CLAIM NO. E802837
Before the Arkansas Workers’ Compensation Commission
OPINION AND ORDER FILED OCTOBER 22, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICHAEL A. FRIEDMAN, Attorney at Law, Texarkana, Arkansas.
Respondent represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on February 26, 1999. In that opinion and order, the administrative law judge found that the claimant sustained an injury arising out of and in the course of her employment. After conducting a de novo of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. Therefore, we find that the decision of the administrative law judge must be reversed. [3] The claimant was employed by Manpower on assignment at E.P.I., Inc., operating machines producing parts for Poulan. The claimant asserts that, on October 22, 1997, she slipped on a wet floor, struck her back against a piece of metal and sustained a back injury. [4] Since the claimant contends that she sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirement for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed February 2, 1995, (Claim No. E317744). Since the claimant in the present claim alleges that she sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102 (5) (A) (i) (Cumm. supp. 1993) are controlling, and the following requirements must be satisfied:
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her employment;
(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;
(3) medical evidence supported by objective findings;
[5] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied.Reed, supra. [6] In the present case, the record indicates that the claimant had sustained a prior back injury in 1993, for which Dr. Mark Nardone performed a laminectomy and diskectomy at the L4-5 level of the lumbar spine in 1993. Following the alleged injury on October 22, 1997, the claimant again ultimately came under the care of Dr. Nardone. The claimant was ultimately diagnosed with a pseudomeningocele at her prior surgical site. Dr. Nardone explained in his deposition that a meningocele is a balloon-shaped protrusion off of the spinal canal that is filled with spinal fluid. A pseudomeningocele is formed by injury to the dura, the linings of the spinal canal. Dr. Nardone testified that the claimant’s pseudomeningocele is moderate in size, that pain and restricted motion in the claimant’s back prevented the claimant from performing tasks, that her condition created a physical disability that would preclude the claimant from working when Dr. Nardone last saw the claimant, and that the disability would continue until the abnormality was corrected. [7] While Dr. Nardone testified that the great majority of pseudomeningoceles are due to trauma, he also acknowledged meningoceles can be painful or a person can be unaware that the abnormality exists. According to Dr. Nardone, pseudomeningoceles are symptomatic mainly by their size. [8] As to the issue of causation, Dr. Nardone testified that it is possible, but unlikely, in the present case that the claimant had a meningocele before her alleged accident at work. Dr. Nardone testified that this scenario is unlikely because when he operated on the claimant in 1993, everything was dry when he closed the surgical seal and there was no injury to the meninges at that time. Dr. Nardone testified that, in his opinion, a fall against the machine (at work) injured the claimant’s facet joint which injured the meninges, and she developed a meningocele. [9] However, when weighing Dr. Nardone’s testimony against other evidence in the record, we find that the claimant has failed to prove by a preponderance of the evidence that she developed a pseudomeningocele as a result of striking her back against a piece of metal on October 22, 1997, as she asserts, for the following reasons. First, and most important, the claimant’s immediate supervisor at E.P.I., James Cockrell, whom we find credible, testified that, in the relatively short time that the claimant had been assigned to work at E.P.I. prior to October 22, 1997, the claimant had already missed quite a bit of work, because of either female problems or back problems, and would have to go home. Therefore, apparently unknown to Dr. Nardone, the claimant’s back pain pre-existed the alleged trauma on October 22, 1997, to which Dr. Nardone has attributed the claimant’s development of pseudomeningocele symptoms. Second, to the extent that Dr. Nardone has attributed the claimant’s injury to blunt trauma to the facet joints in the lumbar spine on October 22, 1997, we point out that the claimant’s hospital records from that evening at Columbia DeQueen Hospital state thatno abrasions or bruising were noted. Third, although Dr. Nardone has opined that the claimant’s condition was caused by back trauma, two other physicians have indicated otherwise. Dr. Boatner, a radiologist, described the claimant’s pseudomeningocele found on post-myelogram CT testing as “apparently incurred in conjunction with the prior surgery.” Likewise, Dr. Brown’s May 11, 1998, report refers to the pseudomeningocele at issue as “post-operative” and “post-surgical”. [10] In light of Mr. Cockrell’s credible testimony that the claimant was reporting disabling back pain before the alleged incident on October 22, 1997, in light of the reports from Columbia DeQueen Hospital indicating that no abrasions or bruising were noted, and in light of the conflicting medical reports which, in part, characterize the claimant’s condition as post surgical, we find that the greater weight of the credible evidence fails to support Dr. Nardone’s theory that the claimant’s pseudomeningocele at L4-5 was caused by trauma sustained on October 22, 1997. [11] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, reversed. [12] IT IS SO ORDERED. [13] __________________________(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.
ELDON F. COFFMAN, Chairman __________________________ MIKE WILSON, Commissioner [14] Commissioner Humphrey dissents. [15] DISSENTING OPINION
[16] I must respectfully dissent from the majority opinion in this case. In my opinion, claimant has proved by a preponderance of the evidence that she sustained a work-related injury. Accordingly, I would affirm the Administrative Law Judge’s decision. [17] To support their denial of benefits, the majority finds Dr. Mark Nardone’s testimony unpersuasive. I cannot agree. In my opinion, Dr. Nardone offered credible testimony with respect to the genesis of claimant’s pseudomeningocele. Since Dr. Nardone treated claimant surgically for a disc herniation at L4-5 in 1993, his vantage point is superior. [18] The evidence shows that the myelogram and post-myelogram CT scan showed the pseudomeningocele. Dr. Nardone testified it developed as a result of claimant’s work-related trauma. He stated that although he was not 100% certain, his opinion was based on “reasonable medical principles.” He explained the manner in which the injury occurred:
[19] Claimant also contends that she is entitled to temporary total disability benefits from October 22, 1997 until a date yet to be determined. Dr. Nardone testified that he has not examined claimant since March 25, 1998. However, claimant stated that she remains symptomatic, and cannot work. An award of temporary total disability benefits is not contingent upon a statement from a physician. In my opinion, claimant is entitled to receive an open-ended award of temporary total disability benefits commencing on October 22, 1997. [20] Based on the foregoing, I respectfully dissent. [21] _______________________________My opinion is that the fall against the machine injured that facet joint and that injured the meninges and she developed a meningocele. . . .
In my opinion, claimant has demonstrated a causal connection between her work-related injury and the development of a pseudomeningocele.
PAT WEST HUMPHREY, Commissioner