CLAIM NO. E410440
LARRY JENNINGS, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 6, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by J. TIMOTHY SMITH, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by ANGELA DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] An administrative law judge entered an opinion and order in the above-captioned case on June 9, 1995, finding that claimant Larry Jennings failed to prove by a preponderance of the evidence that a causal connection existed between his current medical problems and original compensable injury, and limiting workers’ compensation benefits to a period beginning on August 6, 1992 and extending through December 22, 1993. Claimant now appeals from that opinion and order, contending that he is entitled to an award of continuing medical benefits subsequent to December 22, 1993.
[3] Following our de novo review of the entire record, we specifically find that claimant has demonstrated, by a preponderance of the credible evidence, that a causal connection exists between his original compensable injury of August 6, 1992, and his ongoing medical problems subsequent to November 17, 1993 (the date from which respondent controverted benefits).
[4] Claimant sustained a work-related injury on August 6, 1992, when a chain he was pulling while cleaning egg flats broke and caused him to fall on his tailbone, back, and head in a “domino” fashion. Claimant testified that following the fall, he remained on the floor for some 30 to 45 minutes: “I couldn’t move. I hurt. I mean, I just couldn’t get my body to function. I would tell it to move but it didn’t want to move. . . I was laying flat on my back. I couldn’t get nothing to move.” Claimant eventually managed to regain mobility, and proceeded to report to the company nurses that he had fallen.
[5] After receiving essentially no assistance from the nurses, claimant travelled to the VA Hospital in Little Rock because he could not afford local medical assistance. Medical personnel at the VA performed X-rays and provided claimant with medication before sending him home. Claimant returned to work the following Monday, and remained on the job despite increasing pain and numbness in his legs: “I was losing my legs. They was going numb, going to sleep. They would feel like you had hit your crazy bone, and I would slap them around and wake them back up.”
[6] In December, 1992, a company nurse advised claimant to consult with Dr. J. David Martin, who suspected claimant might have multiple sclerosis. Dr. Martin then referred claimant to Dr. Michael Luzecky, a neurologist specializing in Ms. Dr. Luzecky first examined claimant in January, 1993, and diagnosed what he believed to be bilateral meralgia paresthetica attributable to compression of the lateral cutaneous nerve in the groin area.
[7] After medication failed to alleviate claimant’s symptoms, which had extended to his knees and calves by February, 1993, Dr. Luzecky recommended surgery to reduce the suspected compression on the lateral cutaneous nerve. Dr. Charles Dunn performed a surgical release on March 8, 1993.
[8] Unfortunately, this procedure was not successful. Claimant testified that some time after the surgery, his left leg began to feel “as if I had been to a dentist and had a Novocaine shot when they’re pulling your tooth or something. It was numb and clammy.” His right leg fared better at first, but eventually began to develop a burning sensation, “like sticking a hot pad or needles right through the inside of my leg.”
[9] While still under Dr. Dunn’s care, claimant’s feelings of numbness began to progress to pain, and he received a referral (from Dr. Dunn) to Dr. Charles H’Doubler for therapy. Dr. H’Doubler’s treatment consisted mainly of acupuncture, which seems to have provided some transitory relief. During the course of this treatment, claimant continued to be followed by Dr. Luzecky.
[10] Because he was unable to make a definitive diagnosis regarding claimant’s ongoing symptoms, Dr. Luzecky began to strongly urge claimant to seek a second opinion. On January 3, 1994, claimant consulted Dr. Michael W. Morse, who further referred claimant to Dr. William E. Karnes of the Mayo Clinic. Following a thorough evaluation, Dr. Karnes could make no additional suggestions regarding the cause of claimant’s continuing symptoms, but did feel as though they were largely “functional.” Despite claimant’s unresolved pain, Dr. Karnes advised him to return to unrestricted activity.
[11] Claimant returned to Dr. Morse on March 24, 1994, and reported continuing pain in the coccyx, hip, and groin regions. During this visit, Dr. Morse recommended the use of a TENS unit, which provided some relief. On April 21, Dr. Morse made a final referral to Dr. Carl Covey of the Washington Regional Medical Center Pain Clinic. Dr. Covey evaluated claimant on May 19, 1994, and determined claimant to be a possible candidate for a trial implant of a spinal cord stimulator.
[12] Such a device was employed on June 6, and on follow-up four days later, claimant reported “much greater than 50% relief.” Dr. Covey then referred claimant to Dr. J.B. Blankenship for consultation regarding placement of a permanent device.
[13] Respondent initially accepted claimant’s injury as compensable and began paying benefits associated therewith as of December 20, 1992 (the date on which respondent considered itself to have been formally notified). However, on July 21, 1994, claimant received notification that respondent would not pay for the stimulator implant surgery necessary to relieve his pain.
[14] Because claimant’s injury occurred before July 1, 1993, the provisions of
Act 796 of 1993 do not apply.
I.
[15] Respondent’s primary contention is that no causal connection exists between claimant’s ongoing difficulties subsequent to December 22, 1993 (having adopted the administrative law judge’s extension of benefits to that date) and his work activities. This contention is based largely on the office notes of Dr. Luzecky, which indicate that by August and December of 1993, he had begun to question whether claimant’s symptoms were connected to his employment. Dr. Luzecky’s doubts appear to be largely based on the fact that claimant had been experiencing problems with his legs prior to the August 6, 1992 injury.
[16] Even so, an employer “takes the employee as he finds him.” Wade v. Mr. C. Cavenaugh’s,
298 Ark. 363,
768 S.W.2d 521 (1989) (citing Henson v. Club Products,
22 Ark. App. 136,
736 S.W.2d 290 (1987)). Consequently, “it is well settled that when the claimant’s ordinary work aggravates a preexisting condition and thus contributes to the injury, the claim is compensable. Colonial Nursing Home v. Harvey,
9 Ark. App. 197,
657 S.W.2d 209 (1983) (citing McGeorgeConstr. Co. v. Taylor,
234 Ark. 1,
350 S.W.2d 313 (1961)). It is clear from both the medical records and claimant’s testimony, which we find to be credible, that even if claimant suffered from a preexisting condition, this condition was aggravated by his fall on August 6, 1992.
[17] In contrast to Dr. Luzecky’s opinion, Dr. Covey stated in a June 30, 1994 letter that:
I can say with reasonable medical certainty that the meralgia paresthetica symptoms that he is having currently are related to the original injury. (Emphasis added).
[18] When the medical evidence is conflicting this Commission may resolve the conflict in the light of the record as a whole, and, in that light, reach the result that accords with reason, justice, and common sense. BarksdaleLumber Co. v. McAnally,
262 Ark. 379,
557 S.W.2d 868 (1977). We are persuaded by our review of the medical evidence to accept as controlling Dr. Covey’s opinion regarding a causal connection between claimant’s continuing medical problems and original compensable injury. Because Dr. Luzecky consistently deferred making a diagnosis and repeatedly urged claimant to obtain a second opinion, we do not believe his opinion regarding causation is entitled to as much weight as Dr. Covey’s, which was expressly stated “with reasonable medical certainty.”
[19] We also find it significant that Dr. Covey’s opinion speaks to the true issue in this case, to wit, whether claimant’s continuing problems are causally related to his original compensable work-related injury, as opposed to his “work activities” — the focus of respondent’s attention. To the extent respondent does focus on a causal connection between claimant’s difficulties and general work activities, it has mischaracterized the question this Commission must resolve.
[20] We therefore specifically find from the record that claimant’s medical problems subsequent to November 17, 1993, are causally related to his original compensable injury of August 6, 1992, and that he is accordingly entitled to the continuing medical treatment recommended by Dr. Covey.
II.
[21] Respondents have cross-appealed as to the Administrative Law Judge’s admittance into evidence of a March 8, 1995 report prepared by Dr. Covey. Concerning this issue, we note first of all that respondent was given, and apparently declined, a full opportunity to depose Dr. Covey after the hearing. Secondly, the evidence contained within the report was cumulative in nature and did not contribute to our decision.
[22] CONCLUSION
[23] Based on our de novo review of the entire record, and the reasons discussed hereinabove, we specifically find that claimant’s ongoing medical problems subsequent to November 17, 1993, are causally connected to his original compensable injury of August 6, 1992. 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). Respondents are also hereby ordered to pay for the continuing medical treatment recommended by claimant’s authorized physicians, including Drs. Covey and Blankenship.
[24] 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(b) (Repl. 1996).
[25] IT IS SO ORDERED.
JAMES W. DANIEL Chairman PAT WEST HUMPHREY, Commissioner
[26] Commissioner Holcomb dissents.
