BOST v. ARKANSAS DEPT. OF CORRECTIONS, 1998 AWCC 399

CLAIM NO. E613997

JIMMY BOST, EMPLOYEE, CLAIMANT v. ARKANSAS DEPT. OF CORRECTIONS, EMPLOYER, RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 9, 1998

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

Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by NATHAN CULP, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed March 17, 1998, finding that claimant sustained a compensable injury and is entitled to temporary total disability benefits from July 18, 1997 through the end of October of 1997. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be, and hereby is, reversed.

[3] At the hearing held on November 21, 1997, claimant contended that he sustained a specific incident injury to his right eye resulting in retinal detachment. Specifically, claimant contended that during the course and scope of his employment he was required to handle 80 pound bags of salt and during the course of handling this salt, some salt popped in his eye resulting in his injury. Conversely, respondent contended that claimant did not suffer an injury arising out of and in the course of his employment. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent.

[4] The evidence reflects that on June 17, 1996, claimant was working in the warehouse with 80 pound bags of salt. It is claimant’s testimony that three of these bags broke open and as he was taping the bags shut, some salt popped in his eye. As a result of getting salt in his eye, claimant began to rub his eye. It is claimant’s testimony that his eye hurt all day and he continued to rub it vigorously throughout the day. Claimant did not report an injury on June 17th. However, as his shift was about to begin on June 18, 1996, claimant reported an injury to his supervisor, Kay Skillen and advised her he was losing sight in this right eye and was going to the doctor. Ms. Skillen’s report of an incident merely states “On 6-18-96 at approx. 7 a.m. Mr. Bost called me and said he had lost sight in his right eye and was going to the doctor.” In this report, there is no indication that the loss of claimant’s eye sight was in any way related to claimant’s work.

[5] The evidence reflects that claimant was first seen by his eye doctor, Dr. Van Dunn. In his report dated June 18, 1996, Dr. Dunn noted the following history “I started seeing spots yesterday morning, lower portion of my vision is worse — I’m not seeing well.” Dr. Dunn was obviously concerned about claimant’s condition and immediately referred him to Dr. Mike McFarland. In his initial exam report Dr. McFarland recorded the following history:

PT c/o yesterday morning he thought his RLL was swollen and obstructing his vision. States as the day progressed about 3:00 or 4:00 in the afternoon it seemed like there was something that was getting in his vision. Patient states, “I can look down and it goes down below my eyelid of course.” Patient states “This morning it seemed worse.” Patient went down to Dr. Dunn and he sent patient here.

[6] Dr. McFarland noted the following findings upon examination:

OD, lids normal, Conj. clear, cornea clear, increase vitreal debris is noted. OS, completely clear, no cats. OU, 8mm pupils.

[7] Under the dilated findings 360 indirect exam, Dr. McFarland noted the following:

OD, lg bulous detachment, W/lg fish mouth tear at about 2:00, clock HR is about 1 clock HR size tear, mac is flat and attached.

[8] Dr. McFarland further noted that claimant’s front part of the eye looked perfectly normal with no problems on the front part of the eye. Based upon his findings, Dr. McFarland diagnosed claimant with a retinal detachment and immediately referred claimant to Dr. Steven Charles, a retinal specialist for retinal reattachment surgery. Claimant was examined again by Dr. McFarland on numerous occasions. In Dr. McFarland’s July 12, 1996, office report Dr. McFarland appeared to explain the causes for claimant’s condition. In that report, Dr. McFarland stated:

RDF explained to PT that there is some fluid in his OD again. Explained that there may be a new small hole that we are just not seeing. Explained that he does not see a hole today. Explained to PT that before surgery he had fluid and then it went away. . . . Explained that what originally caused the fluid to build up is from a tear in the retina. Explained that the vitreous contracts in and of itself and peels off of the retina. Peels loosely most of the time, but as we age, the fluid can clump up and cause holes or tears when it pulls off the retina. Explained that since there is fluid showing up, that tells RDF that there is still a hole or tear letting the fluid filter through. . . .

[9] The evidence reflects Dr. Charles performed several surgeries in an attempt to reattach claimant’s retina. Despite the surgical procedures, claimant has failed to obtain any significant increase in the vision in his right eye after losing his vision due to the detached retina.

[10] With the claimant’s consent, claimant was referred to Dr. Steinman in Little Rock by the respondent carrier. The evidence reflects that the respondent was unable to obtain relevant medical information from claimant’s treating physicians and sought the referral to a local physician. After Dr. Steinman examined claimant, he referred claimant to Dr. J. Bradford, a vitreal retinal specialist. In an effort to respond to causation questions posed to him by the respondent carrier, Dr. Bradford authored a report dated July 18, 1997, which states:

I am unaware of any reports in which salt getting into somebody’s eye when there is no high velocity impact from the salt granules hitting the eye ever causing a retinal detachment. Also, I am unaware of any reports in which an eye has been rubbed, without actually hitting the eye with an impact, ever causing a retinal detachment.
However, you would need to contact Dr. Mike McFarland in Pine Bluff, and Dr. Steven Charles in Memphis, as to whether there was, on their examinations at the onset of this retinal detachment, any evidence of high impact injury, such as lid swelling, redness of the eyelids and hemorrhaging around the eyelids, corneal trauma, anterior chamber inflammation, conjunctival redness and swelling or vitreous hemorrhaging.

[11] It was based upon this report from Dr. Bradford that respondent controverted claimant’s claim.

[12] The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark Reed v. ConAgra Frozen Foods, F.C. Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code injury “by medical evidence supported by `objective findings’ as

[13] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra.

[14] In our opinion, we find that claimant has failed to prove a set forth above. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. McClainv. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). No matter how sincere a claimant’s beliefs are that a medical problem is related to a compensable injury, such belief is not sufficient to meet the claimant’s burden of proof.Killenberger v. Big D Liquor, FC Opinion August 29, 1995 (E408248 E408249).

[15] The medical opinions introduced into evidence which address compensability are those of Dr. Bradford and the July 12th report from Dr. McFarland set forth above. While, Dr. Bradford may have been more direct in his causation analysis, a thorough review of Dr. Bradford’s July 18, 1997, correspondence clearly indicates that a retinal detachment will not occur without an impact to the eye. It does not occur from merely getting salt granules in the eye. Dr. McFarland appears to relate claimant’s retinal detachment to the aging process and the clumping of fluid and at no time did he relate it to the rubbing of salt in claimant’s eye.

[16] There is no evidence that claimant received a severe blow or impact to his eye with the force necessary to cause a torn or detached retina as explained to be a necessary requirement by Dr. Bradford. While it may be coincidental that claimant got salt in his eye, in our opinion, claimant has failed to prove by a preponderance of the evidence that it was this salt in his eye which caused the retinal detachment. A thorough review of the medical records fails to document an impact to the eye resulting in swelling, redness, hemorrhaging, corneal trauma, anterior chamber inflammation, conjunctival redness and swelling or vitreous hemorrhaging which either individually or in combination would evidence high impact as outlined by Dr. Bradford. Since these findings were not made by claimant’s treating physicians on the day after the alleged incident, we find that claimant has failed to prove by a preponderance of the evidence a causal connection between his diagnosed retinal detachment and the incident of salt popping into his eye on June 17, 1996. SeeDale Keylon v. Whirlpool Corp., Full Commission Opinion Filed February 25, 1998 (E600327). Rather, the evidence seems to support Dr. McFarland’s theory that the mere aging process and the clumping of fluid resulting from age, not salt, is responsible for claimant’s condition.

[17] Accordingly, for those reasons set forth herein, we find that claimant has failed to prove by a preponderance of the evidence an accidental injury arising out of and in the course of his employment. Therefore, we find that the decision of the Administrative Law Judge must be, and hereby is, reversed.

[18] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[19] Commissioner Humphrey dissents.

[20] DISSENTING OPINION
[21] I must respectfully dissent from the majority opinion on this matter. I am unable to accept the proposition that it was mere coincidence that claimant suffered his retinal injury on the same day he got salt in his eye without those two events being related. A strong causal connection exists between claimant’s on-the-job injury and the complained of condition due to the timing and manner of the incident. Upon a review of the Opinion, the parties’ briefs and the record I would affirm the judge’s ruling.

[22] On June 17th, 1996 claimant was taping up holes in broken 80 pound bags of salt when one of the bags “popped some salt” in his right eye. Claimant fruitlessly tried to wash the salt out using water. During the remainder of the day Mr. Bost vigorously rubbed his eye with the knuckle of his index finger in an attempt to alleviate the burning sensation caused by the salt. At one point claimant asked an inmate worker to examine his eye to see if it was swollen. By the time claimant left work that day he had lost half the vision in his right eye.

[23] The following morning claimant reported the injury to his supervisor who had already left work when he attempted to report his injury the previous day. That morning claimant was seen by his regular eye doctor, Dr. Vann Dunn. Dr. Dunn observed debris in claimant’s eye and immediately referred him to Dr. Mike McFarland who diagnosed a detached retina and observed a large tear in the retina which was “flapping”. Dr. McFarland immediately referred claimant to Dr. Steve Charles, a retina specialist. The first of claimant’s repeated surgeries was done by Dr. Charles that same day. Claimant has continued to suffer serious vision impairment since that day and has developed double vision since the date of the injury. This claim was accepted as compensable by respondent.

[24] At the request of the respondent, claimant was seen by Dr. Thomas L. Steinemann who referred him to his colleague Dr. David Bradford who conducted examinations on May 27th, and June 25th, 1997. In response to specific questions from respondent’s Claims Determination Manager, Dr. Bradford wrote the letter dated July 18th, 1997 which has been cited by the majority. In reliance solely upon this document and without performing the suggested follow-up contact, respondent immediately controverted this claim.

[25] The only element of proof in dispute is whether or not the specific incident of July 17th, 1996 during which granular salt entered the claimant’s eye was the cause of his detached retina. The close proximity in time between the on-the-job incident, the onset of symptoms and the diagnosis of claimant’s detached retina is the strongest possible circumstantial evidence supporting the finding that this was a compensable injury. See; Franklin Collier Farms v.Bullard, 33 Ark. App. 33, 800 S.W.2d 438 (1990) The Arkansas Supreme Court has said that circumstantial evidence is sufficient to support an award and it may be based upon the reasonable inferences that arise from the reasonable probabilities flowing from the evidence; neither absolute certainty nor demonstration is required. Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S.W.2d 252 (1943).

[26] The strong circumstantial evidence of causation in this case is in stark contrast to the equivocal statement of Dr. Bradford relied upon by the majority. Dr. Bradford states only that he is “unaware” of reports of this type of incident causing similar injuries in other cases. Dr. Bradford did not state that it was impossible or even unlikely that granular salt getting into the right eye and then subsequently rubbing the eye because of burning would cause a retinal detachment to occur in the eye. In addition, claimant was examined by his regular eye-doctor for a change in his eye glass prescription as recently as two months before his injury and there is absolutely no evidence that claimant had any pre-existing problems related to his retina.

[27] Dr. Bradford’s opinion regarding the cause of claimant’s injury should be afforded little weight in any case. According opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Dr. Bradford’s equivocal statement about being unaware of similar reports of injury does not make any direct or implied assertion that his opinion is formed within a reasonable degree of medical certainty. Therefore this statement is not evidence which we should consider on this issue.

[28] Based upon the strong circumstantial evidence presented I find that Mr. Bost’s detached retina is a compensable injury. Accordingly the Opinion in this matter should be affirmed.

[29] PAT WEST HUMPHREY, Commissioner