CLAIM NO. F103444
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 3, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE DODDRIDGE M. DAGGETT, Attorney at Law, Marianna, Arkansas.
Respondents represented by HONORABLE MARY-MARSHA PORTER, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an Administrative Law Judge’s order and opinion filed June 20, 2002. The Administrative Law Judge found that the claimant proved she sustained a compensable injury on March 8, 2001. After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge.
I. HISTORY
The parties stipulated that there was an employee-employer relationship on Thursday, March 8, 2001. Betty Burton, age 58, testified that she was working in the “cool room,” which involved pulling baskets of rubber from an elevator, weighing the baskets, and pushing them in line. The claimant testified:
Q. Tell the Court how you were injured, please.
A. I had gone to the bathroom. I was coming back. When I started up the stair, about halfway up there — when I went to step on the step, my foot slipped and it bent back and I fell to my knees on the stairs and when I got back up and went on up the stairs and it was hurting some then.
The claimant testified that she walked back to her work station, and that she told her foreman she had hurt her foot. The alleged accident occurred near the end of the claimant’s shift at 11 p.m., and the claimant testified she was scheduled to be off work the next two days. The claimant elevated her foot at home the next day, but the claimant testified she was experiencing acute pain.
The record indicates that the claimant presented to a hospital on Friday, March 9, 2001. The claimant testified she told the emergency physician she had slipped on stairs at work and hurt her foot. However, it was recorded:
Pain to heel of right foot. Denies any injury. Walks a lot and on feet at work. . . .
The claimant testified that the physician’s note, “Denies any injury” meant there were no injuries to her right foot before March 8, 2001. In any event, the physician diagnosed “right foot pain.”
The claimant presented to Wynne Medical Clinic on March 12, 2001 with complaints of foot pain. It was noted “Pain in R foot (heel) No hx of injury.” The physician indicated that the claimant would be placed in a boot cast. It was also reported on March 12, 2001, “Ms. Burton is medically unable to work 3-12-01 through 3-19-01 due to injury to her R Achilles tendon.”
Beginning March 12, 2001, the claimant began submitting a number of Leave Of Absence Request Forms for the period beginning March 11, 2001, for the reason “hurt right foot.” Dr. R. Edward Cooper, Jr. reported on March 15, 2001:
Ms. Burton is a 56 year old WF with right heel pain since an injury on 3-8-01. At that time she was climbing some stairs and got the forefoot caught on the step. At that time she had a hyperdorsiflexion type injury to her right ankle. She was seen by Dr. Hayes and found to have possible avulsion type fracture and was placed in a boot walker with ice and elevation and comes now for orthopedic consultation. . . .
X-rays today demonstrate mild to moderate degenerative changes throughout the right foot. There is a traction osteophyte off the posterior calcaneal tuberosity which has a small fracture at the base of the osteophyte. No other abnormalities are detected.
Dr. Cooper’s impression was “Fracture traction osteophyte right Achilles insertion. It appears that the structure of the tendon is intact.” Dr. Cooper planned to “continue the boot walker to take the stress off the tendon while the inflammation calms down.” The claimant testified that the boot walker did not improve her condition.
The claimant signed a WCC Form N on March 15, 2001 and discussed the cause of injury allegedly occurring March 8, 2001:
I was returning from the bathroom going up the stairs when I step (sic) on the next step with the front half of my right foot I felt a sting in the back of my heel.
A right ankle MRI was taken on April 10, 2001:
The ligaments and tendons of the ankle are intact. Osseous structures and articular surfaces are normal in appearance. Specifically, the Achilles tendon and it’s insertion on the posterior calcaneus are normal in appearance. There is a small calcaneal spur posteriorly. No bone marrow edema is present to suggest a fracture in this area.
CONCLUSION: Normal ankle MRI.
Dr. Cooper noted on April 19, 2001 that he had reviewed the MRI, and his impression was “Left insertional Achilles pain uncertain etiology.” Dr. Cooper planned to refer the claimant to Dr. Greer Richardson, a foot and ankle specialist, to assist in treatment.
Dr. E. Greer Richardson reported on May 16, 2001:
This is a 57 year old female who has chronic calcific insertional Achilles tendonitis on the right. She has been treated in a cast for six weeks. She has been hurting since 3/8/01 but the calcium was there certainly before then. This was an acute on chronic injury.
Dr. Richardson diagnosed “ACHILLES TENDONITIS, INSERTIONAL, RIGHT, CALCIFIC” and planned the following treatment:
The patient is placed in a cast for about eight weeks followed by a double upright brace. She can work in her cast and I returned her to work on 6/1/01. She has been (sic) for three months and I see no reason for her to stay off any longer. If she can’t work in the cast, maybe then can find some light work for her to do.
The claimant testified that she was outfitted with a brace for her foot in about July 2001. The claimant testified that the brace had relieved her condition, and that her foot swelled if she tried to walk without the brace. A representative of Patient Accounts in Dr. Richardson’s office noted that the claimant had presented for orthotic care on July 11, 2001, and that the claimant could return to work on July 22, 2001.
The claimant testified that she returned to work in the cool room on or about July 21, 2001, and that she worked approximately one month. The claimant testified, “My foot and leg hurt so bad by the time I got home from work it was hurting so bad I couldn’t even go to sleep.” The claimant testified that she asked for light duty, but that the respondent-employer had no light duty available. Mr. Looney denied that the claimant requested light duty when she returned to work. Mr. Looney acknowledged, however, that the claimant was wearing a brace on her foot when she returned.
The claimant’s employment was terminated on August 23, 2001. It was remarked that the claimant “Voluntarily quit — Unable to perform job due to foot.”
The claimant followed up with Dr. Richardson on September 19, 2001, and he essentially reported that the claimant’s condition was improving.
Dr. Richardson reported on January 10, 2002:
Ms. Burton’s Achilles tendonitis is much better. She is still having some pain but all in all doing better. She said that this was an on-the-job injury and I believe that this degenerative process can be exacerbated by an injury and she described her injury to me and I believe that it is within reason that this exacerbation occurred at work. Due to that, I think she has a ten percent permanent partial physical impairment rating of the right foot and ankle combined. She reached maximum medical management on January 10, 2002 and will return to see me prn. She will probably need some brace repairs over the next year which will amount to about $200 to $300. I do not think she will need the brace after that. She is doing full duty and is released to full duty.
Ms. Burton claimed entitlement to worker’s compensation. The claimant contended that she sustained a compensable injury to her ankle and foot as the result of a specific incident. The claimant contended entitlement to reasonably necessary medical treatment. The claimant contended that she was entitled to temporary total disability compensation for the periods when she did not work following the injury. The claimant contended that she was entitled to a 10% anatomical impairment rating.
The respondents controverted the claim. The respondents contended that the claimant did not sustain a compensable injury. The respondents contended that the claimant’s medical treatment was not related to the alleged accident.
After a hearing before the Commission, the Administrative Law Judge found that the claimant proved she sustained a compensable injury, and that the claimant was entitled to reasonably necessary medical treatment and temporary total disability compensation. The Administrative Law Judge found that the claimant failed to prove she was entitled to “permanent impairment disability benefits”; the claimant does not appeal this finding.
The respondents appeal to the Full Commission.
II. ADJUDICATION
The claimant bears the burden of proof in establishing entitlement to worker’s compensation, and she must sustain that burden by a preponderance of the evidence. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.3d 543 [989 S.W.2d 543] (1999). Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A), defines “compensable injury”:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
In the present matter, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained an accidental injury which arose out of and in the course of the claimant’s employment. The claimant testified that her foot slipped and bent back while walking up stairs at the place of her employment. The claimant was off work the next day, and testified that she rested and elevated her foot at home. When the claimant first presented for medical treatment, however, the record indicates that the claimant explicitly denied an injury. The initial treating physician diagnosed “right foot pain” and did not describe an accidental injury. Three days after her initial treatment, the claimant presented to a medical clinic and again reported “no history of injury.” The Full Commission attaches significant weight to the initial medical reports following the alleged specific incident, which reports expressly indicated that the claimant had not sustained an injury. We therefore find that the claimant failed to prove by a preponderance of the evidence that she sustained a “compensable injury” as defined by Ark. Code Ann. § 11-9-102(4)(A)(i).
Yet even if the claimant did prove that she had sustained a compensable injury pursuant to § 11-9-102(4)(A)(i), we find that the claimant failed to establish a compensable injury by medical evidence supported by objective findings. See, Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(D). X-rays taken March 15, 2001 showed degenerative changes throughout the claimant’s right foot. There was also a traction osteophyte with a small fracture at its base, but the preponderance of evidence does not indicate that this degenerative condition was the result of an accidental injury. We also note that a subsequent MRI of the ankle was normal. Following this normal diagnostic finding, the treating physician’s impression was “Left insertional Achilles pai uncertain etiology (our emphasis). Dr. Richardson, a foot and ankle specialist, subsequently described “chronic tendonitis” in the claimant’s right foot. The preponderance of evidence before the Full Commission therefore indicates that the claimant failed to establish a compensable injury pursuant to Ark. Code Ann. § 11-9-102(4)(D).
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove that she sustained an accidental injury, arising out of and in the course of employment and requiring medical services, as required by the provisions of Ark. Code Ann. §11-9-102(4)(A)(i). We also find that the claimant failed to establish a compensable injury by medical evidence supported by objective findings, pursuant to Ark. Code Ann. § 11-9-102(4)(D). We therefore reverse the opinion of the Administrative Law Judge. This claim is denied and dismissed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION SHELBY W. TURNER, Commissioner
I must respectfully dissent from the majority opinion reversing the Administrative Law Judge’s finding of compensability. Upon my de novo
review of the record, I find that claimant (a pro se litigant), sustained a compensable right foot/ankle injury.
In reversing the Administrative Law Judge, the majority opinion asserts: (1) that claimant’s failure to report a specific injury to her right foot/ankle upon initial treatment is fatal to her claim; and (2) that even if such failure were acceptable, claimant has no objective medical evidence of an injury.
On March 8, 2001, at approximately 10:40 p.m., claimant slipped and fell on stairs at work. After her fall, claimant stated that she regained composure; continued to climb the stairs; reported the incident to her manager; finished her shift; and went home. Claimant took Tylenol and propped up her foot, but received emergency room treatment the following day when her foot started to swell. She stated that she told the emergency room physician that she hurt her right foot and ankle while at work.
Dr. Hayes provided claimant follow-up treatment and referred her to Dr. Cooper, who prescribed a boot cast and ultimately referred her to Dr. Richardson.
Claimant worked approximately one month after her injury (wearing a foot brace), but quit on July 22, 2001 because respondents failed to provide her light duty work. Claimant currently received social security disability benefits.
Looney admittedly denied claimant light duty work prior to July 22, 2001 because of her open boot cast, and stated that claimant never reiterated her request after that date. Nevertheless, Looney said claimant did inform him again on August 23, 2001 that she could not work due to right foot/ankle pain and that (upon asking her what she wanted to do), he noted the following on her termination papers: “voluntary quit in April (unable) to perform job due to foot.” (Claimant’s Ex., p. 6).
The majority opinion, referring to claimant’s March 9, 2001 emergency room and March 12, 2001 medical reports, finds that claimant initially denied injury to her right foot/ankle, thereby defeating her ability to show a causal relationship between her work and her injury. However, the record simply does not support the contention that claimant failed to attribute her injury to her work. In fact, all the testimony presented (and most of the documentary evidence) indicates that claimant informed many people of her work-related injury from the beginning.
Claimant injured her right foot/ankle on Thursday, March 8, 2001; went to the emergency room the next day; and returned to work on Monday — four days after her injury. Claimant contends that she informed Mr. Stephens, foreman, of right her foot/ankle injury on March 8, 2001 (the date of occurrence) shortly before she left work around 11 p.m. Gary Looney, project manager, testified that claimant informed him of her work-related injury on March 12, 2001 (the Monday she returned to work), stating, “she said she hurt her foot going up the stairs.” Looney said he immediately referred claimant to Dr. Jacobs, the company physician, with whom he believes she treated because, “Betty pretty well done what we asked her to do.”
The rather confusing March 9, 2001 emergency room report noted “pain to heal of right foot. Denies any injury. Walks a lot and on feet at work.” Pain started, based on this seemingly incomplete notation, the majority opinion finds that claimant did not report a work-related injury. But, claimant testified that she specifically told the emergency room physician that she fell on stairs at work and that she told medical personnel that she had no right foot/ankle injuries prior to her fall at work.
The other record on which the majority opinion relies is the somewhat illegible March 12, 2001 medical report. While the words “injury” and “pain in R foot (heel)” are clearly written within the text, other surrounding words are extremely unclear — leaving only speculation and conjecture to provide an answer as to its meaning.
I reject the majority opinion reasoning that claimant failed to report her injury as work-related for a number of reasons. First, it is unclear why respondents failed to question the foreman since claimant contends that she informed him immediately of her injury. Second, it does not follow that claimant would report a work-related injury to her manager on March 12, 2001 (as he corroborated), and then on the same day report “no injury” to medical personnel. Third, claimant reported a work-related injury on the workers’ compensation forms she completed on March 15, 2001. Fourth, claimant also reported a work-related injury when applying for unemployment benefits which respondents denied. Notably, this denial was affirmed on appeal based on the very facts which claimant has contended from the beginning.
She returned to her former duties where she complained of pain and was subsequently transferred to a different department within the plant in an effort to accommodate her. She credibly testified she could not perform the work because it required standing for long hours and caused her leg to swell and her back to ache.
The claimant was aware that she had to wear the brace for another year and therefore she did not seek a leave of absence or request reassignment. The evidence does not establish that the claimant made reasonable effort to preserve her job, therefore the decision of the Appeal Tribunal which affirmed the department determination is affirmed on the finding that the claimant voluntarily left her last work due to injury without making reasonable effort to preserve her job rights. (Emphasis added).
A final reason that I reject the majority opinion argument that claimant failed to initially report her injury as work related is that also on March 15, 2001 (the same date that she applied for workers’ compensation benefits and just seven days following her accident), Dr. Cooper reported:
Ms. Burton is a 56 year old WF with right heel pain since an injury on 3-8-01. At that time she was climbing some stairs and got the forefoot caught on the step. At that time she had a hyperdorsiflexion type injury to her right ankle. She was seen by Dr. Hayes and found to have possible avulsion type fracture and was placed in a foot boot walker with ice and elevation and comes now for orthopedic consultation.
Dr. Cooper further noted mild to moderate degenerative changes on x-ray and diagnosed claimant with “fracture traction osteophyte right Achilles insertion.” He recommended that claimant continue wearing the boot walker to take stress of her tendon until her inflammation subsided.
On September 9, 2001, Dr. Richardson followed-up with claimant for “chronic calcific Achilles insertional tendinitis on the right.” Claimant was treated with an upright metal brace and stretching program with which Dr. Richardson noted compliance. He opined within a reasonable degree of medical certainty on January 10, 2001 that claimant’s condition was caused by her accident at work.
Ms. Burton’s Achilles tendinitis is much better. She is still having some pain but all in all doing better. She said that this was an on-the-job injury and I believe that this degenerative process can be exacerbated by an injury as she described her injury to me and I believe it is within reason that this exacerbation occurred at work. Due to that, I think she has a ten percent partial physical impairment rating on the right foot and ankle combined. She reached maximum medical management on January 10, 2002 and will return to see me prn. She will probably need some brace repairs over the next year which will amount to about $200 to $300. I do not think that she will need the brace after that. (Emphasis added).
Dr. Richardson followed a letter to claimant on the same date informing her of the 10% rating assignment and noting objective findings of “mild enlargement of the area insertion.” He stated, “I believe you have chronic tendinitis that was exacerbated by that fall. Due to that fall, you have a permanent impairment and I have rated you at ten percent according to the American Medical Association Guidelines to Permanent Impairment.”
Upon my review of the record, it is apparent that claimant has consistently reported her fall as occurring at work and causing the injury to her right foot/ankle. Accordingly, I find that the preponderance of the evidence establishes a causal relationship between claimant’s fall at work and her current right foot/ankle condition.
I further contend that objective medical evidence supports the Administrative Law Judge’s award of benefits. The majority opinion finds that even if claimant could show a causal connection between her work and her current foot/ankle condition, her claim still fails for want of objective medical findings, specifically stating, “the preponderance of the evidence does not indicate that this degenerative disease was the result of an accidental injury.” However, I find Dr. Richardson’s report of “mild enlargement of the area insertion,” to constitute objective findings of injury. Consequently, I analyze this legal issue not based on whether claimant’s degenerative disease resulted from her injury at work; but rather, whether claimant’s work-related injury aggravated her preexisting degenerative disease. To that extent, I find that it did.
The courts consistently hold that 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. Geneva Jones v. Wackenhut Corp., Full Commission Opinion, filed May 9, 2002 (E04697 E606890) (on remand from the Arkansas Court of Appeals (unpublished opinion)).
Where it is undisputed that appellee had been diagnosed with a degenerative disc disease by the treating physician who also opined that appellee’s degenerative disease had been aggravated by his job-related injury, the appellate court held that the physician’s notes constituted substantial evidence in support of the Commission’s findings that continued treatments were reasonable and necessary. General Electric Railcar Repair Service v. Ace Hardin, 62 Ark. App. 120, 969 S.W.2d 667
(1998).
I find claimant’s situation to be akin to Ace Hardin to the extent that Dr. Richardson specifically opines that claimant’s work-related injury aggravated her preexisting degenerative disease. Accordingly, I dissent from the majority opinion which reverses the Administrative Law Judge’s award of benefits.
For the foregoing reasons, I must respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner