MARVEL v. NABHOLZ CONSTRUCTION CO., 2002 AWCC 115

CLAIM NO. F003247

DANNY R. MARVEL, EMPLOYEE, CLAIMANT v. NABHOLZ CONSTRUCTION CO., EMPLOYER, RESPONDENT NO. 1 TRANSCONTINENTAL INSURANCE CO., INSURANCE CARRIER, RESPONDENT NO. 1 SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 5, 2002

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

Claimant represented by HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.

Respondents No. 1 represented by HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by HONORABLE JUDY RUDD, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed.

OPINION AND ORDER
The respondents appeal to the Full Commission an Administrative Law Judge’s opinion filed November 14, 2001. The Administrative Law Judge found that the claimant proved by a preponderance of the evidence that he sustained “a compensable gradual-onset injury to his lumbar spine at L4-5 in the form of a left herniated nucleus pulposus.” After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.

I. HISTORY
Danny Ray Marvel, age 53, testified that he became employed with Nabholz Construction Company as a crane operator in approximately August 1994. The claimant testified, “I was on a hydraulic crane, and I had to drive it from job to job, and I would set it up, and then I would operate it. And driving it from job to job, it just beats you to death. It’s just a real rough ride.” A physician reported in 1996 that Mr. Marvel had “severe low back pain that occurs off and on, but usually does not cause much trouble. It is really acting up now and I gave him some Flexeril. Will see if that takes care of it. If not, then further evaluation, etc., may certainly be indicated.”

After an extensive physical examination carried out in April 1998, Dr. Brian Sudderth wrote that the claimant “is healthy. He is okay for DOT physical except for the fact that he has a slight hearing loss on higher frequencies.” The claimant was prescribed medication for hip pain in July 1998. Dr. Sudderth reported on September 1, 1998:

He has neuropathic type pain, shooting in the left leg. Interestingly enough, he has polio changes in the right leg. This has been going on for 3 months. This sounds like post polio syndrome, but it is in the non-affected leg. The leg it is in has previously been his good leg.

The following impression resulted from a lumbar spine MRI taken September 4, 1998:

Degenerative changes of the lumbar spine, particularly at the L4-5 level where osteophyte formation and broad-based bulging of the disc material is present with a left sided predominance. No focal herniated disc, however, is appreciated at any level.

The claimant was referred to Dr. Richard Peek, who reported on October 9, 1998:

Mr. Danny Marvel is a 50-year-old man who presents today with complaints of neck pain and lower back pain with associated left arm and left leg and hip pain. Over the last week he has had right sciatic pain, but not as bad as his back. He describes his left leg pain as constant and the worst. He describes no precipitating accident or injury. He is not sure how he hurt it. Over the last six months he has had constant leg pain. He states his pain began in April of 1998, and has worsened in the last ten weeks. . . . He states he has had previous back and neck pain intermittently since 1968. There is no history of previous neck or back surgery and he has never been diagnosed with a spine-related condition. . . .
Review of the MRI scan from September 4, 1998, taken at Saline Memorial shows there is a disc and cushion on the L4-5 with protrusion to the left side, which would account for the left leg sciatica. . . . Muscle spasm is present.

Dr. Peek diagnosed “HNP, L4-5 with left sciatica” and “Status post polio, right.” Dr. Peek recommended conservative treatment initially, and the claimant’s symptoms improved.

The claimant asserted that he was involved in a specific work-related incident in December 1998. The claimant testified, “I fell and hit my back right on a, the crank of the trailer, and it hit me right between I think it’s three and four or someplace right in there.” The claimant testified that he reported the specific incident, but there is no contemporaneous record of treatment.

A physician assessed “Right knee pain secondary to osteoarthritis” in January 1999. The claimant followed up with Dr. Peek on April 2, 1999:

He reports lower back pain and leg pain. His leg pain is greater than his back pain. He had one bad flare up and says he could barely move his leg because of the pain. He is working. . . .
Luckily, he is healing naturally. He does have a bulging disc with back and leg pain, and there is a new intradiscal electrotherapy which can be done as an outpatient under local anesthesia, with minimal time off work. If he fails to improve further this could be considered. However, he has modified his work some and is healing. He had one bad episode since his last visit.

Dr. Peek arranged discography for the claimant, and the following impression resulted on August 12, 1999:

Clinically negative three level discogram. No reproduction of pain as (sic) elicited. Minor fissuring of the intervertebral disc at L4-5. The exact significance of this is uncertain. Minimal opacification of the epidural space, which is technical in nature and not due to disc rupture.

The claimant followed up with Dr. Peek on October 18, 1999:

He continues to have left-sided back and radicular complaints. Discectomy (sic) did not reproduce his pain. I believe his problems are more from nerve root impingement that being discogenic in nature. He would require microdiscectomy, which I have discussed with him today. We would do open surgery rather than percutaneous, and I have explained to him this is more involved. He has been through a long period of conservative treatment of over one year and still has severe pain. He states at time he is almost unable to get home. He has had polio in the right leg and his symptoms are in the left leg. He does wish to proceed with surgical intervention.

Dr. Peek performed a “Left L4-5 discectomy” on November 3, 1999. The claimant informed Dr. Peek on December 2, 1999 that “most of his pain has resolved, and he only has pain in his left hip.” Dr. Peek indicated that the claimant could return to work on December 20, 1999. However, the claimant reported increased lower back pain in March 2000 after working on heavy equipment. Dr. Peek wrote, “He is considering retirement if his back goes out again, as he does not want to have surgery again.”

On a patient history questionnaire dated June 29, 2000, the claimant indicated that his problem began “April 1998 . . . with driving crane on road.” On a form provided by the claimant’s attorney, Dr. Peek wrote on August 3, 2000 that he had assigned a 10% permanent impairment rating.

The parties deposed Dr. Peek on November 8, 2000. Dr. Peek testified:

Q. And was his herniated disc and the surgical correction the basis for the 10 percent rating?

A. Yes.

Q. So would it be fair to say that the 10 percent rating, then was assigned for that condition that existed in September `98?
A. Well, that brings into other factors. Of course, the patient says his condition got worse after he fell and hit his back on this tongue of a trailer — well, around the 1st of December he hit his back, and he tells me that that’s what left him to have the repeat epidurals. And I’d seen him in November, and he didn’t have any significant pain in November, and I released him from my care, unless he needed further injections. I guess the whole thing may have been a little bit confusing about which injury he was talking about, whether it was a combination of the repetitive injury of driving the crane or a bulldozer, or from the December injury. Now, Mr. Marvel, I see, is a — well, to me has always been a very credible patient. And in his mind he thinks that’s the way he hurt his back, and that it got worse.

Q. Of course, I mean —

A. I guess I — I may have some confusion about whether it was a — I think probably in December he did hurt his back more. It was my opinion he probably had a repetitive injury to his back, and that some of the problems was (sic) present in September of `98. Part of this may have been part of my confusion. And the work injury was described from just that, the December incident, or from the repetitive process of driving a crane and a bulldozer, which I think probably did lead him to have a herniated disk. So that’s my opinion. . . . I do think people have repetitive injuries to their back. I know in the State of Arkansas that doesn’t count. But he’s out there beating himself up on that crane every day, and a bulldozer. And he was telling me what he did, he’d just get tears in his eyes. And I’m sure that did lead to his herniated disk. . . .
Q. Well, when — let me approach this a different way. When — when do you think he had his — when is the earliest he could have had his herniated disk?
A. Well, he had — my original diagnosis was herniation in September of — September of `98.
Q. Could he have — could he have experienced this herniated disc before he went to work for Nabholz?

A. No, huh-uh.

Mr. Marvel claimed entitlement to workers’ compensation. The claimant contended that he sustained a “gradual onset” injury while working for the respondents; in the alternative, the claimant contended that he sustained a compensable injury as the result of a specific incident when he sustained a fall on December 4, 1998.

Respondent No. 1 contended that the claimant did not sustain a compensable injury while in Respondent No. 1’s employ. Respondent No. 1 contended that it was not liable for the permanent impairment rating assigned by Dr. Peek on or about July 21, 2000. Respondent No. 2 contended that the claimant did not sustain a compensable injury.

The parties agreed to litigate the following issues:

1. Whether the claimant sustained a compensable specific incident injury on December 4, 1998 or a compensable gradual onset injury manifesting in March 1998;
2. Whether the surgery performed by Dr. Peek on November 3, 1999 was reasonably necessary;
3. Whether the claimant was entitled to temporary total disability compensation;
4. Whether the claimant was entitled to a 10% permanent impairment rating;

5. Attorney’s fee.

After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove that he sustained a compensable specific incident injury in December 1998. The Administrative Law Judge also found that the claimant failed to prove entitlement to temporary total disability compensation. However, the Administrative Law Judge found that the claimant sustained a compensable gradual-onset injury to his lumbar spine in the form of an HNP at L4-5. The Administrative Law Judge found that the claimant proved entitlement to reasonably necessary medical treatment and the 10% permanent impairment rating. The respondents appeal the Administrative Law Judge’s award to the Full Commission.

II. ADJUDICATION A. Gradual onset Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4) (Supp. 2001), provides:

(A) “Compensable injury” means:

(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence. . . .
(E)(ii) For injuries falling within the definition of compensable injury under subdivision (4)(A)(ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.

An employee must establish the compensability of his claim with medical evidence, supported by objective findings. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). While objective medical evidence is necessary to establish the existence and extent of an injury, it is not essential to establish the causal relationship between the injury and the job. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522
(1999).

In the present matter, the Full Commission affirms the Administrative Law Judge’s finding that the claimant sustained a compensable “gradual onset” back injury. The Concurring and Dissenting Opinion contends that the claimant did not know what caused his injury, and to find that the claimant sustained a compensable injury would require speculation and conjecture. The Concurring and Dissenting Opinion asserts that the claimant did not experience work-related low back pain until after returning to work following his surgery in 1999. In addition, theConcurring and Dissenting Opinion describes a “thirty year history” of low back pain caused by “an old injury.”

According to the record, however, the claimant began working as a crane operator for the respondents in August 1994. The claimant testified that driving the crane “just beats you to death. It’s just a real rough ride.” The claimant documented his work-related low back symptoms on a patient history questionnaire, writing that his low back pain began “with driving crane on road.” Dr. Peek began treating the claimant in October 1998. Dr. Peek diagnosed “HNP, L4-5” and eventually performed surgery. The determination of the credibility of witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5
(2000). Moreover, the Commission may not arbitrarily disregard the testimony of any witness. Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). The Full Commission finds that the claimant was a credible witness. Based on the record before us, the Full Commission finds that the claimant proved by a preponderance of the evidence that he sustained an injury causing physical harm to the body and arising out of and in the course of his employment, which injury was not caused by a specific incident but by gradual trauma to the claimant’s back.

Finally, the Concurring and Dissenting Opinion asserts that Dr. Peek’s opinions regarding causation are entitled to little weight and not stated “within a reasonable degree of medical certainty.” As mentioned supra, Dr. Peek began treating the claimant for work-related back pain in October 1998. The record indicates that Dr. Peek’s treatment recommendations were based on the credible and accurate history provided to him by the claimant. Dr. Peek performed a “Left L4-5 discectomy” in November 1999, and the record shows that most of the claimant’s pain resolved following surgery. The claimant did not experience renewed pain until returning to heavy equipment work for the respondents in March 2000. Dr. Peek ultimately assigned a 10% permanent impairment rating.

The parties deposed Dr. Peek in November 2000. Dr. Peek testified that the claimant was a credible patient, and expressly opined that the claimant’s work for the respondents led to the herniated disk. Dr. Peek testified that the claimant’s disk herniation could not have happened before his employment with the respondents. Based on the preponderance of evidence before us, the Full Commission finds that the claimant’s compensable gradual-onset injury was the major cause of the claimant’s disability and need for treatment. We find that the claimant established his injury with objective medical findings, including the herniated disc at L4-5.

Based on our de novo review of the entire record, the Full Commission finds that the claimant sustained a “gradual-onset” compensable injury arising out of and in the course of his employment, established by objective medical findings. We find that the claimant proved that the compensable injury was the major cause of the claimant’s disability and need for treatment. We also find that the claimant proved that he sustained a 10% anatomical impairment as the result of his compensable injury. The Full Commission therefore affirms the opinion of the Administrative Law Judge.

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).

For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ SHELBY W. TURNER, Commissioner

Commissioner Yates concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION

I must respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I concur in the majority’s finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable specific incident injury on December 2, 1998, and the finding that the claimant has failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits for the period March 10, 2000, to August 3, 2000. However, I must respectfully dissent from the majority’s finding that the claimant proved by a preponderance of the evidence that he sustained a compensable gradual onset injury to his lumbar spine at L4-5, in the form of a left herniated nucleus pulposus, and the finding that the claimant was entitled to a 10% permanent impairment rating. Based upon my de novo
review of the record, I would affirm in part and reverse in part the decision of the Administrative Law Judge.

The evidence shows that the claimant developed back and leg pain in mid 1998 and eventually came under the care in October of 1998 of Dr. Richard Peek. Dr. Peek ordered imaging studies that indicated that the claimant had a herniated disc at L4-5. The claimant did not report to Dr. Peek that he had been injured at work. Conservative treatment was initiated and the claimant returned to work.

On December 3, 1998, the claimant reported to his employer that he had injured his right leg and back in a fall at work on December 2, 1998. The claimant filed a workers’ compensation claim, alleging a compensable specific incident injury.

Prior to the claimant’s alleged December 2, 1998, injury, the claimant received treatment from April 9, 1998, until November 20, 1998, by Dr. Brian Sudderth and Dr. Richard Peek. The claimant was ultimately diagnosed from a September 4, 1998, MRI by Dr. Peek, with a herniated nucleus pulposus at L4-5, left, for which the claimant eventually received surgery in November of 1999. The claimant also suffered from polio residuals in his right leg and had arthritis of the hands, shoulders, and knees.

The Administrative Law Judge found that the claimant did not sustain a compensable specific incident injury on December 2, 1998. It appears that the claimant has abandoned this on appeal, but seeks to have the Administrative Law Judge’s decision affirmed with respect to the finding that the claimant sustained a gradual onset injury.

In my opinion, the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable gradual onset injury. The claimant bases his contention that he suffered a gradual onset injury solely on his testimony and that of Dr. Peek. In my opinion, the claimant’s testimony as to the cause of his herniated disc is purely conjecture and speculation. 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). Arkansas Methodist Hospitalv. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Further, Dr. Peek’s opinion is based upon the conclusions he obtained from the claimant. A medical opinion based solely upon claimant’s history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence. Brewer v. Paragould HousingAuthority, Full Commission Opinion filed Jan. 22, 1996 (E417617). The commission is not bound by a doctor’s opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant’s claim. Roberts v. Leo-LeviHospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).

The evidence shows that at his July 31, 2001, deposition, the claimant initially testified he suffered a low back and leg pain prior to his December, 1998, injury, while he was driving the 45 miles from his work to his home. Nowhere in the deposition did the claimant indicate that he thought his low back and leg pain originated from any work activity. At the hearing, the claimant confirmed he did not ever recall ever injuring himself operating heavy equipment at work. Likewise, the medical records indicate that the claimant never told any of his treating physicians what cause the back pain in March and April of 1998. The claimant was unable to explain how this pain occurred because he did not know. However, the claimant did explain how he ultimately concluded that he suffered a gradual onset injury.

Q. Did you file a workers’ compensation claim?

A. No, I didn’t know what caused it.

Q. And you still don’t?

A. I do now.

Q. How is it you know now what was causing your pain in April of `98, but you didn’t know then?
A. Well, because after I got well, the first time I drove the crane any distance — like just driving it around town, it didn’t bother me — the first time I had to make a long trip, it hurt me.

Q. And when was that?

A. It would be when I drove it from Heber Springs, and that would have been probably January of 2000.

Q. January 2000?

A. I ain’t for sure. . . .

Q. Have you talked to . . . did Dr. Peek ever tell you that he thought you hurt your back in early 1998?

A. No. He ain’t told me. I haven’t seen . . .

Q. All right. But you now think you hurt your back in early 1998, because after you had surgery and after you got well, you started driving a crane on the highway, and that caused your back to hurt. Is that right?

A. Yeah.

It is readily apparent from the claimant’s deposition and hearing testimony that he does not know what caused his onset of back pain in April or May of 1998. Some two years later, after undergoing surgery to the low back, the claimant suffered pain when he drove a crane. From this pain experience in 2000, the claimant concluded that it must have been the crane that caused his initial pain in 1998. The claimant’s deduction and reasoning should not be considered as evidence.

Further, a review of Dr. Peek’s testimony and records reflect that Dr. Peek’s opinion is based upon the deductions and conclusions the claimant presented to him after he attempted to return to work in 2000.

Q. And he — when he saw you on — when Mr. Marvel saw you on April 2 of 1999, he didn’t report any — having had any work-related accident or back injury, did he?
A. He did not report that to me. He did later, like, a year later on the September visit he told me the details of it. But I wasn’t treating him for workman’s compensation, and he was a Health Advantage patient, and I — he may — he said he had one flare up. I didn’t document any details of any — of workman’s compensation injury.

According to the medical records, Dr. Peek never knew that the claimant’s employment might be an aggravating factor in his back condition until after the claimant returned to work in 2000. Dr. Peek admitted that his opinion of a gradual onset injury was based on the history the claimant provided and the description that the claimant provided to him of his work duties some two years after the onset of pain. Dr. Peek’s opinions as to the gradual onset injury, drawn some two years after the onset of symptoms and only after work-related conditions were disclosed, are speculative, at best.

I find that Dr. Peek’s opinion as to causation is entitled to little, if any, weight. Medical evidence is not ordinarily required to prove causation, i.e., a connection between an injury and the claimant’s employment WalMart v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999), but if an unnecessary medical opinion is offered on that issue, the opinion must be stated within a reasonable degree of medical certainty. Qualifying words such as “could,” “may,” “possibly,” and “likely” will cause the opinion to lack the requisite certainty and will defeat the claimant’s claim. The Court of Appeals found in Freeman v. Con-AgraFrozen Foods, 70 Ark. App. 306 ___ S.W.3d ___ (2000) that “consistent with” her injuries, does not meet the requisite definiteness to prove a causal connection between the injury and the work. There is also evidence that the claimant had a thirty-year history of back pain and medical records establish that the claimant told his doctors in 1996 that he had severe low back pain off and on, stemming from an old injury. This, coupled with the fact that the claimant did not report any connection between his pain and his work to any physician or supervisors, nor did he file a workers’ compensation claim when he first suffered from symptoms, in addition to the fact that the MRI reports explicitly found that the L4-5 disc problem demonstrated by the MRI was a “degenerative change”, I cannot find that the claimant proved by a preponderance of the evidence that he sustained a gradual onset injury. Accordingly, I would reverse the decision of the Administrative Law Judge. Because the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury, he is not entitled to any permanent impairment.

Accordingly, for all the reasons set forth herein, I must I respectfully dissent from the majority’s opinion.

_______________________________ JOE E. YATES, Commissioner