CLAIM NO. E702269
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 18, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD RYAN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE RANDY MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion of an administrative law judge filed October 2, 1997. The administrative law judge found that claimant has shown that he sustained a compensable injury on December 13, 1996, which combined with a preexisting condition to cause the need for medical care. After reviewing the entire recor de novo, we find that the claimant experienced a recurrence of symptoms from a preexisting condition in December of 1996, for which the respondents are not liable. We thus reverse the opinion of the administrative law judge and dismiss this claim. [3] According to the record, the claimant underwent an open diskectomy of L5-S1 on the left on or about August 16, 1994. On April 6, 1995, a MR scan of the lumbar spine was taken, and Dr. Robert Laakman gave the following impression:
[4] On April 21, 1995, Dr. Berry Thompson performed a re-exploration of the L5-S1 level with removal of three additional disk fragments. On June 19, 1995, Dr. Thompson reported that the claimant had returned to work at Colonial Bakery; however, the claimant had experienced a “flare up” of his back pain because of having to twist, turn, and climb ladders. In addition to chronic left leg pain, the claimant now had developed pain in his right leg. On July 14, 1995, Dr. Thompson wrote that development of right leg symptoms caused concern that the claimant may have extended the herniated disc at L4-5. Dr. Thompson restricted the claimant from bending, crawling, climbing, or heavy lifting above 25 pounds or carrying over 50 pounds. Dr. Thompson opined that the claimant’s low back pain was a “continuing and ongoing problem relating back to his initial symptoms” from 1994. [5] The claimant began working for the within respondent-employer on November 25, 1996, and the parties stipulated that the employer-employee relationship existed on December 13, 1996. The claimant testified that, on December 13, 1996, he grabbed and jerked on a ladder to keep a fellow employee from falling. The claimant said that he felt a sharp pain shoot down his right leg. The claimant completed his work duties that day and did not seek medical treatment at that time. The claimant did not seek medical treatment until December 19, 1996, when he presented to Dr. Thompson. Another MRI was taken on December 30, 1996, with the impression of moderate to large recurrent left lateral disc herniation at L5-S1 compressing the left S1 nerve root. [6] The claimant filed a claim for workers’ compensation benefits, contending that he sustained a compensable injury in the scope of his employment on December 13, 1996. Counsel deposed Dr. Thompson on June 4, 1997. Dr. Thompson testified that the 1995 MRI and the 1996 MRI taken after the alleged workplace incident were “basically the same.” The respondents contended that the claimant’s current problems and symptoms are related to his preexisting condition, and are a recurrence of his earlier problems. Following a hearing, the administrative law judge found that the claimant sustained a compensable injury as a result of a specific incident on December 13, 1996, which combined with a preexisting condition to cause a need for additional medical care. We disagree and reverse. [7] A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990). The employer takes the employee as he finds him. Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979). The test is not whether the injury causes the condition; rather, the test is whether the injury aggravates, accelerates, or combines with the condition. Cox, supra. [8] The claimant has a history of low back problems dating to at least 1994. An April 6, 1995 MR scan of the lumbar spine showed evidence of a large residual or recurrent disc herniation with impingement on the left L5 root. Dr. Thompson then performed a re-exploration of the L5-S1 level with removal of additional disk fragments. After a “flare-up” in June, 1995, the claimant developed pain in his right leg. We recognize that the claimant testified that he experienced acute right leg pain after the alleged December, 1996 incident, and that the claimant said he had never before felt such pain. Nevertheless, we also recognize that the claimant had developed such pain symptoms in his right leg in July, 1995 that Dr. Thompson was concerned that claimant had extended his herniated disc at L4-5. This 1995 recurrence resulted from the claimant working around ladders, and Dr. Thompson opined that the claimant’s low back pain was a “continuing and ongoing problem relating back to his initial symptoms” from 1994. [9] After the alleged December, 1996 incident, another MRI was taken. The impression was moderate to large recurrent left lateral disc herniation at L5-S1, almost identical to the April, 1995 MRI. Dr. Thompson conceded that the 1995 MRI and the MRI taken after the 1996 recurrence were “basically the same.” We therefore find that the claimant failed to show by a preponderance of the evidence that his employment with respondent-employer aggravated, accelerated, or combined with his preexisting degenerative condition to produce a disability compensable under Arkansas workers’ compensation law. [10] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant experienced a recurrence of symptoms from his preexisting condition in 1996, for which the respondents are not liable. We reverse the administrative law judge’s finding that the claimant sustained a compensable injury on December 13, 1996, which she said combined with a preexisting condition to cause the need for medical care. [11] IT IS SO ORDERED.Degenerative disc disease at the L4/L5 and L5/S1 levels. At the L4/L5 level there is evidence for a broad based right paracentral and right lateral disc herniation. This disc herniation extends into the right L4 neural foramen and causes narrowing of this neural foramen. I suspect that there may be minimal impingement on the right L5 root.
Evidence for left sided laminotomy at the L5/S1 level. At this level there is evidence for a large residual or recurrent disc herniation with impingement on the left L5 root. Disc herniation does extend slightly into the left L5 neural foramen and caused narrowing of the left L5 neural foramen.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents.