GRISSOM v. YOUNG WELL SERVICE, 2002 AWCC 139

CLAIM NO. F009943

CHARLES R. GRISSOM, EMPLOYEE, CLAIMANT v. YOUNG WELL SERVICE, EMPLOYER, RESPONDENT, AMERICAN INTERSTATE INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 15, 2002

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

Claimant represented by HONORABLE HOWARD GOODE, Attorney at Law, Texarkana, Texas.

Respondents represented by HONORABLE MIKE RYBURN, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed.

OPINION AND ORDER
Claimant appeals a May 30, 2001 opinion of an Administrative Law Judge finding that he failed to prove by a preponderance of the evidence that he sustained an injury, which is causally related to the employment.

Claimant has the burden of proving by a preponderance of the evidence that his condition is causally related to his employment. Estridge v.Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission.Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). After our de novo review of the entire record, we find that claimant has met his burden of proof and, accordingly, reverse the opinion of the Administrative Law Judge.

It appears undisputed that it was hot on August 11, 2000, and that claimant was performing strenuous, heavy manual labor when he experienced physical difficulties, which resulted in a trip by ambulance to the emergency room of a local hospital and treatment for heat exposure or exhaustion. Claimant described this incident in the following manner:

Q. Let me direct your attention to August 11th. Please tell the Court what happened.
A. August 11th was on a Friday. We was working on a workover well and we got to pulling the rods out the well. I was telling my supervisor that I was cramping up real bad and that I needed to stop but he was saying to go ahead and let’s get this well, you know, get it pulled and then we would take a break. We got the rods out the well and so we stopped like fifteen to twenty minutes and —
Q. Mr. Grissom, what were you doing? What type of physical activity were you doing when you were pulling these rods? And please raise your volume a little more.
A. Okay. We were — it’s got rods in it and they weigh like fifteen or twenty pounds. It’s two of them and you have to put one on top and one on the bottom. What you do with those rods wrenches, you have to break them real hard, twist them real hard, and once you get them broke, you have to keep it moving with your hands until it comes loose. Then the operator, he sets them on the side, called the elevator, and we’ve got a guy up in the derrick, he sets them over there, and then you go back and pull another one. You are steady doing this constant until they are all gone.

Q. Is this strenuous?

A. Yes, sir. You have to put force on it to break it loose.

Q. You have to use some elbow grease?

A. Yes, sir.

Q. Okay. Then what happened next?

A. After we got the rods out I was telling my supervisor that I needed to take a break or either take the rest of the day off because I was cramping up real bad. So, he said, well, let’s try to get these pipes out the hole and then we’ll shut her down. And so we started rigging up the pipes and stuff and we pulled about eight strands and I got to cramping and blacking out and stuff and so they stopped the rig. After he stopped the rig, I started — it was forming up my hand and my leg, it was cramping up real bad and I couldn’t move nothing. They loaded me up in the truck and took me to the shed, one of they [sic] offices up there, and that’s when they called the ambulance. I remember that I was kind of foaming at the mouth and stuff they said and I started shaking real bad. That’s when they called the ambulance and they put cold towels on me to cool me down. Once the ambulance got there, I was still shaking and everything and my hand was still like it was, so they took me to St. Michael and they put an IV in me, three or four bags of IV in, and then they sent me home. Then, the 12th of August, me and my wife was laying in bed and —

On August 12, 2000, claimant had to return to the hospital with increasing paralysis and weakness in his right upper extremity. Claimant was evaluated and treated by Dr. Russell Mayo, who became claimant’s primary treating physician. A CT scan of claimant’s brain ruled out stroke. Electrodiagnostic studies were abnormal. Dr. Mayo testified that he referred claimant to a neurologist, who confirmed the presence of a peripheral nerve injury in the right upper extremity.

Claimant presented credible testimony that he had never experienced similar problems in the past. Further, claimant credibly testified that the symptoms he experienced in his right upper extremity on August 12 were similar to the symptoms he was experiencing on presentation to the emergency room the day before. We realize that the somewhat cryptic medical records of the August 11 treatment do not necessarily support claimant’s testimony in this regard. However, at the time claimant was providing a history to Dr. Mayo on August 12, there was no question about whether respondent would controvert the claim and the primary concern was that claimant had suffered a stroke. Therefore, claimant had no real motive or reason to give Dr. Mayo false information about his symptoms on August 11 and August 12.

Claimant believes that his peripheral nerve injury is causally related to the heat exhaustion and the strenuous work duties he performed on August 11, 2000. Further, the only medical opinion in the record is one advanced by Dr. Mayo. Dr. Mayo expressed his opinion in the following manner:

Q. You heard the Claimant testify as to the type of activity and the weather conditions that were present on his job on August 11, 2000. Do you have an opinion as to whether or not that was the cause of the injury that he is now suffering from?

A. Yes.

Q. And what would that opinion be?

A. When I saw him on the 12th he gave a history of having severe spasms in his arms and legs the day before, nothing that I knew had changd. When I saw him, he had a right arm paralysis. There was nothing that I could think of and no history that I got that there could have been anything that had happened in between those times and I felt like he came into the emergency room, he was very sweaty, light-headed, they thought it was a heat injury. They probably didn’t do either that thorough or extensive of a neurological exam or maybe at that time his injury wasn’t as obvious, but I feel like given the history that he gave, that this injury that I saw had been sustained the day before.

* * *

Q. So just to make it clear, are Mr. Grissom’s complaints and symptoms consistent with his on-the-job injury or his —
A. There is no other explanation for me other than an on-the-job injury. Again, I’ve asked him and gone through his history and, you know, he started having the problems then and I think that it all goes back to that day, August 11th.

* * *

A. And I feel like, with a reasonable certainty, that it occurred the day before. Whatever happened, I don’t know exactly what happened, but I feel like it occurred the day before.

Q. You are certain but you don’t know?

A. I am certain that something happened that day. I don’t know exactly how it happened but I feel like he sustained an injury that day which caused this nerve injury. To go through and describe exactly how it happened, I mean, I have no history of trauma but I have a paralyzed nerve, I have a paralyzed arm on the 12th, and I have the history that was given about the 11th, and I feel like it was related to — that paralyzed nerve was related to his work on the 11th.

* * *

A. I don’t know what exactly caused it. I do know that he had symptoms the day before, he had severe arm cramps the day before, and he comes back the next day with a paralyzed arm. I’m putting it back to the day before when he had the symptoms.
Q. Okay. But the only connection that you have with the job is that he was at the job on the day before?

A. That’s correct.

Based on claimant’s testimony that on August 11, 2000, he was performing heavy manual labor in high temperatures, claimant’s explanation of his physical difficulties as a result of performing his job, claimant’s testimony that he had never experienced similar problems in the past, Dr. Mayo’s opinion that a causal connection exists and the absence of any other reasonable explanation for claimant’s peripheral nerve injury, we find that claimant has met his burden of proving by a preponderance of the evidence that his peripheral nerve injury is causally related to the employment. Moreover, if a disability arises soon after an accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, a finding that a causal connection exists can be supported by a preponderance of the evidence.Hall v. Pittman Construction Co., 235 Ark. 104, 357 S.W.2d 263 (1962).

Temporary total disability for unscheduled injuries is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark. State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. MadButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

Dr. Mayo testified that claimant was still in need of treatment in the form of physical therapy, and that he had not released claimant to return to work. Based on this evidence, we find that claimant is entitled to benefits for temporary total disability from August 11, 2000 to an uncertain future date.

For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that claimant failed to prove that his right upper extremity difficulties are causally related to the employment. Respondent is liable for all reasonably necessary medical treatment, as well as benefits for temporary total disability from August 11, 2000 to a date yet to be determined. 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. 2002). Claimant’s attorney is entitled to the maximum statutory attorney’s fee on the benefits awarded herein, one-half of which is to be paid by claimant and one-half to be paid by respondents, in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996), Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990), and Chamness v. Superior Industries, Full Commission Opinion filed March 4, 1992 (E019760). 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.

______________________________ SHELBY W. TURNER, Commissioner

Chairman Coffman concurs.

CONCURRING OPINION

JOE E. YATES, Commissioner

I concur in the principal opinion’s findings. I write separately to address an evidentiary issue raised by the dissent.

As the principal opinion notes, Dr. Mayo, a family physician who apparently spends time in the ER, is the only doctor to render an expert medical opinion in this case. Dr. Mayo has opined that, based on his understanding of the claimant’s history, the right forearm paralysis (peripheral neuropathy) he diagnosed in the claimant’s arm in the ER on August 12 was actually part of the symptoms the claimant had when he presented to another doctor by ambulance to the ER from work for “heat exhaustion” on August 11, the day before. Dr. Mayo has opined that the claimant sustained the peripheral neuropathy on August 11.

As I interpret the dissent’s analysis, the dissenting Commissioner feels that (1) Dr. Mayo is mistaken in his belief that the claimant had right arm symptoms when the claimant presented to the ER on August 11 so that (2) Dr. Mayo’s opinions are based on a faulty premise.

I agree with the dissent’s assessment that the August 11 ER records make no reference to any right arm cramping or paralysis type symptoms. On the other hand, I also agree with the principal opinion’s conclusion that the August 11 records are very cryptic, and there appears to me to be no question that when the claimant returned to the ER on August 12 with a paralyzed right arm, he indicated to Dr. Mayo that he did have right arm symptoms the day before. Considering that the first and major concern on August 12 was that the claimant had suffered a possible stroke, it seems highly unlikely to me that the claimant would have any real motive or inclination to lie to Dr. Mayo on August 12 about when his right arm symptoms started, i.e., whether before or after the ER visit on August 11.

For my part, I am inclined to place a lot more weight on the claimant’s description to Dr. Mayo at the ER on August 12 as to when his symptoms began, than the weight that I place on the cryptic August 11 ER notes as to whether or not the claimant was having right arm symptoms, in addition to his “heat exhaustion” symptoms, when he presented on August 11.

Because I accord much greater weight to the accuracy of the August 12 report at issue than I accord the August 11 report at issue, I concur that the preponderance of the credible evidence establishes that the claimant in fact experienced the right arm symptoms on August 11 that form a premise to Dr. Mayo’s causation opinion. Therefore, for the foregoing reasons, I believe the dissent is in error in concluding that Dr. Mayo’s expert opinion is based on an inaccurate history.

_______________________________ ELDON F. COFFMAN, Chairman

Commissioner Yates dissents.

DISSENTING OPINION

JOE E. YATES, Commissioner

I must respectfully dissent from the majority’S opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.

I agree with the Administrative Law Judge’s assessment that causation equals more than mere coincidence. The mere timing of these two events, the claimant’s heat exhaustion on August 11, 2000, and his peripheral nerve injury first diagnosed on August 12, 2000, is not sufficient to establish a causal connection. See Wirth v. Reynolds Metal Co., 58 Ark. App. 161, 947 S.W.2d 401 (1997).

Dr. Mayo was not present when the claimant first presented to the emergency room on August 11, 2000. The Emergency Room History and Physical report prepared by Dr. John Rayburn reveals the following history:

37-year old black male presenting for evaluation of feeling weak and hot associated with low extremity cramping while working in a warehouse today. He became acutely ill while working in the heat. The patient presents here ambulatory with [sic] any central nervous system changes. Vital signs stable.

Most importantly, in his examination of the claimant, Dr. Rayburn found that the claimant could move all four of his extremities equally. Dr. Rayburn diagnosed the claimant with heat exhaustion, gave the claimant fluids and released him from the hospital. Moreover, there is no indication in either the emergency room records or the LifeNet Ambulance records which intimate in any way that the claimant’s blood pressure was low or that he suffered from cramping or muscle spasms in his upper extremities, or more particularly, his right arm. Accordingly, the medical records from the day of the claimant’s heat exhaustion do not support or corroborate Dr. Mayo’s speculative cause for claimant’s peripheral neuropathy. In my opinion, Dr. Mayo’s opinion that the claimant’s work was the reasonable cause of his injury is based upon an inaccurate history and is therefore entitled to little weight.

The lay evidence also fails to support a finding of compensability. The only lay evidence regarding causation is the claimant’s unsupported testimony and the temporal relationship between the heat exhaustion and the claimant’s right arm paralysis. Although the claimant testified that his arms were cramping on August 11, 2000, neither the EMT’s nor the emergency room reports corroborate this critical fact. Dr. Rayburn tested all of claimant’s extremities on August 11, 2000, and no deficiencies were noted.

While the temporal relationship tends to suggest a cause and effect, this alone is insufficient to establish causation. Simply because the sequence of events revealed the peripheral neuropathy after the heat exhaustion, this does not make the heat exhaustion the cause of the claimant’s injury. Accordingly, I would affirm the decision of the Administrative Law Judge finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Therefore, I must dissent from the majority’s opinion awarding benefits.

_______________________________ JOE E. YATES, Commissioner