CLAIM NO. E904372
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 17, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICHAEL BOYD, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed November 7, 2000. The administrative law judge found that the claimant failed to prove by a preponderance of the credible evidence that she sustained a compensable back injury pursuant to Act 796 of 1993. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that Regina Broughton, age 30, sustained a compensable left knee injury on February 19, 1999. Ms. Broughton testified that she slipped and fell on top of her knee, and that a linen barrel fell on top of her leg. The claimant testified that she felt pain in her ankle, knee, and back. The respondents provided medical treatment with Dr. Kerry F. Pennington, who reported on February 19, 1999:
Fell at the nursing home on a wet floor. States her left leg went out from under her and apparently had some lateral deviation. She points to the anterior aspect of her knee as well as the heel with pain. . . . X-rays were negative, both for the knee and the heel.
Dr. Pennington assessed “Strained left knee; contused left heel,” and he placed the claimant on light duty. Dr. Pennington assessed “Acute strain, left knee” on February 22, 1999. The physician took the claimant off work on February 24, 1999, and the respondents began paying temporary total disability compensation.
Dr. Pennington assessed “Acute strain with sprain, left knee” on March 1, 1999. The treating physician referred the claimant to Dr. Herbert L. Hahn, who saw the claimant on April 9, 1999 for left knee and left ankle complaints. Dr. Hahn arranged an MRI of the left knee, taken April 16, 1999:
Impression: Questionable tiny vertical tear along the medial margin of inferior surface of the posterior horn of the medial meniscus. Patella is subluxed bilaterally.
Dr. Hahn arranged physical therapy after the abnormal MRI findings of the left knee. In the meantime, Dr. Pennington also continued regular follow-up visits with the claimant. On July 6, 1999, Dr. Hahn assessed “Loose body left knee,” “Patellar dislocation,” and “Articular chondral defect.” Dr. Hahn proceeded with arthroscopy, and wrote on August 24, 1999:
Regina Broughton returns in follow up for her left knee injury sustained while on the job. Patient is approximately 5 weeks status post left knee arthroscopy. She continues to experience swelling and some pain. We will continue her phsical (sic) therapy.
ASSESSMENT:
Dislocation patella.
Dr. Hahn prescribed medication, a knee immobilizer, physical therapy, and home exercise.
The claimant’s functional capacity was evaluated at HealthSouth Rehab Center on February 18, 2000. The evaluators recommended that the claimant displayed capability of performing sedentary work, as defined by the U.S. Department of Labor. The claimant complained to Dr. Hahn on February 25, 2000 of “muscle spasm in the knee up to the thigh.” Dr. Hahn assessed “Status post left knee arthroscopy” and opined that the claimant had reached maximum medical improvement. Dr. Hahn reported on March 31, 2000:
Patient presents today wearing a knee immobilizer and in a wheelchair. She reports the Ultram and Robaxin help her knee pain, but if she is up for long periods, the knee begins to hurt. She is having muscle spasms in the leg if she gets up. The pain in the leg causes her to give out and she has to lay down. . . . Xray today of the left knee shows minimal degenerative changes. AP LATERAL views of the lumbar spine show mild degenerative disc disease but are otherwise normal. AP pelvis demonstrates normal hips.
ASSESSMENT:
Left knee patellar dislocation. Patient reached maximum medical improvement as of 2-25-00. According to the 4th edition of AMA guidelines, a 10% permanent partial impairment and loss of physical function is rated to the left lower extremity. The above statements are made with a reasonable degree of medical certainty.
Dr. Hahn prescribed an “extra large wheelchair,” and wrote that the claimant could perform restricted work duty while seated in the wheelchair. The respondents accepted the permanent partial impairment rating assigned by Dr. Hahn and ceased paying temporary total disability after March 31, 2000.
Dr. Hahn reported on April 28, 2000:
Regina Broughton currently is complaining of low back pain. She reports no prior problem with her back. Patient states she is experiencing low back pain and pain into the left lower extremity. . . . Pain shoots up her back to the back of her head and she has to be still and is unable to move around or it begins hurting. Left side of the buttock hurts if she sits too long. She has muscle spasms into the left lower extremity.
Dr. Hahn assessed “Lumbar disc syndrome” and scheduled an MRI of the lumbar spine, which procedure the respondents controverted.
Dr. Hahn reported on June 9, 2000:
I do not at this time feel that the lumbar spine complaints presented by Ms. Broughton are as a direct consequence of her compensable injury. At most they could be an irritation of an underlying fragility or chronic process brought on by alteration of her gait associated with the knee injury. It is very common for us to see an aggravation of a mechanically unsatisfactory spine complicating a lower extremity injury or surgery. In this particular circumstance she has not been walking very much so that I doubt that a gait alteration could be invoked. I think it is medically appropriate to proceed with diagnostic imaging of the lumbar spine; however, I would not at this time say that this is being directed at the treatment of her compensable injury, but it is simply part of my comprehensive musculoskeletal treatment of an individual who does have a documentable left knee on the job injury. I am not sure how pursuit of this is going to be accommodated with the various insurance organizations involved. It is not urgent that this one, and it is by no means a life threatening or paralysis type of situation that the imaging be obtained. If there is any additional information that you can provide me with regard to the nature and extent or the condition of Ms Broughton, I would welcome that being supplied.
Ms. Broughton claimed entitlement to additional worker’s compensation. The claimant contended that she injured her back at the same time she injured her knee on February 19, 1999. The claimant sought payment of medical expenses and attorney’s fees. The respondents contended that the claimant’s back condition was not causally related to the compensable knee injury, and that they had paid all appropriate benefits. After a hearing before the Commission, the administrative law judge found that the claimant failed to prove that she sustained a compensable back injury pursuant to Act 796 of 1993. The claimant appeals to the Full Commission.
II. ADJUDICATION
The claimant contends that she injured her back at the same time she injured her knee on February 19, 1999. The claimant has the burden of proving, by a preponderance of the evidence, compensability of her claim.Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677
(1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. §11-9-102(4)(A)(i) (Supp. 1999). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that the injury caused physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. §11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, the Full Commission affirms the administrative law judge’s finding that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable back injury. The parties stipulated that the claimant injured her left knee on February 19, 1999. Although the claimant testified at hearing that she felt pain in her ankle, knee, and back, the first medical report by Dr. Pennington, entered on the date of injury, describes only knee and heel pain. Nor did Dr. Pennington report an injury to the claimant’s back — his diagnosis was “Strained left knee; contused left heel.”
Dr. Pennington eventually referred the claimant to Dr. Hahn for the claimant’s left knee and ankle complaints. Both physicians treated the claimant for her left lower extremity complaints through February 25, 2000, at which time Dr. Hahn assessed maximum medical improvement. Dr. Hahn assigned a 10% permanent partial impairment rating for the claimant’s left lower extremity on March 31, 2000, and he released the claimant to restricted work duty. On April 28, 2000, over one year after the claimant’s compensable knee injury, and for the first time since the knee injury, she reported low back pain to Dr. Hahn. Even on that date, the record does not indicate that the claimant related her low back pain of April, 2000 to the February, 1999 knee injury.
It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 834 S.W.2d 626 (1994). TheDissenting Opinion notes the claimant’s hearing testimony that she suffered chronic back pain after the compensable knee injury, and her testimony that she explained to her physicians on each medical visit that her back was hurting as well as her knee. There is not a single report of back pain from either treating physician from February 19, 1999, the date of the compensable injury, until April 28, 2000, when the claimant first reported low back pain to Dr. Hahn. Therefore, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained an injury to her back which caused physical harm to her body and arose out of and in the course of her employment with the respondents.
Even if the Full Commission found that the claimant proved that she sustained an injury to her back which caused physical harm to her body and arose out of and in the course of her employment, which we do not find, the Full Commission finds that the claimant failed to establish a compensable injury by medical evidence, supported by objective findings. An x-ray of the lumbar spine taken March 31, 2000 showed “mild degenerative disc disease.” An x-ray of the hips was normal. The claimant reported “muscle spasms into the left lower extremity” on April 28, 2000, but Dr. Hahn observed no such spasms in the claimant’s back. Dr. Hahn opined that the claimant’s subjective lumbar spine complaints were not a direct consequence of the claimant’s compensable knee injury.
Dr. Hahn further opined on June 9, 2000 that a lumbar MRI would be “medically appropriate,” but he could not say that such a diagnostic evaluation would be directed at treatment of the claimant’s compensable injury. Dr. Hahn stated that it was not urgent to obtain an MRI, nor was it “life threatening” or a “paralysis type of situation.” The DissentingOpinion maintains that Dr. Hahn, an orthopedic specialist and treating physician, has no objective basis for his medical opinion with regard to the claimant’s lumbar spine. The Commission is authorized to accept or reject medical opinion and to determine its medical soundness and probative force. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34
(1989). In the present matter, the findings of Dr. Hahn and the other treating physicians indicate that there are no objective findings of an injury to the claimant’s back. The decision of the administrative law judge is affirmed.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury to her back, pursuant to Act 796 of 1993. The Full Commission therefore affirms the opinion of the administrative law judge, and we deny and dismiss this claim.
IT IS SO ORDERED.
____________________________ ELDON F. COFFMAN, Chairman
____________________________ MIKE WILSON, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION TURNER, Commissioner.
I must dissent from the Majority Opinion affirming the administrative law judge’s opinion in this case. Upon my de novo review of the record, I find that claimant did prove by a preponderance of the evidence that she sustained a compensable back injury while employed by respondent-employer. Accordingly, I would award benefits for all reasonable and necessary medical treatment related to claimant’s back injury of February 19, 1999.
Claimant was employed as a certified nursing assistant when she fell on a wet floor while carrying linens from a patient’s room. She testified that her knee felt like it was broken and that her back and ankle hurt as well. She stated that she reported these pains to Dr. Pennington who referred her to Dr. Hahn who mainly treated her knee problems. Claimant testified that she always complained of back pain, but Dr. Pennington told her that the pain probably was due to her use of crutches. Claimant did not receive treatment for back pain until April of 2000, and such was administered by Dr. Hahn. Claimant was paid temporary disability benefits until she was released to light duty in March of 2000, with instructions to do only sedentary work sitting or from a wheelchair with no standing, lifting squatting or climbing. (Claimant’s Ex. 1, p. 20). Claimant was given a 10% impairment rating to the left lower extremity.
Rosa Taylor, claimant’s neighbor, testified that she sees the claimant often and has observed the difficulties claimant faces because of her back and knee injuries. She stated that claimant cannot sit or stand for long periods of time, nor can she pick up her two-year-old child. Ms. Taylor further testified that she helps out around claimant’s home as much as possible.
Dr. Hahn notes on March 31, 2000, that AP lateral views to claimant’s lumbar spine showed mild degenerative disc disease and that an X-ray of the left knee shows minimal degenerative changes. (Claimant’s Ex. 1, p. 21).
Dr. Hahn notes on April 28, 2000, that claimant complains of low back pain and muscle spasms. (Claimant’s Ex. 1, p. 22). He assessed her with lumbar disc syndrome and scheduled an MRI which was never performed because respondent-carrier denied benefits.
Dr. Hahn later opined that he did not feel that claimant’s lumbar spine complaints, “were a direct consequence of her compensable injury” and that,
[A]t most they could be an irritation of an underlying fragility or chronic process brought on by alteration of her gait associated with the knee injury. It is very common for us to see an aggravation of a mechanically unsatisfactory spine complicating a lower extremity injury or surgery. I think it is medically appropriate to proceed with diagnostic imaging of the lumbar spine.
(Claimant’s Ex. 1, p. 23).
Claimant contends that she did injure her back at the same time she injured her knee.
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. ContinentalExpress, 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:
(I) An accidental injury causing internal or external physical harm to the body . . . arising out of course of employment which requires and in theices or results in disability or death. An injury vis “accidental” only if it is caused by a ident and is identifiable by time and specific incurrence.
For the claimant to establish a compensable injury as a result place of occ 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 an 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 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. If the 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).
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. §11-9-508(a). Injured employees have the burden of proving, by a preponderance of the evidence, that medical treatment is reasonably necessary for treatment of the compensable injury. Ark. Code Ann. §11-9-705(a)(3) (repl. 1996).
Respondents argue that claimant failed to report her back injury because there are no medical records to that effect. Claimant testified that she did report back pain to her doctors from the beginning and was told that her pain probably was due to the use of her crutches.
It is likely, based on claimant’s accounting of her fall and medical records relating to her knee injury, that claimant’s fall could very well have injured her back. She testified that she always complained of back pain and this testimony was corroborated by Ms. Taylor. While respondents have accepted and paid expenses related to claimant’s knee injury, they have controverted claimant’s back injury in its entirety.
The Majority Opinion points out that claimant’s medical records contain no notations about back pain. The analysis is that since the records fail to note back pain, then none must have existed. This absence of notation, in and of itself, does not in my opinion defeat claimant’s position.
Two unresolved issues in this argument need to be addressed. First, Claimant’s lumbar spine was X-rayed in March of 2000, for no apparent reason. The Majority Opinion finds that claimant first complained of back pain to Dr. Hahn on April 28, 2000, and there is no evidence in the medical records that claimant reported this pain earlier as she testified. Given these “facts,” it seems odd that Dr. Hahn, or any other physician, would order an X-ray of claimant’s back if she had not complained of back pain and if there was no reason to suspect that she may have suffered from a back injury. Second, I am not persuaded by Dr. Hahn’s medical opinion that claimant’s back injury is unrelated to her compensable injury when he has absolutely no medical basis to form that opinion. An MRI to claimant’s lumbar spine was never performed because respondent-carrier denied benefits. Until such objective medical evaluations are made, Dr. Hahn really does not have an objective basis for his medical opinion about claimant’s lumbar spine. While theMajority Opinion correctly notes that the Full Commission may accept or reject medical opinion — giving to it whatever weight it deems appropriate — I do not find that Dr. Hahn’s opinion is entitled to any weight with regard to his diagnosis of claimant’s lumbar spine because it is not grounded or substantiated with sound medical evidence.
Accordingly, I would reverse the administrative law judge’s opinion and find that claimant is entitled to reasonable and necessary medical treatment for her lumbar spine injury.
For the foregoing reasons, I must respectfully dissent from theMajority Opinion affirming the administrative law judge’s opinion.
________________________ TURNER, Commissioner