CLAIM NO. E606019
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 23, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JOHN A. CRAIN, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on August 6, 1997, finding that claimant had proven that he sustained compensable pulmonary injuries in April and May of 1996, and was entitled to associated medical expenses and temporary total disability benefits. 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 he sustained compensable pulmonary injuries in April and May of 1996, and is entitled to associated medical expenses as well as temporary total disability benefits from April 17, 1996 to April 19, 1996, and from May 13, 1996, to May 20, 1996. The decision of the Administrative Law Judge is therefore affirmed. [4] Claimant, who was nineteen years old during the time relevant to this claim, worked as a truck loader for respondent employer. He had enjoyed good health with no lung or breathing difficulties prior to April 16, 1996, when he experienced an unfortunate event as he helped maneuver a load of beams onto a truck:
[5] Eventually, claimant began to experience shortness of breath and finished his shift with considerable difficulty. Claimant’s breathing problems persisted that evening, and he consulted a physician the following day. Upon presenting to the Baxter County Regional Hospital, claimant received a diagnosis of “spontaneous pneumothorax” (collapsed lung) from Dr. Paul Wilbur, who referred him on to Dr. William Ford. Dr. Ford introduced a left chest tube which alleviated claimant’s difficulty, and claimant received a discharge from the hospital on April 19, 1996. After a period of rest, claimant returned to his employment but worked only a month before suffering a second pneumothorax:These were I-beams. They were approximately ten, maybe fifteen foot long and weighed 370 pounds a piece. And we had quite a few to load on . . . Well, as I said, I was trying — when Mark, the gentleman I working with (sic), when he lifted the forks up the I-beams fell off one end, and so I had to go over and try to scoot them on there to get them balanced. Normally we could probably have used another forklift, or something like that, if it was available. At the time there were none available and there was kind of a rush on the job because the truck needed to leave. So I was trying to scoot the beams over to get them balanced enough on there to where at least we could have got them out and maybe found another way to get them on there better. At that time when I lifted up I felt something. At the time I thought I kind of threw my back out of place, but soon after I realized that wasn’t the case.
[6] Now familiar with the injury, claimant immediately sought medical attention at Baxter Regional. On May 15, 1996, Dr. Ford performed surgery to repair claimant’s injury, and claimant appears to have tolerated the procedure well. Claimant received a discharge on May 20, 1996, and stated during the hearing that he rested about a month. At that point, claimant determined that he was no longer able to perform the heavy labor respondent employer required, and severed their employment relationship. Ultimately, claimant returned to work as a shift manager at a local fast food restaurant, and plans to receive training in audio engineering in Florida. Concerning the etiology of claimant’s difficulties, Dr. Ford stated on June 12, 1996, that:That day I was working with two other people. We had a job in which we had some long strap pieces of metal. They are about four inches wide by — some of them are around eighteen foot long. And we had a chain wrapped around the center of them. There was quite a few in a stack. There was probably twenty or thirty that we were trying to lift up. And there was a person on the forklift. He was beginning to lift them up in the air because we were trying to haul them over to stack them on the truck. And myself and one other person was on each end of the strap pieces while he was lifting them up, kind of guiding them, and making sure that they were going to lift all right and weren’t going to fall out, and that’s when the second injury occurred.
Mr. David Hafer was seen in my office today. Now that he is four weeks from his recurrent spontaneous pneumothorax, I was able to visit with him and answer his questions regarding the reason for these two spontaneous lung collapses. David revealed to me that on both occasions, these incidents happened while he was working. During the first incident David was lifting and straining to pick up some very heavy material. The type of work that David does is a large contributor to these pneumothoraxes. Since both of these episodes happened while he was working, I feel very strongly that this condition is indeed work related.
Ark. Code Ann. § 11-9-114 (Repl. 1996) provides that:
[7] For purposes of the foregoing statute, an “accident” simply refers to an event “caused by a specific incident and identifiable by time and place of occurrence.” See, generally City of Blytheville v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997). Because claimant has credibly described a particular event and instance within the performance of his employment duties at which time his injury occurred, we specifically find that his original pneumothorax was preceded by an “accident” within the meaning of Ark. Code Ann. § 11-9-114 (Repl. 1996) (while similar circumstances attended claimant’s subsequent episode, as explained below we are persuaded that the latter pneumothorax is more appropriately defined as the “natural and probable result” of the first injury and thus as a compensable recurrence thereof). [8] We also specifically find that said accident was more than 50% responsible (the “major cause”) for the physical harm claimant sustained as a result of his pneumothorax. See Ark. Code Ann. §§ 11-9-102(14)(A) (Supp. 1997) and 11-9-114(a) (Repl. 1996). First, there is little or no indication that claimant suffered from any underlying condition which would have predisposed him to sustain such an injury. Second, we note from claimant’s credible testimony that his injury occurred contemporaneously with the performance of strenuous employment duties on two occasions — a circumstance that we believe rises above the level of a mere coincidence and supports a causal relationship between claimant’s employment and his injury. Finally, Dr. Ford has expressly opined that claimant’s work was a “large contributor” to his pneumothoraxes, and also felt “very strongly” that claimant’s condition was “work-related.” Based on these factors, we specifically find that claimant has proven, by a preponderance of the evidence, that a work-related accident occurring on April 16, 1996, was the major cause of his pneumothorax. [9] With regard to claimant’s second pneumothorax in May, 1996, we are aware that an employer remains liable for a second period of complications when it is found that the subsequent difficulties are the “natural and probable result” of an initial work-related injury. See, generally, Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). As cited above, Dr. Ford himself has characterized claimant’s second pneumothorax as “recurrent,” and we note that it occurred only a short time (approximately one month) after his initial injury while claimant was again engaged in strenuous work activities. In light of these circumstances, and in the apparent absence of any nonwork-related independent intervening cause, we specifically find that claimant’s second pneumothorax was the “natural and probable result” of his first injury and is thus a compensable recurrence thereof. [10] Additionally, we specifically find that the exertion claimant utilized to perform his work activities at the time of his pneumothorax on April 16, 1996, was “extraordinary and unusual” in comparison to his normal activities. It is true that claimant conceded that heavy exertion in and of itself was not unusual or out-of-the-ordinary within the course of his employment, nor did his activity on April 16th seem to particularly stand out:a) A cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death is a compensable injury only if, in relation to other factors contributing to the physical harm, an accident is the major cause of the physical harm.
(b)(1) An injury or disease included in subsection (a) of this section shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the employee’s usual work in the course of the employee’s regular employment or, alternately, that some unusual and unpredicted incident occurred which is found to have been the major cause of the physical harm.
(2) Stress, physical or mental, shall not be considered in determining whether the employee or claimant has met his burden of proof.
Q. In fact, the incident on April 16, the exertion you did on that day, it wasn’t unusual in comparison to what you normally did over a week’s time at Mountain Home Manufacturing, was it?
A. The exertion itself wasn’t necessarily unusual.
Q. But you had exerted yourself like that many times before, hadn’t you?
A. Yes.
Q. And this wasn’t anything particularly out of the ordinary on the 16th of April?
A. No.
[11] Claimant’s foregoing testimony notwithstanding, a careful review of his earlier comments leads us to the conclusion that he was engaged in “extraordinary” exertion when his first pneumothorax occurred. For instance, claimant testified that another forklift would have normally been used to assist with the task now at issue. However, none were available and, at the same time, a “rush” was on the job “because the truck needed to leave.” Claimant thus found himself trying to “scoot” 370 pound I-beams into proper position on a forklift with nothing more than his own physical effort. Furthermore, while claimant acknowledged that he had been involved with moving heavier items, he also stated that “we always had more help and more equipment for that kind of thing.” So far as claimant could recall, the I-beams were the heaviest type of item that two people had “tried to do.” We are persuaded that these circumstances elevated claimant’s otherwise normal work activity to the level of “extraordinary and unusual” exertion on April 16, 1996, which in turn precipitated claimant’s resulting pneumothorax. [12] Neither of the parties have argued or developed the issue of temporary total disability benefits in their briefs on appeal, and we therefore affirm and adopt as our own the reasoning and findings of the Administrative Law Judge with regard to that issue. [13] Based on our de novo review of the entire record and for the reasons set forth herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained compensable pulmonary injuries within the meaning of Ark. Code Ann. § 11-9-114 (Repl. 1996) in April and May of 1996, and is entitled to medical expenses associated therewith as well as temporary total disability benefits from April 17, 1996, to April 19, 1996, and from May 13, 1996, to May 20, 1996. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [14] 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. 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. § 11-9-715(b) (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 pulmonary problems which first developed on April 16, 1996 are a compensable injury under Act 796 of 1993. Based upon my de novo review of the entire record, I find that claimant has failed to prove that his pulmonary difficulties resulted from an extraordinary or unusual incident or that an unusual or unpredicted incident occurred which was the major cause of claimant’s collapsed lungs. [20] The record reveals that on April 16, 1996 claimant developed shortness of breath when he was loading I-beams onto a flatbed truck. Claimant saw his family physician on the following day and was eventually held off work for 12 days. Claimant returned to work and on May 11, 1996 he experienced a second incident wherein his lung collapsed when he was helping to guide pieces of scrap metal being lifted by a forklift. Claimant reported the second incident to his employer and went to the emergency room. Claimant underwent surgery on May 15, 1996 to reinflate his left lung and to adhere the left lung to the chest wall. Claimant was hospitalized eight days for his surgery. [21] At the hearing held on May 9, 1997 claimant contended that his collapsed lung was a specific incident and, thus, a compensable injury. Conversely, respondent contended that claimant’s condition was caused by a congenital condition and that claimant could not meet his burden of proof under Act 796 of 1993. [22] After reviewing the evidence impartially, without giving the benefit of the doubt to either party, I find that claimant has failed to meet his burden of proof. Specifically, I find that claimant has failed to prove that his exertion on April 16, 1996 was either extraordinary or unusual in comparison to claimant’s usual course of work or that an unusual and unpredicted incident occurred at work which was the major cause of claimant’s physical harm. [23] Claimant, age 20, clearly testified that his work for respondent required heavy exertion and that the work he did on April 16, 1996 was “nothing particularly out of the ordinary.” The lifting claimant was required to perform on April 16, 1996 was not unusual nor extraordinary. Claimant’s job required him to lift and balance material on the forklift throughout his regular course of employment. Moreover, it cannot be found that the incident of lifting was unusual or unpredicted on either April 16th, or May 11, 1996. Claimant was merely doing the job he was hired to do. In my opinion, there is insufficient credible evidence of record to prove that claimant actually sustained a compensable injury on either April 16, 1996 or May 11, 1996. All evidence indicates that claimant was performing his regular job duties and that nothing extraordinary, unusual or unpredicted occurred at work on either of those dates. The mere fact that claimant suffered a spontaneous collapsed lung while at work is not sufficient to satisfy the requirements of a compensable pulmonary injury under Ark. Code Ann. § 11-9-114. I am not persuaded by Dr. Ford’s medical opinion that claimant’s condition is related to his work since both incidences happened while claimant was working. Dr. Ford has provided no basis for his opinion. Physical proximity to one’s workplace is not sufficient, in and of itself, to prove compensability. I find nothing unusual in the fact that claimant was balancing I-beams or scrap metal when the collapsed lung occurred. Moreover, there is no evidence that claimant was exerting unusual or extraordinary force while performing these regular, typical job duties. Accordingly, I find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury in the form of collapsed lungs during the course and scope of his employment. Therefore, I respectfully dissent from the majority opinion. [24] MIKE WILSON, Commissioner