CLAIM NOS. F008967, F009694, F105066
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 14, 2003
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 No. 1 represented by HONORABLE FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by HONORABLE JAMES ARNOLD, II, Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
Respondent No. 1 appeals from a decision of the Administrative Law Judge filed December 21, 2001, which found that:
The claimant sustained a compensable injury to her low back on April 8, 2000, and suffered recurrences of her compensable injury on July 6, 2000 and May 6, 2001;
Respondent No. 1 had coverage on April 8, 2000;
Respondent No. 2 had coverage on July 6, 2000;
Respondent No. 1 has accepted a 7% impairment rating;
Respondent No. 1 is responsible for the cost of medical treatment for the claimant’s compensable injury, and temporary total disability benefits from July 20 through August 20, 2001;
The claimant is entitled to a one-time change of physician to Dr. Sutterfield;
Respondent No. 1 has controverted the claimant’s entitlement to medical treatment and benefits. They should be given credit for benefits which they have previously paid to the claimant, but are ordered to pay the maximum statutory attorney’s fee based on the benefits awarded herein.
Respondent No. 1 argues on appeal that the claimant sustained an aggravation or a new injury on July 6, 2000, and therefore, apportionment of liability between Respondent No. 1 and Respondent No. 2 is appropriate. Respondent No. 1 also argues that the Administrative Law Judge’s finding regarding the issue of attorney’s fees is ambiguous, and they should only be liable for attorney’s fees on benefits related to the cost of medical care by Dr. Brackman, Dr. Landherr, and Dr. Sutterfield, and the temporary total disability benefits remaining unpaid as of September 28, 2001. They assert that they have not controverted any benefits other than these specifically enumerated.
The 42-year-old claimant was working as a nurses aide on April 8, 2000, when she sustained an injury while assisting a heavy patient. She stated that her right leg gave way and she immediately “had a pop and just immediate pain.” Dr. Brackman was working in the nursing center at that time and the claimant was instructed by her supervisor to see him regarding her injury. She testified that she remained at work for a couple of hours, but then the pain intensified, and Dr. Brackman sent her home for bed rest, instructing her to return the next day. The claimant testified that she returned to work a week later. She was next instructed to see Dr. Blankenship, who took the claimant off work for six weeks and prescribed physical therapy. When she returned to work, the claimant worked four hours a day for two weeks, then six hours a day for two weeks, then eight hours a day. Claimant testified that she worked up until a specific incident occurred in July. She described this incident as follows:
I bent over to pick up a piece of paper in a patient’s room, and when I bent over, my back popped and it — the same thing started all over again.
She testified that her back had not stopped hurting since the April injury, and that the pain from this July episode was in the same location. She testified that following this incident, she missed two weeks of work and then returned and resumed working until a third episode occurred. She stated that she “was working in the whirlpool room and twisted and I had that flare-up . . .” She testified that this incident also caused pain in the same location. The claimant was never released from medical care during this entire period, since the initial April incident.
On cross-examination, the claimant admitted that on the day of her initial injury, after she was injured and left work, she went home and pulled weeds and worked in her yard. She testified that she actually worked her entire shift that day and then went home and picked up her yard. She missed about a week of work after that date, but testified that during that week, she continued to work with her husband delivering newspapers on a paper route they had. She agreed that on July 6, 2000, after her back popped, she lost the ability to move and her co-workers had to put her in a wheelchair because she couldn’t walk. She agreed that after the July incident, her pain level went up permanently. After that incident, she also had a loss of control of her bladder and she had never experienced that problem prior to that time.
Regarding her work schedule, the claimant testified that prior to the April incident she had worked sixteen-hour shifts on a regular basis; but since then she has not been able to work sixteen-hour shifts. She testified that when she returned to work following the April incident, she worked less hours, but was not provided with light duty.
In her opinion, the Administrative Law Judge wrote:
Respondent No. 1 has accepted the April 8, 2000, injury as compensable. . . I find that the claimant suffered a reoccurrence (sic) of her compensable injury on July 6, 2000, as well as on May 6, 2001. The claimant has continually been treated and prescribed medications since April 8, 2000, for her back and right leg problems and I find that her current need for treatment continues to be the result of her April 8, 2000, injury. Therefore, Respondent No. 1 should be responsible for the treatment for this claimant’s ongoing back problems. . . .
ADJUDICATION
In Collins v. From the Heart, Inc., Full Workers Compensation Commission Opinion, February 2, 1999, (E70347 ), it was written:
In determining whether apportionment should lie among successive carriers, this Commission has previously found that apportionment is appropriate when disability results from the combined effects of the successive injuries or accumulative trauma while separate entities are providing coverage. See, Sells v. Corning Nursing Home, Full Commission Opinion, March 26, 1991, (D914840). In Aetna Insurance Company v. Dunlap, 16 Ark. App. 51, 696 S.W.2d 771 (1985), the Arkansas Court of Appeals held that apportionment was proper where a pre-existing disease or anomaly is accelerated or aggravated by a work-related accident. The Court found that the second insurer was liable only for the degree of acceleration or aggravation attributed to that accident. Applying these principles of law, resolution of this case therefore depends on whether the source of claimant’s disability and need for treatment is her persistent ongoing pain which was first noticed in January of 1993, her increased work load of pulling material while making doll clothing beginning in April of 1996, the mere continuation of employment, or a combination thereof.
As we review the evidence, it is clear that the demands of claimant’s job caused the development of her pain in 1993. Claimant’s testimony clearly proves that claimant’s symptoms began in January of 1993, and have persisted through the present.
However, merely because claimant’s symptoms first manifested themselves in 1993, does not mean that the subsequent carriers do not bear any liability. Where the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). If, after the period of initial disability has subsided, the injury flares up without having an intervening cause and creates a second disability, it is a mere recurrence and the employer remains liable. McDonald Equipment Company v. Turner, 26 Ark. App. 264, 766 S.W.2d 936
(1989). A recurrence is not a new injury, but simply another period of incapacitation resulting from a previous injury. See, Atkins, supra. This principle has been consistently applied where a second complication is found to be a natural and probable result of the first injury. It is only where it is found that the second episode has resulted from an independent intervening cause that the liability will be effected. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1993).
Both the medical records and claimant’s testimony indicate that claimant had a marked exacerbation of her symptoms after April of 1996, when she began making doll clothing. It was not until after increasing her workload with the pulling and grasping of the doll clothing that claimant suffered a significant increase in her discomfort. Accordingly, it is apparent that claimant’s increased grabbing and pulling while making doll clothing constitute an independent intervening cause. Accordingly, it is proper that Respondent No. 3 be held liable for the degree of aggravation this increased workload presented. In our opinion, claimant’s general work duties up through January of 1993, and the aggravation of her symptoms in the Spring of 1996, each contributed equally to claimant’s present disability and need for treatment. Therefore, we find that Respondent No. 1 and Respondent No. 3 are equally liable. It can be argued that, but for claimant’s development of symptoms in 1993, the independent intervening incident of making doll clothing in 1996, may not have resulted in claimant’s need for surgery. Likewise, it can be argued that, but for claimant’s independent intervening incident of making doll clothing in 1996, claimant’s original onset of symptoms in 1993, may not have resulted in claimant’s need for surgery. Therefore, when these incidents are considered together, we find that claimant’s disability and need for surgery equally attributed to her general work duties which developed symptoms in 1993, and the increase in work duties in 1996.
In the present case, following the claimant’s initial injury on the morning of April 8, 2000, she was able to complete her shift and go home and do yard work. The claimant had returned to full-time regular duty employment when the second incident occurred on July 6, 2000. The claimant’s injury on that date was the result of a specific incident, and was obviously more significant than that which occurred in April. Immediately following the July incident, the claimant lost the ability to move and had to be placed in a wheelchair by her co-workers. She testified that the intensity of her pain permanently increased as a result of this incident, and she also experienced a loss of bladder control, which was a symptom she had never experienced prior to that time. Based on the above evidence, we find that claimant’s preexisting condition was aggravated by the July 2000 work-related accident.
These facts also establish a basis for apportioning liability to Respondent No. 2, under the holding of Collins v. From the Heart, supra; that, where a claimant experiences a permanent increase in symptoms due to a work-related incident, the carrier on the risk at the time of the increase is at least partially responsible for payment of future benefits. The claimant testified that she experienced new symptoms and a permanent increase in pain after the July 2000 incident. We find claimant’s present disability is the result of the combined effects of the compensable injuries in April and July 2000. Thus, apportionment of future benefits between Respondent No. 1 and Respondent No. 2 is appropriate. Therefore, we find that liability for any benefits accruing on and after July 6, 2000 should be borne equally by Respondent No. 1 and Respondent No. 2.
The question of whether a claim has been controverted is a question of fact to be determined from the circumstances of the particular case.Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W.2d 480
(1976). The purpose of determining whether or not a claim has been controverted, and by whom, “is to place the burden of litigation expense upon the party which made it necessary.” Henning, supra; Buckner v. SparksRegional Medical Center, 32 Ark. App. 5, 794 S.W.2d 623 (1990). Assuming a position which requires an injured employee to retain an attorney to take the actions necessary to ensure that the employee’s right are protected may constitute controversion. New Hampshire Insurance Co. v.Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984); Buckner, supra.
In the present case, Respondent No. 1 took the position that claimant’s condition subsequent to the July 6, 2000 accident represented either an aggravation for which Respondent No. 2 would be liable or a recurrence of claimant’s difficulties that preexisted the April 2000 compensable injury, for which neither respondent would be liable. Additionally, Respondent No. 2 contended that it had no liability for benefits. Therefore, we find that Respondents No. 1 and No. 2 are liable for the maximum statutory attorney’s fee for controversion on all benefits accruing on and after July 6, 2000 (whether paid or not), since each denied liability as of that date. See Cleek v. Great Southern Metals, 335 Ark. 342, 981 S.W.2d 529 (1998); Goodwin v. Phillips Petroleum Co., 72 Ark. App. 302, 37 S.W.3d 644 (2001); and Mark Stamper v. A. TennenbaumCompany, Full Commission Opinion filed February 19, 2002 (F011937 and F001609).
For the foregoing reasons, we modify the opinion of the Administrative Law Judge to find that the July 6, 2000 accident represents an aggravation of claimant’s preexisting condition. Additionally, we find that under the facts of this case, liability for benefits accruing on and subsequent to July 6, 2000 should be apportioned equally between Respondent No. 1 and Respondent No. 2. Further, we find that claimant’s attorney is entitled to the maximum statutory attorney’s fees on benefits accruing on and subsequent to July 6, 2000, one-half of which is to be paid by claimant and one-half to be paid equally by Respondent No. 1 and Respondent No. 2 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996), Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990), and Chamness v. Superior Industries, Full Commission Opinion Filed March 4, 1992 (E019760).
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.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
______________________________ JOE E. YATES, Commissioner