JONES v. CRAWFORD COUNTY, 2008 AWCC 62

CLAIM NO. F704625

CURTIS JONES, EMPLOYEE CLAIMANT v. CRAWFORD COUNTY, EMPLOYER RESPONDENT NO. 1 AAC RISK MANAGEMENT SERVICES, TPA RESPONDENT NO. 1 SECOND INJURY FUND RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 3, 2008

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

Claimant represented by Honorable Stephen Sharum, Attorney at Law, Fort Smith, Arkansas.

Respondent represented by Honorable Michael E. Ryburn, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed, in part, and reversed, in part.

OPINION AND ORDER
Respondent appeals from the decision of the Administrative Law Judge finding that the claimant sustained a compensable injury on April 25, 2007, for which he was rendered temporarily totally disabled from April 26, 2007, and continuing through a date yet to be determined. Based upon our de novo review of the entire record, without giving the benefit of the doubt to either party, we find that the

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decision of the Administrative Law Judge should be affirmed, in part and reversed, in part. Specifically, we find that the claimant has proven by a preponderance of the evidence that he sustained a compensable injury; however, we find that the award of temporary total disability benefits must be reversed.

The claimant was an employee of Crawford County on April 25, 2007, when he slipped and fell during the course of his employment. As a result of this fall, the claimant was taken to the Summit Medical Center where he was examined and treated by Dr. Brent Chavis. The history of present illness states, “slipped on water” work hit head on door
landed on ® buttock c/o ® hip pain.” The medical records also list the claimant’s current medications as, “Lorect 10/650 MG PO QID, Neurontin 800 MG PO QID, Soma PO QID, Valium 10 MG PO before bed, Roxycodone 30 MG PO 2-4 times daily.” The physical exam found on page two of this report contains a drawing of a human for the examiner to locate and describe the patient’s symptoms. On this drawing is drawn a circle with an downward pointing arrow with the letters TTP

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and a word which appears to be spasms underneath. As TTP is commonly used to abbreviate “tender to palpatation” it is more likely than not that the illegible word underneath TTP is, in fact, spasms. Diagnostic studies of the claimant’s head, right hip and lumbar spine were ordered. No acute injuries were noted on these studies. The claimant was diagnosed with low back pain, for which he was prescribed Flexeril and Prednisone, and advised to follow-up with his family physician as needed. The following day the claimant presented to Dr. Terry Hoyt, his family physician, with a history of back pain in the cervical and lumbar regions. Dr. Hoyt ordered an MRI of the lumbosacral spine at that time. This test revealed:

1. Severely degenerated disc at L5-S1 with mild retrolisthesis of L5 on S1 and right paracentral small disc protrusion in addition to moderate disc bulge and spondylotic ridging with biforaminal stenosis and a small right lateral disc protrusion.
2. Moderate disc bulges at multiple levels as described above, with a small central disc protrusion at T11-12.

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The moderate disc bulges were found from L2-3 through L5-S1.

The claimant continued to follow-up with Dr. Hoyt for lower back pain. Dr. Hoyt referred the claimant to Dr. Covey with Innovative Spine Care, but was unable to schedule an appointment for the claimant before July 27, 2007. Accordingly, the respondents made the claimant an appointment with Dr. Larry Armstrong with the Northwest Arkansas Neuroscience Institute in Fayetteville. Dr. Armstrong examined the claimant on May 30, 2007. After reviewing the claimant’s diagnostic studies and conducting a physical examination of the claimant, Dr. Armstrong recommended additional conservative care with physical therapy and epidural steroid injections. The claimant apparently underwent the epidural steroid injections with Dr. Whattock, however, his medical records were not introduced into evidence.

With regard to the claimant’s ability to work, Dr. Hoyt provided the claimant with an off work note dated June 28, 2007, which stated that the claimant “will need to

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be on total temporary disability until he has been stabilized and released to work by a spine specialist.” In addition, Dr. Whatcock provided the claimant with a work excuse releasing him to restricted duty of “no bending or lifting nothing to strain injured area. Desk job only.” Dr. George Tompkins who was overseeing the claimant’s physical therapy and pain medication provided the claimant with an off work note which stated, “Mr. Jones is totally disabled at this time, with an undetermined date of rehabilitation. At this time, he is not considered in a condition to do desk duty, which could further delay his response to treatment.” A second Off Duty/Work Release form stamped with Dr. Tompkins signature states that it is undetermined and unknown when the claimant will be able to return to work.

Respondents had the claimant examined by Dr. Bradley Short, a board certified physical medicine and rehabilitation fellow, on October 2, 2007. Dr. Short reviewed an extensive packet of medical records on the claimant dating back to September 16, 1999, including a CT

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of the lumbar spine dated October 10, 2002. Dr. Short described the following findings upon examination:

Range of motion of his lumbar spine is limited secondary to pain in regard to forward flexion, backward extension, right and left side bending, and rotation. There are several identifiable trigger points. He does have some mild spacticity of his lumbosacral paraspinal areas. Deep tendon reflexes of his lower extremities are symmetrical at 1/4 knee jerk, trace to 1/4 ankle jerk. Subjective disminished (sic) sensation in the distal lower extremities in a stocking type distribution. The right appears to be more pronounced when compared to the left.

Dr. Short diagnosed the claimant with back pain secondary to fall, chronic pain, cervical and lumbosacral spinal stenosis. After comparing the claimant’s 2002 CT scan with the 2007 MRI and CT scan, Dr. Short specifically stated that there are no additional findings on the latter diagnostic studies that would be directly related to the claimant’s industrial injury of April 25, 2007. With regard to additional treatment, Dr. Short recommended that if the claimant has not undergone the epidural steroid injections

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under Dr. Whatcott’s direction, that he would recommend such treatment. Aside from this recommended treatment, Dr. Short opined that the claimant has or would reach maximum medical improvement six months after this injury (October 25, 2007), but that the claimant would continue to require pain management. Finally, with regard to work restrictions, Dr. Short stated:

I agree with Dr. Whatcott in regard to his recommendations regarding desk type duty and agree he should avoid bending, lifting, or carrying objects weighing more than 15 pounds. In addition to this, I am concerned that Mr. Jones will not be able to respond quickly in a situation of an emergency such as dealing with a violent prisoner or dealing with a prisoner at all. I do not feel Mr. Jones would be able to respond appropriately or rapidly because of a variety of reasons including the medicine he is on, the preexisting impairment that he has. I would recommend that he be placed on light duty and in a situation where he does not have contact with prisoners, who could potentially cause him harm.

The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of

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1993. The Full Commission has held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence (1) the injury arose out of and in the course of his employment; and (2) the injury caused internal or external harm to the body which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(4)(A)(i) and § 11-9-102(4)(E)(i) (Repl. 2002). He must also prove (3) that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(4)(A)(i). Moreover, the claimant must establish (4) that the compensable injury is supported by `objective findings’ as defined in § 11-9-102(16).” Ark. Code Ann. § 11-9-102(4)(D); Freeman v. Con-AgraFrozen Foods, 344 Ark. 296,

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40 S.W.3d 760 (2001). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Crudup v. RegalWare, Inc., 31 Ark. App. 804, 20 S.W.3d 900 (2000). If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed, supra.

In the present claimant, the claimant has established by a preponderance of the evidence that he sustained an injury that was caused by a specific incident and is identifiable by time and place of occurrence; arose out of and in the course of his employment; and caused internal or external harm to the body which required medical services or resulted in disability or death. Although the claimant suffered from pre-existing degenerative disc disease as noted by Dr. Short, the physical examination of the claimant on the date of his injury revealed the presence of muscle spasms in his lower back. These spasms eventually

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subsided, but they were present during the first few weeks following his work related injury. Therefore, we find that the claimant has proven by preponderance of the evidence that he sustained a compensable injury on April 25, 2007.

The period of temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation not simply because he has a compensable injury, but rather during the period of time that he is within his healing period for the compensable injury and while he is totally incapacitated to earn wages as a result of that injury. Arkansas State HighwayTransportation Dept. V. Breshears, 272 Ark. 244, 613 S.W.2d (1981). Accordingly, to be entitled to temporary total disability benefits, an injured employee must satisfy this two-pronged test.

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The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

The only additional treatment that has been recommended for the claimant is pain management. Dr. Short recommended a series of three epidural steroid injections if they had not already been done. While Dr. Whatcott’s medical records where not introduced into evidence, the medical

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records confirm that the claimant has attempted this treatment with Dr. Whatcott without relief. A review of the medical records and list of medications reveals that the claimant was already under a regime of pain management for his pre-existing degenerative disc disease when his slip and fall injury occurred. The claimant is not a surgical candidate. Although he suffers from severe degenerative disc disease and has multiple bulging discs in his spine, the claimant’s compensable injury did not cause this condition. The claimant suffered a slip and fall accident which resulted in back pain and muscle spasms superimposed upon an already severely degenerated spine. Dr. Short opined that the claimant would reach maximum medical improvement from this injury within six months of the date of accident. Accordingly, we find that claimant’s healing period ended on October 25, 2007. Nothing in the way of medical treatment has been offered to the claimant that will improve his condition other than to manage his pain; thus his condition has stabilized ending his healing period.

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We further find that the claimant has failed to prove by a preponderance of the evidence that he is totally incapacitated to earn wages as a result of his compensable injury. All the physicians who have examined the claimant expressed a concern that the claimant needed a sit down job, or a job where he would not have to potentially “wrestle” with prisoners. However, it is clear from reviewing the medical records that these concerns are not a result of the claimant’s temporary aggravation of muscle spasms, but rather as a result of the claimant’s severe degenerative disc disease and multiple bulging discs. Thus, while the claimant worked as a jailer before his slip and fall injury, concerns expressed by the claimant’s physicians would all have been present prior to the slip and fall accident. Therefore, we cannot find that the claimant’s compensable injury has resulted in a total incapacity to earn wages. Clearly, the claimant possessed all of the physical conditions which his physicians are currently relying upon to remove him from work prior to this compensable injury. Accordingly, we cannot find that any incapacity to earn

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wages is the result of his compensable injury. Moreover, the evidence reveals that the claimant is capable of returning to work in a sedentary or light duty capacity, regardless of whether such work exists with respondents. Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability benefits.

Accordingly, for those reasons set forth herein, we find that thedecision of the Administrative Law Judge must be and hereby is affirmed,in part, and reversed, in part.

IT IS SO ORDERED.

___________________________________ OLAN W. REEVES, Chairman

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KAREN H. McKINNEY, Commissioner

Commissioner Hood concurs, in part, and dissents, in part.

CONCURRING AND DISSENTING OPINION

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I must respectfully concur, in part, and dissent, in part, from the majority’s opinion. Specifically, I agree that the claimant established by a preponderance of the evidence that he sustained a compensable injury on April 25, 2007. However, I dissent from the majority’s failure to make findings with regard to the claimant’s request for additional medical treatment and from the majority’s decision to deny the claimant temporary total disability benefits. Based on a de novo review of the record, I find that the opinion of the Administrative Law Judge should be affirmed in its entirety and that the claimant is entitled to temporary total disability benefits from April 26, 2007 until a date yet to be determined in addition to medical benefits and attorney’s fees.

The Administrative Law Judge made two specific findings with reference to medical treatment, as follows:

5. The medical services rendered to the claimant by and at the direction of the medical personnel at the emergency room of Summit Medical Center, by and at the direction of Dr. George Tompkins, by and at the direction of Dr. Terry Hoyt, by and at the direction of Dr. Larry

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Armstrong, by and at the direction of Dr. Brett Whatcott, and by and at the direction of Dr. Bradley Short, represent reasonably necessary medical services for the claimant’s compensable injury, under Ark. Code Ann. § 11-9-508. Specifically, these medical services were necessitated by or connected with the claimant’s compensable injury and had a reasonable expectation of accomplishing their intended purpose or goal, at the time the services were rendered.
6. The medical services recommended to the claimant, in the form of an evaluation by a neurosurgeon or spinal specialist and an evaluation and possible treatment by a chronic pain management specialist, also represents reasonably necessary medical services, under Ark. Code Ann. § 11-9-508. Specifically, such medical services are necessitated by or connected with the claimant’s compensable injury and have a reasonable expectation of accomplishing their intended purpose or goal.

The majority correctly finds that the claimant sustained a compensable injury and acknowledges his initial need for medical treatment for that injury. Further, the medical evidence of record clearly establishes the claimant’s need for additional treatment, all of which has been recommended by physicians chosen by Respondent No. 1.

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Dr. Hoyt and Dr. Tompkins have recommended another surgical evaluation. Dr. Tompkins has recommended chronic pain treatment, additional epidural steroid injections, physical therapy, medication, and a trial of a TENS unit. And even the physician hired by Respondent No. 1 for an opinion, Dr. Short, has recommended continued treatment with Dr. Whatcott. Under these circumstances, it is obvious that the Administrative Law Judge’s award of additional medical treatment should be affirmed, even though no specific finding on this issue can be found in the majority opinion. The claimant has a right to findings on all issues raised at the hearing and decided by the Administrative Law Judge. ITT/Higbie v. Gilliam, 43 Ark. App. 154, 807 S.W.2d 44 (1991).

With regard to the claim for temporary total disability benefits denied by the majority, I must issue a dissent. The majority opinion correctly states that there is a two prong test for entitlement to temporary total disability benefits and that this test is set out in the landmark case of Ark. State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The majority

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also correctly identifies the first prong of the test as requiring proof that the claimant remains in the “healing period” and the second prong as proof of “total incapacity to earn”.

The healing period continues until the employee is as far restored as the permanent character of the injury will permit, the underlying condition has become stable, and nothing further in the way of treatment will improve the condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The issue of the duration of the healing period is a medical question and must be resolved on the basis of the greater weight of the medical evidence presented. In this case, there is no dispute among the physicians that the claimant needs additional medical treatment. The reports and records of Dr. Tompkins show that he continued to provide the claimant with active medical treatment for his compensable injury through July 6, 2007. These records further show that, on that date, Dr. Tompkins was of the opinion that further active medical care

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continued to be necessary and medically appropriate. Even the October 2, 2007 report from Dr. Short reflects that it was also his expert opinion that the claimant continued in need of active medical treatment, at that time, and had not yet reached “maximum medical recovery”. Based on this uncontradicted medical evidence, it can not be said that nothing further in the way of treatment is available which would improve the claimant’s condition. His healing period continues.

On the second prong of the temporary total disability test, the medical evidence strongly suggests that the claimant continues to be disabled. During his course of treatment by Dr. Tompkins, the claimant has not been released to return to any type of gainful employment. In fact, Dr. Tompkins has expressly indicated that, in his expert medical opinion, the claimant has been totally disabled from employment due to his compensable injury from the date of his injury through some undetermined date after July 8, 2007. Dr. Hoyt has also opined that the claimant should be medically restricted from engaging in any type of

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regular gainful employment until he has seen and been released to return to employment by a back or spinal specialist. On June 28, 2007, Dr. Whatcott indicated that the claimant was restricted from bending or lifting or anything that would “strain the injured area”. Dr. Whatcott expressly stated the claimant should perform “a desk job only”. Dr. Short indicated that the claimant should not be required to respond to emergency situations, such as subduing prisoners. In addition, the claimant has not been offered a position that would meet the restrictions imposed by Dr. Whatcott and Dr. Short, and the evidence of record indicates that there are no such positions available. Under these circumstances, it is obvious that the claimant remains totally disabled.

In it’s determination that the claimant did not prove entitlement to temporary total disability benefits, the majority states: “we cannot find that the claimant’s compensable injury has resulted in a total incapacity to earn wages, as this incapacity physically existed (but was overlooked) prior to the compensable injury”. While the

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majority concedes that the claimant is experiencing “total incapacity to earn wages”, it is stated that the total incapacity to earn existed prior to the compensable injury but was overlooked. The idea of overlooked pre-existing total disability is certainly a novel concept to this examiner. The claimant worked for the employer for a period of six months prior to his injury. It is difficult to imagine how a claimant could be totally disabled for six months prior to his injury and that fact be overlooked by his employer.

After as much as conceding the existence of total disability, the majority opinion makes an alternative finding which, as a matter of law, requires a finding of temporary disability, either total or partial. In this regard, the majority stated that “the claimant is capable of returning to work in a sedentary or light duty capacity, regardless of whether such work exists with the respondents”. When the claimant is released to light duty work and the employer does not have such work available, the claimant will be entitled to temporary disability, if the claimant continues in the healing period. Sanyo Mfg. Corp. v.Leisure,

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12 Ark. App. 274, 675 S.W.2d 841 (1984). If the employee suffers a total incapacity to earn, temporary total disability benefits are owed. If the employee experiences only a decrease in his capacity to earn then an award of temporary partial disability benefits is indicated. Ark. StateHighway Trans. Dept. v. Breshears, supra. While the majority opinion erroneously concluded that the claimant was not suffering from total disability, it did not even consider the temporary partial disability claim.

The fact that the claimant did not request temporary partial disability benefits at the hearing and only contended entitlement to temporary total disability benefits does not relieve the Commission of it’s duty to consider the issue. On this point, the Court of Appeals of Arkansas in Palazzolo v. Nelms Chevrolet, 46 Ark. App. 130, 887 S.W.2d 938 (1994), said:

It is true that Mr. Palazzolo did not raise temporary partial disability as an issue. However, unlike in Grooms, this issue was developed by the evidence in the case. The issues presented by the claim for temporary total disability included whether Mr. Palazzolo had reached his maximum healing period and whether he suffered wage loss disability

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as a result of his injury. These are the same issues that the Commission would need decide in addressing temporary partial disability. The appellee employer was not denied the right to be heard on temporary partial disability because it was aware that temporary total disability was being claimed and its defense to total disability benefits would be substantially the same as its defense to partial disability benefits. Furthermore, when a claimant alleges that he is temporarily totally disabled, an employer should expect that the claimant may be eligible in the alternative to temporary partial disability benefits.

After proving the existence of disability and the need for medical treatment, a causal connection must be established between the compensable injury and the disability and need for treatment. It is axiomatic that the employer takes the employee as he finds him and that when a compensable injury aggravates, accelerates, or combines with preexisting conditions to produce disability or need for treatment then the resulting disability and treatment is compensable. NashvilleLivestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990);Minor v. Poinsett Lumber Mfg. Co.,235 Ark. 195, 357 S.W.2d 504 (1962);Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462
(1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).

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The number of cases involving aggravation, acceleration and combination of pre-existing degenerative conditions in back and neck injuries was explained in the testimony of Dr. C.C. Alkire, orthopedic surgeon, in General Elec. Railcar Repair Servs. v. Hardin, 62 Ark. App. 120 (1998), as follows:

As I’m sure you’re well aware having dealt with workers’ compensation insurance claims for years, most workers’ compensation injuries, particularly those in the cervical spine and lumbar spine are always related to some degenerative process, regardless of the type of injury a patient may have.(Emphasis added.)

In Williams v. LW Janitorial, Inc,, 85 Ark. App. 1, 145 S.W.3d 383
(2004), the Arkansas Court of Appeals addressed a claim for temporary total disability and medical expenses involving preexisting conditions. In Williams, the claimant suffered a compensable injury superimposed upon significant pre-existing degenerative conditions. While the

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respondent initially accepted the responsibility for medical treatment, additional treatment was denied based on the allegation that the additional medical treatment requested was for pre-existing conditions as opposed to the compensable injury. In Williams, the doctors agreed that the degenerative changes where not the “major reason” for the need for additional treatment and that “most of the cause” preexisted the injury. However, the medical opinions established that the compensable injury was “a factor” in the claimant’s need for surgery. Based on this medical evidence, the Commission denied the claim finding that:(1) the claimant had failed to prove a causal connection between the compensable injury and the requested surgery;(2) that the claimant was symptomatic prior to the incident at work and would have required surgery regardless of the work-related injury due to the progressive nature of the disease;(3)the surgery was recommended to treat the pre-existing arthritis, not the work-related injury; and(4)there was no evidence that the degenerative disease was worsened by the injury. The Court of Appeals reversed the

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Commission’s decision and remanded the case for an award of benefits, stating:

Both doctors can be fairly said to have testified that appellant’s fall at work was not the major cause, but that it was, at least, a factor in her resulting inability to work and need for knee-replacement surgery. . .the Commission had found that appellant had failed to prove a causal connection between her compensable injury and her need for total-knee-replacement surgery. Moreover, the Commission concluded that `[t]here is no evidence that the degenerative disease was worsened by the work-related injury.’ Even reviewing the evidence in the light most favorable to the Commission’s findings, we conclude that they are not supported by substantial evidence. Appellees had to take appellant as they found her, and the compensable injury that she suffered was a factor in her need for the additional surgery. (emphasis added.)

Therefore, in claims for medical benefits and temporary total disability, a causal connection is established when the compensable injury is found to be “a factor” in the resulting inability to work and need for medical treatment, even though the compensable injury is not the major cause of the disability or need for treatment. Williams v. L W. Janitorial, Inc., supra.

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Even a cursory review of the medical evidence in this case reveals that the claimant’s compensable injury of April 25, 2007 is a factor in his disability and need for treatment. Following his injury, the claimant began to experience back pain with radiation into his right lower extremity which the Administrative Law judge referred to as “a sudden and immediate onset of new and significant difficulties with his low back and right lower extremity”. These new difficulties where diagnosed as a herniated disc at L5-S1, following the results of the claimant’s MRI which produced findings of “a right paracentral disc protrusion with a right lateral disc protruding component at L5-S1 indenting the nerve root sleeve in the right lateral recess. . .”. These are certainly objective findings which correlate with the new difficulties and the diagnosis of a herniated disc resulting from the compensable injury. And finally, the record is clear that the claimant continues to suffer from, and to be treated for, the new problems arising from the compensable injury and not just from the residuals of preexisting conditions. Not even the medical report

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procured from Dr. Short contradicts this fact. Therefore, the Commission is bound, under the law, to find a causal connection between his disability and need for additional medical treatment and the compensable injury.

For the reasons stated above, I concur in the finding that the claimant sustained a compensable injury but must respectfully dissent from the majority’s failure to make findings with regard to the claimant’s entitlement to additional medical treatment and from the majority’s denial of the claimant’s entitlement to temporary totaldisability benefits.

___________________________________ PHILIP A. HOOD, Commissioner

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