increase of antidepressant medications, he has had a greater impairment of motor and intellectual function at those times in which he must be medicated for pain.
There have been only short periods of time in which he is function. That loss of function led to his eventual loss of his estate. That loss of his life’s estate has worsened the depression (major affective disorder).
There are no additional diagnostic, medical, surgical, neurologic, or neuropsychiatric medical work-ups available at this time. All have been explored. Until additional novel treatment modalities are available, he will remain incapacitated most of the time.

[15] According to Dr. Giles’ deposition testimony, he first saw the claimant following the August 5, 1991, injury on September 16, 1991, and Dr. Giles testified that his complaints at that time involved low back pain, bilateral hip and leg pain, and some intermittent numbness in his feet. Unlike the history related by the claimant at the hearing and to other medical care providers, Dr. Giles testified that the claimant related a history of feeling a pop in his groin and back while shoveling dirt on August 5, 1991. When a period of conservative measures did not relieve the claimant’s complaints, Dr. Giles performed a decompressive lumbar laminectomy at L2-3 and L3-4. Dr. Giles’ operative report indicates that he encountered dense scar tissue which was entrapping the dura during this procedure.

[16] Apparently, the surgery relieved the claimant’s complaints for a brief period of time. However, soon afterward, he was again complaining of significant back and leg pain. Consequently, on December 11, 1991, Dr. Giles ordered a MRI to rule out the possibility of a recurrent herniated nucleus pulposus. This MRI did not show a recurrent disc. However, it revealed degenerative disc disease at all levels of the lumbar spine, and it revealed bulging at L1-L2, L2-L3, L4-L5, L5-S1. Although the medical records are sketchy, these findings appear to be consistent with diagnostic findings prior to the August 5, 1991, injury.

[17] Due to the claimant’s continued complaints of leg pain, Dr. Giles referred him to Dr. Charles Schock, an orthopedic surgeon. A CT scan ordered by Dr. Schock showed a lateral protrusion of the intervertebral disc at L2-L3 involving the neural foramen, a protrusion at L4-L5, and degenerative disc disease at all levels. Based on these findings, Dr. Schock recommended a fusion and decompression at L2-L5. Dr. Barry Green, also an orthopedic surgeon, performed an independent medical evaluation at the request of the respondents on May 20, 1992, and Dr. Green assigned a 22% impairment rating based on loss of range of motion and a surgically treated lesion with residual symptoms.

[18] When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker’s future wage earning capacity has been impaired by the compensable injury. In addition to medical evidence demonstrating the degree to which anatomical impairments caused by the compensable injury affect the claimant’s earning capacity, the Commission must also consider other factors, such as the worker’s age, education, work experience, and any other matters which may affect the workers’ future earning capacity. Ark. Code Ann. § 11-9-522 (1987). A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Commission v.Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. PoinsettLumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962);Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979). However, employers are only liable for the results of compensable injuries. Therefore, injured employees are entitled to permanent disability compensation only to the extent that their incapacity to earn wages is causally related to the compensable injury.Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442
(1990); See also, Jerry Rice v. Georgia-Pacific Corp., Full Workers’ Compensation Commission, Nov. 6, 1992 (Claim No. D707050); Charles Mulanax v. Ferguson Farms, Full Workers’ Compensation Commission, Mar. 2, 1992 (Claim No. D408955);Elder Smith v. Ray Construction, Full Workers’ Compensation Commission, Dec. 11, 1991 (Claim No. D804690); FrancisPowell v. Tiffany Stand Furniture, Inc., Full Workers’ Compensation Commission, Jul. 1, 1991 (Claim No. D710675).

[19] In the present matter, the claimant was sixty-four (64) years old at the time of the hearing. He obtained his general education degree, and he completed courses at Texarkana College, including accounting, typing, and real estate. Prior to 1960, he worked in the construction industry as a general laborer. However, from 1960 through July of 1990, he operated his own business which constructed swimming pools and laying floor covering. While operating this business continued to involve manual labor to some degree, he also gained extensive supervisory experience and experience in bookkeeping and the other functions involved in successfully operating a business for almost thirty years. During the apparently short time that he worked for the respondent employer, he was also employed in a supervisory capacity, although he was still required to engage in some manual labor. The claimant used a word processor, and he is a very prolific letter writer. Copies of one of his letters is in the record, and it reveals that the claimant is very articulate.

[20] Significantly, the evidence indicates that the claimant was substantially incapacitated prior to the August 5, 1994, accident. The claimant testified that he did not think that he was physically capable of returning to any type of employment. With regard to his condition after the August 5, 1994, accident, he testified that he experiences significant pain which requires him to take substantial amounts of medication. He also testified that he cannot stand for long periods, that the distance he can walk is restricted, and that he cannot do anything. However, although he testified that his problems are worse since the surgery, we note that each of the difficulties described by the claimant at the hearing are virtually identical in nature and degree to the difficulties described by the claimant in his January 9, 1991, letter to Dr. Goodman. Moreover, these difficulties are also virtually identical in nature and degree to those described by Dr. Goodman in his June 17, 1991, narrative report only shortly before the August 5, 1991, injury. Furthermore, although the claimant indicated in his testimony and in his statements to some medical care providers that he did not experience significant low back problems subsequent to the 1985 surgery and prior to the August 5, 1991, injury, he indicates in his January 9, 1991, letter to Dr. Goodman and in his statements to physicians at the Houston Diagnostic Clinic that he was still experiencing significant and incapacitating low back problems during this period of time, including pain in both lower extremities. Moreover, the underlying abnormalities which apparently are causing the claimant’s current problems were revealed by diagnostic tests prior to the August 5, 1991, injury, and subsequent tests do not indicate that these problems were worsened as a result of the injury.

[21] In short, while the evidence establishes that the claimant may be totally incapacitated from earning, we find that the preponderance of the evidence establishes that he was no more incapacitated after the August 5, 1991, injury, than he was before the injury. In this regard, Dr. Goodman opined in his June 17, 1991, narrative statement that the claimant was totally incapacitated from any meaningful activity. In this regard, the severe disability and incapacity described by the claimant and Dr. Goodman prior to the August 5, 1991, injury is especially interesting considering the fact that the claimant stipulated at the hearing that he did not sustain any permanent disability as a result of the August 20, 1987, injury. This stipulation is especially interesting given the fact that the claimant received extensive treatment for that injury and described substantial physical limitations which he attributed to that injury. We recognize that Dr. Schock opined that the claimant’s problems at all levels were caused or exacerbated by the August 5, 1991, accident. However, we also note that the evidence suggests that Dr. Schock was not fully apprised of the claimant’s extensive history of back problems. Consequently, we find that Dr. Schock’s opinion is entitled to little weight. We also recognize that Dr. Giles opined that the August 5, 1991, incident, as described by the claimant could have caused his problems. However, Dr. Giles opinion is based in part on his understanding that the claimant was essentially symptom free prior to that incident, and the preponderance of the evidence indicates otherwise. Therefore, we also find that Dr. Giles’ opinion is entitled to little weight. We also note that our ability to assess the condition of the claimant’s low back prior to as well as after the August 5, 1991, injury is impeded by the absence of relevant medical records.

[22] Consequently, after considering the claimant’s advanced age, his training and extensive experience in business management and supervision, and the evidence indicating that he was totally incapacitated from earning prior to the August 5, 1991, injury, we find that the claimant failed to prove by a preponderance of the evidence that he sustained any incapacity to earn as a result of the August 5, 1991, injury in excess of the 22% permanent physical impairment accepted by the respondents. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. In addition, in accord with this decision, we find that the preponderance of the evidence fails to establish that the August 5, 1991, injury combined with the claimant’s preexisting disability or impairment to result in a greater degree of disability, we also find that the Second Injury Fund does not have liability in this case. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed.

[23] We also find that the claimant failed to prove by a preponderance of the evidence that the psychiatric treatment provided by Dr. William Granger was causally related to the August 5, 1991, injury. In this regard, the claimant has the burden of proving by a preponderance of the evidence that his psychological or emotional condition is causally related to his compensable injury. Henson v. Club Products,22 Ark. App. 136, 736 S.W.2d 290 (1987); Boyd v. GeneralIndustries, 22 Ark. App. 103, 733 S.W.2d 750 (1987). While the compensable injury need not be the sole cause of claimant’s psychological condition, the claimant must at least show that the compensable injury was a “substantially contributory” cause of his psychological condition. See,City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).

[24] In the present matter, the claimant contends that he is suffering from depression which was caused by or exacerbated by the August 5, 1991, injury, and Dr. Granger provided treatment for this condition. However, the claimant also has a long history of problems with depression. As early as 1955, the claimant complained of “nervous spells” which were accompanied by headaches. Moreover, the medical records in the record show that the claimant was suffering from a substantial depression shortly after the 1987 injury, and the records indicate that he received extensive treatment for this depression from Dr. Goodman. Moreover, although the claimant has suggested that his business failed due to physical problems caused by the 1987 injury, the evidence indicates that the claimant experienced difficulties with the Internal Revenue Service due to its contention that he failed to pay over $80,000.00 in taxes in 1985, prior to either injury. Due to these problems and the claimant’s inability to properly operate his business, he filed for protection under Chapter 11 of the Bankruptcy Code in June of 1990, and he ceased doing business in July of 1990. Significantly, Dr. Goodman attributes the claimant’s depression to the demise of his business, but this occurred over one year before the August 5, 1991, injury.

[25] Consequently, we find that the claimant’s depression was caused by conditions and stressors which arose prior to the August 5, 1991, injury. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that his depression and need for psychiatric treatment was causally related to the August 5, 1991, injury. Thus, we find that the claimant failed to prove by a preponderance of the evidence that the respondents are liable for Dr. Granger’s treatment, and we reverse the administrative law judge’s decision in this regard.

[26] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any permanent disability compensation in excess of the 22% accepted by the respondent employer, and we find that the Second Injury Fund does not have liability in this case. In addition, we find that the respondents are not liable for services provided by and at the direction of Dr. Granger. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed in part and reversed in part.

[27] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[28] Commissioner Humphrey dissents.