CLAIM NOS. E603873 E603874
MARTHA COTHREN-LASETER, EMPLOYEE, CLAIMANT v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT No. 1 and SEDGWICK JAMES OF ARKANSAS, INSURANCE CARRIER, RESPONDENT No. 2 Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 30, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appeared pro se.
Respondent No. 1 represented by the HONORABLE RICHARD SMITH, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TOM MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The claimant in this case suffered injuries to her neck as a result of two separate incidents, the first of which occurred on March 7, 1993, and the second which occurred on January 31, 1996. The administrative law judge held that Respondent No. 2 was solely liable for all benefits the claimant was entitled to receive from January 30, 1996 through March 31, 1996, and that all benefits the claimant was entitled to receive after March 31, 1996, should be equally proportioned between the two carriers. Respondent No. 2 appealed that decision and Respondent No. 1 filed a cross appeal. Based upon our de novo review of this case, we find that the administrative law judge’s decision should be reversed.
[3] The issues in this case concern division of liability between the Public Employee Claims Division (PECD) and the Arkansas School Board Association Workers’ Compensation Trust Fund (Trust Fund). The claimant, who is a teacher and coach at Sylvan Hills High School, originally suffered an admittedly compensable injury on March 7, 1993. At the time of this injury, the PECD was the party liable for paying workers’ compensation claims against the respondent employer. The claimant was eventually determined to have suffered a large disk herniation at C5-C6 and a bulging disk at C6-C7, as a result of her injury. On May 23, 1994, a discectomy and cervical fusion was performed on the claimant at the C5-C6 level. The surgery was performed by Dr. Richard Peek, a neurosurgeon in Little Rock, Arkansas. At the time, Dr. Peek was of the opinion that the bulging disk at C6-C7 was not surgically treatable. The claimant testified that she improved significantly following the surgery. However, the claimant also testified that within a few months after the surgery, her condition began to deteriorate. She stated that she noticed that her left arm had begun to atrophy and displayed noticeable loss of muscle mass and a significantly reduced grip strength. Consequently, she sought treatment from Dr. Peek who determined that pressure placed upon the C6-C7 disk as a result of the C5-C6 fusion had caused the lower disk to rupture and impinge upon her spinal cord. On October 4, 1994, a second cervical discectomy and fusion was performed at C6-C7 to correct this problem. However, the result of this second fusion was not entirely satisfactory. The claimant’s recovery was much slower, and radiographic studies of the claimant’s cervical spine indicated that the fusion did not completely join the C6 and C7 vertebrae. [4] The claimant testified, and the medical records corroborate that the claimant continued to suffer considerable pain and discomfort as a result of the second surgery. However, conservative treatment including trigger point injections, physical therapy, medication, and other techniques did eventually result in a significant improvement in the claimant’s condition. At the hearing, the claimant testified that by the end of 1995 her condition had improved, “tremendously.” She also stated that by October or November of 1995, she had regained most of her grip strength and that she was not suffering from much pain and that her use of pain medication had ended. [5] The Trust Fund had become liable for the respondent employer’s workers’ compensation claims on July 1, 1994. However, the PECD had paid for the claimant’s surgical treatment in October 1994, as well as the follow-up visits through January 1996. At least through this period of time, there was no dispute between the parties as to the fact that the claimant’s treatment was a consequence of her original compensable injury. [6] On January 31, 1996, the claimant testified that she was coaching a girl’s basketball game when she suffered a second injury to her neck. The claimant stated that while kneeling on the sidelines discussing the game with one of her players, a player from the opposing team ran out of bounds and inadvertently slammed into the claimant. This collision caused the claimant to be violently knocked to the floor, striking her head and neck, causing her to become unconscious. The claimant testified that she initially suffered from memory loss and other problems associated with a concussion. However, as those symptoms cleared, she noted recurrence of her former symptoms of pain and numbness in her left arm and shoulder. [7] Dr. Peek diagnosed that the source of recurrence of the claimant’s symptoms was movement in the C6-C7 vertebrae where the fusion had failed to solidify. A refusion of these vertebrae was performed on the claimant on May 8, 1996. [8] The Trust Fund paid the claimant’s workers’ compensation benefits from January 31, 1996 through March 31, 1996. On the latter date, the Trust Fund took the position that any further benefits payable to the claimant were the obligation of the PECD because, in their opinion, any disability or need for treatment by the claimant was the result of the original compensable injury in 1993, and not what they characterized as a temporary aggravation in January 1996. The PECD took the position that all of the claimant’s benefits after January 31, 1996, were the result of the incident occurring on that date and was consequently the responsibility of the Trust Fund. However, the parties did agree to continue providing benefits to the claimant with the parties sharing the costs of providing such benefits pursuant to A.C.A. §
11-9-806, until the dispute in this case was resolved. [9] In his decision, the administrative law judge held that the Trust Fund was solely liable for all of the claimant’s benefits accruing between January 31, 1996 and March 31, 1996. He also found that it could not be determined whether the claimant’s need for medical care and entitlement to disability benefits was the result of the incident of January 31, 1996, or was the result of the injury of March 7, 1993, and that therefore the cost of such treatment and disability benefits should be apportioned equally between the parties. From that decision, the Trust Fund and PECD appealed. [10] The first Arkansas Appellate Court case dealing with this issue is Employer’s Casualty Company v. U.S.F. G.,
214 Ark. 40,
214 S.W.2d 774 (1948). In that case, the claimant was found to have suffered two separate back injuries for the same employer but with the employer having changed workers’ compensation insurance carriers between the two injuries. The Commission had apparently found that benefits to the claimant should be shared equally by each of the two carriers. In reviewing that decision, the court noted that there was substantial evidence to have supported a finding of liability on either of the two insurance carriers. At that point, the court favorably quoted Corpus Juris for the proposition that compensation for a single disability which resulted from separate accidents under different employers should be equally apportioned between the insurers for the different employers. The court went on to hold that since there was substantial evidence that the claimant had suffered compensable injuries growing out of a series of separate traumas, the Commission’s decision to equally apportion the benefits was appropriate. [11] This issue was once again addressed by the Arkansas Supreme Court in Tri-State Insurance Company v. Employer’s MutualLiability Insurance Company,
254 Ark. 944,
497 S.W.2d 39 (1973). In that case, the court was reviewing a decision by the Commission which had refused to apply the doctrine of apportionment. After extensively quoting the Employer’s Casualty case, cited above, the Court held that the decision as to whether or not to apply apportionment or to find that one carrier or another was entirely liable for the claim was a matter within the discretion of the Commission to determine. Consequently, even though the facts in that case were somewhat similar to the Employer’s Casualty case, the Supreme Court upheld the Commission’s decision not to apportion liability. The same reasoning was applied in the case of Browning’s Restaurant v. Kuykendall,
263 Ark. 374,
565 S.W.2d 33 (1978), wherein the Supreme Court upheld apportionment by the Commission, once again holding that such determination was a factual determination to be made by the Commission. [12] We find that apportionment is appropriate when disability results from the combined effects of the successive injuries or cumulative trauma while separate entities are providing coverage. See Sells v. Corning Nursing Home, Full Commission opinion, March 26, 1991 (
D914840). [13] Resolution of this case therefore depends on whether the source of the claimant’s disability and need for treatment is her first injury on March 7, 1993, or the second injury on January 31, 1996, or some combination thereof. That question turns upon the interpretation of the conflicting medical opinions of Dr. Richard Peek, the claimant’s treating physician, and Dr. Anthony Russell, a neurosurgeon who conducted a consultative examination of the claimant at the request of the Trust Fund. [14] As indicated above, the claimant did not recover as quickly from the fusion of her C6-C7 vertebrae performed in October 1994, as she had from her previous fusion. However, by the fall of 1995, Dr. Peek was noting in his progress reports that the claimant was improving. In his progress note of September 21, 1995, Dr. Peek indicated that the claimant was feeling very well with only occasional neck pain. He reported that her pain cycle was breaking and at the current time she was much better. Further improvement was set out in his progress note of November 16, 1995, in which he once again referred to her continued improvement. In a letter to the PECD dated October 11, 1995, Dr. Peek reported that the physical therapy received by the claimant had been of great benefit. The improvement referred to by Dr. Peek was corroborated by the claimant’s testimony referred to above. [15] When Dr. Peek began recommending a third fusion surgery for the claimant, following her collision incident in January 1996, the respondent referred the claimant to Dr. Anthony Russell for a consultative examination. In a report dated March 29, 1996, Dr. Russell opined that the incident in January merely aggravated a condition that had been progressive since the second operative procedure. In a deposition, Dr. Russell further opined that the second cervical fusion performed on the claimant had not ever properly solidified and formed a firm union. He stated that the claimant’s physical problems were the result of movement and instability at the C6-C7 vertebrae. He described this condition as pseudo arthritis. Dr. Russell also stated, in his opinion, that the third cervical fusion would have been necessary even if the collision incident in January 1996 had not occurred. [16] Dr. Peek was of the opinion that the claimant’s condition was worsened by the collision. In a progress noted dated February 1, 1996, the date following the collision, Dr. Peek noted that prior x-rays indicated that the bone grafts at the C6-C7 level had begun to fuse but that following the collision, the mobility of that area had increased. That statement was reiterated in a progress note of April 12, 1996, when he once again noted the radiographic changes following the January 1996 injury and the worsening of her condition following that injury. Dr. Peek also noted in that progress note and in a letter of June 13, 1996, in which he referred to the fact that the claimant had become asymptomatic prior to the January injury, but that her condition had definitely worsened following the collision. [17] We believe that greater weight and credibility should attach to Dr. Peek’s opinions. He was the primary physician who has treated the claimant for her condition, and has performed all three surgeries. Also, his opinions regarding the resolution of the claimant’s difficulties in the fall of 1995, are corroborated by the claimant’s testimony. In that regard, we would also point out that the claimant’s testimony should be given considerable deference in this matter since she has absolutely no interest in the outcome. As indicated above, the parties have continued to pay her benefits and it would not make any difference to her whether these benefits are paid in the future by the PECD or the Trust Fund or some combination of the two. We also note that in his deposition, even though Dr. Russell was insistent that motion and instability in the claimant’s C6-C7 fusion was not increased after her collision, he admitted that he had not taken any steps to verify this by measuring the disk space in any x-rays or other radiographic studies of the claimant taken prior to January 31, 1996. On the other hand, Dr. Peek, in his report of February 1, 1996, the date following the collision accident, made the following finding:
AP inflexion/extension cervical views made today. On last x-ray, it looked as though the graft had started to fuse at C6-7. However, since she was struck, the mobility of this area appears to have increased.
[18] Based upon our review of the medical records, specifically including Dr. Peeks’ progress notes and reports in the fall of 1995, and the claimant’s testimony regarding her condition at that time, we find that but for the accident on January 31, 1996, the third surgery would not have been performed. Therefore, we find that the claimant suffered a compensable aggravation of her preexisting job-related injury on January 31, 1996, and that the Trust Fund is liable for any medical and temporary disability benefits to which the claimant has become entitled since the date in question. Accordingly, the administrative law judge’s decision regarding apportionment of these medical and temporary disability benefits should be reversed. [19] After having given the facts contained in the record of this case a de novo review, we find that the claimant suffered a compensable injury to her neck on March 7, 1993. Respondent No. 1 is solely liable for all benefits which the claimant is entitled to receive as a result of that injury. We further find that the claimant suffered a compensable aggravation of her previous condition in an incident occurring on January 30, 1996, and that Respondent No. 2 is solely liable for all medical benefits and temporary total disability benefits which accrue as a result of that injury. Respondent No. 2 is further ordered to reimburse Respondent No. 1 for all temporary disability benefits, all medical benefits which they have paid to the claimant, or on her behalf, for any consequences of her compensable aggravation of January 30, 1996. Any determination as to the extent of the claimant’s permanent disability shall be held in abeyance until such time as she has reached the end of her healing period and the extent of her permanent disability can be determined. [20] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner MIKE WILSON, Commissioner