CLAIM NO. E712498
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 12, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LAWRENCE FITTING, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE ERIC NEWKIRK, Attorney at Law, West Memphis, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an Administrative Law Judge’s opinion filed May 31, 2001. The Administrative Law Judge found that the claimant was rendered temporarily partially disabled as a result of the claimant’s compensable injury from September 3, 1997 through October 6, 1997. The Administrative Law Judge also found that the claimant has sustained a permanent partial disability of 13% to the body as a whole as a result of his compensable injury.
After reviewing the entire record de novo, the Full Workers’ Compensation Commission affirms the Administrative Law Judge’s finding that the claimant was rendered temporarily partially disabled from September 3, 1997 through October 6, 1997. The Full Commission reverses the Administrative Law Judge’s finding that the claimant has sustained a permanent partial disability of 13% to the body as a whole as a result of the compensable injury. We thus affirm in part and reverse in part the opinion of the Administrative Law Judge.
I. HISTORY
The parties stipulated that Allen Bowles, age 54, sustained a compensable injury to his low back on July 21, 1996. Mr. Bowles testified:
A. Well, I had a job over on 40-something right off of Grand and it was requiring carrying a ladder, and we have — generally we use 24-foot extension ladders, and I was carrying that ladder and crossing a ditch and my foot slipped in the ditch and I felt a pain in my back and, you know, I finished out the day and then —
Q. Did you actually fall down or just turn or —
A. No. It was just a slip on the edge of the ditch and I caught myself, you know, before I fell down, but I felt a pain at that time.
Q. Okay. Where?
A. In my lower back.
A progress note dated July 23, 1996 indicates, “Strained his back several months ago — yesterday picked up a ladder and today couldn’t stand up.” Dr. Janet (Ely) Garvin diagnosed “low back pain” on July 23, 1996 and treated the claimant conservatively. Dr. Garvin allowed the claimant to return to work on August 7, 1996. Dr. Garvin noted in September, 1996 that the claimant was “working without difficulty.”
The claimant testified that his back “flared up” after performing manual labor for the respondents in August, 1997. According to the record, the claimant again sought medical treatment on September 2, 1997:
The patient is complaining of bilateral elbow pain, and lower back pain. The elbow pain has been present for several months but has recently gotten worse. He states that he is losing strength in his left elbow, and is unable to lift some of the equipment required for his job. His back pain is new onset of an old problem, and has just recently gotten worse.
Dr. Garvin assessed “low back pain” and “elbow pain,” treated the claimant conservatively, and took him off work. A physical therapist wrote on October 3, 1997, “I feel at this time he is ready to be released from Physical Therapy treatment and return to work. . . . He is very motivated to return to his job.” Dr. Garvin stated on October 6, 1997 that the claimant could return to work without restrictions. However, the record indicates that the claimant retired effective October 6, 1997.
The claimant received emergency treatment in June, 1998 for “a 24 hour history of severe right sided low back pain that was episodic in nature.” A physician assessed “Renal colic pain with microscopic hematuria, rule out stone.”
A neurological surgeon, Dr. J. Michael Standefer, began treating the claimant on June 17, 1998 and recommended an MRI. Dr. James L. Builteman reported the following findings from an MRI of the lumbar spine taken June 25, 1998:
At L3-4, there is narrowing of the intervertebral disc space with mild anterior, lateral and posterior diffuse disc bulging. There is a linear and somewhat globular enhancing fissural defect within the annulus at the L3-4 disc posteriorly, and there is slight protrusion of the disc broadly. There is slight inferior subligamentous extension. Findings are consistent with a small or early broad disc herniation. There is no significant spinal stenosis or neural foraminal stenosis associated.
At L4-5, there is minimal diffuse bulging of the intervertebral discs. On the post contrast sagittal image, a thin enhancing fissure is demonstrated within the annulus that probably represents a partial annular tear. There is preservation of disc height and signal characteristics at L4-5 disc level.
There is narrowing of the intervertebral disc at L3-4. There is narrowing of the disc space at L3-4, but signal characteristics are preserved, with, slight alteration of the usual high signal on T2 weighted images. . . .
IMPRESSION:
1. Early disc degeneration with broad small herniated nucleus pulposus at L3-4.
2. Mild degenerative disc bulging at L4-5 with probable small annular fissure.
Dr. Standefer wrote on August 10, 1998:
MR scan on 06-25-98. The patient’s MR scan has been reviewed. Degenerative disc disease at L3-4 is noted this being manifest as disc space narrowing, and diminution of water content in the disc at L3-4.
As outlined in our previous records 06-17-98, it would appear that musculoskeletal sources are operative as the cause for his back pain. I would anticipate that the degenerative change in the disc at L3-4 could well be playing a role in the genesis of his pain as well. Selected MR slices are at least suspicious for annular tear at L3-4 and this may be a source of pain for him. At any rate conservative care will be the mainstay of therapy for him. We will be in touch with him regarding the results of his MR scan.
An outpatient workers’ compensation verification, dated November 10, 1998, shows an accident occurring August 27-28 and involving the claimant’s low back.
On February 23, 2000, the claimant’s attorney corresponded with Dr. Standefer regarding an injury dated August 27, 1997. Dr. Standefer indicated on questions provided by counsel that the claimant had sustained 5% permanent impairment “as a result of his employment related injuries” for which the claimant had been treated in 1998. In the event surgery was required, the impairment would be 8-10%. The parties stipulated that the claimant’s healing period ended on or before March 8, 2000.
Mr. Bowles claimed entitlement to additional worker’s compensation. The claimant contended that Dr. Standefer had assigned a 5% permanent physical impairment rating; the claimant contended that he had suffered a loss of wage-earning capacity. The respondents contended that they had paid all benefits to which the claimant was entitled, and that the claimant was not entitled to any additional benefits.
The claimant subsequently presented to an orthopaedist, Dr. Robert C. Thompson, in order to “get my Social Security started.” Dr. Thompson wrote the following on August 9, 2000:
The patient is seen today and we went over his MRI results which were ordered previously by Dr. Standefer. It is quite clear, he has two herniated discs with degeneration primarily in 4-5 but also some at 5-1. There are annular ruptures at 5-1 and a clear herniation situation at 4-5. The patient’s symptomatology is that of chronic intermittent back pain with radiation down the leg.
The parties deposed Dr. Standefer on January 23, 2001. Dr. Standefer discussed the MRI scan that he had ordered in June, 1998, and testified that it was “highly probable” that the claimant had an annular tear at L3-4. The respondents’ attorney examined Dr. Standefer regarding the 5% impairment rating he had assigned:
Q. Doctor, if you would — or is it possible, within a reasonable degree of medical certainty, to delineate the major cause of the individual’s pain —
A. Uh-huh.
Q. — being traceable to the tear or the degenerative changes?
A. Uh-huh.
Q. Is that something you can state?
A. Well, not really. Again, the only things that I can state with certainty are that he injured his back while working and he had persistent back pain that led to his evaluation and these findings of degenerative change and the annular tear and probable muscle and ligament sources for pain. The degenerative change was not caused by the job. The annular tear could possibly have been caused by some activity at work. But his — his pain, his back pain, I thought, was job-related. In other words, it caused these degenerative changes to become symptomatic. . . . Now, in that light, we provided him with an impairment rating of 5 percent, which takes into account the fact that he didn’t have surgery, that he had persistent pain, and that he had evidence of degenerative change on his spine — on his spinal MR scan. . . .
Q. Okay. But what objective findings do you find that would have been caused by the work to have supported the rating?
A. Oh, there are no objective findings other than what’s on the MR scan.
Q. And that MRI scan just is simply the degenerative changes.
A. That’s correct. . . .
Q. Which were pre-existing.
A. That’s correct. But again, those — you know, he didn’t have any problems before he got hurt. . . .
Q. What were those objective findings?
A. That was — that was the degenerative change, which was the narrowing of the disc and decrease in water content and the probable annular tear. Those were objective findings that we could see on the scan.
Q. Okay. And you already stated that within, a reasonable degree of medical certainty, those, degenerative changes were pre-existing and not related to his employment; correct?
A. That is absolutely correct.
Q. And the annular tear, you’re not 100 percent even sure that it was in existence; right?
A. That’s correct.
Q. But if it were in existence, is there any way to know within a reasonable degree of medical certainty whether it was related to his employment or something simply that he had all his life?
A. Well, we — No, he wouldn’t have had it all his life. I think it was probably traumatically induced, but there’s no way to know what trauma induced that. For instance, it could have been from bending over or sneezing or lifting. There’s no way to know that. . . .
Q. Is there any way to know that within a reasonable degree of medical certainty as to what the source of his pain is?
A. Not in the absence of doing any more invasive studies.
Q. Okay. And the major finding which you’re basing your rating on is the degenerative changes.
A. That we saw on the MR scan, that is correct.
Q. That’s the basis of your 5 percent rating.
A. That’s exactly correct.
After a hearing before the Commission, the Administrative Law Judge found that the claimant had proven entitlement to temporary partial disability compensation from September 3, 1997 through October 6, 1997. The Administrative Law Judge found that the claimant proved that he had sustained a permanent physical impairment of 8% to the body as a whole “as a result of the permanent injuries to his L3-4 and L4-5 intervertebral discs sustained in the employment related incident of July 21, 1996.”
The Administrative Law Judge also determined that the claimant had sustained wage-loss disability in the amount of 5% to the body as a whole. “Therefore, the claimant would be entitled to permanent partial disability benefits for a 13% permanent partial disability to the body as a whole. This figure would include permanent partial disability benefits due to a permanent physical impairment of 8% to the body as a whole and permanent `functional disability’ or loss of wage earning capacity in the amount of 5% to the body as a whole.”
The respondents appeal to the Full Commission the Administrative Law Judge’s award of permanent disability benefits. The claimant initially cross-appealed and stated that the 5% wage loss award was not based upon the preponderance of the evidence; however, the claimant now states that the Full Commission should affirm the Administrative Law Judge’s opinion.
II. ADJUDICATION A. Temporary disability
Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id.
In the present matter, the claimant sought medical treatment on September 2, 1997 for bilateral elbow pain and low back pain. Dr. Garvin took the claimant off work through September 16, 1997, at which time Dr. Garvin allowed the claimant to return to restricted duties. The claimant returned to a lighter job at less pay, and the respondent-employer deducted the hours spent traveling to and from medical treatment and physical therapy. Dr. Garvin stated on October 6, 1997 that the claimant could return to work without restrictions. The Full Commission therefore affirms the Administrative Law Judge’s finding that the claimant was rendered temporarily partially disabled from September 3, 1997 through October 6, 1997.
B. Anatomical impairment
An injured worker must prove by a preponderance of the evidence that he is entitled to an award for a permanent physical impairment. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(F)(ii)(a) (Supp. 2001), provides that “Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.” “Major cause” means more than fifty percent (50%) of the cause, and a finding of major cause must be established according to the preponderance of the evidence. Ark. Code Ann. §11-9-102(14).
In addition, Ark. Code Ann. § 11-9-102(16) provides:
(A)(i) “Objective findings” are those findings which cannot come under the voluntary control of the patient.
(ii) 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.
(B) Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty[.]
In the present matter, the Administrative Law Judge found that the claimant sustained a permanent physical impairment in the amount of 8% to the body as a whole. The Full Commission reverses this finding. The claimant sustained a compensable injury to his low back on July 21, 1996. The Concurring and Dissenting Opinion asserts that the claimant was asymptomatic prior to his compensable injury, but the record indicates that the claimant had already strained his back several months prior to the compensable injury. In any event, the claimant was treated conservatively and returned to work on August 7, 1996. The Concurring andDissenting Opinion describes a “close temporal relationship” between the July 1996 incident and the claimant’s development of pain, but Dr. Garvin noted in September 1996 that the claimant was “working without difficulty.” In addition, the claimant did not again seek medical treatment until September 1997.
Dr. Standefer began treating the claimant in June 1998. Dr. Standefer testified that he did not think the claimant had suffered a serious back condition, that is, the purported annular tear and herniation, during the time from July 1996 through September 1997. The record indicates that the claimant did not seek medical treatment during this time. An MRI of the lumbar spine was taken in June 1998. Dr. Builteman’s impression from the MRI was “early disc degeneration with broad small herniated nucleus pulposus at L3-4” and “mild degenerative disc bulging at L4-5 with probable small annular fissure.” Dr. Standefer later doubted the presence of any defect at L3-4, but he agreed that there was a “probable annular fissure” at L4-5. Dr. Thompson looked at the same MRI and reported a herniation at L4-5 and a “rupture” at L5-S1. The record thus contains three different diagnoses by the medical experts concerning which level of the claimant’s lumbar spine was abnormal.
In any event, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that the compensable injury of July 21, 1996 was the major cause of any anatomical impairment which may be present in the claimant’s lumbar spine. We again note the deposition testimony of Dr. Standefer cited supra. The Concurring and DissentingOpinion would elevate the findings of the radiologist over those of Dr. Standefer, a neurological surgeon. We disagree with the assertion of theConcurring and Dissenting Opinion that Dr. Standefer did not articulate the bases for his conclusions. Dr. Standefer testified at length about diagnostic testing performed on the claimant’s spine, and stated that the only “objective findings” he saw on diagnostic testing were “the degenerative change, which was the narrowing of the disc and decrease in water content and the probable annular tear.” Dr. Standefer testified that these degenerative changes were preexisting and not related to the claimant’s employment. Dr. Standefer, a neurological surgeon, was not convinced than an “annular tear” existed in the claimant’s lumbar spine, but that if it did exist, “there’s no way to know what trauma induced that.” Finally, Dr. Standefer agreed that the 5% anatomical impairment rating he assigned was based on degenerative changes rather than an acute event.
From a preponderance of the evidence gleaned from the record before the Commission, any finding that the abnormalities shown on MRI in 1998 were the result of the 1996 ladder incident would be based on speculation and conjecture. Speculation and conjecture can never be substituted for credible evidence. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980). The Full Commission therefore reverses the Administrative Law Judge’s finding that the claimant sustained anatomical impairment in the amount of 8% as a result of his compensable injury. We find that the claimant failed to prove that he sustained any anatomical impairment as the result of his July 21, 1996 compensable injury. To be entitled to any wage-loss disability benefits in excess of permanent physical impairment, a claimant must first prove that he sustained a permanent physical impairment as a result of a compensable injury.Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000).
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved that he was rendered temporarily partially disabled for the period beginning September 3, 1997 and continuing through October 6, 1997. We find that the claimant failed to prove that he sustained any permanent physical impairment or wage-loss disability as a result of his compensable injury. The Full Commission therefore affirms in part and reverses in part the opinion of the Administrative Law Judge. 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 in part on this appeal before the Full Commission, the 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
______________________________ MIKE WILSON, Commissioner
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner
I concur in part and respectfully dissent in part from the majority opinion in this case. I concur in the finding that claimant is entitled to temporary partial disability benefits. However, I cannot agree that claimant failed to prove entitlement to permanent partial disability benefits.
Claimant sustained an admittedly compensable injury to his low back on July 21, 1996. He re-injured his back in August of 1997.
Dr. Standefer ordered an MRI, which was done on June 25, 1998. Dr. James L. Builteman interpreted the test, forming the following impression:
Early disc degeneration with broad small herniated nucleus pulposus at L3-4.
Mild degenerative disc bulging at L4-5 with probable small annular fissure.
Dr. Standefer disagreed with this interpretation. In a chart note dated August 10, 1998, he opined that the MRI done in 1998 showed degenerative changes at L3-4. He also stated that: “Selected MR slices are at least suspicious for annular tear at L3-4, and this may be a source of pain for him.” At deposition, Dr. Standefer opined that the radiology report was inaccurate. He stated that he disagreed with the portion of the report documenting an abnormal disc at L4-5. However, he failed to articulate the basis for this conclusion.
Our duty to resolve evidentiary conflicts extends to medical testimony. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467(2000). The administrative law judge determined that the opinion of the radiologist was more persuasive than that of Dr. Standefer, reasoning that Dr. Builteman’s area of specialization involves the interpretation of diagnostic studies. I agree with this assessment.
Dr. Builteman’s opinion supports a finding that claimant has defects at two levels. Aside from degenerative changes, the MRI also documented a small herniated nucleus pulposus (HNP) at L3-4 and a small annular fissure at L4-5. Although Dr. Builteman characterized the existence of the fissure as “probable,” I find that his opinion is stated with sufficient certainty to satisfy the statute.
Moreover, I specifically find that the HNP and fissure were caused by claimant’s work-related injury. He was asymptomatic prior to the work-related accident. There is a close temporal relationship between the initial injury and claimant’s development of pain. Accordingly, I would award permanent partial disability benefits based on claimant’s anatomical loss, as well as wage-loss benefits.
Based on the foregoing, I concur in part and dissent in part.
____________________________________ SHELBY W. TURNER, Commissioner