CLAIM NO. E411174
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 6, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by KEITH BLACKMAN, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by RANDY MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on January 9, 1997, finding that claimant’s surgery of February 6, 1996, was a compensable consequence of his original work-related injury of July 1, 1994, and that he was entitled to an additional award of temporary total disability benefits beginning with his last day of work and continuing through the end of his healing period.
[8] Although Dr. Fletcher pronounced claimant to be at or nearing the end of his healing period on June 27, 1995, the latter still complained of occasional “pains at the base of the neck and some pain radiating into the arm.” Even as late as September 21, 1995, claimant presented to Dr. Fletcher with “numbness in the left arm as well as occasional headaches.” Claimant also continued to experience numbness in his hands, which Dr. Fletcher felt was associated with mild carpal tunnel syndrome. [9] Apparently, Dr. Fletcher at some point declined to treat claimant further, prompting him to seek assistance from Dr. Mark A. Landis, a family practitioner. Dr. Landis noted on November 16, 1995, that:He states that he returned to work on March 3 and has had some problems since returning to work. He states he is having considerable pain in the left shoulder and upper arm primarily in working. His work activity involves repetitious leaning and reaching backwards to the left in reaching out for electric coils to weld.
[10] Claimant’s suspicion regarding a further herniation proved remarkably prophetic, as a follow-up MRI on November 19, 1995, revealed a “left paramedian C5-6 herniated nucleus pulposus” and a “postsurgical change, C6-7 with enhancing scar. Focal left paramedian lateral recurrent disc remains a consideration.” Further radiographic testing on December 6, 1995, indicated a progression of claimant’s degenerative condition as well:He wants an MRI done. Had a CT scan earlier and has had surgery for slipped disc but he feels like another one has occurred by the way it feels. He has been released by Dr. Fletcher who stated he would not see him anymore but he is not sure why. He told him reportedly, that he “met his healing period.”
[11] Dr. Landis removed claimant from work “until further notice” on January 15, 1996, and referred him to Dr. Gregory F. Ricca for a neurosurgical evaluation. When he consulted Dr. Ricca on January 24, 1996, claimant once again presented with “left upper extremity pain which is in the lateral arm with numbness into the radial aspect of the left forearm, thumb and index finger.” Following a physical examination and a review of claimant’s previous MRI, Dr. Ricca developed the following impressions:Current radiographs show persistent and likely worsening severe osteophytic intrusion on the left at C6-7. This disc space remains markedly narrowed with end plate sclerosis.
[12] Dr. Ricca also noted that claimant’s degenerative changes were “much more advanced than what one would expect for a 28 Y/O.” Dr. Ricca eventually performed additional cervical diskectomies and fusions at C5-6 and C6-7 on February 6, 1996. As it turned out, claimant not only had a further HNP at the C5-6 level, but also at the C6-7 level as well. Dr. Ricca described claimant’s post-operative diagnosis as:HNP in the left paracentral region at C5-6 with involvement of the spinal cord and the left C6 root.
Broad based osteophytosis at the left C6-7 with involvement of the spinal cord and both C7 roots.
[13] For his own part, claimant explained at the hearing that, after his first surgery, he experienced the “same symptoms that I had before the surgery,” and that he currently still has problems with pain and numbness in his left shoulder, arm, and fingers. He also denied engaging in any substantial physical activity other than his work during the period relevant to this claim. [14] When a second period of complications is found to be the “natural and probable result” of a prior compensable injury, the respondents on the risk at the time of the first injury remain liable. However, if the second period of complications is the result of an independent intervening cause, the original respondents’ liability is terminated. See, in general, BeardenLumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). In our opinion, claimant’s difficulties subsequent to his November 8, 1994, surgery are the “natural and probable result” of his original compensable injury and are thus a recurrence thereof. [15] We note first of all that claimant remained symptomatic after his first surgery and, according to his credible testimony, continued to experience the “same symptoms” as he had previously. This is verified by claimant’s medical records, which detail a consistent history of pain and sometimes numbness involving claimant’s neck and left upper extremity both before and after November 8, 1994. In addition, claimant’s second disk herniations occurred at the same levels they had originally appeared (C5-6 and C6-7). [16] While it is true, as respondents point out, that claimant’s degenerative condition had also progressed and contributed to his nerve compression, Dr. Ricca opined on January 24, 1996, that claimant’s C5-6 disk herniation had itself affected the spinal cord and nerve root. Subsequent diagnostic studies verified this impression. (See cervical myelogram with post-myelogram CT dated February 6, 1996). We thus cannot agree with respondents’ assertion that claimant’s degenerative problems are solely responsible for his second surgery. As a further example, we note the following excerpt which respondents have offered for our consideration, taken from a discharge summary prepared by Dr. Ricca on February 7, 1996:Herniated nucleus pulposus, C5-6, centrally and to the left, very large.
Osteophytosis with spur formation and neurological compression at C6-7 bilaterally with herniated nucleus pulposus at C6-7.
[17] We also note the remainder of this passage, which respondents have not offered for our consideration:Review of the cervical spine films done in Pocahontas on December 6, 1995 were of good quality. They showed degenerative changes with ostephytosis, which was marked at C5-6 and C6-7. This was more advanced than one would expect on a 28 year old. The remainder of the spine looks fairly good. (Emphasis supplied by respondents).
[18] As the entire passage from Dr. Ricca’s discharge summary makes clear, degenerative disease was not the only cause for claimant’s second round of cervical disk surgery. We thus find little merit to respondents’ additional contention that “noMagnetic resonance imaging of the cervical spine done with and without intravenous contrast in Pocahontas on November 19, 1995, was quite impressive. It showed a large disc rupture in the left paracentral region with significant cord and root compression. Myelogram and post-myelogram tomography on February 6, 1996, were of excellent quality. They showed a very large herniated nucleus pulposus at C5-6 centrally and to the left with severe cord compression and root compression at C5-6 to the left. The patient also had a hard bar at C6-7 across the canal impinging on both C7 roots and spinal cord. (Emphasis added).
doctors’ opinion, no medical report, and no medical test result provided any other reason for the surgery.” (Emphasis in original). [19] Likewise, we are not persuaded by respondents’ assertion that “not a single report referenced includes any mention of claimant’s compensable injury or identifies any causal relationship between that injury and the need for the 1996 surgery.” (Emphasis supplied by respondents). Historically, causal relationships have not depended on medical evidence. Bates v.Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). While Act 796 of 1993 does require a compensable injury to be “established with medical evidence supported by `objective findings'” (see Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996), the Arkansas Court of Appeals has recently held that this requirement applies only to the “nature and extent” of an injury. StephensTruck Lines v. Millican, ___ Ark. App. ___, ___ S.W.2d ___ (CA 97-3 Opinion Delivered September 17, 1997). In light of the holding inStephens Truck Lines, and considering our “strict construction” mandate (see Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996), we are unable to presume that Act 796 imposes a “medical evidence” requirement for matters relating to causal connection. [20] Finally, there is little or no evidence to suggest that claimant’s continued difficulties are the result of a nonwork-related independent intervening cause. [21] Given the nature and location of claimant’s continued difficulties and his consistent, unresolved complaints following his first surgery, we are persuaded to find, in the absence of any nonwork-related independent intervening cause, that his second pair of disk herniations and resulting surgery of February 6, 1996, were the “natural and probable result” of his original work-related injury and are thus a compensable recurrence thereof. [22] Temporary total disability refers to that period within the healing period in which the injured employee is totally incapacitated to earn wages. Arkansas State Highway Transp.Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Because Dr. Landis removed claimant from work on January 15, 1996, and given the presence of unresolved disk herniations at the C5-6 and C6-7 levels at that time, we find that claimant was in his healing period and totally incapacitated to earn wages as of January 15, 1996. Accordingly, we find that claimant is entitled to an award of temporary total disability benefits from January 15, 1996, until such time as his healing period ends or he returns to work — whichever occurs first. [23] Based on our de novo review of the entire record, and for the reasons stated herein, we specifically find that claimant’s surgery of February 6, 1996, is the result of a compensable recurrence of his work-related injury of July 1, 1994, and that claimant is entitled to an award of temporary total disability benefits from January 15, 1996, until such time as his healing period ends or he is released to return to work — whichever occurs first. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [24] 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 is accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [25] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [26] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[27] Commissioner Wilson dissents.[28] DISSENTING OPINION
[29] I must respectfully dissent from the majority opinion finding that claimant’s need for additional surgery on February 6, 1996, is a compensable consequence of claimant’s original injury on July 1, 1994, and finding that claimant is entitled to additional temporary total disability benefits as a result of the February 6, 1996, surgery. Based upon my de novo review of the entire record, I find that claimant has failed to prove by a preponderance of the evidence a causal connection between his original injury and the subsequent surgery.
[35] Dr. Landis referred claimant to Dr. Gregory Ricca who first saw claimant on January 24, 1996. When asked how claimant could have a recurrent disk Dr. Ricca explained:Left paramedian C5-6 herniated nucleus pulposes. Post surgical change, C6-7 with enhancing scar. Focal left paramedian — lateral recurrent disk remains a consideration. If surgical intervention is contemplated, recommend current cervical radiography to include oblique projections to ascertain whether previous focal spondylitic intrusion on the left at C6-7 was previously excised.
[36] On February 7, 1996, Dr. Ricca performed an interior cervical diskectomy and fusion at C5-6 and C6-7. [37] Claimant clearly sustained a compensable injury in July of 1994 for which benefits were paid. Claimant underwent a laminectomy and diskectomy at the hands of Dr. Fletcher in November of 1994. From a review of the medical records, it appears as though claimant received a satisfactory result from that surgery. Claimant underwent a work hardening program and a functional capacity evaluation which revealed claimant was capable of performing work at a medium level. Claimant, in fact, returned to work in accordance with Dr. Fletcher’s instructions and restrictions. When claimant continued to complain of left arm pain, electrodiagnostic studies were performed which revealed claimant suffered from mild carpal tunnel syndrome on his left wrist. The MRI performed in December of 1995 did reveal a new herniated disk at the C5-6 and C6-7 levels. However, in addition to this subsequent MRI, claimant’s x-rays and myelograms revealed claimant had extensive degenerative changes and osteophytosis at both these levels. In fact, Dr. Ricca described the degenerative changes and osteophytosis as “more advanced than one would expect on a twenty-eight year old.” [38] It is important to note claimant offered no doctor’s opinion, no medical report, and no medical tests to explain whether there is a causal connection between claimant’s original injury and the subsequent herniated disk and second surgery. The only evidence presented by claimant that his subsequent problems were related to the compensable injury is claimant’s own belief that a causal relationship exists. However, 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. Killingberger v. Big “D” Liquor, FC Opinion August 29, 1995, (E408248 E408249). There is nothing in the record upon which I can find a basis for the compensability of the subsequent herniated disks and surgery. Dr. Ricca merely explained that it is possible to sustain a second, third and possibly even fourth herniated disk after surgery. However, he did not go so far as to say that such subsequent herniation is causally related to the initial herniation and surgery. [39] Accordingly, I cannot find that claimant has proven by a preponderance of the credible evidence that his subsequent herniations at C5-6 and C6-7 and resultant surgery in February of 1996 is causally related to claimant’s July 1, 1994, compensable injury. Therefore, I respectfully dissent from the majority opinion. [40] MIKE WILSON, CommissionerHe was decompressed posteriorly and from review of the MRI, it appears that he had a good quality operation. This patient now has a large HNP in the paracentral region of C5-6 and it is possible to rupture a disk second and even a third or fourth time.