CLAIM NO. E815309
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 26, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE J. T. SKINNER, Attorney at Law, Batesville, Arkansas.
Respondents represented by the HONORABLE BILL H. WALMSLEY, Attorney at Law, Batesville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed November 19, 1999. The administrative law judge found that the claimant sustained a compensable injury to his left ankle as a result of an accident arising out of and in the course of his employment with the respondents on August 24, 1998. The administrative law judge found that the claimant incurred reasonable and necessary medical treatment related to the compensable injury, and that the claimant was entitled to temporary total disability compensation from October 5, 1998 until March 1, 1999. The administrative law judge found that the respondents are entitled to credit for indemnity and medical benefits previously paid. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Roger Covington, age 41, broke his left leg in a motorcycle accident in approximately 1979. Mr. Covington testified that his leg below the knee and above the ankle received compound fractures; his left ankle and foot were not injured. He stated that hardware was surgically inserted into his left leg following the injury. The claimant asserted that after a six to eight week recovery period, he experienced no additional problems with his left lower extremity.
Mr. Covington began working for the respondent-employer on May 5, 1983. The parties stipulated that he sustained a compensable injury to his left foot on August 24, 1998. A co-worker accidentally lowered one of the forks of a forklift onto Mr. Covington’s left foot. The claimant testified that he “hollered” and tried to pull his foot out before the co-worker realized what had happened and lifted the fork. The claimant testified that the forklift did not strike his ankle, but that the forceful blow bruised two toes and the arch of his foot. An Accident/Incident Investigation Report dated August 24, 1998 indicated that an employee had “tilted forks forward” on the claimant’s foot.
Mr. Covington was treated at White River Medical Center on the date of the compensable injury, August 24, 1998. He reported that the fork of a forklift had “set down” on his left foot. The claimant reported pain in the distal aspect of his foot but not in the ankle. Swelling in the foot was noted by the treating physician, and the clinical impression was “crush injury to the left foot.” The claimant was treated conservatively and taken off work for two days.
A labor strike occurred at Gencorp Automotive, Inc. from August 28, 1998 until September 14, 1998. Mr. Covington did not actively participate in the work stoppage, but stayed at home and rested his foot. The claimant testified that his left ankle began “throbbing” about three weeks after the compensable injury.
The claimant again presented to White River Medical Center on October 4, 1998, where it was noted: “C/O pain left foot. States forklift fell on it one month ago. No recent injury. C/O pain and swelling since yesterday. Unable to bear weight due to pain.” An x-ray of the left ankle was taken October 4, 1998:
No acute fractures or dislocations are seen. There are old healed fracture deformities of the distal tibia and fibula. There are some lucencies in the distal tibia consistent with orthopedic fixation devices. The ankle mortise is well preserved. There may be a little soft tissue swelling over the lateral malleolus.
IMPRESSION:
1. Possible soft tissue injury.
2. Old healed traumatic changes.
The treating physician’s impression was swelling of the left ankle, and an orthopaedic referral was made. Dr. Jeffery D. Angel, an orthopaedic surgeon, saw the claimant on October 7, 1998. Dr. Angel wrote that since the compensable injury, “he has had ongoing pain in his ankle he states but this really happened at a distant time after the injury that he states he started having the problem.” Dr. Angel assessed sprain of the left ankle.
Mr. Covington presented to his family physician, Dr. Ron J. Bates, on October 8, 1998:
This patient presents today stating that approximately one month ago he had left ankle injury while at work. He stated that he was run over by a fork lift. He has had some pain in the ankle since that time. On 10/03/98 he developed worsening pain. . . .
Dr. Bates observed mild swelling of the left ankle, primarily on the medial aspect, and he assessed left ankle injury. Dr. Bates again noted left ankle swelling on October 13, 1998 and kept the claimant off work.
The following impression resulted from a #6 bone scan, left ankle, triple phase, taken on October 15, 1998:
Small area of slightly increased activity in the medial side of the ankle probably due to trauma. This could easily be due to very remote trauma.
In addition, an MRI of the lower extremity was taken October 15, 1998, with the following findings:
The patient has no evidence of bone contusion. There are several small areas of osteochondritis dissecans seen in the talus, adjacent to the subtalar joint. Fluid is seen to fill several small areas. The largest of these measures 3.0 mm. There is a moderate sized ankle effusion present. I see no evidence of acute fracture. The tendons appear normal.
IMPRESSION:
Joint effusion without evidence of acute fracture. The patient does have several areas consistent with osteochondritis dissecans along the inferior margin of the talus. The largest of these areas measures 3.0 mm.
Dr. Bates reviewed the diagnostic findings on October 19, 1998, and again noted that the claimant’s left ankle symptoms began after the compensable workplace injury. Dr. Bates assessed left ankle injury and kept the claimant off work. On October 26, 1998, Dr. Bates observed that the claimant could barely walk; he thus continued to keep the claimant off work. “I do feel that this is workmen’s comp related,” wrote Dr. Bates.
The claimant returned to Dr. Angel on November 11, 1998. Dr. Angel opined that “according to his history, this is related to his work injury, especially with the findings of the MRI.” On December 11, 1998, Dr. Angel performed an “Arthroscopy, left ankle, with drilling of osteochondritis dissecans lesions.” Dr. Angel noted during surgery that the talus and tibia were visualized and intact; MRI showed the osteochondritis necrotic area, which was drilled multiple times with K wire. Following surgery, the impression from a radiology report on December 31, 1998 was (1) Normal appearing ankle, and (2) Old traumatic changes in the lower legs.
Dr. Angel opined that the claimant could return to full work duty by March 3, 1999. Mr. Covington actually returned to work on March 1, 1999. Dr. Angel stated on March 17, 1999 that the surgery he performed was for a condition that was a direct result of the 1998 workplace injury. The respondents deposed Mr. Covington on May 6, 1999. Approximately three weeks after the August 24, 1998 compensable injury, the claimant testified, he began experiencing a throbbing pain in his left ankle.
Mr. Covington filed a claim for additional worker’s compensation. The claimant contended that his ankle was also injured when his left foot was injured at work on August 24, 1998. He claimed entitlement to medical expenses and temporary total disability compensation from October 5, 1998 until March 1, 1999. The respondents contended that the claimant injured only the end of his foot, not his ankle, during the compensable incident. If the claim was found compensable, the respondents contended that they are entitled to credit for indemnity benefits and medical expenses previously paid.
Dr. Angel corresponded with the respondents’ attorney on August 3, 1999:
I am writing this letter on behalf of my patient Roger Covington. I think you know his history well and I stand behind my earlier report that according to his history that the condition he had was consistent with left ankle sprain injury by the forklift he had reported to me that occurred about a month prior to October, 1998. On the second visit I saw him he corrected it and said that the accident occurred on Aug. 24 according to my note. I do not actually recall the exact time of correspondence we had about the timing of the accident.
Looking back over this case and extensive review he has a complex problem in that he had injuries above this ankle previously and this could certainly contribute to problems lower down in the foot and the ankle. As you will note the bone scan showed an area of activity on the medial side of the ankle, probably due to trauma, but it also said it could easily be due to very remote trauma. The MRI that was taken on 10/15/98 showed joint effusion without evidence of acute fracture and several areas consistent with osteochondritis disc scans (sic) along the inferior margin of the talus.
Osteochondritis disc scans is a condition where the bone marrow loses its blood supply from some sort of ischemic event. It is unknown at the present how much trauma is required to cause this. This first can be only detected by the MRI especially if it is very small as in this case. Later on the plain x-rays of the radiographs can show signs of this problem, however, the talus is very small and obscure position in the ankle, sometimes it is very hard to evaluate on plain radiographs.
I think that this problem in his talus could have evolved from an acute injury that he states happened two or three months before at this work place or could have resulted over time just due to a chronic strain from his previous injury and abnormal bony architecture above the ankle. It is hard for me to tell the exact causation without relying on some sort of history.
With the above information now known I have to rely on the truth of the patient and his accuracy of history. According to the patient he had no problems with this foot and ankle prior to this work injury and that is what I am relying on in my report of causation.
If there is something in this history that I was not given or if the history was erroneous, of course, the other problem above the ankle could have certainly caused the problem in the ankle. . . .
After a hearing before the Commission, the administrative law judge filed an opinion on November 19, 1999. The administrative law judge determined from a preponderance of the evidence that the August 24, 1998 compensable workplace injury was the source of the claimant’s ankle problems. The administrative law judge recognized that the claimant had injured his tibia and fibula above the ankle in 1979 or 1980, but that the claimant had never experienced the kind of ankle symptoms that he had after the August, 1998 injury. Nor did the record show that the claimant had engaged in activity to aggravate his ankle following the compensable injury.
The only other possible source for the claimant’s ankle problem, the administrative law judge determined, was the forklift incident which occurred August 24, 1998. Dr. Angel opined that the claimant’s ankle problem was consistent with an acute injury in the workplace. In addition, Dr. Bates concluded that the claimant’s ankle condition related to the compensable injury. “Thus,” found the administrative law judge, “when the entire record is reviewed, the preponderance of the evidence shows that the claimant’s condition is the result of his on the job injury of August 24, 1998.” The administrative law judge directed the respondents to provide reasonable, necessary, and related medical treatment, as well as a period of temporary total disability compensation. The respondents appeal to the Full Commission.
II. ADJUDICATION
A claimant has the burden of proving the compensability of his claim by a preponderance of the evidence. Georgia-PacificCorp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999). For an accidental injury to be compensable, the claimant must show that he sustained an accidental injury; that it caused internal or external physical injury to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death.Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. StephensTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, the Full Commission finds that the claimant proved by a preponderance of the evidence that his left ankle was also injured during the work-related injury to his foot on August 24, 1998. The credibility of witnesses and the weight to be given their testimony are matters solely within the province of the Commission. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). The dissent argues that the claimant’s testimony was “replete with inconsistencies.” Our de novo review of the entire record yields no such repleteness. On the contrary, we find that Mr. Covington was in fact a credible witness. The claimant sustained a traumatic compensable injury to his left foot on August 24, 1998. He was treated for a crush injury to the left foot but did not immediately report left ankle pain.
According to the record, Mr. Covington continued to complain of pain in his left foot by October 4, 1998. At that time, a treating physician reported swelling of the left ankle. Dr. Angel, an orthopaedic surgeon, reported on October 7, 1998 that the claimant’s ankle pain began “a distant time after the injury.” Dr. Bates later reported that the claimant had felt some ankle pain since the compensable injury, but that the pain worsened in October, 1998. After the claimant was deposed in May, 1999, he testified that his left ankle began “throbbing” about three weeks after the compensable injury. The dissent maintains that the claimant has given inconsistent histories as to when his left ankle pain began after the compensable crush injury to his left foot on August 24, 1998. This argument is based on the fact that the claimant seemed confused as to exactly what point his ankle began hurting after the compensable injury. Nevertheless, Mr. Covington has steadfastly maintained that his left ankle problems are the result of the compensable injury. The Commission may not arbitrarily disregard the testimony of any witness. Boyd v. DanaCorp., 62 Ark. App. 78, 966 S.W.2d 946 (1998). Even if we were to find that the claimant is a poor historian, that determination would not suffice to find that he is not a credible witness.Forrest v. Cornerstone Construction, Full Workers’ Compensation Commission, Aug. 18, 1994 (E309110); Brewington v. AdvancedPlastics, Inc., Full Workers’ Compensation Commission, October 16, 1996 (E407210). The Full Commission expressly finds that the present claimant has credibly described a work-related injury to his left ankle.
The claimant contends that his ankle was also injured when his left foot was admittedly injured at work on August 24, 1998. The claimant must therefore establish, by a preponderance of the evidence, a causal relationship between his ankle injury and his compensable foot injury. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). The determination of whether such a causal connection exists is a question of fact for the Commission to determine. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).
In the present matter, the claimant sustained a compensable injury to his left foot on August 24, 1998. A physician reported left ankle swelling on October 4, 1998, and Dr. Angel subsequently assessed sprain of the left ankle. Dr. Bates also observed mild swelling of the left ankle on October 8, 1998 and assessed left ankle injury. A bone scan taken October 15, 1998 showed increased activity in the medial side of the ankle, which was due to trauma or “very remote trauma.” At this point, the Commission observes that there is no record of trauma to the claimant’s left ankle besides the compensable workplace injury. Dr. Bates noted on October 19, 1998 that the claimant’s symptoms began only after the compensable injury. Dr. Bates further opined that the claimant’s ankle injury was related to his work for the respondents. On November 11, 1998, Dr. Angel opined that the claimant’s left ankle problems were related to the foot injury. Dr. Angel based his opinion not only on the claimant’s history, but on abnormalities shown on the MRI. Finally, in August, 1999, Dr. Angel wrote that he stood by his earlier report that the claimant’s condition was consistent with a left ankle sprain injury caused by the forklift incident. Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship. Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). After considering the claimant’s credible testimony and the medical opinions based on objective findings that the claimant’s left ankle problems were related to the compensable foot injury, the Full Commission finds that the claimant proved that his ankle was also injured when his left foot was injured at work on August 24, 1998. The opinion of the administrative law judge is affirmed.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant sustained a compensable injury to his left ankle as a result of an accident arising out of and in the course of his employment with the respondents on August 24, 1998. We find that the claimant incurred reasonable and necessary medical treatment related to his compensable injury, which includes surgery performed by Dr. Angel. We find that the claimant has proven entitlement to temporary total disability compensation from October 5, 1998 until March 1, 1999, the period that the claimant remained within his healing period and totally incapacitated to earn wages. We find that the respondents are entitled to credit for indemnity and medical benefits previously paid. The Full Commission thus affirms, in its entirety, the opinion of the administrative law judge.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. §11-9-715 (Repl. 1996).
IT IS SO ORDERED.
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ELDON F. COFFMAN, Chairman
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PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority’s opinion finding that the claimant’s left ankle injury is related to his compensable injury of his left foot sustained on August 24, 1998. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
The claimant sustained an admittedly compensable injury to his left foot on August 24, 1998. The claimant had a forklift fork land on his foot. The top of the claimant’s foot was red and appeared bruised. The claimant was taken to the emergency room and a history of the forklift running over the distal end of his left foot was noted. The claimant complained to the ER physician that the pain was in the distal aspect of his foot but he complained of no pain in his ankle. The claimant was diagnosed with a crush type injury of the distal foot without any fracture. This injury was accepted by the respondents as compensable and appropriate benefits were paid.
There is no medical documentation of a problem with the claimant’s left ankle until he went to the emergency room on Sunday October 4, 1998. X-rays performed at that time reflected an old healed fracture deformity of the distal tibia and fibula. They showed evidence of an orthopedic fixation device in the distal tibia. The claimant had a motorcycle accident 20 years prior wherein he sustained injuries to his left fibula and tibia.
On October 8, 1998, the claimant’s family physician, Dr. Bates, said in his report that the claimant’s left ankle pain had worsened on October 3, 1998. The claimant testified that he did not work on Sunday, October 4, 1998, and did not believe that he worked on Saturday, October 3, 1998.
The claimant gave inconsistent histories about when the pain in his left ankle began. On direct examination the claimant stated that his ankle pain first began three or four days after the accident. At another point he said he was having pain in his ankle while he was off work on the strike. (The respondent employer had a strike from August 28, 1998 through September 14, 1998.) In his deposition, the claimant stated that his ankle pain began three weeks after the accident. At the hearing, the claimant finally admitted that the pain began three weeks following the August 24, 1998, accident. However, he stated that it was the first day he was back at work following the strike which would have been September 15, 1998. However, in his deposition the claimant stated that the pain began when he had been back to work for a week following the strike.
The only thing consistent about the onset of the claimant’s ankle pain is that there was none at the time of the accident and that there was none at the emergency room on August 24, 1998. The history the claimant gave Dr. Angel and Dr. Bates conflict with even this scenario. Dr. Angel’s report dated October 7, 1998, recites a history from the claimant of ankle pains since he was run over by a forklift. This was in a report by Dr. Angel dated March 17, 1999. The claimant also told his family doctor, Dr. Bates when he saw him on October 8, 1998, that he had a history of a left ankle injury at work when he was run over by a forklift. Dr. Bates noted a history of pain in the claimant’s ankle since the injury.
The claimant admitted that these doctors got their histories from him. The claimant testified at the hearing that the forklift was not moving when the fork came down on his foot and that it was only on his foot for three or four seconds. He admitted that Dr. Bates and Dr. Angel’s reports were inaccurate when they recite that he was run over by a forklift. He also conceded that Dr. Angel’s report is inaccurate when it says that he sustained an ankle sprain on August 24, 1998.
In his March 17, 1999, report, Dr. Angel states that his opinion regarding causation is based upon the history he received from the claimant as well as the mechanism of the injury. Clearly, the claimant did not sprain his ankle on August 24, 1998, and he did not have pain or swelling in his ankle on August 24, 1998. The claimant did not get run over by a forklift. In addition, Dr. Angel says his opinion is based on a history of left ankle sprain from the accident. He said that the claimant’s previous motorcycle accident could have contributed to his present problem and the osteochondritis dissecans could have resulted from either the motorcycle accident or the forklift incident. Dr. Angel noted that it would be difficult to determine which incident was the cause of the claimant’s problems without relying on the history and the accuracy of the history was vital to support his opinion.
A medical opinion based solely upon claimant’s history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence.Brewer v. Paragould Housing Authority, Full Commission Opinion filed Jan. 22, 1996 (E417617). In addition, the Commission is not bound by a doctor’s opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant’s claim.Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402
(1983). Further, the Commission has the authority to resolve conflicting evidence and this extends to medical testimony. Foxxv. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). Although the Commission is not bound by medical testimony, it may not arbitrarily disregard any witnesses’s testimony. Reeder v.Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). The Commission is entitled to review the basis for a doctor’s opinion in deciding the weight of the opinion. Id. There is no requirement that medical testimony be expressly or solely based on objective findings, only that the record contain supporting objective findings. Swift- Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998).
The Arkansas Supreme Court stated:
Now, medical opinions addressing compensability under Section 11-9-102(5)(A)(i) must be stated in terms expressing a medical expert’s reasonable certainty that the claimant’s internal or external physical harm was caused by his accidental injury.
Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909
(1998). (Although the Court was concerned with a specific incident injury under § 11-9-102(5)(A)(1), the medical opinion within a reasonable degree of medical certainty requirement is the same). The medical opinion offered by the claimant’s physician in the Atwood claim where the physician stated: “Certainly, an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like that present. . .”, is succinct and specific and meets the reasonable certainty requirement.
It is evident that Dr. Angel’s conclusion is flawed because he relies on the claimant’s history. Dr. Angel stated that if the history was erroneous then the old injury could have caused the problem. Dr. Angel’s opinion is certainly not stated within a reasonable degree of medical certainty as required by Ark. Code Ann. § 11-9-102(5)(A)(i).
There is further evidence that the claimant’s ankle injury is not causally related to the August 24, 1998, incident. The claimant’s left ankle was not painful nor swollen on August 24, 1998. He did not begin having pain until some significant period later. Further, the claimant’s testimony is replete with inconsistencies. He has testified that his ankle started hurting anywhere from three to four days after the August 24, 1998, incident to three weeks after. The first medical documentation of pain is October 4, 1998.
Therefore, for the reasons set forth herein, I must respectfully dissent from the majority’s opinion finding that the claimant’s left ankle injury is causally related to the August 24, 1998, left foot injury.
______________________________ MIKE WILSON, Commissioner