ENGLISH v. STERLING PLUMBING GROUP, 1998 AWCC 21

CLAIM NO. E607581

DEREK ENGLISH, EMPLOYEE, CLAIMANT v. STERLING PLUMBING GROUP, EMPLOYER, RESPONDENT and SEDGWICK JAMES OF ARKANSAS, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 22, 1998

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by RUSSELL BYRNE, Attorney at Law, Little Rock, Arkansas.

Respondents represented by DAVID A. HUGHES, Attorney at Law, Atlanta, Georgia, and BUD ROBERTS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on April 29, 1997, finding that claimant’s surgery of July 30, 1996, was causally related to his compensable injury of February 19, 1996, and that claimant was entitled to a corresponding award of temporary total disability benefits from May 28, 1996, through June 12, 1996, and from July 15, 1996, through September 13, 1996. Respondents now appeal from that opinion and order. [3] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that his surgery of July 30, 1996, is causally related to his compensable injury of February 19, 1996, and that he is entitled to a corresponding award of temporary total disability benefits from May 29, 1996, through June 11, 1996, and from July 15, 1996, through September 13, 1996. The decision of the Administrative Law Judge is therefore affirmed as modified (to reflect what we have found to be claimant’s appropriate period of temporary total disability). [4] Claimant sustained a compensable injury on February 19, 1996, when he was struck in the lower back by a “pallet jack” which had rolled approximately 15 to 20 feet. The following day, claimant consulted Dr. Terry Yates, who noted “tenderness to palpation of the lower lumbar region bilaterally,” and prescribed medication for muscle spasms and pain. Dr. Yates also placed claimant on light duty with a fifteen pound lifting limitation. A week later (February 27), claimant still complained of “quite a bit of soreness and stiffness of the back,” as well as leg pain. Though Dr. Yates detected no spasms, he continued claimant’s medication and modified duty, and also prescribed a course of physical therapy. Claimant still presented with back, hip, and thigh pain by March 5, 1996, but on March 12, Dr. Yates noted that “he is happy to report he is doing 100% better today.” However, the remainder of Dr. Yates’ March 12 notations reveal that claimant was something less than “100% better”:

Really no further pain. Just a little bit of soreness still. . . I think he can return to regular duties. I have explained to him a little bit of the soreness will just have to be worked out as he becomes more mobile again.

[5] At the hearing, claimant denied telling Dr. Yates that he was “100% better,” and explained that he was still sore on March 12, 1996, and did not know why Dr. Yates commented as positively as he did. Claimant went on to explain that he continued taking pain medication after March 12, 1996 (indeed, Dr. Yates’ March 5 report indicates that claimant still had “plenty” of medication), and that he thereafter experienced the same type of pain as he did at the time of his injury, e.g., in the “lower back at my beltline and down through my leg.” These symptoms eventually culminated on April 29, 1996, when claimant reached the point that he could not continue working and sought additional medical care. (There is evidence in the record indicating that claimant had experienced work-related back difficulties prior to February 19, 1996. However, these appear to have been transitory in nature, as claimant testified that he was pain-free as of January, 1996.) [6] Claimant received an orthopedic evaluation from Dr. Stan S. Schwartz on May 13, 1996, who noted tenderness in the left lower lumbar region but deferred any recommendations until completion of an MRI scan. On May 16, 1996, claimant underwent a lumbar MRI which revealed a “marked left posterolateral disc herniation, L5-S1, with left lateral recess stenosis.” Dr. Schwartz thereafter referred claimant to Dr. Anthony Russell, a North Little Rock neurosurgeon, who recommended and ultimately performed disc surgery at the L5-S1 level on July 30, 1996. In a pair of letters, each of which is dated November 15, 1996, Dr. Russell discussed the etiology of claimant’s need for surgery:

When I saw Derek in this office on May 28, 1996, this patient gave a three month history of low back and left lower extremity pain. He related this to an injury at work in which he was struck from behind by a hand jack. Although it is unusual, it is possible that the injury, as described, could have caused the aforementioned disc herniation.
Theoretically, the annulus of the disc can be torn without a true disc herniation and then a herniation can occur at a later time. The orthopedists certainly believe this occurs and is the basis of their performing discograms on patients. I can’t say with a reasonable degree of medical certainty that I’ve ever treated anything that’s happened along these lines. It should be noted that theoretically, as well, if an annulus is torn, then very minimal activities can cause herniations. In fact, I’ve had patients herniate discs from nothing more than a hard sneeze, turning at the waist to pass a tray of food, and stepping off the bottom step of a front porch. Thus, manual labor in and of itself is not usually contraindicated in this setting.

[7] Also,

As you know, Mr. English had a small left, posterior lateral disc herniation in the context of an over-lying stenosis. This stenosis, as you may or may not realize, was not a direct result of his on-the-job injury. I can state that the stenosis by itself would not have been a cause for any type of surgery and it’s possible that the disc itself was small enough that without the overlying stenosis, surgery may not have been indicated either. However, when you put the two together, it is conceivable that he had direct nerve root compression at S1 requiring decompression. As I have stated to you previously, the disc herniation was the reason for recommending surgery in Derek’s case. I would re-emphasize that this disc, in and of itself, may not have been significant enough to require surgery without the overlying stenosis.

[8] As an initial matter, we note respondents’ assertion that claimant has failed to establish causation with a medical opinion “stated within a reasonable degree of medical certainty.” We would take this opportunity to point out that Ark. Code Ann. § 11-9-102(16)(B) (Repl. 1996) simply states (in its entirety) that “medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” There is no affirmative requirement that a claimant must, in fact, introduce such an opinion. Instead, the statute simply requires that medical opinions which are introduced be stated with sufficient certainty to be entitled to probative value. Accordingly, claimant’s contentions do not fail simply because such an opinion is lacking in the instant case. [9] We are persuaded that claimant’s testimony is entirely credible, and find therefrom that he experienced continued symptoms from the date of his injury until well beyond March 12, 1996 — eventually culminating in a need to seek additional medical care a relatively short time later at the end of April, 1996. A close reading of Dr. Yates’ March 12, 1996, office note reveals that claimant was not “100% improved” or even pain-free by that date. Indeed, claimant still experienced residual soreness which Dr. Yates suggested would take more time to resolve. Furthermore, only a week before then, Dr. Yates found cause to note that claimant still had “plenty” of medication. [10] We therefore do not believe that Dr. Yates’ notations of March 12, 1996, negate a causal connection between claimant’s compensable injury and his eventual surgery in July, 1996, or negatively affect claimant’s credibility in any fashion. If anything, Dr. Yates’ comments corroborate claimant’s assertion that his pain lingered as of mid-March and beyond. [11] Finally, though Dr. Russell has declined to draw a direct connection between claimant’s injury and surgery, nothing in his letters quoted above have ruled out such a connection. Accordingly, based on claimant’s credible description of essentially uninterrupted and similar difficulties following the date of his injury, and considering the medical evidence tending to corroborate such testimony, we specifically find that claimant’s eventual need for surgery in July, 1996, is causally related to his injury of February 19, 1996. [12] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep’t. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Claimant’s healing period obviously began on the day of his injury — February 19, 1996 — and certainly persisted after his surgery on July 30, 1996. During this period, Dr. Stan Schwartz held claimant off work for the period of May 29, 1996, until June 4, 1996. Dr. Russell thereafter removed claimant from work for the periods of June 4, 1996, through June 11, 1996, and from July 15, 1996, through September 13, 1996. Though claimant’s healing period may have persisted beyond September 13, 1996, he does not appear to have been totally disabled after that date. We thus find that claimant remained in his healing period and totally incapacitated to earn wages from May 29, 1996, through June 11, 1996, and from July 15, 1996, through September 13, 1996, and is entitled to a corresponding award of temporary total disability benefits. [13] Based on our de novo review of the entire record, and for the reasons stated herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that his surgery of July 30, 1996, is causally related to his compensable injury of February 19, 1996, and that he is entitled to an award of temporary total disability benefits from May 29, 1996, through June 11, 1996, and from July 15, 1996, through September 13, 1996. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [14] All accrued benefits shall be paid in 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). [15] 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 as provided by Ark. Code Ann. § 11-9-809 (Repl. 1996). [16] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[17] Commissioner Wilson dissents. [18] DISSENTING OPINION
[19] I respectfully dissent from the majority opinion finding that claimant’s condition which necessitated his surgery in July of 1996 was causally related to claimant’s admittedly compensable injury and finding that claimant is entitled to temporary total disability benefits associated with the onset of pain which eventually resulted in the need for surgery. Based upon my denovo review of the entire record, I find that claimant has failed to meet his burden of proof. [20] Claimant sustained an admittedly compensable injury on February 19, 1996, when a pallet jack rolled into claimant’s back. As a result of the injury, claimant received medical treatment to include medication and physical therapy. After undergoing physical therapy, claimant reported to his treating physician that he was 100% better without any further pain. Between March 1996 and the end of April, 1996 claimant did not seek any follow-up care or treatment for his back. On April 29, 1996, claimant reported to the emergency room with a severe onset of pain in his lower back. Claimant contends that this severe onset is causally related to his compensable February 19, 1996, injury. Respondents contend that claimant has failed to prove a causal relationship between the onset of pain in April of 1996 with the compensable injury of February, 1996. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, I agree with respondent. [21] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [22] Had claimant not reported to his treating physician that he was 100% better without any pain I might find that claimant’s contention has merit. However, in light of Dr. Yates’ medical report dated March 12, 1996, reporting claimant to be 100% better without any pain I cannot find that there is a causal connection between the severe onset of pain in April of 1996 with the injury from February of 1996. Claimant’s condition improved without any pain associated with his injury. This improvement persuades me to find that there cannot be a connection between the severe onset of pain in April with the compensable injury. Moreover, claimant’s treating neurosurgeon, Dr. Anthony Russell, indicated that an injury such as claimant’s would be unusual, although possible, to result in a disc herniation. In my opinion, if the incident resulted in a disc herniation, the symptoms would have been detected and claimant would not have been able to report to his physician that he was 100% better without any pain. [23] Consequently, I cannot find that claimant has met his burden of proof that the surgery he eventually underwent in July of 1996 is causally related to his compensable injury of February, 1996. Therefore, I respectfully dissent from the majority opinion. [24] MIKE WILSON, Commissioner