BUSSELL v. BURLINGTON INDUSTRIES (MONTICELLO), 1999 AWCC 71

CLAIM NO. E702816

DAVID BUSSELL, EMPLOYEE, CLAIMANT v. BURLINGTON INDUSTRIES (MONTICELLO), EMPLOYER, RESPONDENT and RELIANCE NATIONAL INDEMNITY, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 12, 1999

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

Claimant represented by PHILIP WILSON, Attorney at Law, Little Rock, Arkansas.

Respondent represented by FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed

[1] OPINION AND ORDER
[2] The respondent appeals a decision of the Administrative Law Judge filed on May 4, 1998, finding that claimant sustained a temporary aggravation of his pre-existing condition arising out of and in the course of his employment for which he is entitled to benefits. 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 reversed. [3] At the hearing held on March 5, 1998, the parties agreed to submit the issue of compensability and claimant’s entitlement to benefits on stipulations, medical exhibits, and claimant’s deposition. Claimant contended below that he sustained an aggravation of a pre-existing condition on February 11, 1997, when he leaned over a desk and experienced an acute onset of back pain. Conversely, respondent contended that claimant’s back pain which occurred on February 11, 1997 was a recurrence of claimant’s pre-existing, non-compensable condition for which he had previously undergone surgery. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent. [4] The record in this case is sparse. However, as it concerns claimant’s incident on February 11, 1997, the record reveals that claimant had just placed a piece of paper on his supervisor’s desk and when he leaned to point out something on the paper he experienced incapacitating back pain and was eventually transported from his place of employment to the hospital. The emergency room records record the following history:

Back locked — c/low back pain. RT. Happened about 6:00 a.m. — at work while bent across the desk taking (sic) to his boss — states he had sudden onset of pain and fell to floor. Request immediate transfer to VAH so that they can see him in this condition.

[5] The record reflects that this was not the first time claimant had experienced an acute onset of back pain or of his back “locking” after undergoing a diskectomy in 1991. [6] The record reflects that claimant apparently underwent a diskectomy at L5-S1 in June of 1991 as a result of an injury sustained while serving overseas during Desert Storm. On several occasions claimant reported to his treating physician with the Monticello Medical Clinic with an acute onset of back pain or of his back going out for which he requested additional pain medication. The first such medical record of this occurring which was introduced into evidence is dated April 9, 1993. The record also contains an office note dated March 8, 1994, which reflects claimant fell at home and presented to the doctor out of concern for his back. Again on September 5, 1995, claimant presented to his family physician with complaints of lower-back pain after having turned wrong while sitting. In addition to the documented office visits evidenced by the medical records introduced in this claim, claimant testified that he reported to Dr. William Williams’ office three or four times after his diskectomy surgery and prior to the February 11, 1997 event and required shots for muscle spasms. When asked what caused these previous spasms, claimant stated:

I really do not know why it happens, whether it’s fatigue or whether it’s just, you know, I can move it a certain way and it causes the muscles to tighten up around my nerves and just, you know, causes me to go down.

[7] The record further reflects that since undergoing surgery in June of 1991, claimant has been on a continuous medicine regime for pain management. Although claimant testified that the pain-management program “seems to help out”, the record reflects that claimant has experienced flare-ups of muscle spasms or of his back locking periodically ever since undergoing his diskectomy. [8] It is well settled that the test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or whether it was precipitated by an independent intervening cause. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d, 321 (1993). When a second complication is found to be the natural and probable result of the first injury, it is deemed a recurrence of that prior injury. However, when a second period of disability or complication results from an independent intervening cause such as a new injury, the carrier on the risk at the time of the independent intervening cause or new injury is now liable. [9] As noted above, claimant’s incident on February 11, 1997, was not the first time claimant has suffered from muscle spasms or his back locking since his original injury in 1991. Claimant has continuously taken pain medication to address his lower-back problem. On at least three prior occasions claimant even reported to his family physician with similar complaints as those he experienced on February 11, 1997. [10] We find nothing out of the ordinary with regard to claimant’s activities on the morning of February 11, 1997, which would arise to the level of an independent intervening cause. Rather, claimant’s onset of pain on the morning of February 11, 1997 was, in our opinion, the natural and probable result of claimant’s prior injury for which he underwent surgery. In fact, claimant’s activities on the morning of February 11, 1997, are strikingly similar to those of the claimant in AluminumCompany of America v. Williams, 232 Ark. 216, 335 S.W.2d 315
(1960) wherein it was found that claimant did not sustain an aggravation or new injury. In Williams, the second episode occurred after Williams left his employment with Alcoa. While in his home, he arose from a chair and suffered a “catch” in his back necessitating a second back operation. The Court inWilliams found that the second incident did not constitute an independent intervening cause sufficient to break the causal link between claimant’s primary injury and the second back operation. Rather, it was found that the “catch” in claimant’s back was the natural and probable result of claimant’s primary injury. Likewise, in Georgia-Pacific v.Carter, 62 Ark. App. 162, 969 S.W.2d, 677 (1998), the Court affirmed our finding that an increase in Carter’s knee pain while undergoing a stress test was the natural and probable result of the primary injury and was not the result of an independent intervening cause. Like the claimant in Carter, the claimant in the present case has periodically suffered from pain, spasms, and “locking” ever since his primary injury. Consequently, we cannot find that claimant’s activities on February 11, 1997, were unreasonable or were caused by an independent intervening event. Rather, given claimant’s past difficulties with his back, we find that claimant’s onset of pain on the morning of February 11, 1997 was the natural and probable result of claimant’s 1991 injury. [11] Accordingly, for those reasons set forth herein, we find that claimant has failed to prove by a preponderance of the evidence that he sustained an aggravation or new injury on February 11, 1997 for which respondent is liable. Rather, the preponderance of the evidence reveals that claimant suffered a recurrence of his pre-existing, non-compensable injury which did not arise out of claimant’s employment. Therefore, we find that the decision of the Administrative Law Judge finding that claimant sustained a compensable injury must be reversed. [12] We further find that claimant has failed to prove by a preponderance of the evidence that respondent is liable for the costs associated with claimant’s transportation to the hospital via ambulance. In reaching this finding, we find that the facts in this case are distinguishable from the facts in SouthernHospitalities v. Britain, 54 Ark. App. 318, 925 S.W.2d 810
(1996). In this case, respondent summoned emergency assistance for an employee suffering a medical emergency while at work. This is patently different from accepting an injury as compensable and then instructing an employee to seek medical attention. In the later scenario, respondent is estopped from denying responsibility for the medical treatment. In the former, there has been no action on respondents behalf which would even imply that the respondent is accepting claimant’s condition as compensable. On the contrary, respondent reacted as any well meaning person would. We find nothing in respondents actions of seeking aid for an employee suffering a medical emergency while at work which would bring this case within the holding ofBritain, supra. Therefore, we find that claimant has failed to prove that respondent is responsible for the costs associated with seeking immediate medical care for claimant. [13] IT IS SO ORDERED. [14] _______________________________
ELDON F. COFFMAN, Chairman

_______________________________ MIKE WILSON, Commissioner

[15] Commissioner Humphrey dissents.