KENTLE v. DELTA BEVERAGE GROUP, INC., 1997 AWCC 271

CLAIM NO. E515760

AUBREY G. KENTLE, EMPLOYEE, CLAIMANT v. DELTA BEVERAGE GROUP, INC., EMPLOYER, RESPONDENT and CRAWFORD COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 11, 1997

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

Claimant appeared pro se.

Respondents represented by STEPHEN L. CURRY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on June 26, 1996, finding that claimant was entitled to an award of temporary total disability benefits from October 28, 1995, through November 16, 1995.

[3] Respondents now appeal from that opinion and order, contending that a motor vehicle accident claimant was involved in on October 28, 1995, operated as a nonwork-related independent intervening cause of any disability claimant experienced after that date. [4] Following our de novo review of the entire record, we specifically find that claimant remained in his healing period and totally incapacitated to earn wages from October 28, 1995, through November 15, 1995, and that the motor vehicle accident of October 28, 1995, did not amount to a nonwork-related independent intervening cause of this period of disability. The decision of the Administrative Law Judge is therefore affirmed as modified. [5] We note from the outset that the parties stipulated to an injury date of October 26, 1995. However, the Administrative Law Judge determined from the record that claimant’s compensable injury actually occurred on October 27, 1995. Neither party has challenged this portion of the Administrative Law Judge’s opinion, and we do not address that question herein. [6] Claimant sustained a compensable injury on October 27, 1995, while attempting to unload a delivery truck:

Well, we was loading up the back of, one of our utility trucks had came in and we had some pallets on them, we had sixteen (16) pallets on them we had to take off. And we was out on the parking lot on a flat surface unloading the truck. And as we unloaded six of the pallets and took them inside the store, on the way back we was taking empty pallets and putting them back on the truck, well as they got up into the air, the jack, the lift gate truck itself was like an elevator, it went up and it buckled midways and by me standing at the back I was straddled the buckle part, by me standing at the back holding the jack with the parking brake on, the weight of the jack was more hanging over basically and it pulled me over. And I was trying to hold on trying to keep it but it had a little bit more weight on the jack than I could handle . . . Well, I stretched my left shoulder about midways to my back and my right arm was the first thing that was bothering me that afternoon. Then I went in and my back was just aching like it was real sore.

[7] Claimant was unable to report to work the following day, and sought treatment at the Southwest Hospital Emergency Room. Dr. George Hutchinson noted that claimant suffered from “pain and soreness in the muscles between the shoulder blades and the upper part of the back, also in the right forearm.” Dr. Hutchinson went on to assess claimant’s difficulty as being “myofascial pain secondary to strain,” and instructed claimant to return for further evaluation if he was unable to resume his employment duties by October 30, 1995 (the following Monday). [8] While on his way to obtain prescribed pain medication on October 28, 1995, claimant stopped his vehicle at a traffic light and was subsequently struck by the vehicle behind him. According to the police report from this accident, the driver of the vehicle that struck claimant lost his footing on the brake pedal, and “bumped” into claimant’s vehicle. The report further states that:

Both parties involved agreed that there were no injuries caused from the accident, or (sic) could either driver see any visible signs of damage caused from the accident. Driver of V1 stated that the only reason he wanted a report was because the car was a rental car.

[9] Claimant’s own testimony regarding the accident confirmed the contents of the above-described police report:

Yes, your Honor, that’s why I submitted this right here. On the second page here it reads, it states that the car only bumped me. It just tapped me from the rear end, because it was a rental car, that’s the only reason I made a report, a police report, there was nothing done to neither car or occupants of the car . . . I did not seek medical treatment. That’s why I didn’t even go at that time. I went on my scheduled time. That’s when I went back and I just told them that, you know, just for the record to make sure later if something came along that I had told them since I didn’t want them to think I lied.

[10] During cross-examination, claimant again denied that he had sustained any injuries in the October 28, 1995, motor vehicle accident, and addressed references to knee and lumbar back pain in his subsequent medical records as follows:

Q. Did the car wreck cause your back to start hurting more, or did it cause the pain in your knee —
A. The car didn’t even, the car just kissed, that’s all that happened, the cars just kissed, no accident or nothing it was just to clear myself, that’s why I made the police report.
Q. But you’re now, let me see if I understand. Did you tell the doctor, that’s referenced in his report here, that the car wreck caused your problem to worsen?

A. No.

Q. You’ve never made that statement at all?
A. I don’t think so, no. And about this knee problem, if I can interrupt here, about the knee problem here, I was never seen by the doctors for that at all. They never seen me for it. If you look through it, there’s nothing, they ain’t never done anything about the knee.
Q. Well, it says in his report that the knee and the lumbar spine are better, right? And so he is obviously, he is aware that you’ve got a knee problem?

A. From talking to him about it.

Q. Right, and you told him your knee got hurt, you had shooting pains down in your leg.
A. I said I had shooting pains and I said, I did not get hurt at all in the car wreck.

[11] And later,

Q. Before or after the car accident?

A. I was sore before the car wreck and after the car wreck.
Q. But after the car wreck is that when the pain started in your knee and leg?
A. No. There was no — he asked me what was wrong, I just had a pain in my leg.

Q. Okay.

A. There was no injury in the car wreck because it wasn’t enough impact to do anything. It’s stated right here.

[12] Claimant’s emergency room record from October 30, 1995, does indicate that he presented with knee and lumbar complaints at that time (including the “shooting pains” mentioned above), although there are no particular findings of any new injuries beyond “tenderness” in those areas. As for claimant’s neck and back complaints, they were “no better” as of the October 30, 1995, emergency room visit. Claimant again presented to the emergency room on November 5, 1995, and Dr. Scott Archer noted that claimant attributed an exacerbation of his “trapezius” pain to the motor vehicle accident of October 28, 1995. Dr. Archer also permitted claimant to return to modified duty, although claimant asserted at the hearing that none was available:

Well, there was this thing that just keeps coming up about, they had me for modified duty, this might throw everything but what it was, I went back they said there is no modified duty, my supervisor, they said I had (unintelligible) you can’t use your arms, but we need you to lift fifty (50) pounds continuously all day long. With modified duty there was no such things as fifty (50) pounds or less because it’s a continuous operation and I couldn’t do it so he sent me back home. He told me when the doctor fully released me then you come back to work, which I did.

[13] Claimant also submitted a page from his employee handbook which states that: “To return to work from a disability, a full 100% written release for duty from your attending physician must be submitted to your supervisor, prior to your return to work.” On November 15, 1995, claimant received a “Work Status Report” form which permitted him to return to full duty. [14] Ark. Code Ann. § 11-9-102 (5) (F) (iii) (Repl. 1996) provides that:

Under this subdivision (5) (F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.

[15] From claimant’s credible testimony regarding its occurrence and effects, we find that the motor vehicle accident of October 28, 1995, does not amount to a nonwork-related independent intervening cause that prolonged claimant’s period of work-related disability. [16] In reaching this conclusion, we have also taken into account the minimal force involved in the accident and further note that none of claimant’s attending physicians appear to attribute his continued disability to the accident’s aftermath. Additionally, Dr. Hutchinson’s notes from claimant’s October 28, 1995, emergency room visit state that: “I told him that the progression of his symptoms is expected with soreness worsening over 48-72 hours and then improving.” The references to additional complaints in claimant’s medical records subsequent to October 28, 1995, are entirely consistent with Dr. Hutchinson’s prediction. [17] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway andTransp. Dep’t. v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). Because claimant’s physicians kept him on restricted duty through November 15, 1995, we specifically find that he continued to recover from the effects of his compensable injury up until that time and that his healing period thus did not end before November 15, 1995. Also, from claimant’s credible testimony regarding the lack of suitable modified-duty employment within respondent-employer’s operation, we further specifically find that claimant remained totally incapacitated to earn wages through November 15, 1995, after which time he was permitted to return to unrestricted duty. We thus find that claimant is entitled to an award of temporary total disability benefits from October 28, 1995, through November 15, 1995. [18] Based on our de novo review of the entire record and for the reasons stated herein, we specifically find that the motor vehicle accident claimant was involved in on October 28, 1995, did not amount to a nonwork-related independent intervening cause that prolonged his period of work-related disability; and further specifically find that claimant is entitled to an award of temporary total disability benefits from October 28, 1995, through November 15, 1995. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed as modified. [19] 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). [20] Claimant appeared pro se, and attorneys’ fees are not an issue before us. [21] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[22] Commissioner Wilson dissents.

[23] DISSENTING OPINION
[24] I respectfully dissent from the majority’s opinion finding that respondent is responsible for all reasonable hospital and medical expenses as well as temporary total disability benefits after the claimant was involved in a motor vehicle accident on Saturday, October 28, 1995.

[25] The record reveals that the claimant did sustain a compensable injury on October 27, 1995 when a lift gate he was using to load pallets began to buckle injuring claimant’s left shoulder, upper back and right arm. Claimant’s injury occurred on a Friday and he was seen on Saturday, at the Southwest Hospital Emergency Room at 9:15 AM. Claimant presented a history as follows:

This is a 34 year-old black male who presents to the emergency room with a generalized upper back pain and pain in his right arm secondary to being stretched between a pallet jack and the handle on an electric gate lift on a truck that he was working on yesterday. The patient works at Pepsi Cola, had an empty pallet on the jack, and the lift gate buckled, jack fell to the ground and he tried to catch. He was essentially being stretched between a handle and a 350 pound jack for a short period of time. The patient’s complaint is mainly of pain and soreness in the muscles between the shoulder blades and the upper part of the back, also in the right forearm. The patient denies neurologic symptoms, he does have a headache, he thinks from tension in his neck. The patient did not actually fall to the ground with any trauma. He has no contributory past medical history, no medications, no allergies.

[26] After a physical examination, the claimant was diagnosed with myofascial pain secondary to strain. Claimant was taken off work for the weekend and was advised to return to work on Monday, October 30, 1995. However, claimant was advised that if he was unable to return to work on Monday, October 30th, he should return to the emergency department for further evaluation. The record reveals that the claimant returned to the emergency room on Monday, October 30th, for a recheck of his acute myofascial back pain. Claimant was held off work for 72 hours and asked to return to the ER after 72 hours for a recheck of his condition. Of interest is the physician’s assessment and treatment record from the October 30, 1995 visit which states:

34 yo BM eval in the ER 10/28/95 c/o of neck/back pain AMB. To ER stating `no better’ despite rest/meds. Pt states initial injury 2 degree to `hyperflexion’ injury while at work 10/27. Pt eval in the ER 10/28 and P leaving ER, vehicle in which he was driving was struck from behind. Now c/o left knee/(illegible) spine pain. (Emphasis added.)

[27] An x-ray of the claimant’s left knee and of his lumbar spine taken on October 30, 1995 proved negative. The triage assessment from the October 30th visit records a history as follows: “Claimant hurt my back Friday, I saw Dr. Hutch Sat. I was rear ended P leaving here Sat. My neck and back are no better.” Claimant complained of shooting pain in his left leg into his knee. However, the emergency room history and physical examination report prepared by Dr. Scott Archer on October 30th provided the following history:

Mr. Kentle is a 35 year old black male who presented to the Emergency Department for a recheck of back pain. The patient apparently fell while he was work last week, injuring his back. He was complaining of pain to this thoracic spine region and the left lumbar spine region and knee. The knee and lumbar spine are better, but the patient stated that he is still having pain in the thoracic region. He stated that this was exacerbated on Saturday. He said he was attempting to go to the drug store to get his prescriptions filled when he was hit from behind by another vehicle. The patient stated that he did not suffer any additional injuries, but this exacerbated the pain that he has been having in his trapezius muscle region. The patient has also been having some headaches.

[28] Dr. Archer diagnosed the claimant with continued back pain and recommended that the claimant return to modified duty. [29] Claimant’s injury occurred on October 26, 1995, thus, this claim is governed by the Workers’ Compensation statutes as amended by Act 796 of 1993. Act 796 was passed by an overwhelming majority of the General Assembly. [30] According to Ark. Code Ann. § 11-9-101 (B):

The primary purposes of the workers’ compensation laws are to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom and then to return the worker to the workforce, and to improve workplace safety through safety programs; improve health care delivery through the use of managed care concepts; encourage the return to work of injured workers; deter and punish frauds of agents, brokers, solicitors, employers and employees relating to procurement of workers’ compensation coverage or the provision or denial of benefits; curtail the rise in medical costs associated with the provision of workers’ compensation benefits; and emphasize that the workers’ compensation system in this state must be returned to a state of economic viability. (Emphasis added.)

[31] Furthermore, § 11-9-1001 states:

The Seventy-Ninth General Assembly realizes that the Arkansas Workers’ Compensation statutes must be revised and amended from time to time. Unfortunately many of the changes made by this act were necessary because Administrative Law Judges, the Workers’ Compensation Commission, and the Arkansas Courts have continually broadened the scope and eroded the purpose of the Workers’ Compensation statutes of this state. The Seventy-Ninth General Assembly intends to restate that the major and controlling purpose of Workers’ Compensation . . . When, and if, the Workers’ Compensation statutes of this state need to be changed the General Assembly acknowledges its responsibility to do so. It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any Administrative Law Judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act. In the future if such things as the Statute of Limitations; the standard of review by the Workers’ Compensation Commission or courts; the extent to which any physical condition, injury or disease should be excluded from or added to coverage by the law; or the scope of the Workers’ Compensation statutes need to be liberalized, broadened, or narrowed it shall be addressed by the General Assembly and should not be done by Administrative Law Judges, the Workers’ Compensation Commission or the courts.

[32] Also, Ark. Code Ann. § 11-9-704 (c) (3) provides, “Administrative law judges, the Commission, and any reviewing courts shall construe the provision of the chapterstrictly.” (Emphasis added.) [33] With these admonitions in mind, Ark. Code Ann. §11-9-102 (5 (F) (iii) states:

Under this subdivision (5) (F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of the claimant.

[34] The record clearly shows that the claimant was involved in an independent intervening accident on Saturday, October 28, 1995 when he was involved in a motor vehicle accident. The medical records indicate that the claimant was advised to return to work on the Monday following his work-related injury but was held off work for a longer period of time after being involved in the motor vehicle accident. Clearly, this accident has prolonged claimant’s disability and need for treatment. One could argue that the motor vehicle accident falls within the “quasi-course of employment” since claimant contends he was on his way to have his prescription filled when the accident occurred. Such a contention is contrary to the stated provisions of Act 796. The Act is to be strictly construed. Nowhere in the Act does it allow for “quasi-course of employment” injury. To the contrary, it specifically excludes injuries caused by independent intervening causes. [35] Accordingly, I find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits subsequent to the motor vehicle accident which occurred on October 28, 1995. Therefore, I respectfully dissent from the majority opinion [36] MIKE WILSON, Commissioner