CLAIM NO. E612724
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 15, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by MARK MAYFIELD, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by THOMAS MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the Administrative Law Judge on September 24, 1997. In that opinion and order, the Administrative Law Judge found that claimant sustained a compensable injury as defined by Act 796 of 1993. The Administrative Law Judge also determined that the medical care provided by the Wynne Medical Clinic and Dr. Gregory Ricca is reasonable, necessary, and related to the compensable injury. After conducting a de novo review of the entire record, we find that claimant sustained a compensable injury. We further find that the medical care provided by Wynne Medical Clinic and Dr. Ricca is reasonably necessary for the treatment of claimant’s compensable injury. Therefore, we find that the decision of the Administrative Law Judge must be affirmed. Claimant is employed as a junior high school principal. On August 7, 1996, he assisted Coach David Step with moving the latter’s desk to a new classroom. When they finished the job and set the desk down, claimant felt that something was not quite right with his back:
[3] Claimant testified that he did not experience any specific pain at the time of the incident, but he began to experience progressively worsening low back pain during the following day which eventually extended into his leg. [4] Claimant testified that he initially reported the injury on August 9, when he told the school superintendent (Mr. Smith) “that I thought I had hurt my back” as the two entered a meeting. About one week after the injury on the 7th, claimant attempted to help assistant superintendent Wes Shaver move some literature for another meeting, but was not able to complete the effort. According to claimant, he also informed Mr. Shaver at that time that he had hurt his back moving a desk the week before. [5] In addition, we note Ms. Puryear’s testimony to the effect that “usually the superintendent’s office handles all summer workers’ compensation forms and sends them in to Sedgwick.” Because the students were not yet in class at the time of claimant’s injury, Ms. Puryear was not available for claimant to notify. [6] With regard to treatment, claimant initially consulted a chiropractor (Dr. Gregory Ungerank) at the suggestion of the school nurse but was uncomfortable with continuing such modalities after only one visit. He then went to a general practitioner, Dr. Trent Beaton, who obtained an MRI on September 8, 1996, that revealed a significant disk extrusion at the L4-5 level. Dr. Beaton then referred claimant to Dr. Gregory Ricca, a Jonesboro neurosurgeon. Unfortunately, claimant was unable to last until his September 13 appointment:I felt — it was an uneasy feeling. It didn’t make me sick or anything of that nature. I could just tell something occurred in my back, and I did not say anything at the time. I just kind of pushed it off, and I didn’t think a lot about it, and afterwards we might have stood around and talked a moment or something, but I went back to my office and continued what I was doing . . . It almost feels like — kind of like a zipper or something that just — it was just something kind of like it was pulled. I felt — I just felt something occur. I don’t know the right words, I guess.
[7] Claimant eventually made his way to the high school where his wife worked, and encountered her in the parking lot. Mr. Smith was there too, and according to Mrs. Cagle’s testimony, indicated that he did not previously realize claimant’s injury was so serious. Mrs. Cagle stated that during the course of the conversation in the parking lot, Smith recalled the desk incident, and admonished claimant to complete the appropriate paper work for his injury. [8] In addition to conversations with his superiors, claimant testified that it was apparent to his co-workers that he had suffered a back injury, as evidenced by his pained expression and awkward posture. [9] As it turned out, Dr. Ricca met claimant at the emergency room on September 12th and performed surgery that day to remove the extruded disk fragments. Claimant explained that he is now “doing fine . . . as long as I watch what I do.” [10] Based on claimant’s credible testimony, and the corroborating testimony of his wife and Coach Step, we find that he has proven by a preponderance of the evidence that he sustained an accidental injury as the result of a specific incident identifiable by time and place of occurrence on August 7, 1996. We are further persuaded that the injury arose out of and in the course of his employment, given both claimant’s and Coach Step’s credible description of moving a desk from one classroom to another, claimant’s description of something feeling not right after the incident, and claimant’s onset of low back pain and ultimately radicular symptoms the day after the incident. In reaching our decision we also note that there is simply no indication that he suffered from any symptomatic pre-existing condition as of August 7, 1996, which might have contradicted the causal connection established by the claimant’s testimony. In reaching this finding, we also note that claimant denied engaging in any activities over the Labor Day weekend which might have exacerbated his condition as the respondents have suggested. Likewise, we note that claimant presented a consistent history of injuring his back at work associated with moving a desk to each of the three physicians mentioned above. Dr. Ungerank’s August 23, 1996 record contains a notation “carried teacher desk and hurt low back”; Dr. Benton’s August 28, 1996 record includes the notation “He moved a desk 3 weeks ago but he did not remember hurting his back.” Likewise, Dr. Ricca’s September 12, 1996 report states:Okay. That was Thursday, the 12th of September. I got up, took a shower and everything, and was getting ready to go to a Kiwanis meeting. We have a 6:15 Kiwanis meeting every Thursday morning, so just routine, and I was sitting down at my kitchen table putting my socks on, and when I stood up, I took a couple of steps into the living room, and just tremendous pain just hit me all of a sudden. It was in my lower back going down my left leg, and I just hit the floor, and at seven o’clock I think I was still laying there trying to get up, and I didn’t know what to do.
[11] Given claimant’s MRI results of September 8, 1996, we also find that claimant’s injury has been established with medical evidence supported by “objective findings” which demonstrate the presence of an internal physical harm to his body. Also, it is clear that claimant’s injury required him to seek “medical services.” Accordingly, based on the foregoing evidence, we find that claimant has proven that he sustained a compensable injury within the meaning of Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997). [12] Respondents have raised the notice defense. However, we are persuaded by claimant’s credible testimony that respondent employer had knowledge of claimant’s work-related back injury on August 9, 1996, two days after the incident occurred and before any of the treatment at issue in this case. Further, we find the corroborating testimony of Mrs. Cagle regarding Mr. Smith’s comments to be credible as well. Therefore, any alleged failure to give proper notice is excused pursuant to Ark. Code Ann. § 11-9-701 (b) (Repl. 1996). [13] In reaching our decision, we note that it has been argued that the claimant must provide written notice to fulfill his notice obligations under Ark. Code Ann. § 11-9-701. However, the Commission has previously held that claimant’s failure to give notice of an injury in accordance with § 11-9-701(a)(1) may be excused under § 11-9-701(b)(1). Marie Fuller v. HartmarxCorporation/Rector Sportswear Corporation, et al, Full Commission Opinion filed December 1, 1992 (E118573 E118574): Janie Heavnerv. Target Warehouse, et al, Full Commission Opinion filed February 8, 1993 (D605740 E100503); Jerry Don Johnson v. Weyerhaeuser, Full Commission Opinion filed November 30, 1993 (E201465). [14] The mandate to strictly construe statutes precludes us from ignoring the excuses contained in § 701(b) (1). This statute is plain and unambiguous and should be construed so that no word is left void, superfluous, or insignificant. Kildow v. BaldwinPiano Organ, 333 Ark. 335, ___ S.W.2d ___ (1998). To accept the argued interpretation of § 701 would require us to disregard the excuses contained in § 701 (b) (1). We cannot construe statutes to create such superfluity. Id. [15] We have also found that a claimant fulfills his notice obligations when he reports the injury to his supervisor. In the present case, the claimant reported the injury to his supervisor, the school superintendent, on August 9, 1996, and fulfilled his reporting obligation by doing so. Ms. Puryear’s testimony indicates to us that the appropriate forms to be completed would be with Mr. Smith’s office. Whether Mr. Smith accepted the report orally, rather than requesting a form be filled out, and whether Mr. Smith did or did not report the incident to his school’s workers’ compensation carrier are issues properly between Mr. Smith and the carrier. For the claimant’s part, however, we find that he fulfilled his statutory notification obligation under the circumstances when he reported the incident to Mr. Smith. [16] Another argument that has been advanced is that an “independent intervening cause” severed the liability of respondents in this case. This alleged independent intervening cause has been characterized as the “sock incident”. We disagree with the allegations on an independent intervening cause for several reasons. First, the claimant did not experience his severe bout of pain on September 12th while he was bent over putting on his socks or when he straightened up. Instead, after putting on his socks, claimant stood up and took a few steps into the living room. Then, he felt “tremendous pain” in his lower back and left extremity as he was simply walking. In short, there was no “sock incident”. [17] Second, it has also been argued that claimant’s disc herniation resulted from the act of putting on socks on September 12, 1996. However, this argument completely ignores the medical evidence. In this regard, the claimant’s MRI scan performed onSeptember 8, 1996, (4 days before September 12, 1996) revealed an abnormality in the form of an extruded disc at L4-5 on the left, and claimant’s medical reports indicated that he was already experiencing radicular pain into his left leg since the time that he first went to the doctor. Consequently, in light of the claimant’s back pain, radicular symptoms and MRI-documented disk extrusion, which all clearly preexisted September 12, 1996, and in light of the lack of evidence that any injurious “incident” occurred on September 12, 1996, we find that the greater weight of the evidence establishes that no “independent intervening cause” occurred on September 12, 1996. [18] Accordingly, based on our de novo review of the entire record, and for the foregoing reasons, we find that claimant has proven by a preponderance of the evidence that he sustained a work-related injury identifiable by time and place of occurrence on August 7, 1996. Moreover, we find that claimant is entitled to reasonable and necessary medical benefits related to the treatment of his compensable injury, including care by the Wynne Medical Center and Dr. Ricca. 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 on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996). [19] IT IS SO ORDERED.Mr. Cagle is a 30 year old, previously healthy white gentleman who one month ago at work helped a teacher carry a desk from one side of the school to the other. Shortly afterwards, he started noticing some back pain and pain radiating to the left lower extremity, but this was minor initially.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[20] Commissioner Wilson dissents. [21] DISSENTING OPINION[22] I must respectfully dissent from the majority opinion. The “First Report of Injury or Illness” prepared by Ms. Tommy Puryear is not part of the record. Therefore, I cannot find that claimant has proven by a preponderance of the evidence that prior notice of the compensable injury was provided to respondent. Ark. Code Ann. § 11-9-701(a) states:
[23] Although claimant testified that everyone was aware of claimant’s problem, the record as it exists fails to establish by a preponderance of the evidence that claimant provided notice of the injury on a form approved by the Commission until after claimant underwent surgery. Construing the statute strictly, as we are mandated to do, it is my opinion that this provision prevents claimant from receiving any workers’ compensation benefits prior to officially reporting his injury to respondent. I am not persuaded to find that the injury was made known to the employer immediately after it occurred since claimant testified that he did not even know he hurt himself when moving the desk; consequently, respondent employer could not have known that claimant hurt himself immediately after claimant moved the desk. For these reasons, I would reverse the decision of the Administrative Law Judge. [24] The record reveals that claimant does not recall injuring his back while he was lifting the desk on August 7, 1995. Moreover, the medical records reflect that claimant only described his back condition following the lifting incident as minor. Claimant advised Dr. Beaton with the Wynne Medical Clinic: “He moved a desk three wks ago but did not remember hurting his back.” On September 3, 1996, claimant’s physical therapist recorded a history of “This is a 30 year old white male with onset of radicular pain in left lower extremity approximately two weeks agowithout specific incident or injury.” (Emphasis added) Claimant was diagnosed with a lumbosacral strain at that time. It was not until after claimant bent over at home to put on his socks that he experienced “tremendous pain” which hit him “all of a sudden.” As a result of this tremendous pain, claimant “hit the floor.” It was this incident which caused claimant to seek treatment from the emergency room and was admitted that day by Dr. Gregory Ricca for immediate surgery. Even assuming, arguendo, that claimant sustained a compensable injury while moving the desk on August 7, 1995, it was not that incident, but rather the sock incident, which necessitated claimant’s need for surgery. Until claimant’s disk herniated when he bent over to put on his socks, claimant was not a surgical candidate as clearly outlined by the medical records diagnosing claimant with a lumbosacral strain. [25] Ark. Code Ann. § 11-9-102(5)(F)(iii) provides:Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer on a form prescribed or approved by the Commission and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to the receipt of the employee’s report of injury. (emphasis added)
[26] Whether claimant injured himself over the Labor Day weekend is immaterial given the fact that claimant admitted to an independent intervening cause, i.e., bending over to put on his socks. Furthermore, it is irrelevant whether claimant acted negligently or recklessly at the time he experienced the acute onset of pain when bending over to put on his socks as the statute no longer requires a showing of either negligence or recklessness. Since the statute does not require a showing of negligence or recklessness I am of the opinion that all prior case law which addresses the reasonableness of the claimant’s action is no longer applicable. [27] Accordingly, I find that the decision of the Administrative Law Judge awarding claimant temporary total disability benefits and medical treatment for his surgery should be reversed. In my opinion, an independent intervening cause resulted in a prolonged disability or need for medical treatment, thus extinguishing respondent’s liability in this claim. Therefore, I respectfully dissent from the majority opinion. [28] MIKE WILSON, CommissionerUnder this subdivision (5)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.