CLAIM NO. G001148
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 14, 2011
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE M. SCOTT WILLHITE, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE GENE WILLIAMS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed and Dismissed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury on June 29, 2009 and was entitled to medical treatment in the form of surgery. The Administrative Law Judge also found that the claimant was entitled to a 10% permanent anatomical impairment rating as well as temporary total disability for the period December 9, 2009 through March 7, 2010 and awarded the respondents a dollar-for-dollar credit for the disability benefits the claimant
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received. Based upon our de novo review of the record, we reverse the decision of the Administrative Law Judge. Specifically, we reverse the finding that the claimant was entitled to the medical treatment in the form of back surgery he had on December 9, 2009. The evidence shows that the claimant’s surgery was the result of an underlying condition, not for the alleged aggravation of the claimant’s pre-existing condition.
The claimant was employed by the respondent employer in the department that makes meat casings for summer sausage, hot dogs, bologna, etc. The claimant stated that on June 27, 2009, he was lifting jugs of salt weighing 40 to 50 pounds to put in a hydro-tank when he felt something pop in his back. The claimant worked from 7:00 p.m. to 7:00 a.m., and this happened at approximately 7:20 p.m. The claimant completed his shift and reported the incident to his supervisor, John Hurley. The claimant continued to work until December 9, 2009.
The respondent employer sent the claimant to Dr. Lin for medical care. Dr. Lin treated the claimant until June 29, 2009
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through July 10, 2009. Dr. Lin prescribed medication and put the claimant on light duty. The claimant was released to full duty work on July 10, 2009. He continued to work his regular job duties until December 10, 2009.
The claimant saw Dr. Abraham and had an MRI and had surgery on December 9, 2009. The claimant was off work from December 9, 2009 through March 8, 2010 and received three weeks of short-term disability benefits. The claimant has returned to his old job.
The evidence demonstrates that the claimant injured his back while he was in the Army in 1982. The medical records indicate that the claimant has sought medical treatment for his back on many occasions prior to this alleged incident on June 29, 2009. On February 16, 2002, the claimant reported to the emergency room at Baptist Hospital in Osceola complaining of severe back pain radiating into his left leg. This had been ongoing for four months and, as the claimant testified, came on without trauma. On July 17, 2004, the claimant was back at the same hospital emergency room complaining of low back pain for months. He rated the
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pain at a 5 of 10 and stated it had been present for months. On November 2, 2005, the claimant was seen by Dr. Richardson at the NEA Baptist Clinic. He complained of low back pain since cooler weather. There was no injury.
Three months later, the claimant returned to Dr. Richardson complaining of intermittent back pain radiating into the left leg with weakness in the leg. Dr. Richardson ordered a CT scan of the lumbar spine which was performed January 4, 2006. The scan indicated a disc bulge at L4-5 and a soft tissue density in the left neuroforamina at L5-S1, suggestive of a conjoint nerve root. The following month, on February 13, 2006, the claimant received a lumbar epidural injections at Semmes Murphy Clinic in Memphis.
In October of 2006, the claimant returned to Dr. Richardson complaining of left leg pain. He, again, returned December 14, 2006, and March 6, 2007. At the March 2007 visit, Dr. Richardson noted:
Has chronic back pain and is wanting surgery. Ct Jan 06 did show disc bulging and possible herniation. C/o low back pain radiating to post L5.
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An MRI scan on March 15, 2007 showed:
At the level of L4-5, there is a degenerative bulging disc and degenerative facet disease with ligamentum flavum buckling. Superimposed upon this bulge is a broad-based left postural lateral disc protrusion associated with an annular tear. This protrustion abuts the exiting left L4 root but there is no severe compromise. There is some associated mild stenosis of the lateral recesses suspected. This could put some mild pressure on the descending L5 root.
Dr. Robert Abraham first saw the claimant on May 14, 2007. The claimant complained of: low back pain down the left thigh, sometimes increasing for no reason at all. Dr. Abraham’s note stated, “Hold on any operative therapy.”
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In November 2007, the claimant sought treatment from Dr. Cheri Willis complaining of low back pain going into the left leg. From January 2008 through April 2008, the claimant sought treatment each month from the VA Hospital in Memphis complaining of low back pain. He reported that his pain medicine was not effective. By April 17, 2008, he was complaining of buckling of his left knee, increase weakness in the left leg, and pain. These complaints were made the month before the claimant was hired by the respondent employer.
On December 22, 2008, the claimant was still complaining to Dr. Richardson about his low back pain:
Pt c/o continued back pain. Seen last year by Dr. Abraham and surgery was not recommended. At that time was having pain radiating to L leg, now radiating to both legs. Pain is intermittent but occurring more frequently. No exacerbating of relieving factors. States the VA gave
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him 10% disability on his back pain and would like a second opinion. I told him to contact the Social Security office re this.
On March 2, 2009, the claimant sought treatment from Dr. C.S. Lin complaining of low back pain. April 2, 2009, the claimant sought treatment from Dr. Willis complaining of back pain. The doctor noted: “Lumbar pain secondary to DJD/DDD. Needs surgery but refused.”
The evidence states that after the July 10, 2009 visit with Dr. Lin, the claimant returned to his ususal back pain doctors, including Dr. Richardson. The claimant did not tell his employer about this treatment.
Q When you continued seeing Dr. Richardson and these other doctors, you didn’t tell the people at Viskase about that.
A No.
Q And you didn’t tell him [John Hurley] you were missing those occasional days because of back pain.
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A No, but I did tell John that I would have to take off for — when I had to go for a doctor appointment, I would tell him that.
The claimant went to the VA Hospital on July 23, 2009, and to Dr. Richardson on August 13, 2009. An MRI scan on August 19 indicated:
Degenerative disc and facet changes at multi levels cause neuroforaminal narrowing as described above. This is somewhat worse on the left at L4-L5 where there may be a small foraminal disc herniation superimposed on the overall dis bulge and possible affecting the exiting left L4 nerve root.
These findings are remarkably similar to the MRI scan two and a half years earlier which had shown degenerative disc disease at L4-L5 with “an annular tear and broad-based small protrusion in a left posturalateral
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position”.
The claimant returned to Dr. Abraham on October 12, 2009. In contrast to what he told Dr. Lin three months earlier, the claimant told Dr. Abraham that he had found nothing that would improve his pain. Dr. Abraham testified that he had no other medical records than his own which was the single clinic note of May 14, 2007. The claimant never told him, for example, that on April 17, 2008, he had complained to the VA Hospital in Memphis of buckling of his left knee, left leg, weakness, and pain. Dr. Abraham admitted his opinion on causation was based solely on what the claimant told him. Dr. Abraham performed a discectomy at L4-5 on the left on December 9, 2009.
Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2005) defines “compensable injury” as “[a]n accidental injury causing internal or external physical harm to the body . . . 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. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002). The phrase “arising out of the employment” refers to the origin or cause of the accident, so the employee is required to show that a
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causal connection exists between the injury and his employment.Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). An injury occurs “in the course of employment” when it occurs within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose, or advancing the employer’s interest directly or indirectly. City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).
In addition to establishing the general requirements for compensability set forth in § 11-9-102(4)(A)(i), the claimant must establish a compensable injury by medical evidence, supported by objective findings as defined in § 11-9-102(16). 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). “Objective findings” are those that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). Moreover, objective medical evidence, while necessary to establish the existence and extent of an injury, is not necessary to establish a causal relationship between the injury and the work-related accident. Wal-MartStores, Inc. v. VanWagner, 337 Ark. App. 443, 990 S.W.2d 522 (1999). The onset of pain does not satisfy our statutory criteria for benefits. Test results that are based upon the patient’s
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description of the sensations produced by various stimuli are clearly under the voluntary control of the patient and therefore, by statutory definition, do not constitute objective findings.Duke v. Regis Hair Stylists, 55 Ark. 327, 935 S.W.2d 600 (1996). Finally, medial opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16)(i)(B); Crudup v. RegalWare, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).
There is no presumption that a claim is indeed compensable.O.K. Processing, Inc., et al v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). Crouch FuneralHome, et al v. Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977). The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act, and must sustain that burden by a preponderance of the evidence. See Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002); Clardy v. Medi-HomesLTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001). In other words, in a workers’ compensation case, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable, ie., that his injury was the result of an accident that arose in the course of his employment and that it grew out of, or resulted from the employment. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001);
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Ringier Am. v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993). Further, the claimant must show a causal relationship exists between his condition and his employment. Harris CattleCo. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974).
It is well established that the party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 2002). A preponderance of the credible evidence of record means “evidence of greater convincing force.” Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); See also, Smith v.Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 42 (1947). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
The evidence demonstrates clearly that the claimant, if anything, sustained a temporary aggravation of his pre-existing condition. The claimant was released to full duty by Dr. Lin on July 10, 2009, and was able to perform
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his employment duties until he had surgery on December 9, 2009. The medical records, going back at least until 2002, show that the claimant had progressively worsening degenerative discs at L4-5 and L5-S1. In fact, the claimant was complaining of weakness in his left leg so severe that his leg was buckling in April of 2008. An MRI in 2007 showed a bulging, torn disc at L4-5 on the left side. This is a similar finding that was found on the MRI ordered by Dr. Abraham in August of 2009.
Dr. Abraham’s opinion that the claimant’s June 29, 2009 incident is what required the claimant to have surgery in December of 2009 is primarily based upon a history that the claimant gave to Dr. Abraham. Dr. Abraham was told by the claimant that he had continuous, unremitting pain after June of 2009. However, the medical records of Dr. Lin and the claimant’s own testimony at the hearing indicate that the claimant, in July of 2009, was “all right”. A medical opinion based solely upon claimant’s history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence.Brewer v. Paragould Housing Authority, Full Commission Opinion January 22, 1996
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(Claim No. E417617). Moreover, the Commission is not bound by a doctor’s opinion which is based largely on facts related to him by the claimant where there is not sufficient independent knowledge upon which to corroborate the claimant’s claim. Roberts v. LeoLevi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).
Further, Dr. Abraham admitted that he had no other records other than his own. He did not have the records from the emergency room admissions of Baptist Hospital in Osceola nor Dr. Richardson, Dr. Willis, Dr. Lin or the Memphis VA Hospital.
Moreover, on April 2, 2009, two months prior to his work-related injury, the claimant was seen by Dr. Willis complaining of back pain. Dr. Willis noted: “Lumbar pain secondary to DJD/DDD. Needs surgery but refused.” It is apparent that as early as April 2, 2009, the claimant was complaining of unrelenting pain associated with his back problems and was told that surgery was necessary at that point.
The medical records of Dr. Abraham and the claimant’s testimony at the hearing, as well as the claimant’s ability to return to full-duty work over several months are
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not reconcilable. The evidence demonstrates that the claimant had a 27-year history of back problems which progressed to a point that his left leg buckled in April of 2009. Two months before the alleged incident, the claimant’s own doctors noted that he needed surgery but the claimant refused. The medical records for the seven years before the date of the injury show the claimant’s back symptoms waxed and waned sometimes without apparent cause. Even Dr. Abraham conceded it was the nature of the claimant’s complaints to wax and wane.
The degenerative condition of the claimant’s back is further confirmed by the VA assessment of a 10% permanent anatomical impairment rating prior to the claimant’s alleged injury for his back problems. The evidence demonstrates that on July 10, 2009, that the claimant’s compensable injury stabilized as the claimant was able to return to work and work full-duty until December 10, 2009. Once the claimant was released to full duty, he did not return to his authorized treating physician, but rather he sought treatment from Dr. Abraham on his own without the knowledge of the respondent employer. The claimant never told the respondent employer that he was having continuing or additional problems with
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his back as his condition had returned to his pre-injury status. Accordingly, after conducting a de novo review of the record, we cannot find that the claimant’s surgery on December 9, 2009 was reasonable and necessary medical treatment. It is apparent that the claimant’s surgery was necessitated by the claimant’s pre-existing condition. The claimant had a 27-year history of back problems and the incident on June 29, 2009 was simply a temporary aggravation of a pre-existing condition. Therefore, we hereby reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
________________________________ A. WATSON BELL, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
PHILIP A. HOOD, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion. After ade novo review of the record, I would award the requested reasonably necessary medical treatment.
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The claimant, 49 years old, began his employment with the respondent-employer as a machine operator in May 2008. The claimant’s employer makes meat casings. The claimant’s job required lifting, bending, stooping, and using his back. On June 27, 2009, the claimant was lifting jugs of salt, weighing 40-50 pounds, to put in a hydro tank, when he felt something pop in his back. The claimant worked the 7:00 p.m. to 7:00 a.m. shift, and the incident happened about 7:20 p.m. The claimant testified that he immediately felt weak in his left leg. The claimant completed his shift, but reported the incident to his supervisor, John Hurley. The claimant continued to work until December 9, 2009.
The claimant was sent to Dr. Lin by his employer for medical care, and was under his care from June 29, 2009 through July 10, 2009. Dr. Lin prescribed medication, did no diagnostic testing, but did have the claimant on light duty. The claimant was released back to full duty on July 10, 2009, and he continued to work his regular job until December 10, 2009. The claimant continued to have sharp back pains and pain down his left leg to the knee. The claimant
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ultimately saw Dr. Abraham, had an MRI, and had surgery on December 9, 2009. The claimant remained off work from December 9, 2009 through March 8, 2010, but did receive three weeks of short-term disability (about $800). According to the claimant, his back was better following the surgery, and he has returned to his old job. The claimant testified that he continues to work, but avoids some activities that he previously did, such as working on cars. The claimant’s health insurance paid for much of his medical, with the claimant paying deductibles. The claimant continues to have an annual check-up with the VA Hospital, since he had a back injury in the military.
The claimant described his pain level with his back before June 2009, and he rated it a 3 on a 1 to 10 scale, with 10 being great pain. He rates his back pain following the June 2009 incident as a level 10. The claimant testified that he continued working because that was his only means of support. The claimant confirmed that he had seen Dr. Abraham for his back in 2007.
Under cross-examination, the claimant confirmed that he had sought emergency room treatment for his back in 2002,
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and indicated he had a four-month history of back and leg pain. The claimant treated again in 2004, and again in 2005, and again in 2006, with no injury. The claimant’s back pain was going down his left leg. The claimant underwent epidural steroid injections in 2006, and it was in 2006 that the VA assigned a 10% rating to the claimant’s back. The claimant receives $123 per month, pursuant to the rating. In March 2006, the claimant saw Dr. Richardson for back pain, and advised her that, if he needed surgery, he would do that. Dr. Richardson sent the claimant for an MRI in 2007. The claimant sought medical attention with the VA in 2008, and another MRI was ordered. The claimant sought medical treatment with Dr. Richardson in December 2008, and again sought treatment with Dr. Cherie Willis in March 2009.
The claimant confirmed that his back got better and got worse from time to time, following his back injury in the military, until June 2009. The claimant confirmed that his back pain got worse after the June 2009 incident at work.
John Hurley, shift supervisor for the respondent-employer,
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testified that the claimant reported his injury, and paperwork was completed. The claimant was on light duty for a short period, and then released to full duty. Mr. Hurley did not recall giving the claimant a Form N.
Donna Bell, Human Resource Manager for the respondent-employer, took the claimant to Dr. Lin on two occasions. Ms. Bell testified that, on Dr. Lin’s last appointment, the claimant told him he was much better. Ms. Bell did not realize the claimant was continuing to have problems until he brought in an MRI bill in August 2009. The claimant completed paperwork in December 2009 for short-term disability for non-work-related injuries.
Ms. Bell confirmed that the claimant took a pre-employment physical, as well as annual physicals, and was not disqualified from working because of these physicals. Ms. Bell confirmed that Dr. Lin did not perform any tests other than a range of motion test. Ms. Bell acknowledged that she told the claimant that his MRI in August 2009 might not be paid by the workers’ compensation insurance carrier. Ms. Bell was not aware if a Form N had been completed by the claimant.
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On rebuttal, the claimant testified that he was not provided a Form N, and he did not even know what that form was.
Ark. Code Ann. § 11-9-507(a) (Repl. 2002) requires employers to provide such medical services as are reasonably necessary in connection with the injury received by the employee. The injured employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of a compensable injury. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2002): Jordan v.Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonable and necessary treatment under § 11-9-508(a) is a fact question for the Commission.General Elec. Railcar Repair Servs. V. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998). The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict.Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000). Medical treatment which is required to stabilize and maintain an injured worker’s status remains the responsibility of the employer.Artex Electronics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). A claimant may be entitled to ongoing treatment after the healing
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period has ended, if the treatment is geared toward management of the injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).
In the present case, the claimant has proven by a preponderance of the evidence that the additional medical requested is reasonable and necessary. The claimant sustained an undisputed incident at work and was sent to the company doctor, Dr. Lin, on three occasions. Dr. Lin did not recommend any diagnostic testing, but did prescribe some medication. On July 10, 2009, Dr. Lin returned the claimant to work on regular duty. The claimant next sought treatment with his family doctor and had an MRI on August 19, 2009, which revealed:
Degenerative disc and facet changes at multiple levels cause neuroforaminal narrowing as described above. This is somewhat worsened on the left at L4-L5 where there may be a small foraminal disc herniation superimposed on the overall disc bulge and possibly affecting the exiting left L4 nerve root.
The claimant was next seen by Dr. Robert Abraham, neurosurgeon, who examined the claimant on October 12, 2009 with symptoms of sharp, throbbing pain in his low back on the left, and radiating down his posterior left hip and down the leg to the knee. The claimant was unable to walk without pain, and unable to sleep. Dr. Abraham ordered a myelogram and a CT of the lumbar spine, and these were performed on October 22, 2009.
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The CTT revealed:
IMPRESSION:
1. There is a left posterolateral disc protrusion in the region of the left neural foramen which should cause symptoms in the distribution of the left L4 nerve root if it is of clinical significance. Clinical correlation is recommended.
2. There are conjoined left L5 and S1 nerve roots with an associated posterior bulge of the L5-S1 intervertebral disc and poor filling of the left S1 nerve root sleeve.
On December 9, 2009, Dr. Abraham performed a left L4-5 microdiskectomy, and the operative report reveals that there was a grossly herniated disc in the lateral aspect of the spinal canal and into the neuro foramina. The herniated disc material was removed, and a moderate-sized fragment was removed. The claimant followed up with Dr. Abraham on January 11, 2010, and he was having some stiffness and some mild spasms. The claimant was cleared to return to work by Dr. Lin on March 7, 2010.
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Dr. Abraham was aware that the claimant had some back problems before the June 2009 incident, since he had treated the claimant in 2007, and an MRI revealed, at that time, a mild L4-5 bulging disc. The October 2009 diagnostic tests revealed an L4-5 herniation, and this followed the claimant’s June 2009 work incident and his increased claims of back pain that radiated down his left leg. Dr. Abraham was questioned about the major cause of the claimant’s back condition, and he testified in his July 9, 2010 deposition that “the patient pinpointed this one event, so I would have to say that that was the cause of an increase in symptoms”. Dr. Abraham opined that he expected the claimant to be off work within 6 to 10 weeks, since his job was medium to heavy-duty work.
After considering the claimant’s credible testimony, and considering the medical evidence, to include the deposition testimony of Dr. Lin, I find that the claimant has proven by a preponderance of the evidence that the additional medical he has sought was reasonable and necessary and related to the compensable injury. The claimant has returned to work and has less pain in his back and legs. The claimant continues to perform his pre-injury job.
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The majority has denied this claim for additional reasonably necessary medical treatment on the theory that the claimant sustained a “temporary aggravation of a pre-existing condition.” I respectfully submit that no such thing exists. In workers’ compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W. 3d 150 (2003). An aggravation of a pre-existing non-compensable condition by a compensable injury is itself compensable. Oliver v. Guardsmark, 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware,Inc., 341 Ark. 804, 20 S.W. 3d 900 (2000). An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 S.W. 2d 883 (1996).
Ark. Code Ann. § 11-9-102(4)(A) (Repl. 2002) defines “compensable injury”:
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(i) An accidental injury causing internal or external physical harm to the body . . .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[.]
A compensable injury must be established 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)(a)(i).
An injured worker either has an aggravation or he doesn’t. There is no such thing as a “temporary aggravation of a pre-existing condition.” The real question, once it is determined that the claimant has an aggravation, is whether or not the claimant remains in the healing period, or, if the healing period has ended at some point, with the claimant later re-entering a healing period. The healing period is statutorily defined as “that period for healing of an injury resulting from an accident.” See Ark. Code Ann. § 11-9-102 (13). The Court has interpreted this period as including the time until the employee is as far restored as the permanent character of the injury will permit. SeeRoberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997).
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Once the underlying condition is more stable and will not improve with further treatment, the healing period is over. SeeId. Whether a claimant’s healing period has ended is a factual question that is resolved by the Commission. See Id.
Here, the majority finds that the claimant has an aggravation of a pre-existing condition (albeit a “temporary” one, which again, I state, is a creature of the majority’s creation, not an injury recognized by the law.) The claimant continuously treated for this aggravation from the date of injury. There is no evidence of record indicating that the claimant’s healing period ever ended. As such, the majority’s denial of reasonably necessary medical treatment is in error.
For the aforementioned reasons, I must respectfully dissent.
________________________________ PHILIP A. HOOD, Commissioner
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