FREEMAN v. PACE INDUSTRIES, INC., 1998 AWCC 197

CLAIM NO. E508558

VERNA L. FREEMAN, EMPLOYEE, CLAIMANT v. PACE INDUSTRIES, INC., EMPLOYER, RESPONDENT and SEDGWICK JAMES OF ARKANSAS, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 2, 1998

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

Claimant represented by KIM VAN NOY, Attorney at Law, Little Rock, Arkansas.

Respondent represented by GAIL O. MATTHEWS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed May 8, 1997 finding that all of claimant’s physical problems before and after November 1, 1995, are causally related to claimant’s compensable injury; that claimant proved that her medical treatment was directly and causally related to claimant’s compensable injury and thus reasonable and necessary; that claimant is entitled to additional temporary total disability benefits from February 20, 1996, through December 16, 1996; and that claimant sustained a 5% permanent partial disability rating to the body as a whole. Based upon our de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that her physical problems, namely a centrally mediated pain disorder of the central nervous system, is a compensable consequence of claimant’s May 23, 1995, compensable injury. Therefore, we reverse the decision of the Administrative Law Judge. [3] Claimant sustained an admittedly compensable injury on May 23, 1995, when the seat of a chair in which claimant was sitting collapsed causing claimant to fall through the frame of the chair. As a result of the incident, claimant was taken by ambulance to the Malvern Hospital where she came under the care of Dr. Tilley and Dr. Bruce White. The medical records note a history on that date of “pt. says lower back did not hit anything.” An x-ray of claimant’s lumbar spine was performed revealing a normal lumbar spine. Claimant was diagnosed with a low back strain. The physical therapist’s notes dated May 30, 1995, (just one week after the incident), state “This is the second episode of right lower back pain over the past eight months. First was lifting; second fell off chair.” Dr. Bruce White’s June 6, 1995, office notes state that claimant only had minimal tenderness over her back and that she had a negative straight-leg raising test and normal ankle jerk and knee jerk reflexes. On July 10, 1995, claimant was examined by Dr. Earl Peeples. Dr. Peeples noted that claimant did not have any evidence of a major abnormality nor any other abnormalities on physical examination. Claimant returned to Dr. Peeples for re-evaluation on September 29, 1995, at which time Dr. Peeples ordered an EMG/NCV. This test proved normal. On February 22, 1996, claimant was examined by Dr. Scott Schlesinger on referral from her family physician, Dr. Absolom Tilley. Claimant provided Dr. Schlesinger with a history of having fallen through a chair at work on May 23, 1995. After performing an extensive evaluation, Dr. Schlesinger noted:

I have reviewed the MRI scan of the lumbar spine. This showed no evidence of lumbar disc herniation or nerve root compression. She had a bone scan which, by report, is negative. The plain x-rays of the lumbar spine are unremarkable. She has had an EMG/nerve conduction test by Dr. Myles which are normal on February 7, 1996. I have reviewed this study. I really do not see anything neurosurgically treatable on any of her studies. The laboratory tests were also reviewed and I find no abnormalities on her uric acid level, CBC, or SED rate. Her rheumatoid factor was negative. I do not see an ANA was done. Perhaps an ANA should be done to rule out some collagen vascular disease. In regards to treatment of her pain, I would recommend a hospital referral to the Little Rock Pain Clinic or other pain management program. I really do not see anything more to do from a neurosurgical standpoint. It is possible that this patient’s pain may be related to a neuropraxia or stretch injury to one of the lumbar nerve roots. There is nothing that can be done surgically for this. Perhaps some chronic pain management can give her relief for this. Other differential would include some fibromyalgia, collagen vascular disease, etc.

[4] In November of 1995, claimant was referred to Dr. Shelby Duncan by her family physician, Dr. Tilley. Dr. Duncan noted that throughout his treatment claimant persisted in having low back pain and radicular pain of the left lower extremity. However, Dr. Duncan noted in his correspondence to respondent’s counsel dated December 26, 1996, that he was unable to establish an etiology of the claimant’s radicular pain. Through referral from Dr. Schlesinger, claimant came under the care of Dr. Susan Samlaska. Dr. Samlaska diagnosed claimant with a centrally mediated neuropathic disorder located in the spinal cord between T-12 and T-10. Under Dr. Samlaska’s care, claimant underwent a surgical procedure for a trial of dorsal column stimulator which proved to be beneficial. [5] It is claimant’s contention that her centrally mediated pain disorder is a compensable consequence and thus causally related to her May 23, 1995, compensable injury. Conversely, respondent contends that claimant has failed to prove by a preponderance of the evidence a causal connection between her pain disorder and claimant’s admittedly compensable injury. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent. [6] When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. McDonaldEquipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). However, the claimant must prove by a preponderance of the evidence that there is a causal connection between the primary injury and the subsequent disability. Giddry v. J R EadsConstruction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). Consequently, the claimant must prove by a preponderance of the evidence that the disabling condition is a natural consequence flowing from the primary injury. We have held that in order to prove that the compensability of an alleged compensable consequence, all requirements for proving compensability apply.John Cotton v. Ball Prier, Full Commission Opinion September 23, 1997, (E512437). Therefore, in order to prove that her centrally mediated pain disorder is a compensable consequence, claimant must meet her burden of proof by presenting medical evidence supported by objective findings. Ark. Code Ann. §11-9-101(16); Dodd v. Service American Corp., Full Commission Opinion August 29, 1995, (E313993); Spalding v. First Step School, Full Commission Opinion filed May 27, 1997 (E416505). Finally, except in the most obvious cases, the existence of a causal relationship must be established by expert medical opinion. SeeBilly Wayne Jeter v. B R McGinty Mechanical, Full Commission Opinion March 16, 1997 (E208256); Ortho R. Wells v. ArmstrongRubber Co., Full Commission Opinion April 14, 1997 (D100998); andCarolyn Jackson v. Bosley Construction Inc., Full Commission Opinion March 6, 1997 (E009401). [7] While we agree that the Court of Appeals opinion in ChamberDoor Industries, Inc. v. Graham, 59 Ark. App. 224 ___ S.W.2d ___ (December 3, 1997) stands for the proposition that a claimant does not have to support a continuing need for medical treatment with objective findings, the Court in Chamber Door v. Graham did not address the issue presently before the Commission. The issue regarding the burden of proof to establish a compensable consequence case has been settled, at least before the Full Commission, in our opinion in John Cotton v. Ball Prier, supra. The issues in this case are clearly distinguishable from those presented in Chamber Door v. Graham. In this case, respondent contends that claimant’s current alleged medical abnormality, her centrally mediated pain disorder, is not related to the compensable injury. Therefore, the compensability of the current abnormality is in issue. In Chamber Door v. Graham, the compensability of the claimant’s abnormality was not contested. Rather, respondent in Chamber Door v. Graham merely alleged that claimant was not entitled to additional temporary total disability benefits since there were no longer any objective medical findings substantiating the claimant’s complaint of pain. [8] The record reveals that claimant underwent numerous diagnostic testing to substantiate her complaints of pain which all proved normal. Dr. Samlaska’s diagnosis and treatment rests solely upon the differential tests which she administered. This test required claimant to provide subjective responses to a pin prick after claimant’s spine was “blocked” at particular levels. As noted by the Arkansas Court of Appeals in Duke v. Regis HairStylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996), test results which are based upon “the patient’s description of the sensations produced by various stimuli” are “clearly under the voluntary control of the patient and therefore, by statutory definition, do not constitute objective findings.” Consequently, we cannot find that the testing procedures utilized by Dr. Samlaska to diagnose claimant’s centrally mediated pain disorder meet the statutory requirement of objective findings. Therefore, we cannot find that claimant has proven that her current disorder is a compensable consequence of the admittedly compensable injury in May of 1995 as she has failed to establish the compensability of her alleged disorder by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D). [9] Moreover, we are also not persuaded that the alleged pain disorder is causally related to claimant’s compensable injury. Dr. Samlaska testified in her deposition that she does not know the origin of claimant’s pain complaints. In arriving at her conclusion that claimant’s alleged pain disorder is related to claimant’s compensable injury, Dr. Samlaska relied upon the history of the accident as provided to her by the claimant. However, it is noted that Dr. Samlaska was not provided a complete history of the incident. Dr. Samlaska assumed that claimant fell to the floor striking her buttock and legs. This assumption has proven to be false. The Commission is not bound by a doctor’s opinion which is based largely on information related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant’s claim. Roberts v. Leo-LeviHospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983). Dr. Samlaska’s opinion potentially linking claimant’s pain disorder to claimant’s previous compensable injury is based largely on information relayed to Dr. Samlaska by the claimant. On examination by Dr. Samlaska, claimant presented with much more severe subjective complaints than those detected by Dr. Schlesinger just four days prior to seeing Dr. Samlaska. Dr. Schlesinger noted claimant had a normal straight-leg raising exam bilaterally, normal femoral stretch, normal motor finding with no impairment of gait, and essentially no specific abnormalities. Conversely, Dr. Samlaska just four days later described a patient who can “hardly move their lumbar spine without experiencing marked pain” with an abnormal straight-leg evaluation with a tremor in the left lower extremity. Consequently, we are not persuaded to find that Dr. Samlaska’s opinion based upon information provided by claimant and upon claimant’s subjective responses to testing is entitled to any weight. [10] An independent medical evaluation of claimant’s medical records was performed by Dr. Robert Middaugh the Director of Pain Management Services for St. Vincent Infirmary Medical Center. After reviewing these records Dr. Middaugh noted:

In conclusion, I believe that the precipitating event was unremarkable, the majority of the evaluations performed by individual physicians unsupportive of a finding of a significant injury, and the objective test results consistently without evidence of significant pathology.

[11] After weighing Dr. Samlaska’s opinions against those of Dr. Middaugh, Dr. Schlesinger, and Dr. Peeples, we cannot find that claimant has proven by a preponderance of the evidence that her pain disorder is a compensable consequence of and causally related to the “unremarkable” compensable injury. In our opinion, Dr. Samlaska’s opinions regarding a causal connection is mere speculation. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v.Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas MethodistHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). [12] Accordingly, for those reasons set forth herein, we find that claimant has failed to prove by a preponderance of the evidence that her alleged pain disorder is a compensable consequence of claimant’s admittedly compensable injury. Therefore, we find that the decision of the Administrative Law Judge finding otherwise and awarding claimant additional temporary total disability benefits and finding that claimant’s medical treatment is reasonable and necessary is hereby reversed. [13] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[14] Commissioner Humphrey dissents. [15] DISSENTING OPINION
[16] I must respectfully dissent from the opinion of the majority finding that claimant’s current condition is not causally related to the admittedly compensable injury. [17] The respondent contended that the claimant’s continued problems were not causally related to her compensable injury, and that there were no objective findings of a continuing injury. They specifically argue on appeal that there is no causal connection between the continued need for treatment and her original injury and that the medical evidence fails to reflect continuing objective findings to support her need for treatment. [18] The medical records reflect that the claimant continually sought medical treatment from the time of her initial injury through her 1996 treatment with Dr. Susan Samlaska. Testimony indicated that the claimant’s injury occurred on May 23, 1995, when the claimant fell through a chair when the seat gave way. She was taken by ambulance to the hospital where Dr. Tilley and Dr. Bruce White took over her care. The claimant was treated conservatively by Dr. White, the company physician, and she was referred to Dr. Earl Peeples by the respondent. The claimant was returned to work in July of 1995, but continued to have severe complaints. She returned to Dr. White and was eventually returned to Dr. Peeples who performed additional testing. The claimant, unhappy with Dr. Peeples treatment, returned to see her primary care physician, Dr. Tilley. Dr. Tilley referred her to Dr. Shelby Duncan, an orthopedic surgeon, and Dr. Scott Schlesinger, a neurosurgeon, for treatment which was apparently covered under her personal health insurance. The claimant was eventually referred to Dr. Susan Samlaska, at the Little Rock Pain Clinic, and diagnosed with a centrally mediated pain disorder of the central nervous system. Dr. Samlanska treated the claimant with steroid injections and subsequently implanted a dorsal column nerve stimulator to try and alleviate the claimant’s pain. Dr. Samlanska stated that the claimant’s condition was a neuropathic disorder and opined that the condition was directly and causally related to the May 23, 1995, injury. [19] I find that the claimant’s complaints and treatment are related to her compensable injury. While I understand it is the claimant’s burden of proof to show a causal connection, the respondent offered no evidence that the treatment in question was for anything other than her compensable injury. The treatment was for the same complaints that the claimant had after her accident. The claimant testified that her condition never resolved between the time of the accident and the time she had to seek treatment on her own behalf. The respondent neither alleged nor offered any evidence of any type of intervening cause that would have required the treatment in question other than the compensable injury, or an incident that would have relieved them of liability. As the Administrative Law Judge correctly stated, “there are no other logical explanations for the claimant’s condition.” Accordingly, I find that the treatment in question was causally related to her compensable injury. [20] The respondent further contends that the claimant failed to support her continued need for medical treatment with objective findings, and that Dr. Samlaska’s testing was not objective in nature. However, as the Administrative Law Judge correctly pointed out, the claimant DOES NOT have to support her continuing need for medical treatment with objective findings. Chamber DoorIndustries, Inc. v. Graham, 59 Ark. App. 224, ___ S.W.2d ___ (1997). While such evidence is indeed a factor to consider for the continued need for medical treatment or continuing TTD benefits, it is not determinative. [21] For the foregoing reasons, I dissent. [22] PAT WEST HUMPHREY, Commissioner