FOUST v. WAL-MART, INC., 1998 AWCC 382

CLAIM NO. E112027

GARY FOUST, EMPLOYEE, CLAIMANT v. WAL-MART, INC., EMPLOYER, RESPONDENT, SELF-INSURED

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 18, 1998

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

Claimant represented by RICK WOODS, Attorney at Law, Springdale, Arkansas.

Respondent represented by CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed in part; reversed in part.

[1] OPINION AND ORDER
[2] Respondent appeals and claimant cross-appeals from a decision of the Administrative Law Judge filed on January 15, 1998. After conducting a de novo review of the entire record we find that the decision of the Administrative Law Judge must be affirmed in part and reversed in part. Specifically, we affirm the decision of the Administrative Law Judge finding that claimant failed to prove the occurrence of a new compensable injury to his low back on March 12, 1996. We reverse the finding of the Administrative Law Judge that claimant sustained a permanent partial disability of 37% to the body as a whole, which consists of permanent partial disability benefits for a permanent physical impairment of 12% to the body as well as a loss of wage earning capacity equal to 25% to the body as a whole resulting from either or both of claimant’s compensable injuries on April 11, 1991, and March 22, 1992. Based upon our de novo review of the entire record, we find that claimant has failed to prove that he sustained a permanent physical impairment to the body as a whole supported by objective and measurable medical findings. [3] At the hearing held on November 10, 1997, the parties stipulated that claimant sustained five previous compensable injuries to either his neck or lower back between the dates August 27, 1990, and July 26, 1992. In addition to these stipulated compensable injuries, claimant contended that he sustained a new compensable injury on March 12, 1996, and that he is entitled to permanent disability benefits resulting from all his compensable injuries. Conversely, respondent contended that claimant did not sustain a new compensable injury on March 12, 1996, and that claimant is not entitled to any permanent disability benefits. Based upon our de novo review of the entire record, without giving the benefit of the doubt to either party, we agree with respondent. [4] First, with regard to claimant’s alleged compensable injury on March 12, 1996, we find that claimant has failed to meet 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. Reed v. ConAgra Frozen Foods, F.C. 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 was caused by a specific incident and is identifiable by time and must establish a compensable injury “by medical evidence supported [5] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra. [6] As noted by the Administrative Law Judge, claimant failed to present any evidence of a specific or nonspecific employment related incident or activity occurring on or about March 12, 1996, that caused or produced any physical injury or damage to claimant’s lower back. It was claimant’s testimony that on March 12, 1996, while driving, he turned his head and “passed out.” Claimant described the incident as follows:

A. I was on — I was in Springfield, Missouri; I was headed north on MM, and I was the first truck to the stop light; it turned red — I mean it turned green and I started to take off and I thought a car was going to run from my right to my left and I yanked my head to the right and I passed out right there. A driver across the street facing me in a tanker truck came over to see what was wrong and I told him I had passed out and he drove my truck over to MM, the station right there, and I laid down for a couple of hours; I called the dispatch and told them I wasn’t going to pick up my backhaul, I was coming in, and to get me a doctor, I needed to see Dr. Moffitt.
I came in, went right to Dr. Moffitt, and he put me off work that day.

[7] Although passing out may be considered a specific incident identifiable by time and place of occurrence, we find that claimant has failed to overcome the remaining elements to prove the compensability of an incident on that date. There is no evidence presented of internal or external physical harm to the body resulting from the specific incident. Moreover, while the record consists of numerous medical reports and diagnostic studies, there was no objective medical evidence supportive of a compensable injury on that date. Claimant’s treating physician, Dr. Gary Moffitt attributed claimant’s problem on March 12, 1996, as “. . . pain secondary to his degenerative disc disease.” [8] Consequently, we find that claimant has failed to establish by a preponderance of the credible evidence that he sustained a compensable injury on March 12, 1996. Therefore, we affirm this finding of the Administrative Law Judge. [9] Next, it must be determined whether claimant sustained a physical impairment rating and thus permanent partial disability as a result of his compensable injuries which were stipulated to at the hearing. As the date of all stipulated compensable injuries occurred prior to the enactment of Act 796 of 1993, whether claimant is entitled to permanent partial disability benefits is controlled by the workers’ compensation law as it existed prior to the amendments made by Act 796. Ark. Code Ann. §

Any determination of the existence or extent or of permanent impairment shall be supported by objective and measurable physical or mental findings.

[10] Claimant’s treating physician for his compensable injuries was Dr. Gary Moffitt. A thorough review of Dr. Moffitt’s medical records indicates that Dr. Moffitt consistently diagnosed claimant as sustaining a sprain or strain superimposed upon preexisting degenerative disc disease. The degenerative disc disease was documented in x-rays performed on claimant’s lumbar spine in February of 1992 which revealed disc space narrowing at L4-5, with multiple anterior vertebral body osteophytes and posterior vertebral body osteophytes. On April 6, 1992, claimant was examined by Dr. Moffitt’s partner, Dr. Tim Yawn. In Dr. Yawn’s April 6, 1992, office report Dr. Yawn noted that claimant was suffering from a lumbar back strain which was improving. On July 27, 1992, Dr. Moffitt ordered an MRI of claimant’s lumbar spine since claimant complained of persistent pain in his lower back that traveled down his left leg. The MRI performed on July 31, 1992, revealed the following findings at the L4-5 level:

There is a diffuse bulging annulus fibrosis which is manifest predominantly laterally. The posterior margin of the intervertebral disc is straight, not causing indentation of the thecal sac. There is a combination of osteophytes and intervening discs laterally, the right side greater than the left, which causes caudal foraminal narrowing, right side worse than left. Indeed, on the axial images (first echo #19) the osteophytes and disc combination proximates the exited L4 nerve root and has a mass effect similar to that seen with pure lateral herniated nucleus pulposus.

[11] Under the impression section the radiologists set forth his impressions as follows:

Generalized spondylosis as described. A combination of osteophytes and intervening discs, right lateral L4-5 proximating the right L4 spinal nerve similar mass effect as would be obtained with a pure right lateral herniated nucleus pulposus.
No herniated nucleus pulposus or bulging annulus fibrosis at the other levels.

[12] After reviewing the MRI films, Dr. Moffitt concluded that the films revealed “no herniated disc or bulging discs.” [13] The record reveals that claimant continued to be seen by Dr. Moffitt on a regular basis through 1992 and 1993. In July of 1993, a new MRI was ordered by Dr. Moffitt. This MRI revealed the following findings at the L4-5 level:

There appears to be a central and rightward significant disc protrusion extending into the neural foramen probably affecting the existing right L4 nerve root.

[14] The radiologist’s impressions for the July `93 MRI are as follows:

Findings compatible with a central and rightward disc herniation at L4-5 extending into the neural foramen and probably significantly affecting the existing L4 nerve root. Moderate bilateral L4-5 facet degenerative changes. Mild L2-3 and mild to moderate L3-4 symmetric disc bulging, not neurologically significant.

[15] After obtaining this MRI, claimant was see by Dr. Luke Knox in July of 1993. In Dr. Knox’s August 9, 1993, report to Dr. Moffitt, Dr. Knox opined:

He was found to have severe degenerative disc changes at L3-4, 4-5, and 5-1. I have recommended a continued weight loss program as well as flexion exercises. . . .

[16] Conceivably, the MRI’s performed after claimant sustained his compensable injuries to his back in April of 1991 and March and July of 1992 present objective and measurable physical findings. The MRI performed closest in time to claimant’s compensable injuries did detect a diffuse bulging annulus fibrosis laterally at the L4-5 level. After reviewing the medical records as a whole, including the MRI results and Dr. Moffitt and Dr. Knox’s continued assessment of only degenerative disc disease without any bulging or herniated discs, we are not persuaded to find that the MRI finding of a diffuse bulging annulus fibrosis is in fact an objective and measurable physical finding supportive of a physical impairment rating for claimant’s compensable injuries. In our opinion the diffuse bulging annulus fibrosis merely documented the degenerative changes in claimant’s spine and is not evidence of claimant’s minimal lumbar strain. [17] 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). The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of the Workers’ Compensation Law. Weldon v. Pierce BrothersConstruction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). [18] In our opinion, the medical opinion of claimant’s primary treating physician Dr. Gary Moffitt, and Dr. Luke Knox, a noted neurosurgeon, are entitled to great weight. These two physicians characterize claimant’s spinal condition as degenerative in nature. Dr. Moffitt consistently opined and continuously only characterized claimant’s compensable injuries as sprains or strain and that no physical impairment rating was warranted for claimant’s compensable injuries. Accordingly, after considering the record as a whole, we find that claimant has not proven by a preponderance of the evidence that he sustained a physical anatomical impairment supported by objective and measurable findings. Therefore, we find that the decision of the Administrative Law Judge awarding permanent partial disability benefits should be reversed. The record clearly reveals that the physical impairment ratings generated after claimant under functional capacity assessment were assigned solely because of claimant’s underlying degenerative disc disease and not his compensable injuries. [19] Since we find that claimant failed to prove that he sustained a physical impairment rating, we likewise find that claimant has failed to prove entitlement to any wage loss disability over and above any physical impairment rating assigned. [20] Accordingly, for those reasons set forth herein, we affirm the finding of the Administrative Law Judge that claimant failed to prove by a preponderance of the evidence that he sustained a new compensable injury on March 12, 1996, and we reverse the finding of the Administrative Law Judge that claimant has proven entitlement to permanent partial disability benefits. [21] IT IS SO ORDERED. [22] _______________________________
ELDON F. COFFMAN, Chairman

_______________________________ MIKE WILSON, Commissioner

[23] Commissioner Humphrey dissents. [24] DISSENTING OPINION
[25] I respectfully dissent from the majority opinion. In my opinion, claimant is entitled to permanent partial disability benefits for compensable back injuries which occurred on April 11, 1991, and March 22, 1992. [26] I simply cannot agree with the majority’s interpretation of the medical evidence in this case. After recognizing the close temporal relationship between claimant’s abnormal MRI and his compensable injuries, the majority concludes that the disc herniation is unrelated to the injuries. The MRI studies confirm the existence of a disc herniation at L4-5. Claimant’s disc herniation acted in concert with osteophytes (which occurred as a result of claimant’s degenerative changes) to produce a significant nerve root impingement. It is noteworthy that no evidence of a disc herniation was apparent on the myelogram performed following claimant’s 1981 injury. [27] The evidence also shows that claimant continued to have symptoms indicative of a disc herniation since his injury of April 11, 1991. Dr. Moffitt attributed claimant’s difficulties to his degenerative condition or injuries that were temporary in nature; however, he documents claimant’s ongoing radicular problems which he associates with a “pinched nerve.” [28] I find that claimant has sustained a compensable permanent injury and is entitled to an award of permanent partial disability benefits. [29] In my opinion, claimant is also entitled to wage loss disability benefits. Admittedly, Dr. Moffitt opined that claimant was unable to return to his previous occupation. However, in a letter dated June 14, 1996, Dr. Moffitt stated that “if [claimant] is able to work it will have to be very light clerical type of work.” Then, in a letter dated May 23, 1997, Dr. Moffitt enumerated the restrictions: no “lifting, pushing, or pulling with greater than 15 pounds of force. He can only stand for short periods of time such as five minutes at a time. He will have difficulty riding for long distances and will have to stop frequently and stretch and exercise. He should not do work with is arms above chest level. He will have to minimize bending and twisting at the waist. He will need to have frequent reversals of posture.” [30] Claimant is 56 years old, and has a high school education. He has no vocational training. In June of 1991, claimant was earning $65,228.80 per year. Although claimant is able to return to the work force in a light duty capacity, he would be unable to secure a position with a comparable salary. Indeed, any position would pay considerably less than he was earning in June of 1991. [31] Based on all relevant factors, I find that claimant is entitled to a significant award of wage loss benefits. [32] For the foregoing reasons, I respectfully dissent. [33] _____________________________ PAT WEST HUMPHREY, Commissioner