CLAIM NO. E711560
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 22, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JASON WATSON, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by J. SCOTT THORNTON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] Respondent appeals the Opinion filed by the Administrative Law Judge on February 19th, 1998. In that Opinion claimant was held to have suffered a compensable injury and respondent was ordered to pay the controverted benefits. [3] This claim came before the Administrative Law Judge on February 4th, 1998, for a hearing on the following issues; 1) Compensability, 2) Temporary Total Disability (TTD) benefits from March 18, 1997 through May 21, 1997, 3) Medical expenses, 4) Attorney’s fees. The Administrative Law Judge held that the claimant suffered a compensable injury on March 18, 1997 and awarded the requested TTD benefits, medical expenses and attorney’s fees. Requests for sanctions and additional attorney’s fees made in post hearing briefs were denied. Upon a de novo
review of the record we affirm the judge’s ruling. [4] Respondent argues that claimant has failed to prove by a preponderance of the evidence that he suffered any injury in the course and scope of his employment related duties. Respondent specifically argues that claimant has failed to provide the required medical evidence supported by objective findings necessary to support the finding of compensability. In the alternative respondent argues that claimant was not still in his healing period during the period for which he claims TTD benefits. Claimant argues that the diagnosis of muscle spasm is sufficient to meet the requirement of medical evidence supported by objective findings necessary to support the finding of compensability. Claimant also points to medical opinions which indicate he was still in his healing period during the time in question. [5] Claimant is a 45 year old man who had worked for respondent for approximately one month prior to his injury. Claimant was employed as a laborer in the construction of the new Northwest Arkansas Regional Airport. At approximately mid-morning on March 18th, 1997 he was working in the bottom of a 10-12 foot deep ditch straightening 18 inch tall concrete drainage pipe sections. As claimant was working, a stone (estimated at 20 to 50 pounds in weight by different witnesses) fell into the ditch striking him in the left ankle and causing him to fall on his left side against the concrete pipe and then to the rocky ditch bottom. [6] It is disputed as to whether or not claimant briefly returned to work after this incident. After consulting with his supervisor claimant left work at lunch time due to his injury. On his way home Mr. Carnes became physically ill due to the pain and stopped at a co-worker’s house to call and ask his wife to come pick him up. After speaking with his mother-in-law claimant realized that he needed to make a report of his injury to his employer, therefore he called in and was directed by the site manager to return to the worksite to prepare his report. Claimant reported that he had fallen on his left hip and back. [7] After completing his report of injury claimant was seen by Dr. Craig Cooper, the company’s doctor, for treatment. Dr. Cooper’s notes do not reflect any objective findings of injury, nonetheless, Dr. Cooper diagnosed him with musculoskeletal low back pain and hip pain and then prescribed medication. Dr. Cooper then contacted the site manager and recommended that claimant be put on light duty. On March 19th, claimant was seen by Dr. Mark Seratt who had been treating Claimant for an unrelated condition. Dr. Seratt reported that claimant had shoulder and elbow strain stemming from his fall at work and that Mr. Carnes could continue to take the medications prescribed by Dr. Cooper. Other than this brief mention, Dr. Seratt’s continued treatment of an unrelated condition did not relate to Claimant’s work related injury, therefore Dr. Seratt’s records are irrelevant. [8] On March 21st, claimant was seen by Dr. Richard Hastings, a doctor of osteopathy. Dr. Hastings reported his examination of claimant’s neck revealed muscle spasm over the posterior cervical muscles bilaterally. Dr. Hastings’ examination of claimant’s back revealed spasm of the paravertebral muscles from T-10 to T-12 bilaterally. Dr. Hastings also reported crepitus in claimant’s left knee, left elbow and left shoulder. Dr. Hastings opined that “The patient has been temporarily totally disabled since March 18, 1997, and he will continue to be temporarily totally disabled until there is a resolution of his symptoms by additional testing and/or treatment, or until in my medical opinion, he has reached medical maximum.” [9] On April 21st, 1997, claimant was seen by Dr. Beau Jennings. Dr. Jennings assessment was that Mr. Carnes suffered from acute left hip, knee, ankle and left shoulder contusions and sprains. Dr. Jennings opined that claimant was in need mainly of rest and that he would continue to be temporarily totally disabled for another two to four weeks. [10] Claimant maintains that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence. We discussed the standard for determining the compensability of a “specific incident” injury in Ray v.University of Arkansas, Full Commission Opinion filed June 9, 1998 (E709723) where we held that a claimant must satisfy the following requirements of Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997):
[11] Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997). [12] If the claimant fails to establish, by a preponderance of the evidence, any of these requirements, he fails to establish the compensability of the claim. Jerry D. Reed v. Con Agra FrozenFoods, Full Commission Opinion filed Feb. 2, 1995 (E317744). [13] In this case it is undisputed that claimant was acting in the course and scope of his employment when he was allegedly injured and that the alleged injury arose out of a specific incident identifiable by time and place of occurrence. The only issues in dispute as to compensability are whether or not claimant suffered internal or external physical harm to the body which required medical services or resulted in disability and if there is medical evidence supported by objective findings establishing the injury. [14] Every physician who examined claimant prescribed some sort of treatment for his work-related injury as described above. Therefore, it is established through the actions of the treating physicians by a clear preponderance of the evidence that the claimant suffered an injury which caused physical harm requiring medical services. Furthermore, Dr. Hastings observed that claimant exhibited muscle spasms in his cervical muscles and in his paravertebral muscles. It is well settled under the law that muscle spasms constitute objective findings sufficient to meet claimant’s evidentiary burden. See University of Arkansas forMedical Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997);High Capacity Products v. Moore, 61 Ark. App. 1, ___ S.W.2d ___ (1998). [15] Respondent points out that Dr. Cooper, the company doctor, did not make any objective findings of physical injury. However, Dr. Cooper must have observed something he did not include in the report he prepared, or found the claimant’s symptoms indicative of an injury, because he diagnosed claimant with musculoskeletal pain, prescribed four different medications for claimant’s treatment and recommended that he be placed on light duty. Notably, Dr. Hastings observed objective muscle spasms only three days later. To the extent that the dissent asserts that the medical findings after March 18, 1997, are identical to Dr. Serbeck’s examination five days before the work-related incident, we fail to see any indication of any pre-existing neck or back spasm in Dr. Serbeck’s March 13, 1997 report, as the dissent seems to suggest. Accordingly claimant has established by medical evidence supported by objective findings that he suffered a compensable injury on March 18th, 1997. [16] The remaining issue to be addressed is the question of claimant’s entitlement to TTD benefits from March 18, 1997 through May 21, 1997. The question of when a claimant is entitled to TTD benefits is governed by the case of Arkansas State HighwayCommission v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981) which provides that temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. We are to determine whether or not a claimant has suffered a total incapacity to earn wages by reference to medical evidence, age, education, experience, and other matters reasonably expected to affect the claimant’s earning power. [17] In this case the medical evidence is overwhelmingly in favor of the claimant. Both Dr. Hastings and Dr. Jennings reported that claimant was totally disabled during the time in question. Both Dr. Jennings and Dr. Hastings reported that Mr. Carnes required additional time to heal prior to his return to work, which Dr. Jennings opined would be up to four weeks after his last visit on April 21st, 1997. Of the doctors who treated claimant for his work-related injury only Dr. Cooper, the company doctor, did not take Mr. Carnes off work. It was Dr. Cooper’s opinion that claimant had suffered an injury which necessitated that he be placed on light duty and “increase his activities as to tolerance.” However, we accord greater weight to the opinion of Dr. Hastings (who observed the claimant’s muscle spasm) than the weight we accord Dr. Cooper’s opinion regarding the claimant’s incapacity to work during the time period at issue. Certainly there is no allegation that light duty work of any kind was available to claimant. Accordingly, based upon the preponderance of the medical evidence, claimant’s age, education and work experience, we find that claimant is entitled to benefits for temporary total disability from March 18, 1997 through May 21, 1997. [18] Based upon the preponderance of the evidence as described above, claimant has established that he suffered a compensable injury and that he is entitled to the requested TTD benefits, therefore we affirm the opinion and order of the Administrative Law Judge in this matter. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [19] IT IS SO ORDERED.(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997); Ark. Code Ann. § 11-9-102(5)(E)(i) (Supp. 1997); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996);
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997);
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establish in the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997);
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark.
ELDON F. COFFMAN, Chairman
PAT WEST HUMPHREY, Commissioner
[20] Commissioner Wilson dissents. [21] DISSENTING OPINION[22] I respectfully dissent from the majority opinion finding that claimant sustained a compensable injury. The evidence reveals that after claimant’s alleged incident he was taken by respondent to Dr. Greg Cooper. Dr. Cooper’s chart notes were introduced into evidence by respondent. Claimant provided a history of the incident to Dr. Cooper as follows:
[23] On the day following the alleged incident claimant reported to his family physician, Dr. Mark Seratt. Dr. Seratt’s medical record dated March 19, 1997, states:This patient indicates that he was standing on top of an 18 inch drain at the bottom of a ditch when a 50 pound rock fell 12-15 feet on top of his left ankle. Patient indicates the rock jerked him back and down on top of the pipe twisting his body to the left and then fell down on top of the rock, struck his hip and back on the ditch, which he indicates was all rock.
Dr. Cooper performed a thorough physical examination which revealed the following findings:
This patient appears in NAD. BP 164/96 T 99.9 HT 5’10” WT 265. HEENT appears unremarkable. Neck reveals full ROM in all planes. Does not describe any discomfort but does indicate that he has some crackling and popping in his neck. UE exam reveals full ROM in all planes. He has good strength against resistance in all planes including handgrip, supination, pronation, push/pull, internal rotation, abduction. Shoulder shrugs are appropriate. Sensory functions are intact. On examination of his back extension appears to be appropriate. He can forward bend and touch his toes. Rotation right and left goes beyond 90 degrees. Side-bending to the right is appropriate. He describes minor tenderness to palpation on the left gluteus. DTRs are +2/4 and equal bilaterally. Ankle examination is benign. No swelling, tenderness, bruising could be appreciated. Ligamentous testing is intact in all planes. When the patient was here for examination his clothes were very dirty compatible with working in a ditch. I asked him to disrobe with the exception of his underwear. He has no abrasions, bruising or erythema anywhere on his body. His movements are all somewhat slow and quite purposeful. His personality today is somewhat argumentative. He would question even the most simplest of questions as if he didn’t understand.
It is specifically noted that although claimant alleges to have had a rock fall upon him knocking him against a wall of rock, no swelling, tenderness, or bruising could be appreciated during the physical examination. Dr. Cooper’s medical report reveals that he examined not only claimant’s ankle and leg for any sign of injury but he also observed claimant’s entire body after asking claimant to disrobe. The physical examination was simply not consistent with the alleged injury.
[24] Despite the lack of objective findings of injury, Dr. Richard Hastings, an osteopath, examined claimant on March 21, 1997, and noted muscle spasms and tenderness along claimant’s cervical and thoracic vertebrae, as well as crepitus in claimant’s joints. On May 9, 1997, claimant was examined by another osteopath, Dr. Beau Jennings. Dr. Jennings examination on that date was negative. Specifically, Dr. Jennings noted full range of motion and no muscle spasms. He further noted that claimant was able to squat without difficulty and there was no joint effusion in claimant’s knee. The only findings noted by Dr. Jennings were of subjective tenderness about claimant’s left shoulder and “some pain at the extremes of range of motion about the ankle and to pressure laterally.” Despite the negative examination, Dr. Jennings diagnosed claimant with “acute left hip, knee, ankle and left shoulder contusions and sprains as a result of an on-the-job injury on March 18, 1997, while in the employ of Gilbert Central Incorporated.” [25] In my opinion, the muscle spasms noted by Dr. Hastings four days after claimant’s injury are suspect. One would expect claimant to have some outward sign of an injury if in fact claimant was struck by a 50 pound rock which knocked claimant to the ground. However, the physical examinations performed on the day of and the day following claimant’s injury did not reveal any hematomas, bruises, scratches, abrasions nor any sign of injury. Moreover, the joint pain complained of by claimant on the day following his injury is identical to the joint pain noted by Dr. Serbeck just five days prior to the alleged incident when claimant was diagnosed with joint pain of uncertain etiology. Claimant underwent extensive physical examinations by both the respondent’s physician and his family doctor on the day of and the day following the alleged incident. Both these examinations revealed normal findings. Neither of these examinations produced any objective medical findings substantiating claimant’s alleged injury. Admittedly, an osteopath did detect muscle spasms four days after the alleged incident, however, the lack of any objective medical findings of hematomas, bruises, scratches, scrapes, etc. noted in the medical records to substantiate and corroborate claimant’s alleged injury convince me that an incident did not occur as contended by claimant. Moreover, as explained inMeister v. Safety Clean Corporation, Full Commission Opinion filed June 12, 1998 (E616200) a diagnosis of contusion, without any objective medical evidence supporting the diagnosis is not sufficient to satisfy the objective medical requirements under the Act. Furthermore, I am not inclined to give any weight to the medical finding of crepitus in claimant’s joints since the joints in which claimant complained of pain and in which crepitus was noted are the same joints which plagued claimant with pain just a mere five days prior to the alleged injury. [26] The majority has made the tremendous leap that because claimant was “prescribed some sort of treatment” when he went to the doctor after the alleged incident that claimant must have sustained an injury. Since “some sort of treatment” was prescribed, the majority concludes that this is evidence in and of itself that claimant suffered an injury which caused physical harm requiring medical services. This conclusion might be reasonableif the medical records corroborated in any manner evidence of an injury. The majority ignores the fact that the only medical findings after the alleged incident are identical to claimant’s medical complaints just five days before the injury supposedly happened. A thorough review of the medical records reveals that the treatment prescribed after the alleged incident is similar to the treatment rendered before the alleged incident. In addition, the finding by the majority takes the claimant’s story of an incident causing injury as true, when the medical records clearly establish that claimant could not have been hit on the ankle and knocked against the wall of the ditch since there were no bruises, scratches, abrasions, or even one little mark on claimant’s body. In light of claimant’s medical history and the absence of any evidence corroborating claimant’s story, I simply cannot reach the same conclusion as the majority. [27] Since I find that claimant has failed to present objective medical evidence substantiating a compensable injury on March 18, 1997, I find that claimant has failed to meet his burden of proof. Therefore, I must respectfully dissent from the majority opinion. [28] MIKE WILSON, CommissionerHe fell at work, went to a doctor and they gave him some anti-inflammatory medicine. His shoulder is bothering him. He really doesn’t seem to have any bony injuries. He’s just got a shoulder strain, elbow strain. He can take the ibuprofen that they prescribed him and it should get well. I sent him to see Dr. Serbeck last week and they sent him to a dermatologist who gave him Zovirax which is made a marked difference in his vasculitis which is totally confusing to me. He has already stopped his prednisone but he stopped it too quick and I gave him a schedule of how to titrate off of it over the neck three weeks and he will do that. He needs a blood sugar when he is off the prednisone totally.
A review of Dr. Serbeck’s examination, which was conducted five days before claimant’s alleged accident notes the following subjective findings.
He reports having had continued joint pain especially involving elbows, knees, and hips. He has had a persistent rash on his palms with painful nodules on his fingertips. He knows of no fever, although he states he gets hot sometimes, but does not always take his temperature.
Dr. Serbeck, a rheumatologist, diagnosed claimant with “skin rash with joint pain of uncertain etiology.”