CLAIM NOS. E513119 and E513120
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 6, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by KENNETH E. BUCKNER, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by C. TIMOTHY SPAINHOUR, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on July 15, 1996, finding that claimant sustained a compensable injury arising out of the course of his employment and was entitled to: (1) temporary total disability benefits from August 18, 1995, through October 18, 1995; (2) a 15% permanent anatomical impairment rating; and (3) payment of his hospital and medical expenses.
[7] Bennie Talley, claimant’s immediate supervisor, testified that he did remember claimant approaching him one day and relating “pains in his shoulder,” and that claimant was allowed to perform light duty (driving a tractor) for a period of time. [8] Claimant left his employment with respondent employer toward the end of June for reasons not related to his above-described injuries. He then went to work as a cook for McDonald’s and later as a laborer for American Sheet Metal. Claimant testified that he remained symptomatic after his injuries in May and June. With regard to his time at McDonald’s, claimant explained that:And when it came time for me to try to put the pipes together, I went to push the two of them together. And the couplings have got nice little humps on them. You know, that’s corrugated pipe. And when you shove it together, it’s rather hard, you know, and you have to really bear down on it. I went to shove it in there and it just made my arm hurt so bad that I just really couldn’t hardly stand it . . . It was up here in the shoulder blade area.
[9] And,I wasn’t perfectly all right. It was, like you said, lighter work, and I didn’t have to use my arm quite as much. You know, the pain came and went. You know, I never was free of pain. I did take a lot of BC Powders, you know, even at that time.
[10] Claimant finally had to seek medical attention on August 18, 1995, owing to “extreme pain.” He discussed the progression of his difficulties up to that time (and the reason for his delay in seeking treatment) as follows:I never really had a — You know, I had — The pain was there, you know, kind of a dull bad-back-behind-your-mind kind of pain all the time, but I never did anything on the job at American Sheet Metal that made me have a strong pain.
[11] A CT scan of claimant’s cervical spine on August 24, 1995, revealed a “large disc protrusion at the C6-7 level on the left which is displacing the cervical cord from left to right with flattening of the left anterior portion of the cervical cord.” Dr. P.B. Simpson performed an anterior cervical interbody fusion at the C6-7 level on August 25, 1995, and reluctantly released claimant to return to work (at claimant’s insistence) on or around October 18, 1995. [12] Because claimant asserts the occurrence of a compensable injury after July 1, 1993, the provisions of Act 796 of 1993 are controlling. Claimant must thus demonstrate that he has sustained “an accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death.” In addition, an injury will be considered “accidental” only if it is “caused by a specific incident and is identifiable by time and place of occurrence.” Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996). [13] Also, a compensable injury “must be established by medical evidence, supported by `objective findings.'” Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996). In turn, “objective findings are those findings which cannot come under the voluntary control of the patient . . . Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Ark. Code Ann. § 11-9-102 (16) (Repl. 1996). A claimant’s burden of proof concerning these issues is to demonstrate them by a preponderance of the evidence. Ark. Code Ann. § 11-9-102 (5)(E)(i) (Repl. 1996). [14] We consider first the issue of general compensability, which respondents challenge on appeal. As alluded to above, we find claimant’s testimony, and that of his wife, to be entirely credible. We note that claimant has presented a detailed account of two separate incidents affecting his “shoulder blade area.” The first of these occurred on May 25, 1995, and the second, more severe, episode took place on June 5, 1995. Claimant’s description of a work-related injury does not stand alone but is bolstered by the testimony of his immediate supervisor, Mr. Bennie Talley, who recalled that claimant did complain to him of shoulder pain which necessitated a change in claimant’s work duties. [15] We are thus persuaded by claimant’s credible testimony, and that of Mr. Talley, that claimant did sustain an injury arising out of his employment and resulting from a “specific incident identifiable by time and place of occurrence” on June 5, 1995. [16] We further note that claimant’s CT scan of August 24, 1995, revealed the presence of a “large” cervical disc herniation which did involve claimant’s cervical spinal cord. Considering the proximity of this finding to claimant’s “shoulder blade area,” his presentation of neck complaints to Dr. Simpson, and the fact that Dr. Simpson obviously considered claimant’s cervical spine a likely cause of his complaints, we are persuaded to find that claimant’s C6-7 disc herniation constitutes an “objective finding” that establishes his compensable injury with “medical evidence.” [17] From the foregoing, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on June 5, 1995. [18] We also specifically find that claimant’s later difficulties in August, 1995, are causally related to his previous compensable injury. Causal connection is generally a matter of inference. Osmose Wood Preserving v. Jones,40 Ark. App. 190, 843 S.W.2d 190 (1992). Respondents assert that claimant’s original injury affected only his shoulder, and that the surgery performed by Dr. Simpson in August was to repair damage to claimant’s cervical spine and thus cannot be related to his employment duties. We disagree. [19] Claimant described the area affected by his injury of June 5, 1995, as the “shoulder blade area,” a region located near the cervical spine — particularly the C6-7 level. In addition, Dr. Simpson’s office notes of August 23, 1995, note that claimant presented a four-month history of “having pain in his neck radiating down his left shoulder and left arm.” (Emphasis added). We thus find that claimant’s herniated disc is attributable to his injury of June 5, 1995. Finally, the record establishes that claimant suffered no shoulder or cervical problems prior to his work with respondent employer, but following the incidents of May 25 and June 5, 1995, he experienced unresolved and gradually worsening symptoms up until his eventual surgery in August. Accordingly, we are persuaded that claimant’s difficulties in August, 1995, including surgery on August 25, 1995, are causally related to his initial compensable injury. [20] Based on our de novo review of the entire record and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he sustained a work-related injury while carrying out his employment duties for respondent employer, on June 5, 1995. We also find that his subsequent difficulties in August, 1995, culminating in surgical intervention, are causally related to the original injury. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [21] 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). [22] 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 as provided by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996). [23] IT IS SO ORDERED.A. Well, it would progress and digress. You know, there was times when it would be real bad, and then it would go to being just kind of a dull little pain. And then sometimes it would go back to being a medium bad and then go back to being just a dull pain, and then it would flare back up again. You know, it just kind of fluctuated the whole time, but during the whole time there was never any time when I was completely pain free.
Q. Why did you wait until August to see a doctor?
A. Well, basically because I couldn’t afford it and just really didn’t believe that I had anything seriously wrong with me then. I’ve never been sick in any kind of way or injured in any kind of way other than in the past, so, you know, it just —
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[24] Commissioner Wilson dissents.[25] DISSENTING OPINION
[26] I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury during the course and scope of his employment. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof by a preponderance of the credible evidence of record.
[31] It is important to note that in August of 1995 claimant was working for American Sheet Metal installing and painting duct work. Claimant testified that one morning after he had gone to work for American Sheet Metal, the pain in his shoulder was so bad he could hardly drive himself to work. As opposed to going to work on that date, claimant presented himself to Healthcare Plus. In light of the history provided to Healthcare Plus that his symptoms improved, I cannot find that claimant has proven by a preponderance of the credible evidence that his work-related incidents in May and June of 1995 are causally related to claimant’s eventual need for surgery in August of 1995. Claimant ceased working for respondent on June 21, 1995 and had worked for two other employers prior to ever seeking medical attention. Moreover, claimant advised the first physician he saw that his symptoms “got better” until the last couple of days when, ironically, claimant was working for American Sheet Metal. [32] Moreover, in the history taken by Dr. Simpson on August 23, 1995, claimant advised Dr. Simpson of his original symptoms which occurred while working for respondent “got better”. In addition, the severe pain described by claimant which occurred on August 18, 1995 and tingling paralysis down claimant’s left arm is in no way similar to the pain which claimant experienced while working for respondent. [33] It was not until after surgery was recommended that claimant ever advised respondent of his severe pain and filed a workers’ compensation claim. In my opinion, the time span between the original alleged injury and claimant’s eventual need for medical treatment and eventual surgery, coupled with the fact that claimant had worked for two other employers in the interim, lead me to find that claimant has failed to prove that his eventual need for surgery is causally related to his compensable injury. To find otherwise would require 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). ArkansasMethodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125Left shoulder started about four months ago. Got better — was doing construction work. Now last two to three days can hardly stand it. Up all night with it. Unable to relax.
(1993). [34] Accordingly, I find that the decision of the Administrative Law Judge should be reversed as I find claimant has failed to prove a causal connection between his alleged injury and his eventual need for medical treatment and surgery. Therefore, I respectfully dissent from the majority opinion. [35] MIKE WILSON, Commissioner