LITZSEY v. AREA AGENCY ON AGING, 1997 AWCC 399

CLAIM NO. E600590 E505969

PHYLLIS LITZSEY, EMPLOYEE, CLAIMANT v. AREA AGENCY ON AGING, EMPLOYER, RESPONDENT, SELF-INSURED

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 SHEILA F. CAMPBELL, Attorney at Law, Little Rock, Arkansas.

Respondent represented by WALTER A. MURRAY, 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 January 28, 1997, finding that the claimant sustained compensable injuries on January 31, 1995, and November 12, 1995. Based upon our de novo review of the entire evidence, we find that claimant has failed to present sufficient evidence of injuries on these dates. Therefore, we reverse the decision of the Administrative Law Judge.

[3] Claimant sustained an admittedly compensable injury to her lower back and cervical spine in April of 1993. As a result of that injury claimant remained off work drawing temporary total disability benefits until November of 1994. In November of 1994, claimant was released to return to work by her treating physicians. Claimant contends that on January 31, 1995, and again on November 12, 1995, she sustained two new compensable injuries to her lower back for which she should be entitled to medical treatment and temporary total disability benefits. At the hearing held before the Administrative Law Judge on June 20, 1996, the respondent contended that there were no objective findings as a result of claimant’s alleged compensable injuries and therefore she is not entitled to any benefits. The burden of proof rests upon the claimant to prove the compensability of her claim.Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K.Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. §11-9-704(c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v.Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowlerv. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [4] The claimant’s alleged injuries occurred after July 1, 1993, thus these claims are 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. Jerry D. Reedv. 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 his 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).” [5] 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. [6] First, with regard to the January 31, 1995, incident in which claimant describes having fallen on the steps of a client’s home, we cannot find that claimant has proven that this incident resulted in any objective medical findings substantiating a compensable injury. We note that on the date of the fall claimant reported to Dr. Banks Blackwell for medical treatment. Claimant provided Dr. Blackwell with a history of having fallen at a patient’s home. After examining the claimant, recording her history, and reviewing diagnostic test results Dr. Blackwell stated:

I am unable to document any objective findings on this patient other than the minimal ligament stiffness. According to the records available to me, there are no sufficient findings of the many diagnostic tests done . . . Based upon my examination no permanent physical impairment is justified.

[7] Claimant continued to seek follow-up treatment from Dr. Blackwell, yet his findings and reports remained the same. There were no objective findings substantiating a compensable injury on January 31, 1995. [8] On April 10, 1995, claimant reported to Dr. David Reding a Little Rock neurosurgeon, with chief complaint of back and left leg pain. Interestingly, claimant did not provide Dr. Reding of a history of having fallen at work in January of 1995. Rather, claimant merely provided Dr. Reding with a history of having fallen at work two years ago (consistent with her compensable April, 1993 injury) and of having pain in her spine and left limb ever since. Claimant also advised Dr. Reding that she had to miss approximately 10 days of work during the past year alone due to her pain. Dr. Reding ordered additional diagnostic tests but stated claimant’s pain was “probably musculoligamentous in nature.” However, like Dr. Blackwell, Dr. Reding did not note the presence of any objective findings. [9] Just 5 days after having been examined by Dr. Reding, claimant was seen by Dr. Sue Frigon, a Pine Bluff neurologist. Again, it is interesting to note that claimant did not provide Dr. Frigon with a history of having fallen in January of 1995. At her visit with Dr. Frigon on April 15, 1995, claimant reported that she had re-injured herself approximately 3 weeks prior to her visit, which would have been in late March, 1995. This history was not consistent with the history she provided Dr. Reding just 5 days previously. Although Dr. Frigon did note some palpable muscle spasms, she qualified her finding of such spasms with the following statement: “However, the primary problem appears to be guarding in the thoracic and lumbar area.” Although this Commission has previously found muscle spasms to be an objective finding to support a compensable injury, we cannot find in the present case that the claimant’s muscle spasms associated with guarding observed by Dr. Frigon in April of 1995 (which were not detected by the first two treating physicians during the first three months following claimant’s fall in January of 1995) are in fact related to that fall. [10] The medical records, as well as claimant’s deposition testimony which was used to impeach claimant’s hearing testimony, clearly indicate that claimant’s back condition had never resolved from the original April, 1993 injury. The record reflects that claimant intermittently suffered from muscle spasms related to the April, 1993 incident prior to the January, 1995 fall. Accordingly, we cannot find that the muscle spasms noted by Dr. Frigon in April of 1995 are in any way related to the January, 1995 incident since there are no corroborating findings by any medical care provider between the date of the incident and when Dr. Frigon eventually noted muscle spasms associated with guarding. Therefore, we cannot find that claimant has proven by a preponderance of the evidence that she sustained a compensable injury on January 31, 1995. [11] With regard to the second incident which allegedly occurred on November 13, 1995, we cannot find that claimant has proven by a preponderance of the evidence that she was actually involved with a specific incident on that date resulting in a compensable injury. Nowhere in the medical records is there a corroborating history of claimant having injured her back on that date while bathing one of her clients. At the hearing, claimant gave a very detailed report of suffering severe pain in her back which “shot down my leg, the back of my leg” when she was bathing a patient. However, the medical record from the Jefferson Regional Medical Center dated November 13, 1995, merely states that claimant has had “lower back pain and (illegible) leg since yesterday, painful to walk.” That report further states “no acute trauma.” (emphasis added) While claimant did not provide a history of suffering an acute trauma, she did advise the emergency room triage nurse of a history of back problems since 1993. [12] The first report of any medical record of a work-related incident from November of 1995 appears in the physical therapy reports dated February 19, 1996, of “helping client out of tub, also doing client’s laundry and hurt back.” The history provided to the physical therapist was not provided until approximately four months after the alleged incident and after claimant’s claim was controverted. Since this history has not appeared anywhere else in the medical records, we place no weight on the history provided after controversion of this claim. [13] The history provided to Dr. Willis Courtney on November 17, 1995, likewise, does not reveal a work-related incident. Rather, claimant provided Dr. Courtney of a history of having injured her back in April of 1993 and of having intermittent low back pain associated with left lower extremity pain ever since. The history did state:

She was doing fairly well until 4 days prior to this clinic visit. At that time, she had completed her work shift. But, she began to experience increasing low back pain, associated with left lower extremity pain and cramping. As a result, she presented to JRMC emergency room for evaluation.

[14] Dr. Courtney diagnosed claimant at that time with “exacerbation of previous lumbar myofascial syndrome (precipitating factors unclear).” This history is consistent with all previous medical records indicating that claimant has continued to suffer from her April 1993 injury. It does not support a finding that claimant suffered a specific incident injury at work. A specific incident was not provided to or recorded by Dr. Courtney. Accordingly, when we review the medical evidence as a whole, we cannot find that claimant has submitted sufficient evidence to establish that a specific incident actually occurred during the course of her employment. In our opinion the emergency room record from November 13, 1995 which specifically states “no acute trauma” speaks volumes. If claimant had injured herself on that date as she describes, an acute trauma obviously occurred and would have been reported. [15] Therefore, for those reasons stated herein, we cannot find that claimant has proven the compensability of either of her claims. Consequently we find that the decision of the Administrative Law Judge, should be, and hereby is, reversed. [16] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[17] Commissioner Humphrey dissents.

[18] DISSENTING OPINION
[19] I must respectfully dissent from the majority opinion finding that claimant failed to prove that she sustained compensable injuries on either January 31, 1995, or November 12, 1995.

[20] Claimant, a home health aide, experienced her first back injury in April, 1993. An x-ray study on April 12, 1993, and a CT scan the following day revealed no appreciable abnormalities in claimant’s lumbar spine following this injury. Likewise, a lumbar MRI scan performed on September 13, 1993, detected no damage. It appears that respondents accepted the April, 1993, injury as compensable, and claimant eventually returned to work with no impairment. [21] Unfortunately, claimant suffered a pair of injurious events in 1995. The first of these occurred on or about January 31:

I was just going up one of my client’s steps and I fell . . . I fell and hit my elbows and my knees. And like I say, they were bleeding; they was hurting me. And I like I say, my neck and back at the time, they was not bothering me right me then.

[22] At respondents’ direction, claimant presented to Dr. Banks Blackwell with neck, back, elbow, and left arm pain the same day. Dr. Blackwell reviewed claimant’s previous diagnostic studies, including the lumbar MRI mentioned above, all of which he deemed normal. Following a physical exam which yielded no unusual results, Dr. Blackwell stated that he was “unable to document any objective findings on this patient, other than the minimal ligament stiffness.” [23] Claimant subsequently came under the care of Dr. David L. Reding, a Little Rock neurosurgeon. Dr. Reding’s initial report of April 10, 1995, makes no mention of claimant’s fall in January, 1995, and instead speaks only of her injury in 1993. It is thus conceivable that Dr. Reding had no knowledge of the intervening occurrence. In any event, Dr. Reding ordered additional diagnostic studies and opined that claimant’s difficulties were “probably musculoligamentous in nature.” Claimant thereafter underwent a lumbar CT myelogram on May 22, 1995, and a whole-body bone scan on June 12, 1995. Again, these diagnostics produced normal results, leading Dr. Reding to state on June 12, 1995, that:

However, I can not identify any objective evidence of injury to the lumbar spine. The cause for her persistent pain is not clear. She seems to be having some muscle spasms and a lot of early morning stiffness . . . I have not found any objective evidence of injury.

[24] Dr. Reding went on to recommend a rheumatology evaluation, which claimant obtained from Dr. James Abraham on July 13, 1995. As with Dr. Reding’s notations, Dr. Abraham’s report seems to focus on the April, 1993, injury rather than the more recent event of January, 1995. Dr. Abraham’s exam revealed essentially normal findings, and he opined that claimant most likely suffered from fibromyalgia. [25] During the interim between her consultations with Drs. Reding and Abraham, claimant also received an evaluation from Dr. Jacquelyn Sue Frigon, a Pine Bluff neurologist. Though Dr. Frigon’s report (of April 15, 1995) mentions claimant’s last visit in November, 1993, there is once again no reference to a fall in January, 1995. Dr. Frigon did, however, note that “there is some muscle spasm palpable.” [26] On or about November 12, 1995 (possibly the 11th), claimant suffered a substantial mishap:

I was bathing one of my clients, and I was trying to get her out of the tub and I started hurting real bad. The pain just shot down my leg, the back of my leg. And as I got her on out, I called the office and spoke with Ms. Robin King. And I asked her if I could go to the doctor, and she said, “No.”

[27] Claimant did eventually obtain medical treatment from the JRMC Emergency Room on November 13, 1995, where she presented with complaints of low back pain. Claimant received instructions to remain off work for three days and obtain bed rest. A follow-up MRI on November 16, 1995, revealed a small central posterior disc herniation at the L5-S1 level. Subsequently, claimant obtained a referral to Dr. Willis Courtney, whom she first consulted on November 17, 1995. Dr. Courtney considered claimant to be suffering from an exacerbation of a “previous lumbar myofascial strain” and initiated conservative measures. In addition, Dr. Courtney removed claimant from work pending additional follow-up, and had not released her as of March 13, 1996 (the date of the last report from Dr. Courtney contained in the record). Finally, in undated correspondence, Dr. Courtney offered the following explanation for claimant’s injury:

With a reasonable degree of medical certainty, in my medical opinion, the patient’s diagnoses listed above are related to an on-the-job injury. I initially evaluated Ms. Litzsey on November 17, 1995. At that time, she informed me of an injury to her lower back with radiation down her left posterior thigh after falling at work on 4/9/93. Also, the patient was evaluated by several physicians and underwent therapy which included physical therapy, steroid injections, etc. Ms. Litzsey informed me that she was doing fairly well until 11/11/95 when she began to experience increasing low back pain associated with left leg pain and cramping after completion of her shift at work. Her examination on 11/17/95 revealed tenderness to palpation over the lumbar paraspinous muscles. An MRI was performed on 11/16/95 and revealed a central posterior disc herniation at L5-S1.

[28] 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 she 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). 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(5)(E)(i) (Repl. 1996). [29] I would find from claimant’s credible account of a work-related injury on January 31, 1995, that she sustained an accidental injury identifiable by time and place of occurrence which arose out of and during the course of her employment on that date. Also, while the reports issued by Drs. Frigon, Reding, and Abraham do not reference this particular injury, I am persuaded that their findings are nonetheless attributable to it in light of claimant’s credible testimony regarding its occurrence. Given Dr. Frigon’s express statement that muscle spasms were present during her examination of claimant, I would further find that claimant has established her injury with medical evidence supported by objective findings which indicate the presence of an internal physical harm to her body (in the form of a soft tissue injury). Finally, given claimant’s numerous consultations with medical care providers following her January 31, 1995, injury, I am persuaded to find that her injury did require medical services. [30] I would also find that claimant sustained a compensable injury on November 12, 1995. Based on claimant’s credible description of a work-related injury on that date, I would find that claimant sustained an accidental injury as the result of a specific incident identifiable by time and place of occurrence, which arose out of and in the course of her employment. I would also point out that claimant’s diagnostic exams were normal as late as May 22, 1995, and that her disc herniation appeared only after her injury of November 12, 1995. In addition, the disc herniation itself is ample objective medical evidence indicating an “internal physical harm” to claimant’s body. Finally, given claimant’s significant conservative management by Dr. Courtney, I would find that her injury has required medical services. [31] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Because claimant possesses an unresolved L5-S1 disc herniation and has yet to be released to return to work by Dr. Courtney (at least within the record before us), I would find that she remained within her healing period and totally incapacitated to earn wages from November 13, 1995, until a date yet to be determined. Accordingly, I would find that claimant is entitled to an award of temporary total disability benefits from November 13, 1995, through the end of her healing period or until such time as she is released to return to work — whichever occurs first. [32] As discussed above, I must respectfully dissent from the majority opinion. [33] PAT WEST HUMPHREY, Commissioner