CLAIM NO. E813586
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 19, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHEILA F. CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE GAIL PONDER GAINES, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed May 25, 1999. The administrative law judge found that “On September 4, 1998, and September 8, 1998, the claimant sustained an injury arising out of and in the course of his employment.” The administrative law judge found that the claimant was temporarily totally disabled from September 24, 1998 through April 21, 1999, and that the claimant’s healing period ended April 21, 1999. The administrative law judge found that the respondents shall pay all reasonable hospital and medical expenses arising out of “the compensable injury of September 4, 1998 and September 8, 1998.” After de novo review of the entire record, the Full Commission reverses in its entirety the opinion of the administrative law judge. [3] The claimant, age 35, became employed as a concrete finisher for the respondents in January, 1993. The testimony indicated that the claimant experienced a work-related incident involving a jackhammer at some point, in addition to a prior compensable injury to his back in 1997, and that he missed about one week of work for the latter incident. In the present matter, the claimant alleged that he sustained an injury to his back in September, 1998:
[4] The claimant went on to testify:On September 4, we was picking up rebar on the yard and the injury occurred, and at that time, I reported it to Tom Mangum and also Clarence McDaniel. . . . It was approximately that morning, because later on after that morning, we went and grouted.
The claimant testified that he “felt like a pop” after picking up the rebar that day and “felt some numbness go down my leg.” Thomas Mangum, the company owner, credibly testified that the claimant did not report an injury to him on September 4, 1998. Mr. Mangum had reviewed his records before the hearing, and testified that his employees were grouting a pump on Friday, September 4. No rebar work was done on that date. At any rate, the claimant said that he worked the rest of that day in pain, and that his back continued to hurt while he was off work at home over the following Labor Day weekend.
[5] Mr. Mangum testified that the claimant reported an injury involving rebar work, that is, tying steel, on or about September 23, 1998. Clarence McDaniel, the claimant’s supervisor, also testified regarding an injury the claimant reported while tying steel. Mr. McDaniel testified that the claimant told him he had injured his back, but he was unsure of the date or circumstances under which the claimant’s back had been hurt. X-ray taken September 24, 1998 gave the impression of mild degenerative changes of the lumbar spine, more marked at L5-S1. Degenerative changes also involved facet joints of the lower lumbar spine. The record contains a Statement of Accident or Sickness Claim, filled out by the claimant and dated October 8, 1998. The claimant wrote on the claim, “As I was getting up into the work truck I twisted my back in a manner where I injured my disk.” The claimant also stated on the claim that he had been totally disabled since September 18, 1998. An accompanying Certificate of Attending Physician indicated a diagnosis of acute lumbosacral strain, plus lumbar disc herniation. The physician, apparently Dr. Seale, wrote that the claimant had been totally disabled from working from September 8, 1998 to an undetermined date (and that no light duty was available). Dr. Anthony Russell, a neurosurgeon, examined the claimant on October 16, 1998 and wrote:On September the 8th, I had come to work and had clocked in, and as I jumped up into the pickup truck, I twisted my back one more time and the pain worsened. . . . I went and I reported it to Tom Mangum once again that I had hurt my back and the pain had worsened, and at this time he filled out paperwork.
Thomas Mangum testified that the claimant first reported an injury in the present matter on Tuesday, September 8. Mr. Mangum remembered that the claimant said he had twisted his back and could not get out of the truck. Mr. Mangum also testified that the claimant told him his back had begun bothering him at home the previous Saturday. The claimant presented to Dr. James E. Seale, Jr. on September 8, 1998. The record indicates that the claimant wrote in his own words where and how the accident occurred: “Well I had a small ache started Saturday. When I went into our work truck this morning I twisted it the wrong way.” Despite what he admittedly wrote, the claimant testified that he told Dr. Seale that he had injured his back while picking up rebar the previous Friday. Dr. Seale described a “sudden onset” of low back pain with radiation into both legs, which started with the truck incident at work. Dr. Seale diagnosed lumbosacral strain and treated the claimant conservatively. By September 14, 1998, Dr. Seale reported that the claimant was “much better,” with little or no pain.
The MRI scan perfectly explains the current symptom complex. At both L4-5 and L5-S1 Mr. Mayweather has disc herniations more severe at the lower level. There he has a significant herniated disc that is causing direct compression on the left S1 nerve root. At L4-L5 the disc is not quite as significant and actually the disc if (sic) part of a larger picture of stenosis at that level.
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[6] The claimant wanted to proceed with surgery, and on November 5, 1998, Dr. Russell performed a left L5-S1 partial hemilaminectomy and diskectomy, left L4-L5 partial hemilaminectomy. Dr. Russell reported:Apparently Mr. Mayweather first injured his back several years ago and then last year was picking up a 50 lb sack of concrete material and hurt his back then. He bounced back shortly afterward. This most latest incident occurred after he had been bending and picking up stainless steel pipe, metal rods and casings all day. Shortly after completing this he went to climb into the truck when he felt the pop in his lower back. It was at that point that the pain began to involve the lower extremity in the form of radiculopathy. The current symptoms certainly seem to be related to the incidences at work. The MRI scan is somewhat unusual in someone this age in that it shows severe degeneration of the lowest two levels of his lumbar spine. I strongly suspect that this has a lot to do with the type of work that he does.
[7] The record contains a Certificate of Attending Physician, dated December 18, 1998 and signed by Dr. Russell. The history on the certificate indicates that the claimant’s first symptoms appeared/accident happened on September 8, 1998 (the alleged truck incident), and that the claimant’s condition arose out of his employment. Dr. Russell’s diagnosis was herniated lumbar disc, and he opined that the claimant was totally disabled from working from October 16, 1998 to the present. Dr. Russell wrote on December 22, 1998 that a repeat MRI scan “reveals the presence of ongoing stenosis at the L4-L5 level. The good news is that the previous operative site at L5-S1 shows only postoperative changes and no evidence of any residual or recurrent disc. A combination of ligamentum hyertrophy and broad-based disc bulge at L4-L5 serves to cause significant compression of the thecal sac at this level. As previously, this is all felt to be an acute type injury and directly related to the incident at work.” Dr. Russell recommended that the claimant consider reoperation at L4-L5. On December 28, 1998, Dr. Russell wrote that the claimant “relates his pain to a work accident that occurred several weeks ago. In the process of moving a concrete finishing machine, he felt a pop and burning type pain in his low back. This ultimately was found to be secondary to a disc herniation at L5-S1.” [8] Dr. Russell completed a Reasonable Degree of Medical Certainty Questionnaire on January 6, 1999. The diagnosis on this form was recurrent lumbar disk herniation, evidenced by MRI. The patient would require further surgery, stated the doctor, and he assigned a 12% impairment rating. The absent employee filed a workers’ compensation claim for temporary total disability compensation and medical benefits. In March, 1999, Dr. Russell opined that the claimant’s date of maximum medical improvement would be approximately April 21, 1999, and that “a patient who has undergone two back operations, with involvement of two separate levels, would be entitled to a 13% impairment rating.” (The claimant’s entitlement to anatomical impairment and wage loss disability is not presently an issue before the Commission). [9] Counsel deposed Dr. Russell on April 21, 1999. Dr. Russell testified that he first began treating the claimant on October 16, 1998, at which time the claimant had experienced back and left leg pain for about one month. The claimant’s history at the initial examination indicated that he had twisted his back while using a motor-driven concrete finisher. Dr. Russell testified that his review of MRI scan revealed disc herniations at L4-5 and L5-S1, in addition to stenosis (congenital, degenerative narrowing) at L5-S1. Dr. Russell discussed use of the concrete finishing machine as described by the claimant, “The twisting motion of the trunk is a very detrimental movement to the low back and is commonly associated with disc herniation . . . . as the months unfolded and we talked about the problem more and more, I began to associate the initial herniation more with the movements involved with the concrete machine finisher.” Dr. Russell opined, within “a reasonable degree of medical certainty,” that stepping into a work truck would possibly result in the physical problems that the claimant experienced: “I mean, it doesn’t take a major insult to rupture a disc, and what he describes, getting in and out of a truck, commonly occurs in truck drivers. We see that their disc herniations with that motion a lot, because it involves both stretching of the nerve and a twisting motion of the back.” [10] As for the operation he performed, Dr. Russell testified, “I really didn’t see a disc herniation at L5-S1, and that there was a — the disc was really still intact as far as I could see. You can’t really see the disc itself; you’re looking at a ligament that covers the disc when you go in. And there was a bulge there, but I really didn’t see a herniation at that site. . . . When you’re looking for something fixable, it should reproduce at the time of surgery, and it didn’t in this case.” Counsel queried Dr. Russell:Exploration along the nerve root distally failed to show any evidence of an underlying mass or disk. In fact, it appeared that there was very little evidence of herniation, with the exception of a small bulge at the disk space itself. . . . A 15 blade knife was used to enter the annulus at L5-S1. The bulge was removed in piece meal fashion but failed to yield a significant large fragment. . . . Attention was then turned to the L4-5 interspace where a similar partial hemilaminectomy was carried out. Here, the nerve root again was noted to have no external impingement and there was no evidence of a herniated disk.
[11] Dr. Russell could not say for sure whether he saw evidence of a herniated disc at L4-5 on performing the first surgery. Dr. Russell testified that he performed a second surgery, at the L4-5 level — “I did a bilateral decompression because of the stenosis. I also did a foramenotomy. That’s it.” Again, Dr. Russell was asked:Q. Upon conclusion of that surgery, could you say that there was objective findings that appeared to be related to an acute injury?
A. Really, I can’t. I mean, again, basing that on what I say in my operative report, nothing just jumped right out. And, again, that’s the reason for making the observations I did in the report. I really couldn’t explain why the nerve was — why he was having the nerve pinch symptoms from that.
[12] Dr. Russell testified that neither surgery successfully alleviated the claimant’s pain complaints, and he attributed the claimant’s continued symptoms to “just generalized deterioration of his spine.” Dr. Russell again opined that the claimant was entitled to a 13 percent anatomical impairment rating, and that the claimant had reached maximum medical improvement as of April 21, 1999. [13] Hearing before the Commission was held May 5, 1999, at which time the claimant contended that he sustained a compensable injury to his back on September 4, 1998. The claimant contended that he is entitled to temporary total disability compensation from September 24, 1998 until January 6, 1999 when he received the “12%” anatomical impairment rating (issue of permanency reserved). The respondents contended that the claimant did not sustain an injury arising out of and in the course of his employment; counsel for the respondents noted that “the forms filed by the claimant list an injury date of September 8, 1998.” The respondents also contended that there were no objective medical findings supporting an injury. The administrative law judge determined that “the totality of the testimony preponderates that the claimant in fact sustained an injury” on September 4, 1998, and that he “experienced an exacerbation of his back and leg symptoms on Tuesday, September 8, 1998, when he climbed into the truck of respondent.” The administrative law judge wrote, “The evidence in the record reflects that both the September 4, 1998, incident and the September 8, 1998, incident arose out of and in the course of the claimant’s employment with respondent and/are specifically identifiable by time and date of occurrence.” The administrative law judge ordered respondents to pay temporary total disability from September 24, 1998 through the end of the claimant’s healing period, “a date to be determined,” although the administrative law judge found that the claimant’s healing period ended April 21, 1999. The administrative law judge ordered the respondents to pay all reasonable related medical expenses arising out of the two “compensable injuries.” Respondents appeal to the Full Commission. [14] A claimant has the burden of proving the compensability of his claim by a preponderance of the evidence. Georgia-PacificCorp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997). For an accidental injury to be compensable, the claimant must show that he 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. Ark. Code Ann. § 11-9-102(5)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. StephensTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). [15] In the present matter, the claimant contended to the Commission that he sustained a compensable injury to his back on September 4, 1998, and the administrative law judge determined that the claimant “in fact sustained an injury” on September 4, 1998. The administrative law judge interpreted the evidence to reflect that the claimant sustained an injury to his back while picking up rebar on September 4, 1998, and that the claimant immediately reported this purported specific incident to his supervisors. After de novo review, the Full Commission reverses, expressly finding that the claimant is not credible. It is within the Commission’s sole discretion to determine the credibility of each witness and the weight to be given to his testimony. Johnsonv. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). We are not required to believe or disbelieve the testimony of any witness.Green v. Jacuzzi Brothers, 269 Ark. 733, 600 S.W.2d 448Q. Following the second surgery, did you ever come to any — or have any objective findings that you could say to a reasonable degree of medical certainty were related to an acute injury a few months before?
A. Well, one more line in the report, “Further exploration showed that the L4-5 disc was protruding significantly on the left.” And again, the disc protrusion itself is more commonly an acute event. And there’s no way of knowing when that acute event occurred, but generally you would consider the disc herniation something that occurred quickly and at one time rather than a chronic process.
(Ark.App. 1980). The Commission may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Univ. of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997). The instant claimant alleged that he sustained an injury to his back while lifting rebar on September 4, yet our review of the entire record before us indicates that such an incident simply did not occur. The claimant’s testimony was uncorroborated. The company owner, Thomas Mangum, credibly testified that the claimant did not report an injury to anyone on that date, and that his employees were not even working with rebar on September 4, 1998. In addition, the first medical report and the clear majority of accompanying documents of record indicate that the claimant’s back began hurting at home on Saturday, September 5, 1998. [16] In that regard, the claimant told Dr. James Seale on September 8, 1998, “Well I had a small ache started Saturday. When I went into our work truck this morning I twisted it the wrong way.” The evidence shows that the claimant subsequently stated that he hurt his back lifting rebar on September 4, 1998; that he twisted his back on September 8 after a small ache the previous Saturday; and that he in fact hurt his back while lifting rebar on September 23, 1998 rather than September 4. The claimant later said that his compensable injury arose from picking up material all day on an unspecified date, and later that the compensable injury resulted from working with a concrete finishing machine. In comparing the varied and multiple accounts of an accidental injury alleged by the claimant with the preponderance of credible evidence of record, we must find that the claimant is not credible. Therefore, we find that the claimant failed to show that he sustained an accidental injury which arose out of and in the course of his employment with the respondent-employer. [17] The claimant raises a new theory of injury on appeal. The claimant now argues that the “generalized deterioration” of his back was a “gradual onset” injury, which was aggravated by a “specific incident” injury. All legal and factual issues should be developed at the hearing before the administrative law judge.Ester v. National Home Centers, Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998). Since the claimant failed to properly raise the issue of a “gradual onset” injury before the administrative law judge, we will not consider it on appeal. Paul Story v. HighlandResources, Full Workers’ Compensation Commission, August 4, 1998 (E416465 E407572). [18] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant failed to show by a preponderance of the evidence that he sustained an accidental injury arising out of and in the course of his employment with the respondents. We thus reverse the finding of the administrative law judge that the claimant sustained an injury arising out of and in the course of his employment on September 4, 1998 and September 8, 1998. The Full Commission hereby denies and dismisses this claim in its entirety. [19] IT IS SO ORDERED. [20] ________________________________
ELDON F. COFFMAN, Chairman
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MIKE WILSON, Commissioner