MATHENY v. MEDCATH, INC./ARKANSAS HEART HOSP., 2003 AWCC 83

CLAIM NO. F200248

CHARLES MATHENY, EMPLOYEE, CLAIMANT v. MEDCATH, INC./ARKANSAS HEART HOSPITAL, EMPLOYER, RESPONDENT, AMERICAN HOME ASSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 29, 2003

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

Claimant represented by HONORABLE EVERETT O. MARTINDALE, Attorney at Law, Little Rock, Arkansas.

Respondents represented by HONORABLE FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed.

OPINION AND ORDER
The respondents appeal an Administrative Law Judge’s opinion filed September 6, 2002. The Administrative Law Judge found that the claimant proved he sustained a compensable injury. After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge.

I. HISTORY
It was stipulated that Charles Henry Matheny, age 44, sustained a compensable injury while working for Good Shepherd Nursing Center in February 1999. Mr. Matheny testified that he slipped and fell on a wet floor, striking his back and head. “I had a tingling right in my shoulders all the way down to my feet,” he testified. Good Shepherd provided medical treatment through March 4, 1999.

The claimant began working for Arkansas Heart Hospital on March 28, 1999. The claimant testified that his work involved removing trash and bio-hazardous materials, and transporting heavy carts of linen.

The claimant testified that beginning in June 2000, he began experiencing “Back problems, neck problems, and legs and arm problems.” The claimant testified that he had suffered these symptoms since his February 1999 injury.

An MRI of the lumbar spine was taken in July 2000:

Minimal degenerative disc disease at L5-S1 without evidence of disc herniation, central canal or exit foraminal compromise.

Dr. Scott M. Schlesinger performed a cervical diskectomy and fusion in August 2000. The claimant testified that he was off work until about November 2000, and that when he returned, he was performing housekeeping work. The claimant described this work as “a lot easier” than his previous duties for the respondents.

Meanwhile, Mr. Matheny claimed entitlement to additional worker’s compensation. The claimant contended that all of his physical problems were causally related to the February 1999 compensable injury. Respondent-employer Good Shepherd Nursing Center contended that it had provided appropriate benefits. In an opinion filed March 22, 2001, an Administrative Law Judge found that the claimant failed to prove “that his physical problems, disability, and need for treatment beginning on or about June, 2000, were any way causally related to the February 27, 1999, injury.” The Administrative Law Judge therefore found that the claimant failed to prove he was entitled to additional benefits. The Full Commission affirmed and adopted the Administrative Law Judge’s decision in an opinion filed August 27, 2001.

The parties stipulated that the claimant was employed with Arkansas Heart Hospital on July 20, 2001. The claimant testified that this was approximately his first day to resume his duties of removing trash and bio-hazardous materials, and transporting heavy carts of linen. The claimant testified:

Q. Tell me what happened to hurt your back the first time you knew it.
A. I was pulling the cart up the ramp. My feet slipped, and just kept — I caught hold of the dolly, and I just slipped. I mean, I was trying to catch it where it wouldn’t fall back.

The claimant testified that he “felt a bad onset in my lower back,” and that he stopped and held on to the cart for about five minutes before resuming his work duties.

The claimant received emergency medical treatment on July 21, 2001. The claimant complained of back pain after “doing linen, bio waste,
trash yesterday @ work.” The claimant was given a work excuse on July 21, 2001. The claimant testified that he did not return to work for the respondents following the alleged injury.

A claims administrator testified, “I simply asked him how he was injured. He told me he did not know exactly how he was injured. He proceeded to tell me that he was lifting linen, pulling linen carts and emptying trash all day.”

The claimant wrote on a Worker’s Compensation Treatment Form that he had returned to work and re-injured himself. A physician saw the claimant on August 10, 2001 and assessed “Recurrent over-use injury, cervical, thoracic and lumbar areas.”

The claimant presented to Dr. Kevin C. Hiegel on August 31, 2001:

He states he had been doing well up until July 20th when the pain was noted to onset. He states he had been doing some heavy lifting of linens and pulling carts for at least several days prior to this. He states there was no specific injury, but these repetitive motions had caused him to develop pain.

Dr. Hiegel referred the claimant to a neurosurgeon, Dr. Schlesinger. Dr. Schlesinger arranged an MR scan of the lumbar spine on September 19, 2001, with the following findings:

There is evidence for minimal diffuse bulge of the disk at the L3-4, L4-5, and L5-S1 levels. These findings appear to be more pronounced laterally I do not see evidence for central canal stenosis nor foraminal stenosis at any level.
Impression: Minimal diffuse bulge of the disk at the lower 3 levels as described.

Dr. Schlesinger wrote on September 24, 2001:

I have read Mr. Matheny’s MRI of the thoracic and lumbar spine, which is largely unremarkable and shows only degenerative changes. Mr. Matheny will follow-up with Dr. Ackerman for further care as there is nothing further I can do for him.

The claimant consulted with Dr. William E. Ackerman, III on October 16, 2001:

It is my medical opinion that his pain in his lumbar spine is the result of a work related injury which was reported by Mr. Matheny. . . . It is my medical opinion that he is disabled from doing his current position as he is required to laterally rotate his lumbar spine as well as flex and extend and, on occasion, hyperextend.

A functional capacity evaluation was carried out on December 20, 2001:

With respect to rehabilitation recommendations for Mr. Matheny, he presents as a potentially difficult rehabilitation candidate due to his lack of full physical effort and significant degree of symptom magnification.

The claimant testified that he went to work for another employer on January 1, 2002.

Mr. Matheny claimed entitlement to worker’s compensation. The claimant contended that he sustained a compensable injury, for which he was entitled to reasonably necessary medical treatment and temporary total disability compensation. The respondents contended that the claimant did not sustain a compensable injury.

After a hearing before the Commission, the Administrative Law Judge found that the claimant proved he sustained a compensable injury to his lumbar spine on July 20, 2001. The Administrative Law Judge found that the claimant proved he was entitled to temporary total disability compensation beginning July 21-22 2001, and from August 10, 2001 through December 20, 2001. The Administrative Law Judge found that the claimant was not entitled to any benefits after December 20, 2001. The respondents appeal to the Full Commission.

II. ADJUDICATION A. Specific Incident Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A)(i), provides that an injury is “accidental” only if it “is caused by a specific incident and is identifiable by time and place of occurrence.” In the present matter, the Administrative Law Judge determined that there was not a specific incident, and that the claimant’s testimony in that regard was not credible. We agree with the Administrative Law Judge with regard to credibility. The claimant did essentially testify that there was a specific incident in July 2001, but his testimony was not corroborated by the record. The claimant states on appeal that there was “a traumatic injury or an injury which resulted from a gradual onset.” However, the claimant primarily asks the Full Commission to affirm the Administrative Law Judge’s “gradual onset” findings. In considering the claimant’s pleadings, and because substantial evidence supports the Administrative Law Judge’s determination that there was not an accidental injury, the Full Commission must therefore determined whether the claimant satisified the “gradual onset” provisions of Act 796.

B. Gradual Onset
A “compensable injury” can be “A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence.” Ark. Code Ann. § 11-9-102(4)(A)(ii)(b). The claimant must establish a compensable injury by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). In addition, “the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.” Ark. Code Ann. § 11-9-102(4)(E)(ii).

The Administrative Law Judge determined that the instant claim was governed by the “gradual onset” provisions of Act 796. The Administrative Law Judge found that “the claimant’s pain on July 20, 2001, arose out of and in the course of his employment related activities.” The Administrative Law Judge found that this compensable injury was the major cause of the claimant’s disability or need for treatment. The Administrative Law Judge also found that the claimant established a compensable injury with objective medical findings.

The claimant argues that he was performing heavy work on July 20, 2001, and that the Full Commission should affirm the Administrative Law Judge’s decision. However, we find that the claimant failed to establish a compensable injury with objective medical findings. It is true that a lumbar MRI taken in July 2000 showed minimal degenerative disc disease, and that an accompanying CT showed minimal bulging at one level. The Administrative Law Judge determined that the claimant sustained a “gradual onset” injury on July 20, 2001. An MRI, taken September 19, 2001, showed “minimal diffuse bulge of the disk at the L3-4, L4-5, and L5-S1 levels.” The Administrative Law Judge relied on this MRI as the claimant’s objective findings, because “this finding was not present just one year prior when the claimant underwent a CT scan that only revealed a minimal disc bulge at the L5-S1 level.”

However, Dr. Schlesinger, the treating neurosurgeon, opined that this diagnostic study was “largely unremarkable and shows only degenerative changes.” The claimant had been performing light duty for several months before resuming his regular work on July 20, 2001. The preponderance of the evidence does not support the Administrative Law Judge’s determination that the claimant’s work activity on July 20, 2001 caused degenerative bulging at three levels in the claimant’s lumbar spine. Nor does the record indicate that the claimant’s alleged compensable injury was the major cause of these degenerative changes.

We recognize that Dr. Ackerman opined that the claimant’s lumbar pain was the result of a work-related injury. However, Dr. Ackerman’s opinion does not outweigh Dr. Schlesinger’s interpretation of the diagnostic tests. Nor does the evidence otherwise indicate that the claimant established a compensable injury with objective medical findings.

Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury to his lumbar spine on July 20, 2001. We therefore reverse the opinion of the Administrative Law Judge. This claim is denied and dismissed.

IT IS SO ORDERED.

______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner

Commissioner Turner dissents.

DISSENTING OPINION

SHELBY W. TURNER, Commissioner

I must respectfully dissent from the majority opinion reversing the Administrative Law Judge’s award of benefits for claimant’s gradual onset back injury. Upon my de novo review, I find that the evidence preponderates in claimant’s favor.

Claimant began working for respondent in March of 1999, removing trash and bio-hazardous materials, and moving heavy linen carts. Prior to this employment, claimant sustained a back injury and received a cervical diskectomy and fusion in August of 2000. Respondents returned claimant to light duty in November of 2000.

Claimant maintains that he injured his back on July 20, 2001, when respondents returned him to full duty. The Administrative Law Judge found that claimant failed to prove a specific incident injury, but that he did prove a gradual onset type injury.

Diagnostic tests performed in July of 2000 revealed minimal degenerative disc disease and minimal bulging at one level. Contrasting these earlier tests, an MRI taken subsequent to claimant’s July 2000 injury shows “minimal diffuse bulge of the disk at the L3-4, L4-5 and L5-S1 levels.”

Based on the differences between the studies prior to and following claimant’s July 2000 injury, the Administrative Law Judge found claimant’s work to be the major cause of his present condition — as claimant had been working light duty the previous eight months without incident.

Disregarding this assessment, the majority opinion finds insufficient proof that claimant’s July 2000 injury, and not some previous occurrence, was the major cause for his current need for treatment. It also dismisses Dr. Ackerman’s expert medical opinion that claimant did sustain a work-related back injury in favor of Dr. Schlesinger’s interpretation that the noted diagnostic studies were “largely unremarkable.”

Because I believe the vast differences in the “before and after” diagnostic studies to be evidence of attribution between claimant’s work and his current medical status, I find that claimant met the major cause requirement relating to gradual onset injuries. Therefore, I respectfully dissent from the reversal of benefits.

_______________________________ SHELBY W. TURNER, Commissioner