CLAIM NO. E308852.
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 1, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE J. RANDOLPH SHOCK, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an administrative law judge’s opinion filed February 17, 2000. The administrative law judge found that the claimant has proven by a preponderance of the evidence that her subsequent back problems are causally related to her original compensable injury; therefore, that the respondents are liable for reasonable and necessary medical treatment, including surgery performed by Dr. Schlesinger. The administrative law judge found that the claimant proved entitlement to temporary total disability compensation beginning April 8, 1999, and continuing through July 9, 1999. The administrative law judge found that the claimant proved entitlement to additional permanent partial disability in an amount equal to 2% to the body as a whole, based upon the impairment rating assigned by Dr. Schlesinger following the claimant’s third surgical procedure. The administrative law judge found that the claimant has failed to prove that she has suffered any additional loss in wage earning capacity. After de novo
review of the entire record, the Full Workers’ Compensation Commission affirms the opinion of the administrative law judge.
I. HISTORY
Angela Hunt, age 36, was educated through grade 12 and worked as a cook and waitress before becoming a nurse’s aide for Pinewood Nursing Home in July, 1992. The parties stipulated that Ms. Hunt sustained an injury arising out of and in the course of her employment with the respondent-employer on May 20, 1993. The employee testified that she injured her back after lifting and turning nursing home patients.
The respondents began providing medical treatment following the compensable injury. Dr. Walter Russell Young’s impression on May 24, 1993 was “acute lumbosacral strain.” Dr. Young released Ms. Hunt to light duty on June 8, 1993; however, the employee said she was unable to perform light duty, asserting that she could not move her arms. Dr. Young assessed “acute cervical strain” on June 9, 1993.
The following impression resulted from an MRI of the cervical spine taken June 16, 1993:
Minimal disc bulge at the C5-C6 level and mild disc bulge at the C6-C7 level. No significant impingement of the nerve roots or spinal cord are appreciated.
A lumbar spine MRI was also taken June 16, 1993, with the impression:
Focal disc protrusion at the L4-L5 level centrally consistent with a herniated disc. The remainder of the lumbar spine MRI is otherwise unremarkable.
Dr. Young referred Ms. Hunt to a neurosurgeon, Dr. Michael Standefer, who related the following impression on June 30, 1993:
1. Chronic intrascapular pain.
2. Chronic lumbar pain.
3. Midline L4 disc protrusion in concert with degenerative disc disease.
I believe the bulk of the patient’s symptomatology can be attributed to musculoskeletal causes rather than symptomatic disc disease, (i.e. cervical and lumbar strain). I have advised her of this. AT present, I would recommend continued conservative care in the form of non-narcotic anti-inflammatory medication and muscle relaxants supplemented with physical therapy for heat treatment, ultrasound and massage to the painful areas three times per week for the next month. . . .
Dr. Standefer reported in July, 1993 a “dramatic improvement in her neck and intrascapular pain. She is having essentially no lumbar pain at this time.”
A cervical myelogram was taken August 16, 1993:
Mild diffuse disc bulging at C6-7. Correlation with post myelogram CT is recommended.
The following impression resulted from a post-myelogram CT of the cervical spine, taken August 16, 1993:
1. Minimal central disc bulging-protrusion at C5-6; minimal disc bulging at C6-7.
Dr. Standefer released the claimant from his care on August 23, 1993. She did not return to work. The respondent-employer terminated Ms. Hunt’s employment effective September 2, 1993, due to excessive unexcused absences. The respondents paid temporary total disability compensation through September 14, 1993. Dr. Standefer corresponded on September 14, 1993:
The patient has called requesting a permanent impairment rating. Based upon the AMA Guidelines, a permanent impairment rating of 4% as regards to body as a whole has been applied to the patient.
Ms. Hunt claimed entitlement to permanent partial disability and additional temporary total disability compensation. Hearing before an administrative law judge was held April 4, 1994. Meanwhile, Dr. Young referred the claimant to another neurological surgeon, Dr. Ronald N. Williams, who scheduled additional diagnostic testing. Dr. Williams wrote to Dr. Young on April 26, 1994:
Ms. Hunt’s EMG and nerve conduction studies do show acute denervation of the tibialis anterior, suggesting an L5 nerve root lesion. The MRI of the back has been reviewed by the radiologist here and it is felt this is a ruptured disc on the right side at L4-5. I spoke with Ms. Hunt about the technical aspects of lumbar surgery, the possible complications, the expectation for relief and the possibility of recurrence. She is to consider that and get back to me.
The administrative law judge filed an opinion on May 12, 1994, and found that the claimant reached the end of her healing period on August 23, 1993, and that the claimant failed to prove entitlement to temporary total disability compensation after September 14, 1993. The administrative law judge found that the claimant failed to prove by a preponderance of the credible evidence that she had a permanent physical impairment. The administrative law judge also found that the claimant failed to prove that she had suffered any wage loss disability as a result of her compensable injury. Although the Full Commission later reversed in part the administrative law judge’s decision, the parties have stipulated that the administrative law judge’s May 12, 1994 opinion is final and res judicata.
On May 16, 1994, Dr. Williams performed a laminectomy, L4-L5, right. An MRI of the lumbar spine was taken July 3, 1995:
Very large recurrent free fragment of disk material extruded from the L5-S1 level and migrating inferiorly to lie behind the right side of the S1 vertebral body.
On July 5, 1995, Dr. Scott Schlesinger performed a “Reoperation, right L5-S1 hemilaminotomy and discectomy.” Dr. Schlesinger wrote on July 17, 1995:
Ms. Angela Hunt is a patient of mine who underwent a laminectomy on July 5, 1995, for recurrent disc herniation at L5-S1 on the right. She had done relatively well since her previous lumbar laminectomy by my partner, Dr. Ron Williams, in 1994. I certainly believe her current condition is related to her prior injury, as there was recurrence at the same disc space.
The Full Commission filed an opinion on October 6, 1995, reversing the May 12, 1994 opinion of the administrative law judge. The Full Commission found that the claimant had proved that she was entitled to a 4% permanent physical impairment rating:
Dr. Standefer opined that the claimant sustained a 4% permanent physical impairment to the body as a whole. Dr. Standefer indicated that he based his rating on the American Medical
Association’s Guides to the Evaluation of PermanentImpairment. This rating is clearly supported by medical records documenting persistent muscle spasms, and decreased range of motion. In addition, a cervical MRI scan revealed disc bulging at C5-C6 and C6-C7, and a Lumbar MRI scan revealed a disc protrusion at L4-L5, which was consistent with a herniated disc. A subsequent cervical myelogram with post myelogram CT scan revealed disc bulging at C6-C7 and disc bulging or protrusion at C5-C6. Based on this evidence, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for a permanent anatomical impairment of 4% to the body as a whole.
The Full Commission also found that the claimant had suffered an additional impairment to her earning capacity in the amount of 4% to the body as a whole. The Full Commission affirmed the administrative law judge’s finding that the claimant’s healing period ended on August 23, 1993, and that she was not entitled to temporary total disability beyond September 14, 1993. No appeal was taken from the Full Commission’s opinion.
Dr. Williams corresponded with the claimant’s attorney on January 3, 1996:
At the time I released Ms. Hunt on August 24, 1994, she’d had a laminectomy at L5-S1. The American Medical Association publication Guides to the Evaluation of Permanent Impairment
indicates that an operatively treated disc derangement in the lumbar spine with residuals produces a 10% whole person impairment.
And Dr. Schlesinger wrote on January 18, 1996:
I last saw Ms. Hunt on October 18, 1995 after her lumbar hemilaminectomy and microsurgical discectomy on July 5, 1995. At that time I recommended that she go through a work hardening program with a functional capacity evaluation afterward. I do not find any record in her chart that this has been done. However, that would not affect her disability rating. My associate, Dr. Ron Williams, has given her a 10% disability rating from the surgery he performed in May, 1994. I will give her an additional 2% permanent partial disability rating in accordance with AMA guidelines.
Ms. Hunt subsequently filed another claim for additional worker’s compensation. The claimant contended that she had incurred medical expenses for two additional surgical procedures, and additional temporary total disability resulting from the surgeries and resulting recuperation. The claimant also contended that she was entitled to additional permanent partial disability benefits. The respondents denied that they were responsible for additional medical or other benefits after September 14, 1993.
Dr. Schlesinger corresponded with counsel for the claimant on September 20, 1996:
Ms. Hunt has what is known as a segmentation abnormality in the number of lumbar vertebrae that are present. This is why there is so much confusion. Both of the disc herniations were, indeed, at the same exact level. It is not clear whether this is at the L4/5 or L5/S1 level, depending upon the number of lumbar vertebrae she has but they were both at the same exact level both by MRI scan as well as noted at the time of surgery. These have previously been called L4/5 or L5/S1 in various radiologic reports but this is the same exact level.
In an opinion filed November 15, 1996, the administrative law judge found that the claimant proved that her lumbar surgeries of May 16, 1994 and July 5, 1995 were reasonable, necessary, and directly related to her compensable injury. The administrative law judge found that the claimant proved that she was entitled to temporary total disability compensation “during the period May 16, 1994 through July 11, 1994 and July 5, 1995 through October 18, 1995, for a total of 23 weeks and 2 days.” The administrative law judge found that the claimant was entitled “to a 12% permanent physical impairment rating to the body as a whole based on Dr. Ron Williams’ and Scott Schlesinger’s 10% and 2% rating as assigned on January 3, 1996 and January 18, 1996.” The administrative law judge found that the claimant was entitled to additional wage loss disability in the amount of 12%. He further found that “Treatment or services furnished or prescribed by Drs. Russell Young, Ron Williams and Scott Schlesinger and St. Vincent’s Infirmary Medical Center were and are reasonable (sic) necessary in connection with the claimant’s compensable injury.” The Full Commission affirmed and adopted the decision of the administrative law judge in an unpublished opinion filed July 18, 1997.
The claimant returned to Dr. W.R. Young on June 2, 1998:
Her back continues to be a problem and she is not totally asymptomatic. At this point is stable but has persistent low back pain and stiffness and debility secondary to the lumbosacral DJDD and previous surgeries. No change in treatment.
Dr. Young treated the claimant conservatively.
Chuck Gay of North Winds Investigations, Inc., Rogers, Arkansas, wrote to the respondents on September 18, 1998:
An investigation of Angela Hunt commenced on September 5, 1998 and continued through September 16, 1998. As a result of our investigation, it was determined that the subject is capable of leaning into her vehicle with what appears to be a heavy bag and setting it on the passengers side of the vehicle. While working at Rock Café the subject is observed waiting on tables, bending while working in restaurant, picking up mat off floor while bending at the waist, sweeping floor and carrying a bucket full of water and dumping it while at no time showing any signs of pain or disability.
On April 8, 1999, Ms. Hunt complained of “significant pain in her back”, at which point Dr. Young scheduled an MRI of the lower back. An MRI of the lumbar spine was completed April 10, 1999, with the following findings:
There is focal fatty marrow change at the L4-L5 level which appears degenerative in nature. The conus medullaris is without evidence of focal masses. The visualized surrounding soft tissues are otherwise unremarkable. No significant disk bulge or protrusion from T12 through L4. L4-L5: There is a recurrent disk herniation on the right at this level with a probable sequestered disk fragment. There is enhancement of the exiting nerve root on the right at this level, best visualized on the sagittal images. Post-laminectomy changes on the right present at this level with some surrounding soft tissue density which enhances consistent with additional granulation tissue/fibrosis.
L5-S1: No significant disk bulge or protrusion present at this level.
NOTE: The present study is based on morphological appearance of the vertebral bodies and assuming five nonrib bearing lumbar type vertebral bodies. There is a mildly transitional appearance to the L5 vertebral body on this study. The numbering system remains similar to prior study of 04/01/94.
IMPRESSION:
Findings suspicious for recurrent disk herniation at the L4-L5 level with possible sequestered disk fragment with associated surrounding granulation tissue/fibrosis. There is enhancement of exiting nerve root at this level on the right as well.
Postoperative changes present. The remainder of the study is otherwise unremarkable.
In addition to referring her back to Dr. Schlesinger, Dr. Young placed the claimant on medical leave from April 13, 1999 through May 13, 1999. Dr. Young opined that the claimant was unable to work because of her L4-L5 disc herniation. Dr. Schlesinger saw the claimant on April 19, 1999:
I have read the new MRI scan of the lumbar spine. The anatomy is not very clear, particularly given the two prior operations, but I don’t see any clear-cut recurrent disc herniation. The radiologist has read out the possibility of recurrent disc herniation, which certainly exists. At any rate, there is nothing very large in size and I would like to manage her conservatively. I have set her up with some physical therapy of the lumbar spine, Medrol Dosepak, Motrin and Ultram. I have also set her up for a lumbar epidural steroid injection. If all matters of conservative care fail, we will need to do a myelogram/CT scan of the lumbar spine, although even then the anatomy is difficult to sort out.
Ms. Hunt again came under the surreptitious observation of North Winds Investigations on April 26, 1999. Mr. Gay wrote to the respondents on May 12, 1999:
An investigation of Angela Hunt commenced on April 26, 1999 and continued through May 6, 1999. As a result of our investigation, it was determined that the subject is capable of getting in and out of her truck, driving, running errands, doing her laundry, repetitious bending, squatting, walking up and down stairs to her trailer, picking up her child and lifting child into her truck, without showing signs of hesitation or disability.
Meanwhile, the following impression resulted from a lumbar myelogram taken May 20, 1999:
1. There is a transitional vertebra at the lumbosacral junction referred to as S1 for the purpose of this exam. I suspect that there are actually only four lumbar vertebrae, the most caudal of which is referred to as L5.
2. Prior lumbar surgery at L5-S1 is noted. This disc is narrowed and shows discogenic sclerosis. Some impingement of the right side root sleeve may be present.
3. CT will follow the myelogram for a more complete evaluation.
CT of the lumbar spine with contrast was carried out on May 20, 1999:
Prior right side laminectomy, L5-S1. Findings are suspicious for recurrent disc herniation impinging the right S1 nerve root as described above.
Dr. Schlesinger subsequently informed Dr. Young, “Her myelo- CT scan does reveal a right L5-S1 recurrent disc herniation. I have discussed with her the options available and she desires to proceed with re-operation.” Dr. Schlesinger performed a “Right L5-S1 reoperation for recurrent disk herniation” on May 26, 1999. This was the claimant’s third lumbar surgery after her compensable injury of May, 1993.
Dr. Schlesinger wrote on June 18, 1999:
She is doing a lot better now with marked improvement in her pain. Her wound is nicely healed. I have gone ahead and released her from my care, but will be happy to see her back should the need arise. She will be off work for another three weeks.
Ms. Hunt filed another claim for additional worker’s compensation. The claimant contended that she had suffered a recurrence of her May, 1993 injury resulting in the need for additional medical treatment, temporary total disability compensation, permanent anatomical impairment, and wage loss. The respondents contended that the claimant had received all benefits to which she was entitled for the May 20, 1993 compensable injury. The respondents contended that the claimant’s current problems were related to her degenerative problems, and were not related to the incident at Pinewood Nursing Home.
Dr. Young wrote to the claimant’s attorney on November 22, 1999:
I treated Mrs. Hunt again on March 23, 1999 for another flare up with back pain and right leg pain. She was advised by me to stop working on April 8, 1999 because of back pain. She subsequently had another MRI and was referred back to Dr. Scott Schlesinger for herinated (sic) disk at L4-L5 and has remained under his care for this condition.
After another hearing before the Commission, the administrative law judge filed an opinion on February 17, 2000. The administrative law judge found that the claimant proved that “her subsequent back problems were the natural and probable result of her original compensable injury.” Dr. Schlesinger had testified at deposition that all three surgeries were performed at the same level. Dr. Schlesinger opined that the compensable injury “has left her at vulnerable risks for blowing out disks for the rest of her life at the same level.” The administrative law judge noted that “there is a complete lack of evidence indicating that claimant injured her back in any other manner.” The administrative law judge summarized:
I find that claimant has proven by a preponderance of the evidence that a causal connection exists between her original compensable injury and her subsequent back problems. Claimant testified that following her second surgical procedure she continued to have varying amounts of back pain until the back pain worsened in March or April of 1999. Claimant’s complaints of continued back pain are reflected in the medical reports of her treating physician, Dr. Young. In addition, Dr. Schlesinger has testified that the claimant’s prior back problems put her at an increased risk of additional herniations at the same level. Finally, there is no indication that claimant injured her back in any other manner while performing everyday activities or while working as a waitress for the Rock Café. Given this evidence, I find that claimant has proven by a preponderance of the evidence that a causal connection exists between her compensable injury and her subsequent back problems.
The administrative law judge therefore found that the respondents were liable for reasonable and necessary medical treatment related to the claimant’s subsequent back problems.
The administrative law judge found that the claimant proved entitlement to additional temporary total disability compensation beginning April 8, 1999, the date Dr. Young took her off work, and continuing through July 9, 1999, the date Dr. Schlesinger released her to return to work.
The administrative law judge found that the claimant proved entitlement to additional permanent partial disability benefits in an amount equal to 2% to the body as a whole, “based upon the testimony of Dr. Schlesinger who stated that as a result of the third surgery he would assign the claimant an additional anatomical impairment in an amount equal to 2% to the body as a whole. I find that Dr. Schlesinger’s opinion is credible and entitled to great weight.” The administrative law judge also found, however, that the claimant did not suffer an additional loss in wage-earning capacity:
The relevant wage loss factors following claimant’s third surgical procedure are essentially the same as the factors which existed following her second surgical procedure and her award of permanent partial disability benefits in an amount equal to 12% to the body as a whole for a loss in wage earning capacity. The primary difference is that claimant is now 36 years old has opposed to 32 years old. Claimant’s prior employment still includes work as a waitress, cook, and nurse’s aide. While claimant testified at her most recent hearing that she has difficulty performing many household chores, I note from a review of claimant’s testimony at her prior hearings that these are essentially the same limitations.
***
Furthermore, following claimant’s second surgical procedure, a functional capacities evaluation was performed on claimant which according to a letter written by Dr. Schlesinger on June 14, 1996, indicated that claimant should perform sedentary work with light activities involving minimum strength level and that claimant should avoid lifting 35 pounds from below the knees and 27 pounds over her head. At the time of his deposition following the third surgery, Dr. Schlesinger testified that he would place no additional restrictions beyond those previously placed on claimant following the second surgery.
Accordingly, I find that claimant has failed to prove by a preponderance of the evidence that she has suffered any additional loss in wage earning capacity as a result of her subsequent back problems.
The administrative law judge awarded reasonable and necessary medical treatment provided in connection with the claimant’s subsequent back problems, including surgery performed by Dr. Schlesinger. The administrative law judge awarded temporary total disability compensation from April 8, 1999 through July 9, 1999. He awarded the claimant an additional 2% anatomical impairment but no additional wage-loss disability. Respondents appeal to the Full Commission; claimant cross-appeals her denial of wage loss.
II. ADJUDICATION
A. Causal Relation
The administrative law judge found that the claimant proved by a preponderance of the evidence that her subsequent back problems are causally related to her original compensable injury. The Full Commission affirms this finding. When an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury. McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936
(1989). When subsequent complications are the natural and probable result of the original injury, the employer remains liable. The basic test is whether there is a causal connection between the two episodes. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship.Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875
(1992). The determination of whether a causal connection exists is a question of fact for the Workers’ Compensation Commission.Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337
(1986).
In the present matter, Ms. Hunt sustained a compensable injury on May 20, 1993, in the form of an acute lumbosacral strain. A lumbar MRI taken in June, 1993 showed a focal disc protrusion at L4-L5 consistent with a herniated disc. Dr. Standefer assigned a 4% whole-body impairment rating in September, 1993. Dr. Williams, a neurological surgeon, arranged EMG and nerve conduction velocity examinations in April, 1994. This additional diagnostic testing showed acute denervation of the tibialis anterior, suggesting an L5 nerve root lesion. The record contains no such objectively-demonstrated spinal abnormality prior to the claimant’s compensable injury. Dr. Williams performed a laminectomy, L4-L5 right, in May, 1994.
MRI taken in July, 1995 showed a “large recurrent (emphasis supplied) free fragment of disk material extruded from the L5-S1 level.” Dr. Schlesinger reoperated at L5-S1 in July, 1995, at which time he expressly opined:
I certainly believe her current condition is related to her prior injury, as there was recurrence at the same disc space.
Nevertheless, the respondents controverted any further medical treatment for the injured worker after September 14, 1993. In September, 1996, Dr. Schlesinger reported that the claimant’s recurrent disc herniations were at the same level, due to a segmentation abnormality. In November, 1996, the administrative law judge found that the claimant’s medical treatment for her recurrent disk was reasonable, necessary, and related to the compensable injury. The Full Commission affirmed the administrative law judge’s opinion and adopted his findings of fact in a July, 1997 unpublished opinion. No appeal was taken from the Full Commission’s opinion, which is now res judicata.
Commissioner Wilson’s Concurring Dissenting Opinion
maintains that “the claimant made a complete recovery” from the compensable injury she sustained on May 20, 1993. According to the record, though, Dr. Young reported in June, 1998, “Her back continues to be a problem and she is not totally asymptomatic.” An MRI completed in April, 1999 showed “recurrent disk herniation” at L4-L5. A subsequent lumbar CT, as interpreted by Dr. Schlesinger, confirmed “a right L5-S1 recurrent disc herniation.” In May, 1999, Dr. Schlesinger performed a “Right L5-S1 reoperation for recurrent disk herniation.” This third surgery markedly improved, but did not totally eliminate, the claimant’s pain resulting from her compensable injury.
The Full Commission affirms the administrative law judge’s determination that the claimant proved by a preponderance of the evidence that a causal connection exists between her original compensable injury and subsequent back problems. The dissent characterizes the evidence as failing to establish that Ms. Hunt’s medical condition and need for treatment were the result of a recurrence of her compensable injury. An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co.v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996).
In the present matter, the dissent states that Dr. Schlesinger could not determine “with any degree of medical certainty” that Ms. Hunt’s condition was related to her compensable injury. The compensable injury before us occurred in May, 1993 and is thus subject to Arkansas law as it existed before Act 796 of 1993 became effective on July 1, 1993. Under prior law, medical opinions regarding causal connection need not be stated within a reasonable degree of medical certainty when there is supplemental evidence supporting the causal relationship. HopeBrick Works v. Welch, 33 Ark. App. 103, 802 S.W.2d 476 (1991). The dissent further states that at deposition Dr. Schlesinger “could not objectively point to a cause of the disk herniation.” Nevertheless, the Full Commission again points out that objective diagnostic testing showed a herniated disc at L4- L5 subsequent to the May, 1993 compensable injury. We also find instructive Dr. Schlesinger’s statement at deposition, to wit:
But she did blow out the same disk, and keeps
blowing out the same disk. So I think the injury in 1994 has left her at vulnerable risks for blowing out disks for the rest of her life at thesame level.
The Full Commission agrees with the administrative law judge’s determination that there is a complete lack of evidence indicating that the claimant injured her back in any other manner other than the 1993 workplace incident; likewise, there is no evidence indicating that Ms. Hunt aggravated her compensable injury. The clear weight of evidence indicates that she instead sustained a recurrence. Therefore, we affirm the administrative law judge’s finding that the claimant proved, by a preponderance of the evidence, that her subsequent back problems are causally related to her original compensable injury. We affirm the administrative law judge’s finding that the respondents are liable for payment of all reasonable and necessary medical treatment provided in connection to her back condition, including surgery performed by Dr. Schlesinger.
B. Permanent Partial Disability
The claimant is age 36 and educated through grade 12. In addition to her duties for the respondents, her work history includes experience as a cook and waitress. Following her compensable injury, Ms. Hunt was released to return to work in August, 1993, but she chose not to return and was terminated for excessive absenteeism. The Full Commission found in October, 1995 that, in addition to her anatomical impairment, Ms. Hunt had sustained an additional impairment to her earning capacity in the amount of 4% to the body as a whole. No appeal was taken from the Full Commission’s opinion, which is now res judicata.
Dr. Schlesinger recommended in January, 1996 that the claimant present for a functional capacity evaluation, but this was never carried out. The administrative law judge filed an opinion on November 15, 1996 and awarded additional wage-loss disability in the amount of 12%. The Full Commission affirmed and adopted on July 18, 1997, which opinion is also now res judicata.
In his opinion filed February 17, 2000, the administrative law judge found that the claimant has failed to prove by a preponderance of the evidence that she has suffered any additional loss in wage-earning capacity. The Full Commission affirms this finding. The wage-loss factor is defined as the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker’s wage-earning capacity has been impaired by the compensable injury. In addition to medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair her earning capacity, the Commission considers such other factors as the employee’s age, education, work experience, and any other matters which may affect her future earning capacity. Ark. Code Ann. § 11- 9-522(1987).
In her Concurring and Dissenting Opinion, Commissioner Humphrey opines that the claimant is entitled to an award of additional wage-loss benefits. The administrative law judge noted that the Commission previously awarded the claimant a 12% permanent partial disability rating; the record shows that her physical limitations and medical restrictions have remain unchanged since that time. The dissent states that the claimant has not worked full time since 1993. The preponderance of evidence indicates, however, that the decision not to attempt to return to full employment is the claimant’s free choice. A lack of motivation to return to work impedes our assessment of the claimant’s loss of earning capacity. Oller v. Champion PartsRebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). The Full Commission also recognizes the surveillance of Ms. Hunt in 1998 and 1999. The claimant is observed bending, lifting, squatting, and walking, among other activities, with no signs of pain or disability. The decision of the administrative law judge is affirmed.
III. CONCLUSION
Based on our de novo review of the entire record, the Full Workers’ Compensation Commission affirms the administrative law judge’s finding that the claimant has proven, by a preponderance of the evidence, that her subsequent back problems are causally related to her original compensable injury. We affirm the finding that the respondents are liable for payment of all reasonable and necessary medical treatment that is related to the compensable injury, including surgery performed by Dr. Schlesinger. The Full Commission affirms the administrative law judge’s finding that the claimant has proven entitlement to temporary total disability compensation beginning April 8, 1999 and continuing through July 9, 1999. The Full Commission affirms the finding that the claimant has proven by a preponderance of the evidence that she is entitled to additional permanent partial disability benefits equaling the 2% whole-body impairment rating assigned by Dr. Schlesinger following the third surgery. We affirm the finding that the claimant failed to prove by a preponderance of the evidence that she has suffered any additional loss in wage-earning capacity.
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).
For prevailing in part 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.
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ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I concur in part and respectfully dissent in part from the majority opinion in this case. I concur in the finding that claimant demonstrated a causal connection between her original compensable injury and her subsequent back problems. Moreover, I agree that she is entitled to reasonably necessary medical treatment, as well as additional temporary total disability benefits. However, I must respectfully dissent from the finding that claimant only proved entitlement to additional permanent partial disability benefits totaling 2% to the whole body based on functional loss. In my opinion, claimant is entitled to an award of additional wage loss benefits.
Claimant has had three surgical procedures, the last of which is the subject of this appeal, and resulted in an additional anatomical impairment rating of 2% to the whole body. Her initial injury occurred in 1993. According to claimant’s credible testimony, she has failed to fully recover. She stated that she experiences pain daily. Since claimant’s previous hearing, the intensity of her pain has, at times, increased. She has difficulty with household chores, including laundry and dish washing. Moreover, it is more difficult to care for her son. Claimant has not been employed on a full-time basis since the occurrence of her initial injury in 1993. She has received neither additional training nor education since the last hearing.
Considering all appropriate factors, I find that claimant is entitled to an award of wage loss benefits.
Based on the foregoing, I concur in part and respectfully dissent in part.
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PAT WEST HUMPHREY, Commissioner
Commissioner Wilson concurs in part and dissents in part.
CONCURRING DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I concur in the majority’s finding that the claimant is not entitled to any additional wage loss disability benefits. However, I must respectfully dissent from the majority’s findings that the claimant sustained a recurrence of her 1993 injury in April of 1999 that the claimant is entitled to temporary total disability benefits for the period April 8, 1999 to July 9, 1999, and the award of an additional 2% in permanent impairment benefits. In my opinion, the claimant has failed to prove by a preponderance of the evidence that she has sustained a recurrence of her 1993 compensable injury.
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. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable. AtkinsNursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. Pinkston v.General Tire Rubber Co. 30 Ark. App. 46, 782 S.W.2d 375 (1990). The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause. Georgia-PacificCorp. V. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998).
The evidence fails to establish that the claimant’s medical condition and need for treatment were the result of a recurrence of her May 1993 compensable injury. The evidence shows that the claimant made a complete recovery from the compensable injury she sustained on May 20, 1993. After her release by Dr. Schlesinger in June of 1996, the claimant was able to engage in a number of activities including those activities related to her employment as a waitress with the Rock Café. Further, Dr. Schlesinger was not able to determine with any degree of medical certainty that her current condition was related to the May 1993 compensable injury.
But certainly the clinical examination made no suggestion of disk herniation at the time you released her in June of `96?
The herniation I removed was removed, but there is always a hole still there in that disk that can allow further egression of disk herniation material.
Right. But the recurrent disk herniation in 1999, or whenever it developed, could be related to a traumatic event?
Sure.
Could be related to someone’s everyday activities; is that a fair statement, Dr. Schlesinger?
Anything can cause a recurrent herniation.
Okay. Can you objectively relate this herniation that was found in 1999 to any specific incident or event?
No.
Although Dr. Schlesinger testified that the claimant was at an increased risk for a herniation at the same level, he could not objectively point to a cause of the disk herniation. Dr. Schlesinger testified:
She’s at increased risk, but you don’t know for sure whether or not it’s related to any specific incident or event?
The recurrent herniation that occurred, once again, she — you know, I don’t know exactly what led to that happening, medically speaking, other than the fact that — I mean, I’ll restate my statement again, that once you do herniate a disk and have surgery for a herniated disk, you’re always at an increased risk for anything, trivial or significant, causing another fragment to come out from that disk. Because it’s been operated on, there’s a hole left, always.
But from a medical standpoint, you can’t objectively say one way or the other?
I repeat my answer.
Okay. I mean, that’s a yes or no. Can you objectively say, one way or another, based on what you saw when you went in and did the surgery, from an objective standpoint?
No.
The evidence shows that the claimant was able to work after her release by Dr. Schlesinger in June of 1996 as a waitress. In addition, she was able to undertake the normal activities of daily life such as running errands, lifting bags of groceries, and lifting her child. In my opinion, the claimant has failed to prove by a preponderance of the evidence that she sustained a recurrence of her 1993 injury in 1996. Accordingly, I would reverse the decision of the Administrative Law Judge on this finding and also the finding that the claimant’s entitled to temporary total disability benefits from April 8, 1999 through July 9, 1999 and the award of an additional 2% permanent impairment. However, I would affirm the Administrative Law Judge’s finding that the claimant was not entitled to any additional wage loss disability benefits. Accordingly, for the reasons set forth herein, I must concur in part and dissent in part.
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MIKE WILSON, Commissioner