KELLY v. RICELAND FOODS, INC., 1997 AWCC 398

CLAIM NOS. E210364 E607691

NICOLA KELLY, EMPLOYEE, CLAIMANT v. RICELAND FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT and HELMSMAN MANAGEMENT SERVICES, THIRD PARTY ADMINISTRATOR, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 3, 1997

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

Claimant represented by JACK R. KEARNEY, Attorney at Law, Little Rock, Arkansas.

Respondent represented by BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed February 11, 1997 finding that claimant is entitled to temporary total disability benefits from April 29, 1994 through October 2, 1995, a 40% permanent partial impairment rating to the left lower extremity; and that claimant sustained a gradual onset injury to her neck which manifested on or about March 26, 1996, for which she is entitled to temporary total disability benefits and medical benefits. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof.

[3] The record reflects that claimant sustained an admittedly compensable injury to her left knee on June 17, 1992. As a result of that injury claimant eventually came under the care of Dr. Herbert Hahn, an orthopedic surgeon. In September of 1992 claimant underwent arthroscopic surgery on her left knee. However, claimant continued to complain of pain and swelling in her knee after the surgery. Claimant continued to receive follow-up treatment from Dr. Hahn on a monthly basis after the arthroscopic surgery. On January 19, 1994 Dr. Hahn noted in correspondence to the respondent carrier that claimant would be “suitable for rating of the knee . . . on 2/94 unless new developments arise.” After receiving this correspondence from Dr. Hahn, the respondent carrier arranged for claimant to undergo an independent medical evaluation by Dr. Jim J. Moore to determine what, if any, impairment rating claimant has sustained as a result of her compensable injury. [4] On February 14, 1994, claimant was seen and evaluated by Dr. Moore. Dr. Moore not only reviewed all of claimant’s medical records and diagnostic studies, but he also performed a physical examination of the claimant. Dr. Moore’s examination revealed the following:

She states she is 5′ 8″ in height and she is weighed today at 250 pounds. She is obviously rather heavy. She does not limp. I do not see any undue or unusual swelling, nor is there any particular disability that I can determine on examination today. She is somewhat tender over the patella and she does exhibit a depression of pin prick sensation around the patella itself, but she appreciate light touch, temperature. Her straight leg raising is excellent. Her reflexes are active and symmetrical at all levels, upper and lower, right and left. No spasm is palpable in the lumbar musculature and her low back range of motion is free without obvious evidence of pain or restriction. Her straight leg raising is excellent, there is no pathological responses. Her knee measures 19 inches around the patella and this is the case on both right and left.

[5] Dr. Moore further noted that he believed claimant would benefit from a brace which had not been provided claimant to date. With regard to claimant’s healing period Dr. Moore stated, “I would be inclined to think she would be at the end of her healing period, per se, and this would likely translate to 20% permanent partial to the left lower extremity.” As a result of Dr. Moore’s evaluation of the claimant, respondent ceased temporary total disability benefits and requested claimant to return to work. In addition, permanent partial disability benefits in accordance with the 20% physical impairment rating to the left lower extremity were initiated by respondent. [6] The record further reflects that on April 29, 1994, claimant returned to Dr. Hahn’s office for a follow-up visit. In his office note of that date, Dr. Hahn noted that the claimant had returned to work at Riceland and that claimant “said that the work at Riceland is still too strenuous.” Absent from Dr. Hahn’s April 29, 1994, report is any notation that he believed claimant should not be at work. As reflected in Dr. Hahn’s medical reports, he did not remove claimant from work nor take claimant off work after she was found to have reached the end of her healing period by Dr. Moore. [7] Temporary total disability period is the 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). The healing period continues until the employee is a far restored as the permanent character of her injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. [8] Contrary to the Administrative Law Judge’s finding, there was nothing in the record to substantiate a finding that claimant remained in her healing period and was temporarily totally disabled from earning wages after February 14, 1994, when claimant was found to have reached the end of her healing period by Dr. Moore. While claimant testified Dr. Hahn removed her from work when she returned to his office in a follow-up visit, Dr. Hahn’s medical records do not corroborate claimant’s testimony. Dr. Hahn routinely noted under the “PLAN” section of his medical reports whether claimant was to remain off work. There is no such notation in any of Dr. Hahn’s medical reports after claimant was released to return to work by Dr. Moore. [9] The first mention of claimant re-entering the healing period and thus a period of temporary total disability benefits after claimant returned to work in February of 1994 does not appear in the medical records until March of 1995. On March 20, 1995, claimant underwent a second surgical procedure on her left knee performed by Dr. Hahn. As a result of this second surgical procedure, claimant re-entered a healing period and remained in her healing period until she was released to return to work by Dr. Hahn on September 21, 1995. [10] It is also interesting to note that from November 1994 until March 20, 1995, claimant did not return to Dr. Hahn for follow-up visits regarding her knee. Prior to February of 1994, claimant was returning to Dr. Hahn on a monthly basis. After that date claimant’s return visits were further spaced out on a two to three month basis. In my opinion, these less frequent office visits are consistent with Dr. Moore’s finding that claimant had reached the end of her healing period in February of 1994 prior to re-entering a second healing period when she underwent the second surgery in March of 1995. [11] Accordingly, we find that the evidence preponderates in favor of a finding that claimant’s healing period for her left knee injury ended on February 14, 1994, when she was examined by Dr. Moore and found to have reached the end of her healing period. There is nothing in Dr. Hahn’s medical records to indicate any other finding. Pursuant to Dr. Hahn’s medical records, he did not remove claimant from work until claimant underwent a second surgical procedure and re-entered a second healing period in March of 1995. To find otherwise based upon the claimant’s testimony would be resorting to impermissible speculation and conjecture. 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). [12] Likewise, we find that claimant has failed to prove by a preponderance of the evidence entitlement to a 40% permanent partial impairment rating to the left lower extremity as assigned by Dr. Hahn in February of 1996. In the present claim, we are presented with two separate impairment ratings assigned by three individual physicians. Dr. Moore and Dr. Earl Peeples, who performed a second independent medical evaluation, both found claimant sustained a 20% physical impairment rating to her left lower extremity. Conversely, only Dr. Hahn has found claimant sustained a much more substantial impairment rating of 40% to the left lower extremity. As independent medical examiners, Dr. Moore and Dr. Peeples appear to base their impairment rating more upon the objective and measurable findings noted during their examination. While Dr. Moore performed his evaluation prior to claimant’s second surgical procedure, Dr. Peeples’ examination was performed on December 10, 1996, a year and a half after claimant’s second surgical procedure. Dr. Peoples’ examination of the claimant on that date revealed:

On examination this was a well developed, markedly obese, black female, 5 ft. 7 in., 265 pounds. This patient on examination of the neck and lumbar spine indicate a decreased ROM in all plains with a very poor effort. Reflexes in the upper extremities are intact. Grip strength on the right is 65 pounds and on the left only 10 and 15 pounds on consecutive measurements, again with a poor effort. Her arm diameter measures the same and there is no evidence of neurological deficit. The patient’s left knee reveals no major ligament instability. Her obesity makes it hard to examine the knee exactly. This is also compromised by her tendency to be a little tense. She has a 0 to 110 degrees of flexion. No collateral instability is noted. I did not detect any definite crusciate instability. The neurovascular status of the legs appears intact.
Radiographs were obtained. These indicate irregularity on the medial femoral compartment consistent with known history of degenerative changes in that area.
This patient has had corrective surgery of the left knee for a meniscal tear and ACL deficient knee. I would like to have the MRI done in 1992 to review before I make definite comment on the rating for the knee. I suspect that her changes are primarily due to the post-traumatic nature of the injury, but in view of her marked obesity I would like to see the original MRI to see if there are any degenerative changes present prior to the ACL and meniscal abnormalities noted by Dr. Hahn. . .

* * *

I would tend to agree with the impairment rating on the order of 20% assessed by Dr. Jim Moore. It would be noted her obesity would tend to either cause or contribute to any degenerative changes that would occur related to an injury and she should reduce her weight by 100 pounds.

[13] We also note that the AMA Guides to the Evaluation ofPermanent Impairment, Third Edition, which was in effect at the time of claimant’s compensable injury, would only allow a maximum impairment of 24%, sixteen percent less than that assigned by Dr. Hahn. However, to be assigned this maximum a claimant would have to have a complete loss of the anterior cruciate ligament, which this claimant did not have. The maximum of 24% is more in line with that assigned by Dr. Moore and Dr. Peeples. Accordingly, when we weigh the evidence impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to prove entitlement to a physical impairment rating in excess of the 20% already paid by respondent. [14] Finally, with regard to claimant’s contention that she sustained an injury on March 26, 1996, I cannot find that claimant has met her burden of proof. Claimant offered detailed testimony at the hearing of how she sustained a specific incident involving pushing a box through the tape machine. However, there is insufficient evidence in the record to substantiate that a specific incident actually occurred on that date. While it appears that the Administrative Law Judge found the claimant sustained a gradual onset injury to her neck on that date. We cannot agree with the Administrative Law Judge’s finding. The testimony of Michael Brothers, Jim Baser, Nancy Murry, and Marion Dickson overwhelmingly prove that claimant did not sustain a specific incident to her neck, shoulder, or upper back on March 26, 1996, as claimed by the claimant. Although the nurse’s notes of Ms. Dickson indicate that claimant was seen in the nurse’s station on March 26, claimant did not report a work-related injury on that date. Rather, claimant reported to Ms. Dickson that she had pain in her left shoulder and in her neck since the previous Friday, March 22, 1996. Claimant did not report to Ms. Dickson that she sustained a specific incident injury on that date or that her work was the cause of her pain. Likewise, when claimant reported to Dr. Hahn’s office on March 28, 1996, she did not provide Dr. Hahn with a history of a specific incident injury or of pain in her neck associated with her work. At best, claimant advised Dr. Hahn that she had experienced an acute onset of pain in her neck three days prior and that as a result attempts were made to limit her work activity but she was unable to tolerate it. On May 8, 1996, Dr. Hahn noted “She did report to me that she had some similar problems, although not as severe several years ago.” It was not until May 22, 1996, that claimant first reported a history to Dr. Hahn of a specific work-related incident involving the pain in claimant’s neck. [15] The claimant’s second injury occurred after July 1, 1993, thus, this second claim is governed by the provisions of Act 796 of 1993. We have 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. JerryD. Reed v. ConAgra Frozen Foods, FC Opinion filed Feb. 2, 1995 (E317744). When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and §11-9-102(5)(E)(i) (Repl. 1996). She must also prove 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(5)(A)(i). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in §11-9-102(16).” [16] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra. [17] In our opinion, the record simply does not support a finding that claimant sustained a specific incident to her neck on March 26, 1996. The medical records and the testimony of Ms. Dickson clearly fail to substantiate a finding that claimant suffered a specific incident on that date. We place little weight on the belated history provided to Dr. Hahn on May 25, 1996. This history was not provided to Dr. Hahn until after claimant’s claim was controverted and after claimant had advised Dr. Hahn that she had suffered similar pain in the past. [18] Simply because the claimant did not sustain a specific incident identifiable by time and place of occurrence, her claim does not automatically fail. Act 796 does recognize certain specified exceptions to the general limitation of compensable injuries to those injuries which are caused by specific incident and which are identifiable by time and place of occurrence. These exceptions are set forth in Ark. Code Ann. § 11-9-102(5)(A)(ii) through § 11-9-102(5)(A)(i)(v) (Repl. 1996). To satisfy the definitional requirements for injuries falling under Ark. Code Ann. §11-9-102(5)(A)(ii), the employee still must prove by a preponderance of the evidence that she sustained internal or external damage to the body as the result of an injury that arose out of and in the course of employment, and the employee still must establish the compensability of the claim with medical evidence, supported by objective findings. However, in addition to these requirements, if the injury falls under one of the exceptions enumerated under Ark. Code Ann. § 11-9-102(5)(A)(ii), the “resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.” Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996). (Emphasis added.) [19] In applying the controlling law under Act 796 of 1993 to the evidence in this case, the Commission is to strictly construe the Act. Ark. Code Ann. § 11-9-704(C)(3). Under the gradual onset exception to the specific incident requirement, the claimant must establish a causal connection between her injury and her employment by medical evidence supported by objective findings andshe must establish that her injury is the major cause of herdisability or need for treatment. We find that the claimant in the present case has simply failed to meet her burden of proof on the major cause requirement. [20] Since this claim involves a neck injury and shoulder injury, we cannot find that the exception for gradual onset back injuries is applicable to this claim. However, even assuming, arguendo, that it is, we find that claimant has failed to meet the major cause element for a gradual onset injury. The medical records indicate that claimant suffers from pre-existing degenerative changes in her cervical spine. In addition, the history provided by claimant to Dr. Hahn on May 8, 1996, reveals that claimant has suffered from similar neck pain in the past. The record further reflects that claimant is markedly obese and that the obesity plays hand in hand with the degenerative process in claimant’s cervical spine. It cannot be argued that the pre-existing degenerative changes in claimant’s cervical spine and claimant’s obesity did not play a major role in the onset of pain in her neck in March of 1996. The history of pain since the previous Friday as provided to the company nurse, of similar pain in the past as provided to Dr. Hahn and the objective findings of degenerative changes all indicate that claimant’s pre-existing problem and not her work were the major cause of her complaints. Accordingly, we cannot find that claimant has proven by a preponderance of the evidence that her work activity in March of 1996 is the major cause of her cervical, shoulder and upper back pain. In our opinion, the major cause of claimant’s pain is her underlying pre-existing condition, not claimant’s work. Therefore, we find that the decision of the Administrative Law Judge regarding claimant’s neck pain in March of 1996 should be reversed. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof on the major cause element. [21] Accordingly, for those reasons set forth herein, we reverse the decision of the Administrative Law Judge. [22] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[23] Commissioner Humphrey dissents.