McCORMICK v. SALINE MEMORIAL HOSPITAL, 1999 AWCC 252

CLAIM NOS. E604026 and E705786

OPAL LOU McCORMICK, EMPLOYEE, CLAIMANT v. SALINE MEMORIAL HOSPITAL, EMPLOYER, RESPONDENT and SEDGWICK JAMES OF ARKANSAS, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 12, 1999

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

Claimant represented by the HONORABLE DAVID H. McCORMICK, Attorney at Law, Russellville, Arkansas.

Respondents represented by the HONORABLE JOHN D. DAVIS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] The respondents appeal and the claimant cross-appeals an administrative law judge’s opinion filed November 25, 1998. The administrative law judge found that the claimant’s physical problems after August 12, 1997 are directly and causally related to one or more of the “injuries and/or aggravations” sustained while working for the respondents. The administrative law judge found that the claimant’s healing period ended on August 12, 1997, yet ordered the carrier to pay temporary total disability benefits at the rate of $205.00 per week beginning August 13, 1997, and continuing for 52 weeks pursuant to Ark. Code Ann. § 11-9-505. The administrative law judge further ordered the respondents to provide reasonable and necessary medical treatment. The Full Commission has reviewed the entire record de novo. For the reasons discussed below, we find that the claimant has not proven that she is entitled to any workers’ compensation benefits in excess of those benefits already accepted and paid by the respondent. Therefore, we find that the decision of the administrative law judge must be reversed. [3] The parties stipulated that the employer-employee relationship existed at all relevant times. The claimant, age 49, contends that she sustained the first of three work-related injuries on November 25, 1995, while working as a nurse’s aide in the geriatric psychiatric unit. The claimant testified that she felt a pull in her middle back, left side, while attempting to prevent a hospital patient from falling to the floor. The claimant testified that she reported the injury after about two hours, when her back began aching “pretty bad.” Dr. Russell Burton treated the claimant conservatively, which included prescribing medication, and the respondents paid benefits. The claimant testified that she returned to full work duties after one week, but that her back continued to ache. [4] The claimant described another incident occurring on March 1, 1996: “I was escorting a patient down the hall and just all at once a pain hit in my back and went into my hip and down my leg. . . . It was down my spine, from about midways in my back into my left hip, and about halfway between my thigh and my knee, down my leg.” The claimant testified that the respondents also paid temporary disability and medical benefits following this incident. The claimant underwent an MRI study of the lumbar spine on March 12, 1996, which revealed mild degeneration as embodied with Schmorl’s nodes involving T11-12 and L1-2. The study was otherwise normal, and there was no evidence of lumbar disc herniation. On May 9, 1996, Dr. Burton restricted the claimant from lifting, bending, or stooping, and the claimant testified that she continued to receive regular treatment through October, 1996. [5] After the second incident, the claimant returned to work in the new position of “ward clerk,” where she placed medical data into a computer with a “pen light.” The claimant testified that this position conformed with her physical restrictions. The claimant later moved to the hospital’s medical records section performing similar duties, including pulling and re-filing medical records. The claimant testified that she sustained a third work-related injury on April 30, 1997, while standing on a stool and reaching overhead to pull a file from a top shelf: “The pain hit in my back and down my leg.” The claimant initially testified that the pain was on the right side of her back, through her hip and down her leg. Under cross-examination, however, the claimant admitted that she had previously testified at deposition that the pain went down the left side of her back. Margaret Watson, the respondents’ human resource assistant, testified that the claimant was provided leave under the Family Medical Leave Act (FMLA) after this incident, and that the respondents were required to hold the claimant’s job open. The respondents began paying the claimant temporary total disability benefits again beginning May 6, 1997. [6] Dr. Burton referred the claimant to Dr. Reginald Rutherford, who saw the claimant on June 11, 1997. Dr. Rutherford’s examination was negative for palpable spasm in the lumbar paraspinal muscles. Dr. Rutherford prescribed additional conservative treatment, which included extensive physical therapy. The claimant did not attempt to return to work, even though she testified that the ward clerk position conformed with her physical restrictions. In the meantime, Ms. Watson testified, the claimant’s leave under FMLA expired on June 23, 1997. Ms. Watson acknowledged at hearing that the respondents were aware at the time that the claimant was still under active medical treatment. [7] On July 22, 1997, the claimant informed Dr. Burton that she had experienced an increase in back pain and spasms after physical therapy, but the record indicates that Dr. Burton did not personally observe any spasms. Dr. Burton’s finding was thoracolumbar tenderness, and he assessed musculoskeletal back strain. On August 12, 1997, Dr. Rutherford reported that the claimant had completed her physical therapy. Dr. Rutherford released the claimant to return to work without restriction, and he stated that clinical follow-up was not scheduled. The respondents ceased paying temporary disability benefits after August 12, 1997. On August 19, 1997, Dr. Burton opined that the claimant “will require frequent position changes as needed, otherwise she is able to return to unrestricted duty.” The claimant testified that her back still “tightened up” if she stayed in one position for very long. [8] The claimant testified that she attempted to return to her job in medical records following the releases from Dr. Rutherford and Dr. Burton, but that “they had filled my position with someone else. I was told I would be put in the pool and be called back, but I would be allowed to apply for any other position I was qualified for.” The record reflects, however, that the hospital did not place a pool employee in the claimant’s position until August 26, 1997. This was a “supervisory decision.” The claimant said that jobs were posted each week by the time clocks, and that there was a telephone recording that listed job openings. She finally applied for, but did not receive, a position in housekeeping, because she applied for a different shift. This was true, despite the hospital’s policy of “trying harder” to re-employ an individual who had been injured at work. The onus of finding a position was on the employee, and the claimant was not preferred over other applicants. Interestingly, Ms. Watson testified that no individual was placed into the open housekeeping position at this time. The claimant testified that she was physically able to perform the job of certified nursing assistant at this point, but that no such jobs were open. On the other hand, Ms. Watson testified that jobs were open for which the claimant was qualified, but that she did not apply. [9] On the afternoon of September 7, 1997, testified the claimant, she spent about 10 minutes mopping her kitchen and vacuuming her living room, thinking she was physically able to perform some housework. Early the next morning, “I woke up with pain in my back and hip and down my leg. . . . It woke me up and it was a severe pain. It felt like someone had stuck a knife in the joint and it was just a terrible pain.” The claimant testified that her pain symptoms were now on the right side, and that she returned to Dr. Burton. A lumbar spine x-ray was taken on September 12, 1997, with the impression of mild osteoarthritic changes of the lumbar spine. Disc dessication was noted at multiple levels throughout the thoracic and lumbar spine, but there was no focal disc bulge or herniation. The claimant testified that she understood from Dr. Burton that she was not allowed to return to work at all following the domestic housekeeping incident. The claimant also said she could perform light, part-time “temporary work,” if she were allowed to move or walk when needed. However, the claimant did not subsequently apply for any employment positions with the hospital. [10] Dr. Burton referred the claimant to a chiropractor, Dr. Floyd B. Bonnette, III. Dr. Bonnette saw the claimant on October 6, 1997, and his assessment/diagnosis was degenerative disc disease, lumbar radiculopathy, thoracic neuritis, “myofibrositis T L spine paravertebral.” Dr. Bonnette began a series of daily treatments beginning October 7, 1997, and he generally reported daily “objective findings” of muscle spasm along the thoracic and lumbar spine. Dr. Bonnette’s last treatment of record was November 12, 1997, and he stated that “observation reveals muscle spasm today at the lumbar erector groups.” His assessment/diagnosis was lumbar radiculopathy. Dorland’s Illustrated Medical Dictionary, 28th Edition, defines “radiculopathy” as “disease of the nerve roots.” Dr. Bonnette did not attribute this condition to the claimant’s work. [11] The respondents arranged an independent medical evaluation, performed by Dr. Jim Moore on February 11, 1998:

The patient gives history that would be consistent with musculoligamentous sprain and strain, superimposed on disc degenerative changes, at least on the basis of the studies

[12] that have been done to this point. There does not appear to be a diskal process present. I suspect the patient is deconditioned. Her lifting injury in November seemed to be the most involved process and most likely would be related to her ongoing problems in contradistinction to relatively minor stresses that she describes to me as occurred in April of 1997 and then also in August. [13] Conservative treatment in her instance would appear appropriate to recommend. I think she should also get into a strengthening program and possibly this would prevent her from developing any additional problems periodically in the future.

Counsel deposed Dr. Moore on April 17, 1998. Dr. Moore testified that his neuro-orthopedic examination revealed no objective findings, except for “hypoactive” Achilles’ reflexes, which proved to be a “normal variant” after reinforcement. Dr. Moore testified that the claimant’s history was consistent with a “strain and sprain” in the lower back, but that there was nothing in his examination, other than claimant’s history and subjective pain complaints, which actually indicated an injury to the claimant’s back. The claimant had degenerative disc disease, but there was nothing pointing to a disc herniation or protrusion, nor was there root irritation. Dr. Moore had reviewed a second MRI taken in September, 1997, and he testified, “The only process there would be degenerative disease of the discs.” Dr. Moore could not state “within a reasonable degree of medical certainty” that the incidences at work caused any internal or external harm to the claimant. Dr. Moore stated that it was within the realm of possibility that the claimant had experienced muscle spasms based on the history of injury, but he did not personally observe muscle spasm during his single examination. Dr. Moore again opined that the claimant was “deconditioned,” meaning “out of shape.”

[14] The claimant testified that she understood she could now perform only “temporary work,” that is, a few hours a day, two days a week. None of this kind of work was offered, and the claimant testified that Saline Memorial has not contacted her. Nor has the claimant applied for work anywhere since September 8, 1997: “I was never released to go back to work.” The claimant at first testified that she believes her physical condition precludes her from returning to medical records, ward clerk, or a position in housekeeping, where she has never worked for the respondents. Under examination from the administrative law judge, though, the claimant said that she could perform these duties if the respondents reasonably accommodated her physical restrictions. [15] The former employee filed a claim for additional workers’ compensation benefits. The claimant contended that she sustained a compensable injury in November, 1995, and that all of her physical problems after August 12, 1997 were either related to the compensable injury or were the result of aggravations or recurrences thereof. The claimant contended that her healing period had not ended, and that she was entitled to additional temporary total disability beginning August 13, 1997 and continuing through an undetermined date. The claimant contended that the respondents were responsible for additional medical treatment, and that the respondents refused to return the claimant to work, in violation of Ark. Code Ann. § 11-9-505(a). In addition, the claimant contended that “respondents’ assertion that her injury or complaints have not been established by medical evidence supported by objective findings are unconstitutional requirements or, alternatively, that respondents have either waived or should be estopped from asserting such defenses in light of their prior conduct in this case.” [16] The respondents contended that the claimant’s healing period ended on or before August 12, 1997, and that the claimant was not entitled to additional temporary disability benefits after that date. The respondents contended that the claimant had not established an injury through objective medical findings; that if there were objective medical findings, the claimant’s current complaints were the result of an independent intervening cause occurring August 18, 1997 (Dr. Moore alluded to an August, 1997 incident in his testimony). The respondents maintained that Ark. Code Ann. § 11-9-505(a) did not apply, “because the claimant alleged at all times that she was unable to work.” Hearing before the administrative law judge was held October 19, 1998, and the ALJ filed an opinion on November 25, 1998. [17] The administrative law judge found that, on or about March 1, 1996, the claimant sustained “either a new injury and/or an aggravation of her preexisting November 25, 1995, injury,” for which the respondents had paid all appropriate benefits. The administrative law judge found that, on or about April 30, 1997, the claimant was involved in another incident “which was either a new injury and/or aggravation of her pre-existing condition,” and that the respondents had paid all appropriate benefits for this occurrence. The administrative law judge found that the claimant’s physical problems after August 12, 1997 directly and causally relate to one or more of the injuries and/or aggravations previously sustained. In addition, the administrative law judge found that the claimant’s healing period ended on August 12, 1997, and that the claimant is entitled to additional temporary total disability benefits beginning August 13, 1997 and continuing for a period of one year pursuant to Ark. Code Ann. § 11-9-505(a). The administrative law judge found that the claimant has shown that her physical problems and need for medical treatment after August 12, 1997, directly and causally relate to her compensable injuries, and that the respondents remain responsible for continued reasonable and necessary medical treatment. Finally, the administrative law judge found that the claimant’s physical problems after August 12, 1997 are not the result of an independent intervening cause. [18] The administrative law judge noted that the respondents contended that there are no objective findings, but the administrative law judge stated that these contentions were “totally without merit”:

The claimant’s injuries are undisputed. Further the medical evidence is replete with references by various medical providers

[19] observing palpable muscle spasms which are clearly objective findings. Again, the medical reports consistently confirm these objective findings. However, because the parties highlighted or underlined various exhibits despite the prehearing order advisory that exhibits were not to be altered, no specific medical reports are relied upon by the administrative law judge. Suffice it to say that the medical as a whole clearly reflects medical evidence supported by objective findings. Further, a claimant is not required to support continuing need for medical treatment with objective findings.

The administrative law judge found that respondents’ alternate contention that the claimant’s complaints were the result of an independent intervening cause to be “totally without merit. . . . The credible evidence reflects that the claimant’s continued complaints and need for medical treatment are attributable to injuries she sustained at the work place.” Respondents appeal to the Full Commission.

[20] The primary issue before the Full Commission is whether vel non the claimant is entitled to additional workers’ compensation benefits after August 12, 1997. We find, after de novo review, that the claimant is not entitled to such benefits. [21] A. Whether the claimant proved that she sustained acompensable injury/injuries pursuant to Act 796 of 1993. [22] A claimant has the burden of proving the compensability of her 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 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. 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). It is presumed that all legislative enactments are constitutional and, any doubts concerning it must be resolved in favor of constitutionality. Holland v. Willis, 293 Ark. 518, 793 S.W.2d 529 (1987). We have previously determined that there is no basis whatsoever for finding that the provisions of Act 796 of 1993, relating to objective medical findings, are in any way unconstitutional. Barnard v. Wal-Mart Stores, Inc., Full Workers’ Compensation Commission, opinion filed April 3, 1998 (E607182 and E614185). It is presumed that all legislative enactments are constitutional and, any doubts concerning it must be resolved in favor of constitutionality. Holland v. Willis, 293 Ark. 518, 793 S.W.2d 529 (1987). We have previously determined that there is no basis whatsoever for finding that the provisions of Act 796 of 1993, relating to objective medical findings, are in any way unconstitutional. Barnard v. Wal-Mart Stores, Inc., Full Workers’ Compensation Commission, opinion filed April 3, 1998 (E607182 and E614185). [23] In his first seven Findings of Fact, the administrative law judge essentially found that the claimant had sustained three workplace injuries, for which the respondents had paid all appropriate benefits through August 12, 1997. We reverse the opinion of the administrative law judge, and find that the claimant has not established a compensable injury by medical evidence, supported by objective findings. The claimant contends that she sustained the first of three compensable injuries on November 25, 1995, when she felt a pull in her middle back while attempting to keep a patient from falling. The respondents accepted this incident as compensable, and the claimant came under the conservative treatment of Dr. Burton, but the physician reported no objective medical findings. The claimant testified that she sustained another middle back injury in March, 1996 while walking down a hall with a patient. A MRI study performed March 12, 1996 revealed mild degeneration with Schmorl’s nodes involving T11-12 and L1-2. Dorland’s defines “Schmorl’s node” as “an irregular or hemispherical bone defect in the upper or lower margin of the body of the vertebra.” There is absolutely no indication that the abnormalities reported in this MRI were in any way related to the claimant’s work duties. The study was otherwise normal, and there was no evidence of disc herniation. The record at this point shows that Dr. Burton still did not report objective medical findings. [24] The claimant testified that she sustained a third work-related injury on April 30, 1997, while reaching overhead for a file. There were still no reported objective medical findings, however. Dr. Rutherford examined the claimant on June 11, 1997, which examination was negative for palpable spasm. We recognize that in July, 1997, three months after the latest alleged injury, Dr. Burton reported that the claimant had experienced “an increase in back pain and spasms” after undergoing physical therapy. The record clearly shows, though, that Dr. Burton was merely reporting the claimant’s history provided to him. Dr. Burton did not report that he observed muscle spasm; rather, he described “thoracolumbar tenderness,” which of course is not an objective medical finding.Kimbrell v. Arkansas Department of Health, 66 Ark. App. ___, ___ S.W.2d ___ (1999). [25] The claimant did not seriously attempt to return to work after the injury of April, 1997, despite being released by her two treating physicians in August, 1997. The claimant testified that she felt renewed pain symptoms after the home housekeeping incident of September, 1997. A lumbar spine x-ray was taken on September 12, 1997, with the resulting impression of mild osteoarthritic changes of the lumbar spine, in addition to disc dessication at multiple levels throughout the thoracic and lumbar spine. Dr. Burton, the chiropractor, began treating the claimant in October, 1997, and he reported daily “objective findings” of muscle spasm through November 12, 1997. This was the first such report in over three years. Dr. Burton did not attribute his findings to any work-related incident, but rather to “lumbar radiculopathy.” Dr. Moore subsequently examined the claimant and stated that there is no “discal process.” Dr. Moore testified that there was nothing in his examination, other than the claimant’s history and complaints of pain, to suggest any injury to the claimant’s back. Dr. Moore expressly stated that he observed no muscle spasm, and he opined that the claimant was simply deconditioned, out of shape. [26] Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship. Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875. Pursuant to Act 796 of 1993, the only evidence which the Commission could possibly construe in this matter as “objective medical findings” is the reports of thoracic and lumbar degeneration; however, we find that there is no causal connection between this condition and the claimant’s alleged injuries. No physician of record has attributed this degenerative condition to the claimant’s work. Except in the most obvious cases, the existence of a causal relationship must be established by expert medical opinion. Billy Wayne Jeter v. B R McGintyMechanical, Full Workers’ Compensation Commission, opinion filed March 16, 1997 (E208256). The claimant’s primary physician, Dr. Burton, reported no objective findings such as spasm, nor did Dr. Rutherford or Dr. Moore. We attach little weight to the chiropractor’s reports of spasm, because Dr. Bonnette explicitly attributed his findings to the claimant’s degenerative condition. There is no evidence connecting these reports of spasm to any work-related incident. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). [27] B. Whether the respondents waived their right tocontend that the claimant failed to prove that she sustainedcompensable injuries. [28] The claimant contended that the respondents have either waived or should be estopped from asserting that she had failed to establish an injury through objective medical findings. We disagree. The Full Commission has held repeatedly that a respondent should not be penalized for voluntarily paying compensation benefits. Harris v. Hanson Industries, Full Workers’ Compensation Commission, opinion filed August 29, 1994 (D903792),citing Thomas v. Petit Jean Poultry, Full Workers’ Compensation Commission, opinion filed Jan. 7, 1992 (E009699). We likewise decline to penalize the respondents in the instant case for their long-term provision of benefits to the claimant. Also, it is well established that estoppel can be invoked in a workers’ compensation claim. INA/Cigna Ins. Co. v. Simpson, 27 Ark. App. 222, 772 S.W.2d 353 (1989). Estoppel is not appropriate in this case, however. There is not a scintilla of evidence suggesting that the respondents intended for the claimant to rely, to her detriment, on their voluntary payment of temporary disability and medical expenses at various times between November 25, 1995 and August 12, 1997. To the contrary, the claimant benefitted from the respondents’ provision of benefits during this period. Therefore, all the conditions of estoppel have not been met. Snowv. ALCOA, 15 Ark. App. 205, 691 S.W.2d 194 (1985). Since the claimant has failed to prove, by a preponderance of the evidence, that she sustained a compensable injury prior to August 12, 1997, and the respondents are not estopped from raising the issue of compensability, we find that the respondents are not liable for any of the claimant’s problems after August 12, 1997. Since the claimant is not entitled to workers’ compensation benefits, Ark. Code Ann. § 11-9-505(a) does not apply to her claim. Davis v.Dillmeier Enterprises, 330 Ark. 545, 956 S.W.2d 155 (1997). [29] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we reverse the administrative law judge’s decision. This claim is denied and dismissed. [30] IT IS SO ORDERED. [31] ________________________________
ELDON F. COFFMAN, Chairman ________________________________ MIKE WILSON, Commissioner [32] Commissioner Humphrey dissents. [33] DISSENTING OPINION
[34] I must respectfully dissent from the majority opinion in this case. In my view, claimant sustained three compensable work-related injuries, and she has demonstrated entitlement to additional benefits. [35] The majority revisits compensability, concluding that claimant failed to satisfy the objective findings requirement. [36] Thus, the most troubling aspect of this case, the bewildering testimony of Ms. Margaret Watson, is considered only tangentially. Since I find that claimant proved the compensability of her injuries, I find that Watson’s testimony is extremely relevant to the § 11-9-505 (a) issue. [37] In November of 1995, claimant sustained a work-related injury. Thereafter, two other work-related incidents occurred, on March 1, 1996, and April 30, 1997 respectively. Respondent employer accepted liability for each of these work-related accidents. After the first injury, claimant returned to her regular duties. Following the second incident, restrictions were imposed by her physician, and claimant was reassigned to work as a ward clerk. Claimant was ultimately transferred to medical records. All positions were full-time jobs. After the third incident, which occurred during her tenure in medical records, claimant was not returned to work by this employer. According to the testimony of Ms. Margaret Watson, Human Resource Assistant, it is customary for a “pool person” to assume the duties of an injured worker. Ms. Watson stated that pool employees fill jobs on an as-needed basis, and their employment is temporary. In this instance, Janet Parnell initially was a pool employee, and she performed claimant’s duties in medical records until August 26, 1997. Then, her status was converted to that of a permanent employee. Clearly, claimant was released to return to work before a permanent employee assumed her responsibilities. Claimant inquired about returning to work, and Watson believes this conversation occurred before August 26, 1997. Nevertheless, Watson could not explain the failure of respondent employer to return claimant to her job in medical records. According to the testimony of Ms. Watson, this status change occurred on about August 23, 1997. [38] In my opinion, claimant has demonstrated entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505(a). I would also award the additional benefits to which claimant claims entitlement. [39] Based on the foregoing, I respectfully dissent. [40] ________________________________ PAT WEST HUMPHREY, Commissioner