CLAIM NO. E714521
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 16, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by RODNEY MILLS, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on January 4, 1999, finding that claimant has sustained a compensable injury on November 26, 1997. Based upon our denovo review of the entire record, we find that claimant has failed to prove an injury which is supported by objective medical findings. [3] At the hearing held on November 25, 1998, claimant contended that he sustained a compensable injury on November 13, 1995, and again on November 26, 1997, for which he is entitled to temporary total disability benefits, medical benefits, and an attorney’s fee. Conversely, respondent contended that although they accepted an injury of November 13, 1995 as a medicals only claim, they now controvert any additional benefits associated with the November 13, 1995 claim, and they controvert in its entirety the November 26, 1997 claim. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to prove by a preponderance of the evidence that he is entitled to any benefits. Specifically, we find that claimant has failed to prove that he sustained a compensable injury on November 26, 1997, which is supported by objective medical findings. [4] Initially, claimant asserted an injury arising out of a November 13, 1995 motor vehicle incident. The medical evidence reveals that as a result of an incident which did arise out of and in the course of claimant’s employment, claimant sustained a shoulder injury. However, a review of the medical records, in addition to claimant’s testimony, reveals that claimant’s shoulder injury resolved and he experienced no further difficulties arising from that claim. Accordingly, we cannot find that claimant has proven entitlement to any further benefits resulting from the initial injury of November 13, 1995. [5] With regard to claimant’s request for temporary total disability benefits and medical benefits arising out of an injury which occurred on November 26, 1997, we are unable to find that claimant has sustained his burden of proof. The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and § 11-9-102(5)(E)(i) (Supp. 1997). He must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(5)(A)(i). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in § 11-9-102(16).” [6] During the hearing, claimant described a second specific incident which occurred on November 26, 1997, while he was unloading insulation. After reporting the incident claimant sought treatment from the Health South Clinic in Hot Springs. The Patient Evaluation Form for Health South dated November 26, 1997 reveals that claimant was diagnosed with a lumbar strain and he was held off work for a one-week period. Upon claimant’s re-evaluation on December 2, 1997, he was again diagnosed with a lumbar strain and prescribed physical therapy. Again, claimant was held off work for an additional six days. The medical records which were prepared contemporaneously with claimant’s specific incident fail to document any objective medical findings to support claimant’s diagnosis of lumbar strain. [7] Pursuant to claimant’s testimony, although he received physical therapy following this specific incident, his back did not improve to any appreciable degree. Consequently, in April of 1998, five months after the specific incident, claimant sought treatment from the National Park Medical Center. At that time, an MRI was performed. This diagnostic test revealed:
[8] Admittedly, the MRI performed on April 24, 1998, documented objective medical finding of a herniated disc at L5-S1 impinging upon the right S1 nerve. However, after conducting a de novoSmall right paramedian HNP at L5-S1 impinging upon the right S1 nerve root.
In August of 1998, claimant came under the care of Dr. James Arthur who ultimately performed surgery. The medical records reflect that Dr. Arnold performed a right laminectomy and diskectomy at L4-5. It is claimant’s testimony that the surgery performed by Dr. Arthur greatly improved his condition.
review of the entire record we are unable to find that these findings support a November 26, 1997 compensable injury. [9] A review of the evidence reveals that claimant first experienced lower back and right leg pain in November of 1996. At that time he described the pain as occurring without a history of trauma or injury. An MRI performed before this alleged injury on January 31, 1997, produced the following findings:
[10] Following treatment at the MediStat Medical Center in November 1996, and again in January 1997, claimant was referred to Dr. D. Bud Dickson, an orthopedic specialist. On January 22, 1997, Dr. Dickson reported the following history:The patient has a right paracentral to right lateral disc protrusion which is encroaching upon the transversing nerve rootlet of L5 on the right at the L4-5 disc space. No marked neural foraminal encroachment or entrapment of the exiting nerve rootlet of L4 is apparent. (emphasis added)
The MRI read by Dr. David L. Harshfield before the accident used the term “encroaching” while the MRI read by Dr. Michael Hickman used the term “impinging.” Webster’s Ninth New Collegiate Dictionary defines “impinge” as: “ENCROACH, INFRINGE” (emphasis in original). Thus, these two words are obviously interchangeable.
[11] Based upon his examination, Dr. Dickson stated:. . . Mr. Couch is a pleasant 28 year old gentleman who is a truck driver for Harold Ives Trucking Company. He lives in Little Rock and drives out of North Little Rock. Since November, and without a history of trauma, he developed pain in the right greater trochanteric region that occasionally radiates down to his mid calf. Coughing and sneezing causes him increased pain and as does prolonged sitting. Arising from a sitting position is also uncomfortable. Some of the times he is uncomfortable no matter what position he is in. The Naprosyn that you started him on recently improved things for a few days only for him to be back to square one. He has continued to work ever since this started and does not relate this problem to anything he injured while working.
[12] After obtaining the MRI, the results of which are set forth above, Dr. Dickson stated:It is my impression that Mr. Couch has a herniated disc in the lumbar region, probably an L5.
[13] In our opinion, this claim lacks any definitive objective medical findings of a compensable injury resulting from the November 26, 1997 incident. That incident merely resulted in a diagnosis of lumbar strain without any objective medical findings being noted. It was not until April of 1998, five months after the incident, that an MRI was performed. This MRI revealed a herniated disc impinging upon a nerve root which had previously been noted as having been impinged upon following a January, 1997, MRI which was conducted prior to claimant’s alleged injury. It is acknowledged that the pre-injury MRI documented a disc protrusion at the L4-5 disc space while the post-injury documented a disc protrusion at L5-S1, but it is our opinion that these are actually the same disc protrusions. We reach this conclusion after reviewing the post-injury MRI results in its entirety and after considering claimant’s surgical area. Dr. Michael Hickman, the radiologist who read the post-injury MRI films, specifically stated that he compared his films with the films from January 31, 1997. If, in fact, a herniated or protruding disc was detected in January of 1997, which no longer existed in April of 1998, one would expect the radiologist to note this discrepancy. No discrepancy between films was noted. Thus, it is our finding that both films noted the same disc protrusion, especially in light of the fact that both films indicate impingement upon the same nerve root. Unfortunately, since the films were read by two different radiologists, each radiologist labeled the protruding disc differently. [14] Nor are we persuaded to find that Dr. Arthur’s operative report disclosed any new objective findings. Dr. Arthur performed a L4-5 right laminectomy and discectomy on August 13, 1998. This report revealed a “herniated disc fragment.” The term fragment utilized by Dr. Authur in his surgical report is, in our opinion, simply a term used to identify the material which has protruded, outside of the disc space. This protruded material was identified in both the 1997 and 1998 MRI’s. [15] Giving claimant’s prior complaints of lower back and right leg pain, which are identical to the pain he now describes as resulting following the November 1997 incident, we are not persuaded to find that claimant sustained a compensable injury resulting from the November 1997 incident which is demonstrated by objective medical findings. This incident did occur, but we cannot find that it resulted in a compensable injury. In reaching this finding, we acknowledge that Dr. Arthur recited the history given to him by the claimant of injuring his back on November 26, 1997. We further acknowledge the handwritten notations in Dr. Arthur’s August 7, 1998, neurological History and Physical. Our review of Dr. Arthur’s notes fail to confirm that Dr. Arthur ever compared claimant’s findings which preceded the November 26, 1997 incident to the objective medical findings noted subsequent to this incident. The August 7, 1998, handwritten notes are, in our opinion, merely a recitation of the history and claimant’s understanding of his condition as provided to him by the claimant. Although claimant was instructed to bring his “films” the medical records do not confirm that he ever brought the films for Dr. Arthur to review. As noted by the dissent, one cannot determine if Dr. Arthur reviewed the films before he examined claimant, after he examined the claimant, or if he ever reviewed the films, for that matter. To conclude that Dr. Arthur actually reviewed the films, based upon the records introduced into evidence, is nothing more than sheer speculation and conjecture. Due to claimant’s pre-existing problems, and the absence of any comparison of the pre-existing problems to the post incident problems, claimant’s report of identical pain, both before and after the incident, and virtually identical MRI findings of a herniated disc impinging upon the same nerve root at L-5, we cannot find that claimant’s nerve root impingement is a new objective finding. In our opinion, claimant’s objective and clinical findings do not preponderate in favor of finding that claimant sustained a compensable injury which is supported by objective medical findings. [16] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be reversed. [17] IT IS SO ORDERED. [18] _______________________________MRI reports indicates that he does have a right para central to right lateral disc protrusion which is encroaching upon the transverse nerve root of L-5 on the right at the L4-5 disc space. There is no apparent compression of the L-4 nerve root as it exits through its foramina.
As long as Mr. Couch is doing well, I have encouraged him to continue with his exercise program. I will have him continue his Naprosyn as well as the William’s flexion exercises. Hopefully, Scott will be able to continue to get by without any surgery . . . (emphasis added)
Claimant attempted to downplay the significance of his prior back complaints by stating that the pain was different. However, a review of the record reveals that claimant described his pain following the November 26, 1997 incident as:
A lot of pain. It got real stiff, extreme pain and sharp pains from my low back all the way down just about to my ankle.
These are the exact same complaints found in claimant’s medical records and in claimant’s deposition used to describe the symptoms for the prior November, 1996, low back and right leg pain.
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner [19] Commissioner Humphrey dissents. [20] DISSENTING OPINION
[21] I respectfully dissent from the majority opinion finding that claimant failed to prove that he sustained a specific incident injury on November 26, 1997. In my opinion, claimant has met his burden of proof. [22] It is determined that claimant failed to satisfy the objective findings requirement. In so finding, the majority concluded that the MRI’s performed in 1997 and 1998 produced essentially identical findings. The first test showed a disc protrusion with nerve root encroachment but the second MRI reflected a herniated disc impinging upon the nerve root. The majority’s conclusion with respect to the similarity of the studies is based upon Webster’s Dictionary. They find that since the words impinge and encroach “are obviously interchangeable,” the second test shows no change. This determination disregards the opinion of Dr. James Arthur, neurosurgeon, with respect to the differences between the studies. The majority states that: “In reaching this finding, we acknowledge that Dr. Arthur recited the history given to him by the claimant of injuring his back on November 26, 1997. However, there is no indication that Dr. Arthur has compared claimant’s findings which preceded the November 26, 1997 incident to the objective medical evidence noted subsequent to this incident.” I cannot agree with the majority’s characterization of the medical evidence in this case. Two MRI’s were performed, neither of which was ordered by Dr. Arthur. Dr. Arthur completed a report entitled “Neurological History Physical” on August 7, 1998. A notation at the top of the document is as follows: “pt to bring films.” This was not written by Dr. Arthur, and it is unclear whether he reviewed the films before he examined claimant. In any case, it is obvious that Dr. Arthur was aware of the existence of the studies performed in 1997 and 1998. In my opinion, it strains credulity to find that Dr. Arthur failed to look at both MRI’s before performing surgery. The chart note dated August 7, 1998, stated that the MRI performed in January of 1997 showed a discbulge. By contrast, Dr. Arthur stated that the MRI done in 1998 showed a herniated disc. In the event that Dr. Arthur did not review the MRI films until after he examined claimant, it is logical that he would have corrected his chart note dated August 7, 1998, to accurately reflect the results of the initial MRI. However, there are no changes. Accordingly, I find persuasive the differences in the studies noted by Dr. Arthur. This is bolstered by claimant’s credible testimony that the second MRI was “worse” than the first. [23] Also, claimant received conservative treatment following the first test and surgery was not indicated. He returned to work, and was able to do so without medication. By contrast, Dr. Arthur determined following the accident on November 26, 1997, that surgery was indicated, and he performed a “L4-5 laminectomy and discectomy” on August 13, 1998. [24] I also disagree with the majority’s conclusion with respect to the discovery of the disc fragment during claimant’s surgery. The evidence shows that Dr. Arthur removed the fragment in a piecemeal manner. The fragment also represents a new finding. Nevertheless, the majority determines that: “The term fragment utilized by Dr. Arthur in his surgical report is, in our opinion, simply a term used to identify the material which has protruded, outside of the disc space.” There is a distinct difference between a protrusion and a fragment. According to The American Heritage College Dictionary, Third Edition, the term fragment is defined as “[a] small part broken off or detached.” On the contrary, to protrude is “[t]o push or thrust outward.” In my view, the determination of the majority is based on sheer speculation for no basis whatsoever exists to support this finding. It is axiomatic that speculation may not replace proof. [25] Claimant also seeks temporary total disability benefits. In my opinion, he has proved entitlement to these benefits. [26] Based on the foregoing, I respectfully dissent. [27] _______________________________ PAT WEST HUMPHREY, Commissioner