CLAIM NO. E900034
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JANUARY 25, 2001.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by KENNETH A. OLSEN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and affirmed and adopted in part.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an opinion and order filed by the Administrative Law Judge on May 30, 2000. In that opinion and order, the Administrative Law Judge found in relevant part that the claimant sustained a compensable neck injury as a result of a specific incident that occurred on November 21, 1998 for which the respondents are liable for reasonable and necessary medical treatment for periods from June 29, 1999 through July 19, 1999, and from September 9, 1999 through at least January 16, 2000. The claimant’s notice of cross-appeal challenges the Administrative Law Judge’s denial of additional periods of temporary disability compensation. However, the claimant’s brief on appeal has abandoned this issue. After completing ade novo review of the entire record, we find that the Administrative Law Judge’s relevant findings regarding the claimant’s periods of temporary disability are supported by a preponderance of the credible evidence, correctly apply the law, and are therefore affirmed and adopted by the Full Commission. In addition, we find that a preponderance of the evidence also indicates that the claimant sustained a compensable neck injury as a result of the incident at work on November 21, 1998. Therefore, we find that the Administrative Law Judge’s decision in this regard must also be affirmed.
On appeal, the respondents and the dissent essentially assert that the abnormalities in the claimant’s cervical spine objectively verified by diagnostic testing, and ultimately treated by surgery after the November 21, 1998 incident, actually pre-existed that incident. As discussed below, the claimant has a significant history of shoulder problems from 1994 and early 1998 which pre-existed the November 21, 1998 incident at work. However, based on the claimant’s objective diagnostic test results, and the credible opinions of Dr. Krisht and Dr. Booe, we find that the preponderance of the evidence establishes that the condition requiring surgery in the claimant’s neck is, in fact, causally related to the November 21, 1998 incident.
This case is complicated by claimant’s medical history of a work-related right shoulder injury occurring on May 7, 1994. It was a medical-only claim. Claimant testified that he missed no more than one week of work after his shoulder injury in 1994. He stated that between 1994 and the hearing on his claim, he did not seek continuous medical treatment. Instead, he performed regular duty. Subsequently, he requested additional medical treatment. Following a second request, the employer contacted the carrier. Respondents raised the statute of limitations as a defense to claimant’s request for additional benefits. Claimant testified that he requested a hearing for additional benefits because his shoulder was occasionally painful and stiff. He stated that he consulted Dr. Derek Lewis. Following a hearing, an administrative law judge issued an opinion on October 19, 1998. He agreed with respondents, holding that a claim for benefits relating to the 1994 injury was time barred.
As regards the claimant’s treatment for problems in 1998 prior to the November 21, 1998 incident, the record indicates that on March 30, 1998, claimant presented to the Arkansas Primary Care Clinic with numbness in his right should radiating to his right thumb, with occasional tingling in his arm. The doctor noted something about the shoulder in 1994. A right shoulder x-ray and right upper extremity and cervical paraspinous muscle EMG/NCV exam were normal.
On April 17, 1998, a report from the Arkansas Primary Care Clinic states that claimant still had right shoulder and hand pain. He was assessed with an arthritic shoulder.
As regards the November 21, 1998 incident, and the claimant’s treatment after that incident, claimant worked as an over-the-road truck driver for respondents. Generally, he traveled from Little Rock to Atlanta. He stated that he drove about 2,600 — 2,750 miles per week. On November 21, 1998, he was injured by falling cargo. Claimant immediately reported the injury to Mike Blakely, Operation Manager, by telephone. Unable to continue working, claimant sought treatment at the VA Hospital. He reported right shoulder pain, along with a burning sensation.
On November 21, 1998, claimant presented to the Veterans’ Administration emergency room with chronic right shoulder pain and tingling. He complained of “right shoulder pain which started this evening following an indirect injury while unloading a big [illegible]. Has localised [sic] anterior right shoulder pain.” He was assessed with tendinitis. An emergency nurse’s progress note from November 21, 1998 indicates that claimant complained of “right shoulder pain, burning type — worse with movement, states old injury to right shoulder.”
Claimant presented to Concentra Medical Centers on December 10, 1998, with the following complaints: “R shoulder — pt pulled shoulder unloading a trailer — it was injured a few years back — he just re-injured it.” The report indicates that the previous injury was in 1994. This report also contains a history that the claimant was unloading heavy tables, working overhead, hood came loose, he lost his balance and attempted to keep hood from falling, right arm pulled backward.” He was assessed with right shoulder sprain/strain and right shoulder pain.
A report from a Concentra therapist dated December 15, 1998 noted that claimant reported “pain, swelling, shooting pain, numbness in left thumb and index finger, shoulder pops, causes headaches.”
On December 18, 1998, Dr. Almond, claimant’s Concentra physician, diagnosed right shoulder pain and strain, and returned him to work with restrictions of no lifting, pushing, pulling over 10 pounds, no overhead reaching, and limited use of right arm. Claimant reported increased pain on that date.
Claimant was seen at Concentra on December 22, 1998 but the report is illegible.
Claimant returned to Concentra on December 29, 1998. The report states:
Patient asleep in exam room. States right shoulder strain no better. ROM very limited — patient not cooperative on exam. Tender right side trap. in from occ. to Right shoulder. PT makes his pain worse. . . . No spasm of trap. is noted, but tenderness to palpation to occ. ROM head/neck limited to patient’s lack of cooperation “too much pain.”
The diagnosis was right shoulder strain/pain. He was referred to an orthopedist, but then was informed that the insurance company would not refer him because of previous shoulder pain. He was released from care and returned to regular duty on December 29, 1998.
Claimant testified that he thought that Dr. Almond misdiagnosed his condition; therefore, he wished to see a specialist. He stated that his symptoms intensified. For example, he began experiencing swelling in his neck. He sought additional treatment at the VA Hospital. Subsequently, an EMG ordered by Dr. Azedine Medhkour, done subsequent to the accident in November of 1998, reflected this impression: “Minimal EMG findings of right C7 radiculopathy.” Although this report is not dated, it referenced the November of 1998 accident as the reason for the test.
A MRI performed on March 2, 1999, showed disc herniations at C4-5, C5-6, and C6-7. The herniation at C4-5 caused “mild narrowing of both foramina.” The abnormality at C5-6 was interpreted as “a more chronic appearing broad based disc herniation with spurring. . . .” Finally, the disc herniation at C6-7 revealed no evidence of nerve root involvement.
Dr. Booe, of the Veterans’ Hospital, wrote on March 24, 1999 that:
I have seen Mr. Tommy Jordan on multiple occasions in the past two (2) months following an injury at work which occurred November 27, 1998.
The history given to me suggests that the injury is indeed related to his cervical spine and not primarily his shoulder. This is suggested by physical therapy notes brought for my review following the injury. A MRI scan of his cervical spine done in March 1999 at the Central Arkansas Veterans Healthcare System confirms disc herniations in the mid cervical spine which also correlate with his symptoms and the physical therapy notes. Certainly, patients can present with shoulder pain radiating from the neck region. Therefore, it is my medical opinion with a reasonable degree of certainty based on the history given me and upon review of the physical therapy notes and MRI report that his neck and shoulder symptoms arose from his injury in late 1998.
A VA neurosurgery note indicates claimant presented on April 21, 1999 with neck pain.
A myelogram was performed at the VA on April 30, 1999 which showed bilateral neural foraminal narrowing with nerve root compression at C5-C6 right greater than left, and broad based disc herniation at C6-C7.
In handwritten office notes dated May 12, 1999, Dr. Medhkour indicated that claimant had right “neck pain since p NOV 1998. 1994 — developed shoulder pain unloading a truck. NOV 1998 — unloading his truck he had pain. . . .” However, when the note was typed, it stated that claimant “has been complaining of neck pain since 1994.” To the extent that a discrepancy exists, we find that the contemporaneous handwritten chart note is entitled to more weight than the subsequent typed version regarding the claimant’s relevant history.
A VA report apparently dated June 21, 1999 states that an EMG study showed minimal findings of right C7 radiculopathy.
A July 14, 1999 note prepared by Dr. Reding of Neurology Surgery Associates indicated that he felt claimant’s right neck pain stemmed from the November 1998 incident. There is no mention of prior neck or shoulder problems. Dr. Reding states that surgery may be an option but recommended conservative treatment.
Ultimately, claimant was examined by Dr. Ali Krisht, Chief of the Neurosurgery Service, VA Hospital. The medical evidence included his deposed testimony.
Dr. Krisht testified that he initially treated claimant in August of 1999. He stated that claimant had been followed in the clinic for several months. Dr. Krisht testified that there was some question with respect to whether claimant’s pain originated in his shoulder or neck. Although claimant’s shoulder pain had been persistent, he indicated that the neck pain began at the end of 1998. Dr. Krisht testified that claimant provided a history of a work-related injury.
Dr. Krisht ordered additional tests, including a myelogram, CT scan, and nerve conduction studies. Dr. Krisht suspected that the disc herniation at C6-7 (not a shoulder injury) was causing claimant’s symptoms, and this was confirmed by the tests.
On September 9, 1999, Dr. Krisht performed a discectomy and fusion at C6-7. During surgery, he discovered “a bulging disc which was pushing the sac that contains the spinal cord backward, and this causes stretching of the nerves as they go out through the windows from which they attach to the spinal cord.” Although claimant’s pain was not eliminated following surgery, his symptoms generally improved.
On September 12, 1999, claimant had a recurrence of pain after onset of cough according to a VA note.
On November 10, 1999, Dr. Krisht wrote that claimant had recently questioned “whether his problems could be work-related and we informed him that we cannot rule this out because cervical disc disease can occur both as a degenerative wear and tear process as well as it could be due to work related physical activity and sometimes if there is a baseline disc disease this can advance further in patients who have activity that needs certain physical effort.”
On November 29, 1999, claimant presented to Dr. Krisht with concerns about a letter to an attorney. He noted “many factors may have caused his condition. Patient conveys history of right shoulder pain since 1994.” He went on to note that “after discussing patient’s care with patient, Patient is not ready to return to work. Patient expresses desire to return to work. Patient not to return to work at this time per Dr. Krisht.”
Based on a de novo review of the entire record, we find that a preponderance of the evidence supports a finding that claimant sustained a compensable injury. Clearly, he had some pre-existing difficulties before the November 21, 1998 incident. However, the claimant’s pre-accident and post-accident electrodiagnostic studies reflect a change. Dr. Lewis’ testing on April 6, 1998 (before the incident at work) revealed no abnormalities, but Dr. Medhkour’s testing after the incident showed radiculopathy in the distribution of the C7 nerve root. There are no serial MRI’s. This is significant because it suggests that claimant’s symptoms did not warrant an MRI until after the incident in November of 1998. Then, disc herniations were discovered, resulting in surgery at C6-7.
Notably, Dr. Krisht, in rendering his causation opinion in the claimant’s favor, mistakenly believed that no electrodiagnostic testing was performed in April of 1998, as evidenced by the following exchange with counsel for respondents:
Q. Okay, so far as an objective finding, there’s really no way to determine when the radiculopathy started other than what [claimant] told you in his history; is that right?
A. That’s right. If he’d had the tests which we have done, which are called an EMG and nerve conduction studies, earlier and it did show abnormalities in the distribution of the nerve, it would have confirmed more that he had the symptoms prior to that. This is the answer to your question whether there’s any objective criteria.
The logical inference is that claimant’s normal test result in April of 1998 followed by an abnormal test after the November of 1998 accident further supports claimant’s claim and Dr. Krisht’s opinion that the claimant sustained an injury as a result of the November 1998 incident.
In addition to Dr. Krisht’s opinion on causation, claimant also offered Dr. Booe’s opinion. In a letter to claimant’s counsel dated March 24, 1999, he offered a favorable opinion, noting that a patient with a neck injury may present with a history of shoulder pain. As discussed above, he stated that:
Therefore, it is my medical opinion, with a reasonable degree of medical certainty based on the history given me and upon review of the physical therapy notes and MRI report that his neck and shoulder symptoms arose from his injury in late 1998.
The dissent argues that the claimant’s symptoms after the November 21, 1998 incident were essentially identical to the claimant’s symptoms earlier in 1998, indicating that the claimant’s cervical injury pre-existed the November 21, 1998 incident. The dissent notes that Dr. Krisht has relied on a history provided by the claimant, and the dissent argues that the history Dr. Krisht received was inaccurate, rendering Dr. Krisht’s opinion entitled to essentially no weight.
The Commission has stated on numerous occasions that a medical opinion based solely upon claimant’s history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence. Brewer v. Paragould Housing Authority. Full Commission Opinion filed Jan. 22, 1996 (E417617). In addition, the Commission is not bound by a doctor’s opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant’s claim. Roberts v. Leo-LeviHospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).
However, in assessing the weight to accord Dr. Krisht’s opinion, we point out that respondents’ counsel took Dr. Krisht’s deposition, and the respondents’ attorney ably took the opportunity to provide Dr. Krist with the information with which the dissent now seeks to discredit Dr. Krisht’s opinion. Nevertheless, after being provided the information with which the respondents’ attorney sought to test Dr. Krisht’s conviction on the causation question, Dr. Krisht maintained his opinion that the claimant’s condition that required surgery is causally related to the November, 1998 incident. (See Dep. pgs. 23-24, 27-28, 33) Under these circumstances, we find Dr. Krisht’s causation opinion, rendered in light of the information proffered to Dr. Krisht by the respondents’ attorney, is entitled to significant weight.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the Administrative Law Judge’s decision must be, and hereby is, affirmed in part, and affirmed and adopted in part.
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 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
______________________________ SHELBY W. TURNER, Commissioner
DISSENTING OPINION
I respectfully dissent from the majority’s opinion finding that claimant sustained a compensable injury. Based upon my de novo review, I find that claimant has failed to meet his burden of proof.
Claimant has a varied and colorful medical history, however, the most significant aspect of his history is that claimant had the same complaints in March, April and November of 1998, before and after hisalleged injury on November -1998. In November 1998, claimant reported a work-related event and embarked on a course of treatment which eventually uncovered a bulging cervical disc as well as degenerative disc disease in his neck. The bulging disc was treated with surgery. Dr. Krisht stated that he was not aware that claimant suffered similar problems prior to the alleged November incident.
I can agree that there is a distinction between his 1994 shoulder problems and his 1998 problems, although it appears that claimant may have had the same complaints at that time, according to respondent’s attorney’s statements at the doctor’s deposition. However, I cannot agree that claimant proved by a preponderance of the evidence that he suffered a cervical injury in November of 1998 causing right shoulder and hand symptoms and necessitating cervical surgery, when those symptoms existed in March and April, 1998, seven months prior to the November incident.
Dr. Krisht was adamant that his diagnosis took into account the history given by claimant which he considered complete and truthful, by necessity. He stood by his opinion that the injury to the neck occurred in November 1998. However, in light of the medical evidence that claimant had similar if not identical symptoms prior to the November incident, then Dr. Krisht’s opinion as to causal connection is of little probative value.
After my de novo review of the evidence, I find that claimant has failed to prove by a preponderance of the evidence that claimant suffered a compensable injury in November of 1998 which required medical treatment including cervical surgery, because the symptoms which were treated existed prior to the date of the November incident.
Therefore, I respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner