JOHNSON v. CARE NETWORK, 2000 AWCC 219

CLAIM NO. E805119.

RHONDA S. JOHNSON, EMPLOYEE, CLAIMANT v. CARE NETWORK, EMPLOYER, RESPONDENT, LEGION INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT, MANAGED CARE USA, TPA, RESPONDENT.

Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 9, 2000.

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

Claimant represented by the HONORABLE EVERETT O. MARTINDALE, Attorney at Law, Little Rock, Arkansas.

Respondent represented by the HONORABLE JOSEPH H. PURVIS, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed as modified.

OPINION AND ORDER
Both parties appeal an opinion and order filed by the administrative law judge on December 9, 1999. In that opinion and order, the administrative law judge found in relevant part that the claimant did not experience an independent intervening event at any point following her admittedly compensable October 26, 1996 back injury, so as to sever the responsibility of the respondent for the benefits at issue in this case. In addition, the administrative law judge found that the claimant sustained a 70% decrease in her wage-earning capacity in excess of the 10% anatomical impairment to the body as a whole accepted and paid by the respondent. After conducting a de novo review of the entire record, we find the preponderance of the evidence in the record indicates that the herniation at the L4-5 level of the spine for which Dr. Russell performed surgery in June of 1997 was a natural and probable consequence of the claimant’s admittedly compensable October 26, 1996 back injury. In addition, we find that a preponderance of the evidence fails to establish that the claimant ever engaged in any conduct which was unreasonable under the circumstances at any time after her October 26, 1996 back injury. In addition, we find that the claimant has sustained a 25% decrease in her wage-earing capacity in excess of the 10% anatomical impairment assigned by her physician and paid by the respondent. Therefore, we find that the decision of the administrative law judge must be affirmed as modified.

I. Independent Intervening Cause

The claimant sustained an admittedly compensable back injury on October 26, 1996. The claimant underwent significant conservative treatment, diagnostic testing, and referrals thereafter prior to Dr. Anthony Russell, a neurosurgeon, performing a right L4-5 partial hemilaminectomy and discectomy on June 24, 1997. That surgery indicated that the affected nerve root was reflected superiorly by an underlying disk fragment. The nerve root was dissected free, and Dr. Russell noted a large free disk fragment underneath the posterior longitudinal ligament which was removed.

The claimant underwent three pre-surgical diagnostic studies to her back. Dr. David Reding, a neurosurgeon, and other physicians, including Dr. Kevin Collins and Dr. William Ackerman, have described an MRI performed in early December of 1996, as indicating a disc rupture at the L4-5 level. Dr. Russell likewise initially interpreted that MRI as indicating a significant disc rupture at L4-5. However, following a myelogram/post-myelogram CT performed on March 12, 1997, Dr. Russell concluded that the claimant was not a surgical candidate because the CT/myelogram failed to show any evidence of nerve root cut-off or significant disc disease. When the claimant’s physical examination changed and her symptoms increased, Dr. Russell obtained a second MRI study on May 13, 1997, which Dr. Russell interpreted as showing a significant disc herniation at the L4-5 level on the right causing direct L5 nerve root compression on the right.

After having accepted and paid for the 10% impairment rating that Dr. Russell assigned for the claimant’s injury and surgery, the respondents took Dr. Russell’s deposition on December 29, 1998, and now assert that there exists an independent intervening cause of the abnormality for which Dr. Russell performed surgery on June 24, 1997, so that the respondents are not liable for the claimant’s unpaid medical treatment and wage-loss disability.

With regard to the occurrence of an independent intervening cause, the Arkansas Courts have held that 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 Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). If there is a causal connection between the primary injury and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Id.; See also, Davis v.Old Dominion Freight Line, Inc., 341 Ark. ___, ___ S.W.3d ___ (Op. Del. June 29, 2000).

In the present case, we find that the preponderance of the evidence in the record indicates that the claimant did not engage in any activity during any time period which was unreasonable under the circumstances. In fact, the only activity which either party could identify that the claimant engaged in during the relevant period which exacerbated her symptoms was bending over to retrieve a case file from a box while performing sedentary work at home. There is no indication that the claimant was advised by her physician to avoid sedentary work or to avoid bending, and in fact, the record indicates that the claimant continued to perform this sedentary work for the respondents approximately 30 hours per week until the time of her surgery on June 24, 1997.

The preponderance of the evidence also establishes, as the respondents point out, that the L4-5 disc herniation which was identified by the May 13, 1997 MRI was not the same L4-5 abnormality identified on the March 12, 1997 CT/myelogram study. Therefore, the preponderance of the evidence indicates that the free disk fragment which was removed on June 24, 1997 was not
present on October 26, 1996, when the claimant sustained her back injury. In these regards, Dr. Russell explains in his deposition:

Q. Now, let me ask you this, based on your knowledge of the earlier MRI, of this lady’s complaints, of the myelogram, of the CT scan, obviously there had been a change in her symptoms and, in fact, in her status, had there not, her physical status, between March 12 of `97 and sometime in May when that follow-up MRI was done, would that be a correct statement?

A. Yes.

Q. Do you know what there was that had changed?

A. Well, most likely what had changed was that we now have the presence of soft disk material, whereas before we were dealing with bone spurring, so we probably have had an acute event in the interim, in the six week interim.

Q. Did she indicate what that event would have been?

A. No, I don’t recall her mentioning it. I can look back through my records.

Q. But there was definitely a change, was there not?

A. Yes.

Q. Now how long have you been practicing neurosurgery, Doctor Russell?

A. Oh, about ten years.

Q. And based on your education and training and experience, you would state, would you not, that in order for there to be this radical a change in symptoms and indeed in findings, as were shown by the MRI, that there most probably would have been some sort of intervening event between March 12 and May 2nd or 3rd or whenever the follow-up MRI was done?

A. That’s correct.

Q. And whatever that event would have been would have had to have caused trauma, would it not?
A. Well, I don’t think you can say that one hundred percent.
Q. Let me back up. Based on what you saw her as of a follow-up to that myelogram and post-myelogram CT scan, would you agree that — wait a minute, I’m not phrasing this correctly. Would you agree that the condition that she reported in May of `97, that was revealed by the MRI, was not what you would term the natural and normal progression of her condition as had been reflected back in March?
A. No, it was not the greater than fifty-fifty probability natural progression of it.
Q. There would have had to have been some sort of intervening event to have caused that change, would there not?

A. That’s correct.

Q. And that event would have occurred sometime between March 12 and sometime in May in that roughly two month period of time?
A. Right and that event could have been as serious as a car wreck to something as simple as a hard sneeze. I mean it doesn’t take a major trauma. That is what I thought you were getting at earlier.

Q. No, no.

A. It doesn’t take a major event to cause that.

Q. But it would be fair to say, would it not that if, in fact, this lady had reported an initial back injury back in October of `96, you followed it up with an MRI, or an MRI was done sometime in early `97 and then you did this myelogram and post-myelogram CT scan in March of `97. So that it would be fair to say that what occurred between March of `97 and this MRI in May of `97, it would be fair to say that that herniation that occurred there at L4/5 was not in fact caused by what had transpired back in October of `96, that would be a fair statement, would it not?

A. I think that’s a fair statement, yes.

Nevertheless, we also find that a preponderance of the evidence establishes that the free disk fragment which Dr. Russell removed during surgery in June of 1997 was a natural and probable result of the claimant’s back injury sustained on October 26, 1996. The evidence which leads us to this conclusion includes Dr. Russell’s additional deposition testimony expressing his medical theory that an injury can cause a disk tear less than a herniation with a subsequent event or events causing the herniation. When comparing Dr. Russell’s theory to the evidence in this case, we note that the claimant was having no back problems or under any limitations prior to the October 26, 1996 injury. Although the claimant apparently did not undergo any diagnostic testing to identify a tear, the voluminous medical record overwhelmingly indicates that the claimant experienced persistent back pain after the October 26, 1996 back injury. Likewise, we note that the claimant’s physicians between the time of the October 26, 1996 injury and the second MRI on May 14, 1997 were all attributing the claimant’s problems to the L4-5 level. Under these circumstances, we find that a preponderance of the evidence establishes a causal connection between the claimant’s back surgery to the L4-5 disk and her admittedly compensable back injury to the L4-5 level of the spine.

Therefore, we find that the preponderance of the evidence fails to establish an independent intervening cause of the claimant’s L4-5 disk herniation.

II. Wage Loss
In addition, after considering the claimant’s age, education, work experience, and all other relevant factors, we find that the claimant has sustained a 25% impairment in her wage earning capacity in excess of the 10% permanent anatomical impairment accepted and paid by the respondents.

In reaching this decision we note that the claimant has experienced significant post-surgical pain limitations. The claimant has experienced scarring at the surgical site affecting the nerve root. An electrodiagnostic study performed on November 3, 1997, approximately five months after surgery indicated moderate to severe L4-5 radiculopathy. The claimant requires an epidural infusion pump for pain management associated with the scar tissue. At the time of Dr. Ault’s deposition on April 19, 1999, Dr. Ault was still titrating the claimant’s pain medication dosage to where the claimant was comfortable. At that time, Dr. Ault opined that the claimant was not yet capable of returning to work from a pain standpoint.

However, Dr. Ault also testified that the claimant had already greatly increased her activity level and that the claimant would soon be capable of returning to work. Dr. Ault testified that the claimant’s morphine did not affect her mental ability, although her concentration ability is impaired due to pain. The claimant will no longer be capable of lifting patients; however, Dr. Ault was persuaded that there is no doubt that the claimant can find some sort of gainful employment in the medical field.

The claimant was 46 years old at the time of the hearing. She became a registered nurse in 1974. Her work experience includes, after earlier nursing jobs, 12 years service at Doctor’s Hospital and five years service at Southwest Hospital before joining Care Network in 1994. The claimant has held two jobs concurrently since 1987, and as discussed above, at the time of her 1996 injury, the claimant worked one job at Care Network in home patient care, and a second job performing case reviews for Care Network approximately 30 hours per week in her own home. Moreover, while Dr. Ault’s testimony indicates that the claimant will not be returning to patient care as a floor nurse, the claimant’s prior experience performing case reviews appears to be precisely the type of sedentary employment that the claimant will be able to pursue if she determines to seek additional employment in the work force.

Finally, we find that a preponderance of the evidence establishes that the claimant’s compensable injury was the major cause of the 25% wage loss awarded herein. In this regard, the preponderance of the evidence establishes that the claimant’s pain and restrictions arose out of the herniated disk, disk surgery, and post-surgical scarring, which were a natural and probable result of her work injury. Therefore, after conducting a de novo
review of the entire record, we find that the preponderance of the evidence fails to establish the occurrence of an independent intervening cause of the claimant’s disability and need for medical treatment. In addition, we find that the claimant experienced a 25% impairment to her wage-earning capacity in excess of the 10% anatomical impairment accepted and paid by the respondents. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed as modified.

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.

_______________________________
ELDON F. COFFMAN, Chairman

Commissioner Humphrey concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION
I concur with the finding that claimant’s disc herniation at L4-5 was a natural and probable consequence of her back injury of October 26, 1996. Moreover, I agree that no evidence exists to support a finding of an independent intervening cause. However, I must respectfully dissent from the determination that claimant’s entitlement to wage-loss benefits totals only 25%.

Claimant is a registered nurse. She was injured on October 26, 1996, and ultimately required surgery. Following operative intervention, claimant developed painful scar tissue. Dr. Ault has characterized claimant’s pain as “intractable.” Numerous treatment modalities were tried in order to control claimant’s debilitating pain. Ultimately, an infusion pump was implanted in March of 1999. Claimant stated that the pump distributes Dilaudid, which has been more effective than other medications. Although Dr. Ault anticipates returning claimant to the work force, he had not done so at the time of the hearing. This is because an optimum level of pain control has not been achieved. In any event, she will never be able to return to work as a floor nurse.

Claimant indicated that she is in constant pain. She stated that her thinking lacks clarity as a result of the Dilaudid. In this regard, claimant’s spouse corroborated her testimony. Although interthecal pumps reduce the side effects of narcotic pain medication, they are not eliminated. This is a significant concern since employment as a nurse in any capacity requires the exercise of good judgement.

Claimant’s activities of daily living have been affected as a result of her compensable injury. She indicated that she is unable to perform housework. Her spouse stated that he does this with assistance from their children. Claimant stated that she does not sleep well. Thus, she nods off during the day. Formerly, she was an avid reader. However, claimant is unable to follow the plot of a book. She stated that she is able to travel only limited distances in a car.

Considering all appropriate factors, I find that claimant is entitled to a wage-loss award of 70%.

Based on the foregoing, I concur in part and respectfully dissent in part.

______________________________
PAT WEST HUMPHREY, Commissioner

Commissioner Wilson dissents.

CONCURRING DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I dissent from the finding that the claimant’s back condition in May of 1996 arose out of her compensable injury suffered in October of 1996. However, I can concur in the majority’s finding that the claimant is entitled to a reduction in wage loss disability benefits from 70% to 25%.

In a workers’ compensation case the claimant has the burden of proving by a preponderance of the evidence that her claim is compensable, ie., that her injury was the result of an accident that arose in the course of his employment and that it grew out of, or resulted from the employment. The claimant must prove a causal connection between the work related accident and the later disabling injury. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). The claimant must show a causal relationship exists between her condition and her employment.Harris Cattle Co. V. Parker, 256 Ark. 166, 506 S.W.2d 118
(1974).

When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary total disability benefits. Ark. Code Ann. § 11-9- 102(5)(F)(i) (Supp. 1999). Benefits are not payable for a condition which results from a non-work-related independent intervening cause following a compensable injury which causes or prolongs disability or need for treatment Ark. Code Ann. § 11-9-102(5)(F)(iii) (Supp. 1997). Whether there is a causal connection between an injury and a disability and whether there is an independent intervening cause are questions of fact for the Commission to determine. Oak GroveLumber Co. V. Highfill, 62 Ark. App. 42 968 S.W.2d 637 (1998). In addition, the Commission has the duty of weighing the medical evidence as it does any other evidence, and the resolution of any conflicting medical evidence is a question of fact for the Commission to resolve. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993).

In my opinion, the claimant has failed to prove by a preponderance of the evidence that her back surgery and post-surgery condition arose from her October, 1996 compensable injury. The myelogram and CT scan ordered by Dr. Russell revealed that what had been presumed to be a bulging disc at L4-5 was in fact a calcified disc fragment. Dr. Russell definitively stated that the calcified disc at L4-5 could not have originated from the October 1996 incident.

In addition, as of March 12, 1997, the claimant did not have a ruptured disc at L4-5. This is confirmed by the myelogram and CT scan performed by Dr. Russell on that date. However, six later weeks in a follow-up MRI a new condition in the claimant’s back was revealed. Dr. Russell has unequivocally stated that a new traumatic event had occurred in the interim. Dr. Russell testified that the claimant did not report to him any events which exacerbated the claimant’s condition.

In his deposition dated April 28, 1999, Dr. Russell had the following exchange with the respondents attorney.

Now, let me ask you this, based on your knowledge of the earlier MRI, of this lady’s complaints, of the myelogram, of the CT scan, obviously there had been a change in her symptoms and, in fact, in her status, had there not, her physical status, between March 12 of `97 and sometime in May when that follow-up MRI was done, would that be a correct statement?

Yes.

Do you know what there was that had changed?

Well, most likely what had changed was that we now have the presence of soft disk material, whereas before we were dealing with bone spurring, so we probably have had an acute event in the interim, in the six week interim.
Did she indicate what that even would have been?
No, I don’t recall her mentioning it. I can look back through my records.
But there was definitely a change, was there not?

Yes.

Now how long have you been practicing neurosurgery, Doctor Russell?

Oh, about ten years.

And based on your education and training and experience, you would state, would you not, that in order for there to be this radical a change in symptoms and indeed in findings, as were shown by the MRI, that there most probably would have been some sort of intervening event between March 12 and May 2nd or 3rd or whenever the follow-up MRI was done?

That’s correct.

And whatever that even would have been would have had to have caused trauma, would it not?
Well, I don’t think you can say that one hundred percent.
Let me back up. Based on what you saw her as of a follow-up to that myelogram and post- myelogram CT scan, would you agree that — — wait a minute, I’m not phrasing this correctly. Would you agree that the condition that she reported in May of `97, that was revealed by the MRI, was not what you would term the natural and normal progression of her condition as had been reflected back in March?
No, it was not the greater than fifty-fifty probability natural progression of it.
There would have had to have been some sort of intervening event to have caused that change, would there not?

That’s correct.

And that event would have occurred sometime between March 12 and sometime in May in that roughly two month period of time?
Right and that even could have been as serious as a car wreck to something as simple as a hard sneeze. I mean it doesn’t take a major trauma. That is what I thought you were getting at earlier.

No, no.

It doesn’t take a major event to cause that.

But if would be fair to say, would it not that if, in fact, this lady had reported an initial back injury back in October of `96, you followed it up with an MRI, or an MRI was done sometime in early `97 and then you did this myelogram and post-myelogram CT scan in March of `97. So that it would be fair to say that what occurred between March of `97 and this MRI in May of `97, it would be fair to say that that herniation that occurred there at L4/5 was not in fact caused by what had transpired back in October of `96, that would be a fair statement, would it not?

I think that’s a fair statement, yes.

The claimant did not report to her employer any event or injury in the spring of 1997. The claimant herself testified that she did not report any event to anyone. However, two years later, after Dr. Russell gave his opinion of a second traumatic event causing the need for surgery, the claimant “suddenly recalled” the event of lifting a chart at home causing her pain. In my opinion, this calls into question the claimant’s credibility. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626
(1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). The only corroborating witness that we have is the claimant’s husband who cannot remember the exact timing of this alleged incident. In order for me to find that this second traumatic event occurred while the claimant was doing her part-time job of reviewing charts for the respondent employer would require conjecture and 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 Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). The claimant has simply failed to establish by a preponderance of the evidence that the herniated disc which necessitated her surgery in 1997 arose from her October 1996 compensable injury.

Therefore, for all the reasons set forth herein, I respectfully concur in part and dissent in part from the majority opinion.

____________________________ MIKE WILSON, Commissioner