CLAIM NO. E402142
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 24, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by BRENT STERLING, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission upon remand by the Arkansas Court of Appeals. On November 20, 1996, the Arkansas Court of Appeals issued an opinion reversing and remanding our opinion and order filed October 18, 1995, finding that claimant failed to prove by clear and convincing evidence that his symptoms experienced in June and July of 1994 were causally related to his employment. In their opinion, the Arkansas Court of Appeals stated:
[3] We have carefully conducted a de novo review of the entire record and with the mandate of the Arkansas Court of Appeals in mind, we find that the claimant has failed to prove by clear and convincing evidence that his allergic reaction and his time off work from June 22, 1994, through July 1, 1994 and July 12, 1994, through August 17, 1994 is causally related to his employment. [4] Claimant began working for respondent in 1987 as a punch press operator. In July of 1993, the claimant developed contact dermatitis which has been proven to be causally related to his employment. Respondent accepted the 1993 allergic reaction as compensable and all appropriate benefits were paid. In March of 1994 claimant returned to work and was placed in a different department. Claimant’s new job assignment was that of janitorial work. One of claimant’s new job duties was painting. The painting proved to exacerbate claimant’s contact dermatitis, so this duty was removed from claimant’s assignments. On June 22, 1994, claimant developed an allergic reaction which caused him to miss work through July 1, 1994. On June 23, 1994, claimant reported to Dr. E. William Rosenberg, a dermatologist, with the following complaints, “two weeks back at work started to break out again. Has headaches.” Dr. Rosenberg described claimant’s outbreak as “red blotched area on forearm and face. With a few linear streaks not blistered. Sore purpura.” Dr. Rosenberg diagnosed the claimant with dermatitis and specifically stated that the cause of the dermatitis was unknown. When claimant returned to Dr. Rosenberg’s office on July 1, 1994, Dr. Rosenberg opined after examining the claimant that claimant’s dermatitis was “possibly plant and not due to oil at work.” Dr. Rosenberg released claimant to return to work on July 5, 1994. [5] On July 12, 1994, after returning to work on July 5, 1994, claimant returned to Dr. Rosenberg’s office with a new rash on his face, eyes, arms, chest, and trunk. Claimant provided Dr. Rosenberg with a history of no problems at work on July 5, 6, and 7th but broke out with a rash on July 8th when he had to scrub the floor with a scrubbing machine. In his August 5, 1994 correspondence, Dr. Rosenberg stated:The two commissioners who formed the majority may have given no weight to Dr. Ragland’s recommendation that appellant not be exposed to small amounts of chemicals or oils even through the air. They were not free, however, to disregard his opinion. Nor were they free to rely upon Dr. Rosenberg’s notes of June 23, 1994, and then ignore his report of August 5, 1994, as well as his statement that it was reasonable to assume that appellant’s trouble in the summer of 1994 was another form of contact dermatitis acquired at work. We will reverse the denial of benefits and remand to the Commission for action in keeping with our decision.
[6] Claimant’s dermatitis developed after July 1, 1993, therefore, this claim is governed by Ark Code Ann. § 11-9-101 et. seq. as amended by Act 796 of 1993. Since this is an occupational disease claim, claimant is required to prove a causal connection between his employment and the occupational disease by clear and convincing evidence. Ark. Code Ann. § 11-9-601 (e) (1) (B). Clear and convincing evidence is defined as proof so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, Ross v. Moore, 25 Ark. App. 325, 758 S.W.2d 423 (1988); it is that degree of proof which will produce in the trier of fact a firm conviction as to the allegations sought to be established. Taylor v. Hill,10 Ark. App. 45, 661 S.W.2d 412 (1983). Moreover, Ark. Code Ann. § 11-9-102 (16) (B) states: “Medical opinions addressing compensability . . . must be stated within a reasonable degreeof medical certainty.” (Emphasis added) [7] Based upon the medical evidence outlined above, we find claimant has failed to prove by clear and convincing evidence that his outbreaks which occurred on or about June 22, 1994 and July 8, 1994 are causally related to his work environment. There is no evidence in the record that claimant was exposed to any type of oil, chemical, paint or grease prior to June 22, 1994, which resulted in claimant’s allergic reaction and time off from work from June 22, 1994, through July 1, 1994. It is specifically noted that claimant’s dermatologist, Dr. Rosenberg, opined that the outbreak at that particular point in time was caused by an allergic reaction to a plant and not to claimant’s work environment. [8] Although Dr. Gerald Ragland, the company doctor whom claimant had seen for his previous 1993 outbreak and his outbreak in March of 1994, stated that claimant has a hypersensitivity to chemicals and recommended that claimant not be exposed to small amounts of chemicals, paint, grease or oils, there is no evidence in the record that claimant was exposed to any of these compounds prior to his outbreak in June of 1994. [9] Since we find that claimant has failed to prove that he was exposed to any of the compounds noted in Dr. Ragland’s March 9, 1994 office notes, we cannot place any weight on Dr. Ragland’s medical records with regard to claimant’s June, 1994 outbreak. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco. Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). In our opinion, Dr. Ragland’s records provide no causal support for claimant’s condition in June of 1994. Accordingly, we find that claimant has failed to prove by clear and convincing evidence that his outbreak in June of 1994 is causally related to his work environment. [10] With regard to claimant’s outbreak which resulted in time off from work from July 12, 1994 through August 17, 1994, we find that claimant has failed to overcome Dr. Rosenberg’s speculative opinion addressing compensability. As noted above Dr. Rosenberg stated that it was “reasonable to assume” a causal connection with regard to this outbreak. An assumption is not the equivalent of a “reasonable degree of medical certainty.” Dr. Rosenberg’s August 5, 1994, correspondence does not rise to the requisite level of a medical opinion addressing compensability stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102 (6). Therefore, we cannot place any weight on Dr. Rosenberg’s opinion. Accordingly, we find that claimant has failed to prove the compensability of his outbreak which occurred after July 8, 1994. [11] For those reasons stated herein, we find that claimant has failed to prove by a preponderance of the evidence entitlement to benefits for his allergic reactions in June and July of 1994 and would therefore affirm our opinion filed, October 18, 1995. [12] IT IS SO ORDERED.There is a sharp line of demarcation where his shoes were, and the appearance of the eruption is entirely consistent with what could have been expected to occur had he been scrubbing the floor with an automatic scrubber and some oil droplets of the type that he is known to be allergic to mixed in with the scrubbing solution as it splattered off the floor. I think that it is reasonable to assume that his apparent trouble represents another form of contact dermatitis acquired at work. We know from before that he is allergic to some of the ingredients in the oil products used at the plant. (Emphasis added)
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[13] Commissioner Humphrey dissents.[14] DISSENTING OPINION
[15] I respectfully dissent from the opinion of the majority finding that claimant is not entitled to benefits.