CLAIM NOS. E808906 and E809040
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JULY 18, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KEITH BLACKMAN, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE NATHAN C. CULP, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on May 10, 1999. In that opinion and order, the administrative law judge found that the claimant has proven by a preponderance of the evidence that he sustained a compensable cervical injury on June 25, 1998, that satisfies the requirements of Act 796 of 1993. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be reversed.
The relevant facts in this case are not in dispute. At the time of the hearing, the claimant was a 39-year-old man who had worked for the respondent for 17 years repairing and installing air conditioners and heaters. On June 25, 1998, the claimant was servicing ceiling mounted units. During the course of the afternoon, he developed neck pain radiating into his arms. The claimant eventually underwent a two-level neck surgery to decompress his spinal cord and to fuse the C4-5 and C5-6 levels of his neck.
1. Specific Incident Injury
Arkansas Code Annotated § 11-9-102 (4)(A)(i) (Supp. 1999) provides:
(4)(A) “Compensable injury” means:
(1) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, 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.
In the present case, we find that the claimant has failed to establish that he sustained an injury caused by a specific incident. To the contrary, the claimant described his activities and symptoms on June 25, 1998 as follows:
Q. What were you doing there that day?
A. Okay. I had to clean the evaporator units on all these units on the top floor `cause they’d gotten dirty and they weren’t cooling properly.
Q. And in doing that, explain what you had to do.
A. Okay. You have to work standing on a ladder and you have to work up above the ceiling tile. So you have to force the ceiling tile out where the pipes and conduit are laying right on top of the ceiling tiles. And then you have to work with your head twisted one way or another `cause the pipes are right where your head needs to be so you can reach up above and get hold of this floor assembly and pull it out. And to pull it out, you have to force it in between the pipes and the unit itself `cause they’re, it’s a real close, the pipes aren’t far enough, big enough, you know, for the motor come right through.
Q. Do you have to pull them apart?
A. You have to pull the, force them down in between the pipes. The space is too small for the motors. And then you have to clean the evaporator with a, I clean it with a wire brush and I used electric blower on it to blow all the loose stuff off of it and sprayed it with cleaner. And then when I finished that, you have to put this blower assembly back in. You have to push it just about as hard as you can to get it back through this same space `cause the pipes are in the way. And then just connect it back up and put the ceiling tile back.
Q. All right. This particular day did you have, experience a lot of problem with that?
A. Yes, sir, in the afternoon I did.
Q. All right. And when did you start having pain, problems with this?
A. In the afternoon of the 25th.
Q. And what, where was this pain and where did it go to?
A. Okay. It was in my back and in my neck at the back of my head. And the pain kind of radiated down through my arms and shoulders to my fingers and my fingers started going numb and tingling. And I also had a real bad headache.
Q. All right. And did you, were these particularly sharp pains or —
A. Yes, sir.
Q. And who did you report this to?
A. That afternoon I didn’t report it to anyone `cause I just thought it was part of the job.
Q. Well, did you talk to your co-worker about it?
A. Yes, sir, I did. I complained to him that I was having pain.
Q. And who did you then report it to?
A. The next morning I reported it to Tami Murray. I called her and told her I thought I hurt myself at work the previous day.
The claimant went on to explain:
Q. Regarding your claim for injury in June of 1998, there was no particular incident on that date that you felt an injury, was there?
A. Well, I really don’t know ho to describe it. I couldn’t say like a certain time or a certain room I was at, I don’t think.
Q. But you felt, you started feeling pain later in the day? Is that how you —
A. Shortly after lunch, I believe.
Q. I asked you in your deposition if there was a particular time when you felt maybe you’d done something. And your response was, quote, not really, not just one time. I couldn’t, you know, say anything like one in particular incident or anything. Does that sound —
A. I believe that’s correct.
Under these circumstances, we find that the claimant has failed to establish that his injury was caused by a specific incident. To the contrary, the claimant concedes that he is not aware of any particular incident on June 25, 1998 which caused his injury. Compare, Hapney v. Rheem Manufacturing Co., 67 Ark. App. 8, 992 S.W.2d 151 (1999), reversed on other grounds, ___ Ark. ___, ___ S.W.2d. ___ (June 2, 2000). See, also White v. LawrenceMemorial Hospital, Full Workers’ Compensation Commission, Opinion filed June 17, 1999 (W.C.C. No. E714906).
Although the administrative law judge found support for her finding in the Commission’s prior decision in Daves v. RheemManufacturing Company, Full Workers’ Compensation Commission, Opinion filed February 9, 1999 (W.C.C. No. E702334), we point out that Daves was decided by the Commission prior to the Court of Appeals’ published decision in Hapney. Absent any additional guidance from the courts, we do not see any basis for distinguishing the relevant facts in the present case to the relevant facts in Hapney. Consequently, for the reasons discussed above, we are constrained to find that the claimant has failed to establish by a preponderance of the evidence that he sustained a compensable accidental injury.
2. Gradual Onset Injury
Since the claimant cannot establish that his injury was caused by a specific incident and is identifiable by time and place of occurrence, the claimant’s claim for a neck injury is governed by Arkansas Code Annotated § 11-9-102 (4)(A)(ii)(b) (Supp. 1999). See, Hapney v. Rheem Manufacturing Co., ___ Ark. ___, ___ S.W.2d. ___ (June 8, 2000). Arkansas Code Annotated §11-9-102 (4)(A)(ii)(b) provides:
(4)(A) “Compensable injury” means:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(B) a back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence.
In order to be compensable, the work-related gradual onset back injury must be the major cause of the claimant’s disability or need for treatment. See, Ark. Code Ann. § 11-9-102 (4)(E)(ii) (Supp. 1999). In addition, any compensable injury must be established by medical evidence supported by objective findings.See, Ark. Code Ann. § 11-9-102 (4)(D) (Supp. 1996).
In the present case, Dr. Ricca indicated his impressions in a report dated August 24, 1998. In that report, Dr. Ricca stated in relevant part:
Impression: 1) Neck pain with occasional pain into the lateral left arm. 2) Numbness and pain in the last two digits of the left hand. 3) Ganglion cyst to the dorsum of the left wrist. 4) Severe degenerative changes of the cervical spine with severe spinal cord compression related to canal compromise. Bony overgrowth and large broad based HNP at C5-6. Similar changes are seen at C4-5. 5) Small broad based HNP at C6-7 eccentric to the left.
I believe that this patient has two separate problems. One is his neck pain, related to working over his head all these years and exacerbated by the most recent episode as well as severe chronic degenerative changes in the cervical spine with spinal cord compression. The spinal cord compression appears to be asymptomatic on this history and physical today.
The second problem is that of his left hand and wrist. I believe the tenderness and pain and numbness in the last 2 digits of the left hand are related to a local phenomenon in the left hand and not related to the neck.
I spent a long time and reviewed all of the above with the patient and his wife. We talked about spinal cord compression with myelopathy and the various associated symptoms. I explained that he does not have evidence of myelopathy presently, though he may in 5 to 10 to 20 years. I told him that it was very important that if he should start to develop symptoms of myelopathy that he seek attention promptly and explain that he does have known pressure on the spinal cord in his neck. Some patients unfortunately let it go too long and by the time they get here we cannot help them. With regards to his present symptoms of neck pain, I recommended cervical exercises and provides him with a pamphlet. I also feel that the patient should not do work over his head and in fact he should not do this the remainder of his life. Occasionally looking up would be fine but regular work with his neck extended I think would be detrimental to this patient. I am going to keep him off work until I see him in followup on 10/5/98.
On this record, we find that the claimant has failed to establish that his neck pain related to working over head, as compared to other documented conditions, including severe degenerative changes of the cervical spine with severe spinal cord compression, is the major cause of the claimant’s disability or need for medical treatment in this case. For purposes of the Arkansas Workers’ Compensation Law, “major cause” means more than 50%. See, Ark. Code Ann. § 11-9-102 (14)(A) (Supp. 1996). On this record, the claimant has failed to establish by a preponderance of the evidence that an injury caused by working over head was more than 50% of his disability or need for treatment.
Therefore, for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, reversed.
IT IS SO ORDERED.
_______________________________
ELDON F. COFFMAN, Chairman
_______________________________
MIKE WILSON, Commissioner
Commissioner Humphrey dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion in this case. In my opinion, claimant proved by a preponderance of the evidence that he sustained a compensable injury.
I take issue with the majority’s conclusion that Hapneyv. Rheem (citation omitted), precludes a finding that claimant sustained a specific incident injury. In my opinion, claimant has proved the occurrence of a specific incident injury.
Assuming but not conceding that claimant must satisfy the elements of a gradual onset injury, I find that claimant has satisfied the major cause requirement. The majority disagrees, holding that “claimant has failed to establish that his neck pain related to working over head, as compared to other documented conditions, including severe degenerative changes of the cervical spine with severe spinal cord compression, is the major cause of claimant’s disability or need for medical treatment in this case.” I cannot agree with the majority’s interpretation of the medical evidence.
Dr. Ricca initially evaluated claimant on August 24, 1998. In a letter to Dr. Golden bearing that date, he noted that claimant worked overhead extensively on June 24, 1998. His correspondence recognized that claimant’s employment with respondents spanned seventeen years, and his job entailed installing and repairing heating and cooling units. Dr. Ricca pointed out that claimant’s duties routinely required overhead work. He explained his diagnoses as follows:
I believe that this patient has two separate problems. One is his neck pain, related to working over his head for all these years and exacerbated by the most recent episode as well as severe chronic degenerative changes in the cervical spine with spinal cord compression. The spinal cord compression appears to be asymptomatic on this history and physical today.
Given the extent and complexity of claimant’s pre-existing conditions, his medical history is conspicuously absent of treatment for neck complaints prior to the work-related incidents. There are a few office visits for back and neck pain. However, no restrictions were imposed upon claimant’s employment activities. Moreover, his complaints never warranted sophisticated diagnostic testing. Thus, his degenerative disc disease and spinal cord compression remained undiagnosed until after he reported injuries on June 25, 1998, and July 24, 1998.
With respect to the cord compression and myelopathy, Dr. Ricca informed Dr. Golden of the advice he furnished claimant on August 24, 1998:
We talked about spinal cord compression with myelopathy and the various associated symptoms. I explained that he does not have evidence of myelopathy presently, though he may in 5 to 10 to 20 years. I told him that it was very important that if he should start to develop symptoms of myelopathy that he seek attention promptly and explain that he does have known pressure on the spinal cord in his neck.
On October 28, 1998, claimant had surgery to remove disc herniations at C4-5, and C5-6. Subsequently, Dr. Ricca imposed work restrictions. In a letter to Dr. Golden dated January 13, 1999, Dr. Ricca enumerated claimant’s restrictions. He advised inter alia, against working overhead.
There is a close temporal relationship between claimant’s complaints, and the discovery of the disc herniations. Dr. Ricca performed surgery to remove the herniations, and imposed restrictions. In my opinion, the evidence showed that claimant’s surgery was precipitated by the work-related incidents. Clearly, claimant had pre-existing conditions. However, Dr. Ricca characterized the cord compression as asymptomatic, and advised claimant to seek treatment if he developed myelopathy. Claimant may have aggravated his pre-existing condition(s). However, the aggravation of a pre-existing condition remains compensable under Act 796. In my opinion, the medical evidence supports claimant’s claim. I would award benefits.
Based on the foregoing, I respectfully dissent.
_______________________________ PAT WEST HUMPHREY, Commissioner