LOAR v. COOPER TIRE RUBBER CO., 2008 AWCC 53

CLAIM NO. F505209

JAMES LOAR, EMPLOYEE CLAIMANT v. COOPER TIRE RUBBER COMPANY, EMPLOYER RESPONDENT CROCKETT ADJUSTMENT, TPA RESPONDENT.

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 14, 2008

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

Claimant represented by the HONORABLE GREG GILES, Attorney at Law, Texarkana, Arkansas.

Respondent represented by the HONORABLE WILLIAM G. BULLOCK, Attorney at Law, Texarkana, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

OPINION AND ORDER
The Arkansas Court of Appeals has reversed the Full Commission in the above-styled matter and has remanded for additional proceedings Loar v. Cooper Tire and Rubber Co., CA07-682 (Feb. 27, 2008). Pursuant to the Court’s remand, and based on our de novo review of the entire record, the Full Commission finds that the claimant proved he was

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entitled to additional medical treatment and temporary disability compensation.

I. HISTORY
The claimant testified that he began working for Cooper Tire in about 1999. The claimant described his work as involving manual labor. The claimant complained of middle to lower back pain beginning in June 2001. A radiology exam of the lumbar spine in October 2001 gave the following impression: “1. Compression fracture of L1, probably old. 2. Mild degenerative changes.”

An MR of the lumbar spine was taken in November 2001, with the following impression: “1. Mild posterior disc bulging causing moderate spinal stenosis in this patient with a congenitally narrow subarachnoid space.” Dr. Richard M. Hilborn noted in November 2001, “The MRI was reviewed with no evidence of disc herniation being noted. Mild wedging of the L1 vertebra is noted but this does not appear to be secondary to an acute event. . . .The patient’s symptomatology is consistent with low back strain.”

The record documents a subsequent lengthy extended series of treatment for low back pain.

An MR of the lumbar spine was taken in July 2004, with the following impression: “1. Multi-level degenerative

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changes of the lumbar spine with areas of canal stenosis and foraminal narrowing as discussed above. A relative canal stenosis exists secondary to congenitally short pedicles that is made worse by the degenerative disc disease along with facet and ligamentous hypertrophy.”

The parties stipulated that the claimant sustained a compensable injury to his back on April 23, 2005. The claimant testified that he slipped and fell, and that his middle to lower back was injured. The claimant sought emergency medical treatment on April 23, 2005 and was diagnosed as having “acute low back pain.” An x-ray of the claimant’s pelvis was taken on April 23, 2005, with the impression, “No abnormalities are identified.” An x-ray of the lumbar spine was taken on April 23, 2005, with the impression, “Slight loss of height of L1 probably due to a compression fracture of undetermined age.”

The claimant presented to Dr. Craig E. Ditsch on April 25, 2005:

James Loar is a 31 year old employee of Cooper Tire who comes in with a history that on 04-23-05 which is two days ago he was on top of a machine, fell approximately 6 feet landing on his back. He is complaining of pain in the mid-back in the lower thoracic, upper lumbar area. . . .He denies any particular pain in his buttocks or legs at this point in time. . . .

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He is tender right in the mid-back at the upper lumbar, lower thoracic area. There is no ecchymosis, no bruises noted. No particular palpable spasm. Straightening causes increase in his mid-back pain. He has no neurological deficit in his legs.
I reviewed the x-rays with him. I don’t see what I would consider a compression fracture. Things seem to be aligned.

Dr. Ditsch assessed, “Fall with contusion to the back. . . .We will get an MRI of his back. . . .We will keep him off work until we get a definitive answer regarding his spine.”

The following impression resulted from an MRI of the lower thoracic and lumbar spine on May 5, 2005:

1.) Component of central spinal stenosis and neural foraminal encroachment at a few levels as described above related to a combination of mild degenerative changes, bulging of the disc and a congenitally small spinal canal. Findings are greatest at the L3-4 level where there is moderate central spinal stenosis with a component of lateral recess stenosis bilaterally.
2.) Tiny disc protrusion on the right at the T9-10 level resulting in minimal central spinal stenosis. However no significant cord deformity is noted.
3.) No other significant abnormalities. No acute fracture is noted. The exam was somewhat limited by motion artifact.

The claimant followed up with Dr. Ditsch on May 9, 2005:

Mr. Loar says his pain is worse; however, his MRI indicated there was no fresh fracture at T12 or L1, but he has significant spinal stenosis. He had lateral recessed stenosis on the L3-4, L4-5

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areas. I really don’t think any of this is due to his recent fall, but he certainly has significant evidence of nerve impingement on his x-ray. I have suggested to him that he would benefit from another opinion from a neurosurgeon and we will get him an opinion from Dr. Shahim because his low back pain back in June may be well-related to this spinal stenosis. He will remain off work until after cleared by Dr. Shahim. Of note, his examination today, despite his pain and discomfort, does not show any muscle swelling, heat, erythema or any other evidence of his recent contusion.

Dr. Shahim saw the claimant and reported on May 16, 2005:

His MRI of the lumbar spine was reviewed by me. He has a small right T9-10 disc herniation. This is very small and does not cause significant canal stenosis. The image quality at this level may be an issue because this region in the lower thoracic area is not covered well on this MRI. The lumbar spine MRI shows multilevel lumbar spondylosis and degenerative disc disease extending from L3 to S1. . . .
Mr. Loar has had a recent work injury resulting in increasing back pain. I have recommended to him to undergo a thoracic spine MRI since his pain is in the lower thoracic region. . . .Based on his history, his lower thoracic pain is due to the recent fall, and although the stenosis is a longstanding disease, he has certainly aggravated this condition from the trauma.

The following impression resulted from an MRI of the lumbar spine taken May 23, 2005:

1. Multi-level degenerative disease in the mid thoracic spine.
2. Small central disk protrusion at T7-8.
3. Small right paracentral disc protrusion at T9-10.

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4. No spinal stenosis, foraminal stenosis, or nerve impingement is seen.

Beginning on May 23, 2005, Dr. Shahim kept the claimant off work for six weeks.

A myelogram was taken on June 3, 2005, with the following impression:

1. There is an old mild compression deformity of the L1 vertebral body. There is a background of short pedicles. Additional degenerative changes are seen to cause moderate acquired stenosis at the L2-3 level, as well as mild acquired stenosis at L3-4 and L4-5 levels.

Dr. Shahim stated on June 9, 2005, “Based on the history, his pain is work-related and should be covered by Worker’s Compensation. I do not detect any disc herniation, but certainly his canal stenosis and disc degeneration were aggravated by the fall.” Dr. Shahim referred the claimant for pain management.

Dr. Shahim noted on August 23, 2005:

I talked to Mr. Loar on the phone today. I explained to him that he has moderate to severe canal stenosis at L2-3. He has compression of the vertebral body of L2, which appears old. I believe he has aggravated L2-3 stenosis with recent trauma. He has failed epidural steroid injections and therapy, and for this reason I have given him the option of undergoing a lumbar laminectomy at L2-3. . . .Because of the severity of his symptoms, he would prefer to have surgery done. I have explained to him that surgery will reduce his pain, but will not eliminate it completely. We will plan on lumbar

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decompression at L2-3.

Dr. Edward H. Saer evaluated the claimant on September 16, 2005:

Mr. Loar is a 31-year-old man seen for evaluation at the request of his worker’s comp carrier. He works at Cooper Tire and had an injury on April 23, 2005. He fell 5-6 feet, off a press, landing on his back. He had the onset of back pain immediately. . . .
The flexion and extension films dated August 27, 2005, were reviewed. He has slight wedging of L1, but no evidence of acute fracture. There does not appear to be any instability.
The MRI films done May 5, 2005, were reviewed. He has a congenitally small canal, but disc spaces appear relatively normal. He has no disc herniation. There is moderate stenosis at L3-4 and mild to moderate stenosis at L2-3.
His bone scan done June 13, 2005, appears negative. This was primarily localized to the spine.
A CT myelogram done June 3, 2005, was reviewed. There is slight narrowing at L2-3 and L3-4 on the myelogram with slight bulging at the L3-4 and L4-5 levels. The CT scan shows basically the same thing with moderate stenosis at L3-4 and mild to moderate stenosis at L2-3.

Dr. Saer’s impression was, “Thoracolumbar back pain. . . .He has probably had a strain or a sprain. He does not have any radicular symptoms. In fact, he really does not have any symptoms of neurogenic claudication at all. I really do not think that a laminectomy is likely to help him. He does have a congenitally small canal, but I do not

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see any acute injury that would explain his current symptoms. . . .I encouraged him to start on some aerobic exercises, such as walking. He is basically doing nothing now, and some type of conditioning would be helpful. Getting back into a supervised (by a therapist) exercise program may also be helpful.”

Dr. Shahim noted on September 22, 2005, “He was seen by Dr. Saer, who recommended continued conservative management. I agree with that, although I expect Mr. Loar to require lumbar laminectomy at some point. . . .He may return to light duty since they have found him a position that does not require any lifting, bending, or twisting. He should remain off on the light duty for at least the next 2 months.”

The claimant underwent conservative treatment with Dr. Amir M. Qureshi.

Dr. Shahim noted the following on January 5, 2006:

I saw Mr. Loar today and he is doing much better. He says that the back and hip symptoms have improved. He says his symptoms are better when he is up and walking. He would like to return back to work. He denies any leg pain, leg weakness or numbness. He still has some thoracolumbar junction pain, but it is tolerable. . . .
He would like to return to his old job. I will release him to full duty. I will plan on following up with him in a month.

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The claimant agreed on cross-examination that he returned to work at full duty. Dr. Shahim assigned lifting restrictions on January 26, 2006. The claimant sought emergency medical treatment on January 27, 2006, at which time he was diagnosed as having chronic lower back pain. The claimant was given a work excuse “until released by regular doctor.”

Dr. Shahim noted on February 2, 2006:

I saw Mr. Loar today. He returned to work on 12/5/06. He was unable to work but for a few days. He complains of severe back pain. The back pain is in the upper lumbar spine. He does have some radiation of the pain to the legs. He develops leg weakness associated with the back pain. . . .
I reviewed his CT myelogram again. He does have moderate to severe spinal stenosis at L2-3 and L3-4. He has mild to moderate stenosis at L4-5. He has a wedge compression of L1, which appears very chronic. . . .
Mr. Loar states that his symptoms have worsened after an accident in April of `05. Prior to that, he had chronic back symptoms, but the symptoms were not as severe. His current symptoms are very severe and different from his previous back symptoms. We have discussed all options. He has received physical therapy, lumbar epidural steroid injections times 2, and facet rhizotomies. No treatment has been very effective. Since he has lumbar spinal stenosis, I have given him the option of undergoing decompression. . . .I don’t expect the surgery to eliminate all of his symptoms. He may not be able to return back to his full duty even if his symptoms are improved.

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Dr. Shahim took the claimant off work on February 2, 2006, “pending approval from work comp for surgery.” On February 24, 2006, Dr. Shahim performed a lumbar laminectomy and bilateral foraminotomy at L2, L3, and L4. Dr. Shahim’s operative report showed “no evidence of disc herniation.” The preoperative and postoperative diagnoses were, “Lumbar spinal stenosis at L2-3 and L3-4.” Dr. Shahim noted on March 13, 2006, “Mr. Loar underwent a lumbar decompression at L2, 3, 4. He is doing better. . . .He should remain off work for another month. I will plan on following up with him in a few weeks.”

The claimant informed Dr. Dennis R. Flores on March 28, 2006 that the claimant’s pain was “much improved with his recent surgery.” Dr. Flores’ assessment included “Low back pain improving.”

A pre-hearing order was filed on May 1, 2006. The claimant contended that he sustained a compensable injury to his back and legs on April 23, 2005. The claimant contended that he was entitled to temporary total disability compensation, medical expenses, and attorney’s fees. The respondents contended, among other things, that the additional medical treatment sought by the claimant was not reasonably necessary in connection with the compensable

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injury. The respondents contended that “the disability periods claimant has sustained, if any beyond the periods of TTD paid by respondent, were not incurred as the result of a compensable injury[.]”

A hearing was held on June 15, 2006. The claimant testified on direct examination:

Q. How do you feel today? How does your back feel?
A. It feels pretty good. I’m not having problems walking. I’m actually laying tires again, up to six hours a shift. It’s a world different.
Q. Did you return back to work on your regular duties?
A. I returned back to work light duty probably about four weeks ago. I did light duty for a couple of weeks and I felt good enough that I wanted to try to start doing some regular duty. We talked about trying to make me come back and work half a shift doing my normal job until I had built up a little bit, got back into shape, and see how my back could handle that.
Q. Do you feel like you are making progress?
A. Yes. I feel like I am doing real good. . . .
Q. Do you feel like you are able to do your old job right now?
A. I can’t do it — I don’t think I can do it yet. The six hours that I’m working, near the end of the six hours I’ll start getting a little sore. I’m hoping that in probably another month I’ll be able to do the full twelve hours.
An administrative law judge found, in pertinent part:

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3. The claimant has proven by a preponderance of the evidence that all additional medical treatment received after January 6, 2006, including the February 2006 surgery by Dr. Shahim, was reasonably necessary in connection with his compensable injury, and that additional treatment remains reasonably necessary.
4. The claimant has proven . . . that he was within his healing period and totally incapacitated from earning wages from February 2, 2006, through a date yet to be determined.
5. The claimant has therefore proven . . . that he is entitled to temporary total disability benefits from February 2, 2006, through a date yet to be determined.

The respondents appealed to the Full Commission, which reversed the administrative law judge’s findings and denied additional benefits. The Arkansas Court of Appeals has reversed the Full Commission and has remanded for further proceedings.

II. ADJUDICATION
A. Medical Treatment

The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). The claimant must prove by a preponderance of the evidence that he is entitled to additional medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a

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question of fact for the Commission. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999).

In the present matter, an administrative law judge found that medical treatment provided after January 6, 2006, including surgery performed by Dr. Shahim, was reasonably necessary in connection with the claimant’s compensable injury. The Full Commission affirms this finding. The claimant admitted that he had a prior history of back pain, and degeneration in the claimant’s lumbar spine was shown no later than 2001. The claimant slipped and fell at work on April 23, 2005. The parties stipulated that the claimant sustained a compensable injury. After the stipulated compensable injury, the claimant was diagnosed as having acute low back pain. The claimant eventually began treating with Dr. Shahim. Dr. Shahim stated in May 2005, “Based on his history, his lower thoracic pain is due to the recent fall, and although the stenosis is a longstanding disease, he has certainly aggravated this condition from the trauma.” Dr. Shahim again stated in June 2005, “Based on this history, his pain is work-related and should be covered by Worker’s Compensation.” In workers’ compensation law, an employer takes the employee as he finds him, and employment circumstances that

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aggravate preexisting conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003). An aggravation of a preexisting noncompensable condition by a compensable injury is, itself, compensable. Oliver v. Guardsmark, 68 Ark. App. 24, 3 S.W.3d 900 (1999). The Full Commission finds in the present matter that the stipulated compensable injury aggravated the claimant’s pre-existing degenerative condition.

Dr. Shahim performed a lumbar laminectomy in February 2006. The record indicates that there was post-surgical improvement and the claimant was eventually able to return to work. As the Court of Appeals notes, the Commission may rely on post-surgical improvement in determining whether or not surgery was reasonably necessary. See, Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). There was clear evidence of post-surgical improvement in the present matter. The Full Commission thus affirms the administrative law judge’s finding that the claimant proved he was entitled to additional medical treatment, including surgery performed by Dr. Shahim.

B. Temporary Disability

Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn

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wages. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). When an injured employee is totally incapacitated and remains in his healing period, he is entitled to temporary total disability. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). The healing period ends when the employee is as far restored as the permanent character of the injury will permit, and if the underlying condition causing the disability has become stable and nothing further will improve that condition, the healing period has ended. Id. The question of when the healing period has ended is a question of fact for the Commission. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).

In the present matter, an administrative law judge found that the claimant proved he was entitled to temporary total disability benefits beginning February 2, 2006 through a date yet to be determined. The Full Commission finds that the claimant proved he was entitled to temporary total disability compensation beginning February 2, 2006 until May 15, 2006. Dr. Shahim saw the claimant on February 2, 2006, planned to perform surgery, and took the claimant off work. The record therefore indicates that the claimant was within a healing period and totally incapacitated to earn wages as

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of February 2, 2006. The claimant’s testimony at hearing indicated that he returned to part-time work on or about May 15, 2006. There is no indication of record that the claimant’s healing period had yet ended or that Dr. Shahim had pronounced maximum medical improvement. The Full Commission finds that the claimant proved he was entitled to temporary partial disability benefits beginning May 15, 2006 until a date yet to be determined. See, Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).

Based on our de novo review of the entire record, and pursuant to the remand from the Court of Appeals, the Full Commission finds that the claimant proved he was entitled to additional medical treatment, including surgery performed by Dr. Shahim. We find that the claimant proved he was entitled to temporary total disability compensation from February 2, 2006 until May 15, 2006. The claimant proved he was entitled to temporary partial disability benefits from May 15, 2006 until a date yet to be determined. The Full Commission therefore affirms the administrative law judge’s findings as modified. The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing on appeal, the claimant’s attorney is entitled to an additional fee of five hundred

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dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002).

IT IS SO ORDERED.

________________________________ OLAN W. REEVES, Chairman
________________________________ PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents without opinion.

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