CLAIM NO. F109075
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 31, 2006
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Kenneth A. Olsen, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the Honorable Carol Lockard Worley, Attorney at Law, Little Rock, Arkansas.
Decision of the administrative law judge: Reversed.
OPINION AND ORDER
The respondent appeals an administrative law judge’s opinion filed March 30, 2005. The administrative law judge found, among other things, “On August 4, 2001, the claimant sustained an injury to his cervical and thoracic spine, in addition to his lumbar spine, arising out of and in the course of his employment. The claimant was temporarily totally disabled for the period beginning August 10, 2001, through December 20, 2001, and continuing through the end of his healing period, a date to be determined. The respondent shall pay all reasonable hospital and medical expenses arising out of the injury of August 4, 2001.” After reviewing the entire record de novo, the Full Commission reverses the opinion of the administrative law judge. We find that the claimant failed to prove that he sustained a compensable injury to his cervical and thoracic spine, in addition to his lumbar spine, which arose out of and in the course of his employment with the respondent on August 4, 2001. As a result, the Full Commission further finds that since the claimant did not meet his burden of proof that he sustained a compensable injury while working for the respondent, he is not entitled to any medical or temporary total disability benefits.
I. History
The claimant, age 67 (12/28/37), began working for the respondent as a truck driver on July 19, 1999. On August 4, 2001, the claimant sustained an admittedly compensable injury to his back, while working for the respondent. The claimant now maintains that he experienced an onset of pain and felt a vibration run up his hand, which was accompanied by pain up his shoulder, over his neck, beneath his shoulder blades, and down his spine into his rectum. According to the claimant, he collapsed and was unable to function for five or 10 minutes. However, the claimant managed to get up and was able to complete the job task.
The claimant completed an Arkansas Workers’ Compensation Commission WCC Form N on August 9, 2001. On this form, the claimant reported that his accident had taken place on August 4, 2001, in Marion. The claimant reported that only his lower back had been injured. He described the accident as follows:
I was lowering dolly. The dolly was hard to work.
During the lowering I felt sharp pain in the lower part of my back. Thought it would go away, but it got worse by the day. Finally could not sit still in seat while driving.
The respondent accepted the claim as compensable with respect to the injury relating to the claimant’s lower back and paid all appropriate benefits. A review of the medical evidence of record shows that the claimant received treatment for his compensable back injury on August 10, 2001, at Concentra Health Center under the care of Dr. Michelle Ibsen. Dr. Ibsen assessed the claimant as having “a lumbar strain” and referred him for an MRI. The claimant underwent an MRI of the lumbar spine on August 15, 2001, which revealed, “changes of degenerative disc disease with mild bulging discs at multiple levels and a small central focal herniated disc at T12-L1.”
The claimant was referred to Kent Davidson, an orthopedic, for evaluation and treatment of his compensable back injury of August 4, 2001. After receiving appropriate treatment from Dr. Davidson, the claimant was referred to Dr. Yeshwant Reddy for pain management.
Dr. Reddy’s treatment consisted of a series of lumbar epidural steriod injections followed by the claimant’s release from care on December 20, 2001. On that date, Dr. Reddy reported, in relevant part the following:
PLAN:
1. At this point, I do not have anything else to offer Mr. Long. He has lumbar degenerative disc disease and spinal stenosis. His symptoms of flex-forward posture and neurogenic claudication clearly fits his imaging studies. There is no permanent impairment related to his lumbar spine disease.
2. He is not yet ready to return to work, particularly because of his general health problems and also the ongoing symptoms. I would not want him to undergo a functional capacity evaluation because of his general health.
3. As regards to his lumbar degenerative disc disease and mild spinal stenosis with neurogenic claudication, he is at MMI. I would like to release him from my care. In the future, he may require another set of lumbar epidural steroid injections. I would be happy to care for him if he chooses to come back to see me.
The claimant now alleges that in addition to his compensable lumbar injury, he sustained a compensable injury to his cervical and thoracic spine during his accidental injury of August 4, 2001. The respondent has controverted this claim in its entirety. Therefore, the claimant has brought this claim asserting his right to benefits.
On December 11, 2003, a Change of Physician Order was entered by the Commission granting the claimant a one time change of physician from Dr. Yeshwant Reddy to Dr. Edward Saer III.
The claimant underwent initial evaluation with Dr. Saer on January 9, 2004 due to pain in the thoracic area, for which he ordered an MRI. The claimant underwent an MRI scan of the cervical spine on January 26, 2004, which revealed, “diffuse degenerative disk disease, and there was a multi-level foraminal stenosis.” The claimant also underwent an MRI scan of the thoracic spine on that date, which revealed, “degenerative disc disease.”
In a letter to the claimant’s attorney dated February 19, 2004, Dr. Saer wrote:
I have actually only seen him on two occasions, January 9th and February 3rd of this year. Initially, I believe he had been seen by Dr. Davidson after his injury in August 2001. He was subsequently seen by Dr. Reddy here in our office. I believe our medical records department will be forwarding copies of his medical records separately.
His initial complaints were to the lower back. When I saw him, he was also complaining of thoracic and cervical pain. He did apparently have a disc herniation at T12-L1 noted after his injury that was treated nonoperatively.
He has remained symptomatic. I believe this is still a result of his original injury. I do not believe that he will need any surgical treatment for this though, and I have recommended that he see one of the physicians who specialize [sic] in nonoperative management. I have not assigned any permanent impairment. These opinions are expressed within a reasonable degree of medical certainty.
The claimant was seen at the Veteran’s Administration(VA) hospital at various times in July of 2004, due to thoracic and cervical complaints, for which an MRI was ordered. The following was reported in a Consult Request dated July 27, 2004:
MRI C spine reported to show only moderate degenerative changes. MRI of the thoracic spine 7/2/04 reported to show only mild degenerative changes without acute disc extrusions, no significant central canal or neural foraminal stenosis.
A further review of the medical evidence shows that the claimant received treatment from the VA hospital in the form of a TENS unit and physical therapy treatment due to his thoracic and other related symptoms. Sharon Lee Lynch authored a physical therapy assessment report on October 7, 2004. In this report, Ms. Lynch stated that other treatment options had been discussed with Dr. Johnny Smelz and it was decided that since the claimant was getting worse with therapy, the treatment would be stopped and the patient would return to see Dr. Smelz.
After the hearing, the claimant submitted an undated narrative and an assessment summary that had been authored by Dr. Smelz, wherein she wrote:
Impression:
Myofascial pain syndrome involving the cervical musculature, and shoulder girdle muscles, left greater than right. Left subcutaneous mass, thoracic area.
2. Narrative addressing:
a. Diagnosis: Myofascial pain syndrome involving shoulder girdle and upper back musculature.
b. Related to 8/04/01 injury: There is a possibility (around 50 to 60%) that this could be related to the earlier injury.
c. What objective findings are present: Palpable spasms and muscle bands and tautness.
d. MMI? No, not all interventions have been tried.
e. Any percentage of permanent partial impairment relative to the work injury. No, myofascial pain does not carry an impairment rating.
Prior medicals show that the claimant was seen at the VA hospital on April 14, 2000 due to complaints of severe pain in the neck and headaches. The claimant was assessed a provisional diagnosis of “degenerative disc disease with severe pain.” The claimant was seen by Dr. Kenan Arnautovic at the VA hospital on November 27, 2000 due to a long history of neck pain with radiation of pain from his neck to his head. At that time, Dr. Arnautovic reported that he had reviewed the claimant’s MRI, which revealed multiple level degenerative changes at C3/4, C4/5, and C5/6. Since there was no responding neurological findings, Dr. Arnautovic recommended pain control and follow-up in six months to a year.
A hearing was held in this matter on February 9, 2004. During the hearing, the claimant gave testimony. The claimant testified that he reported on the Form N that only his back was hurt because this is where the principal or primary pain was coming from at that time. However, he now maintains that at the time he completed the Form N, he was hurting from his neck all the way down. According to the claimant, after he started treating with Dr. Davidson, and immediately after the MRI had been performed(which would have been three weeks after his injury), he began to experience pain between his shoulder blades and his thoracic spine, as the left side of his neck began to hurt. The claimant testified that he complained about thoracic and cervical pain to Dr. Davidson and to his nurse, Debby Wilson. The claimant further testified that he complained to Dr. Reddy about upper and cervical spine pain.
The claimant testified that there was never a time when his condition had resolved and he did not require medical treatment for his workers’ compensation injuries. The claimant testified that he is currently under the care of Dr. Smelz due to a mass that has been found between his left shoulder blade and spine. As a result, the claimant testified that he believes he is in need of additional medical treatment as a result of these alleged injuries.
On cross-examination, the claimant admitted to being released from care by Dr. Reddy on December 20, 2001 without an impairment rating or any limitations or restrictions.
The claimant admitted to having prior back problems dating back to when he was in the service. Although the claimant filed claims with the VA alleging a service related back injury, these claims were denied. Upon being questioned about complaints of severe neck pain dating back to April of 2000, the claimant testified that this was due to headaches he had been having at the base of his skull. The claimant also attributed his November 2000 complaints of neck pain to the headaches that he had been having. He admitted that the MRIs done in January and July of 2004, both showed degenerative disc disease of his cervical and thoracic spine.
According to the claimant, he is now retired and drawing old age Social Security. The claimant testified that as of the date of the hearing, it had been a week since he had treated with Dr. Smelz.
A Prehearing Conference was held in this claim on December 14, 2004, and as a result, a Prehearing Order was entered in the claim on that date. The following stipulations were submitted by the parties and accepted by the administrative law judge:
1). The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.
2). The existence of the employment relationship on August 4, 2001.
3). The weekly compensation benefit rates are $315.00 and $236.00, respectively, for temporary total and permanent partial disability.
The parties agreed that the issues to be litigated at the hearing were limited to the following:
1). Compensability.
2). Entitlement to change of physician.
In this regard, the claimant contended that he sustained a compensable cervical and thoracic injury on August 4, 2001, and that he is entitled to a change of physician.
The respondent contended that the claimant is not entitled to any further workers’ compensation benefits relative to the August 4, 2001, claim which was accepted as compensable with respect to claimant’s lumbar spine. Respondents deny the compensability of the claimant’s complaints relative to his cervical and/or thoracic spine.
After a hearing before the Commission, the administrative law judge found, “On August 4, 2001, the claimant sustained an injury to his cervical and thoracic spine, in addition to his lumbar spine, arising out of and in the course of his employment. The claimant was temporarily totally disabled for the period beginning August 10, 2001, through December 20, 2001, and continuing through the end of his healing period, a date to be determined. The respondent shall pay all reasonable hospital and medical expenses arising out of the injury of August 4, 2001.”
The respondent appeals to the Full Commission.
II. Adjudication
The claimant now contends that he sustained a compensable injury to his cervical and thoracic spine, in addition to his admittedly compensable lumbar injury, while working for the respondent on August 4, 2001. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002) defines “compensable injury” as “[a]n 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. An injury is `accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence.”Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002). The phrase “arising out of the employment refers to the origin or cause of the accident,” so the employee was required to show that a causal connection existed between the injury and his employment. Gerber Products v. McDonald,15 Ark. App. 226, 691 S.W.2d 879 (1985). An injury occurs “`in the course of employment’ when it occurs within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose, or advancing the employer’s interest directly or indirectly.” City of El Dorado v. Sartor,21 Ark. App. 143, 729 S.W.2d 430 (1987). Under the statute, for an accidental injury to be compensable, the claimant must show that he/she sustained an accidental injury; that it caused internal or external physical injury to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id.
Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings as defined in §11-9-102(16). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Crudupv. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence See Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002); Clardy v.Medi-Homes LTC Servs., 75 Ark. App. 156, 55 S.W.3d 791 (2001).
The administrative law judge found in the present matter that “On August 4, 2001, the instant claimant sustained a compensable injury to his cervical and thoracic spine, in addition to his lumbar spine, arising out of and in the course of his employment. The claimant was temporarily totally disabled for the period beginning August 10, 2001, through December 20, 2001, and continuing through the end of his healing period, a date to be determined. The respondent shall pay all reasonable hospital and medical expenses arising out of the injury of August 4, 2001.”
However, in our opinion, a review of the evidence demonstrates that the claimant did not sustain a compensable injury to his cervical and thoracic spine on August 4, 2001, while working for the respondent. The instant claimant has an extensive history of neck problems preceding his August 4, 2001 lumbar injury, which included complaints that were symptomatic at the time of his injury. When the claimant reported his injury on the Form N, he made absolutely no mention of any injury to his thoracic or cervical area, as he reported having injured only his lower back.
Further, there is no medically documented complaint by the claimant of any cervical or thoracic problems until January 2004, and all of the diagnostic testings primarily reveal pre-existing degenerative disc disease. Therefore, based on all of the foregoing, we find that the claimant failed to establish a causal connection between his accidental work injury on August 4, 2001 and his current cervical and thoracic spine problems. We recognize that Dr. Saer and Dr. Smelz have opined that the claimant’s thoracic and cervical problems are related to his August 4, 2001, injury. However, the Commission is entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and medical evidence. MaverickTransp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). The Full Commission does not place any weight on these two opinions because each is based on an inaccurate history provided to them by the claimant.
Therefore, considering that the initial medicals and the Form N do not corroborate the claimant’s testimony concerning his alleged injury to his cervical and thoracic spine, the claimant’s prior history of ongoing neck problems, and that the claimant did not make a medically documented report of problems with his cervical and thoracic spine until January 2004 (almost three years after his compensable injury), the Full Commission finds that it is more probable than not that the claimant’s current cervical and thoracic problems did not arise out of and in the course of his employment with the respondent on August 4, 2001. As a result, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury to his cervical and thoracic spine which arose out of and in the course of his employment with the respondent. Therefore, we hereby reverse the administrative law judge’s finding of a compensable injury to claimant’s cervical and thoracic spine. Accordingly, having found that the claimant did not meet his burden of proof that he sustained a compensable injury to his cervical and thoracic spine while working for the respondent on August 4, 2001, we further find that the claimant is not entitled to any medical or temporary total disability benefits. The Full Commission also reverses the administrative law judge’s findings on these issues. Based on our de novo
review of the entire record, the Full Commission finds that the claimant failed to prove that he sustained a compensable injury to his cervical and thoracic spine, in addition to his lumbar spine, which arose out of and in the course of his employment with the respondent. Therefore, we reverse the opinion of the administrative law judge. As a result, this claim is denied and dismissed.
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.