McDONALD v. HORTICARE LANDSCAPE MANAGEMENT, 2001 AWCC 231

CLAIM NO. F003235

JEROME McDONALD, EMPLOYEE, CLAIMANT v. HORTICARE LANDSCAPE MANAGEMENT, EMPLOYER, RESPONDENT, MID-CENTURY INS./FARMERS INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 31, 2001

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 L. WORLEY, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed.

OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that his avascular necrosis of the left hip is a compensable injury. Based upon a de novo review of the record, we affirm the decision of the Administrative Law Judge.

The claimant sustained a minor injury to his right ribs on June 30, 1999, when he was struck by a dump truck door. The claimant was diagnosed with a contusion and was placed off duty for two days. The claimant took a few additional days off due to the holiday weekend and returned to work.

Six-and-a-half months later, the claimant experienced severe pain in his left hip. Claimant sought treatment from Dr. Charles Clark on January 25, 2000. Dr. Clark’s notes indicate that the claimant stated in reference to his hip pain: “No previous history of trauma or systemic disease.” The claimant was ultimately diagnosed with avascular necrosis in his left hip. The claimant contends that the relatively minor injury that he sustained on June 30, 1999, resulted in the claimant having avascular necrosis in his left hip. The claimant contends that the force of the door hitting his ribs knocked him to his left hip.

When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary total disability benefits. Ark. Code Ann. § 11-9-102(5)(F)(i) (Supp. 1999). Benefits are not payable for a condition which results from a non-work-related independent intervening cause following a compensable injury which causes or prolongs disability or need for treatment Ark. Code Ann. §11-9-102(5)(F)(iii) (Supp. 1997). Whether there is a causal connection between an injury and a disability and whether there is an independent intervening cause are questions of fact for the Commission to determine.Oak Grove Lumber Co. V. Highfill, 62 Ark. App. 42 968 S.W.2d 637 (1998).

Expert medical opinions by Dr. Clark, the claimant’s treating physician, tie the claimant’s avascular necrosis to the June 30, 1999, incident. In this regard, Dr. Clark opined on May 9, 2000:

After today’s visit of May 9, 2000, Mr. McDonald noted that he needed clarification on the etiology of his AVN. We have addressed this question before, and the most likely source of his disease is trauma. The only trauma that he can relate, that is associated with this, was work-related.
I hope this clarifies that I believe that the injury he suffered at that time, caused the current problems, and that he [sic] prognosis is poor. We are continuing to treat Mr. McDonald . . .

In a June 30, 2000 correspondence to respondent-carrier, Dr. Clark responded to a May 31, 2000 correspondence from the carrier relative to the etiology of the claimant’s avascular necrosis:

The only history that he gives that is cogent, seems to be related to trauma. Most likely at that time, it would have felt like a contusion that initially would have resolved, and then his pain would have progressed after that, in an insidious fashion.
Since there are no other risk factors that seem applicable at this point in time, I would say that the mostly likely cause, therefore, is trauma.

Responsive to a July 27, 2000 inquiry from the claimant’s attorney, in his August 1, 2000 report, Dr. Clark detailed his contact with the claimant. The report reflects in pertinent part:

When we had him see the neurosurgeon, at that time he gave a history of having had an injury in June or July of 1999. This would have ante-dated the time of his visit by about six months, and I can see where he may well have forgotten that, at that time.
After we had discussed with Jerome and his wife, the diagnosis, recommendations, and the possible etiologies of avascular necrosis, the only thing that Jerome could relate it to was the injury the preceding year. This certainly would have fit with our findings. Since there were no other related possible etiologies, this was felt to be the most likely cause of his avascular necrosis. Therefore, it is my feeling that the injury on the job, was the primary etiology of his avascular necrosis.
With respect to your fourth question, it is my feeling that Mr. McDonald was probably able to work up until the time the hip pain became debilitating, which was about a month prior to his seeing me. My guess would have been that it would have been four to five months before this became as symptomatic as it did, and this would be typical for avascular necrosis. It is unknown at this point in time, how much impairment Mr. McDonald will have. The avascular necrosis has now advanced to Grade III and IV changes. The need for a total hip, I think, is imminent at this point in time. I went so far as to recommend that we do this in August of this year, due to the persistent pain. However, multiple problems with worker’s compensation have delayed treatment to date.

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. ParagouldHousing Authority, 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-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402
(1983).

Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. The Arkansas Supreme Court stated:

Now, medical opinions addressing compensability under Section 11-9-102(5)(A)(i) must be stated in terms expressing a medical expert’s reasonable certainty that the claimant’s internal or external physical harm was caused by his accidental injury.

Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). (Although the Court was concerned with a specific incident injury under § 11-9-102(5)(A)(1), the medical opinion within a reasonable degree of medical certainty requirement is the same). The medical opinion offered by the claimant’s physician in the Atwood claim where the physician stated: “Certainly, an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like that present. . .”, is succinct and specific and meets the reasonable certainty requirement. In Francesv. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), The Court of Appeals stated:

[E]xpert opinions based upon “could,” “may,” or “possibly” lack the definiteness required to meet the claimant’s burden to prove causation. [Emphasis added.] Accordingly, we modify and overrule the Court of Appeals’ decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), to the extent that it may be read to permit expert opinion evidence under § 11-9-102(16)(B) to be satisfied by the use of terms such as “can,” “could,” “may,” or “possibly.”
We also note that although Atwood seemingly rejects an expert’s use of the word “could” when stating an opinion within a reasonable medical certainty, it validates an expert’s use of the word “can.” Given this inherent contradiction, . . . we apply our limited overruling of Atwood retroactively.

The Supreme Court in Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000) reversed the Court of Appeals in Crudup v. RegalWare, Inc., 69 Ark. App. 206, 11 S.W.3d 567 (2000), wherein the Court held that the following physician’s opinion on causal connection had been stated within a reasonable degree of medical certainty:

I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however . . . it is likely this activity could precipitate, or aggravate, his symptoms. [Emphasis added.]

In reversing the Court of Appeals, the Supreme Court stated that this physician’s opinion was nothing more than a statement of theoreticalpossibility and therefore lacked the requisite definiteness.

In the present case, there is no dispute that the respondents did depose Dr. Clark, and the respondents did not put into the record any expert medical evidence to rebut Dr. Clark’s opinions. Instead, the respondents and the dissent seem to put forth three arguments as to why Dr. Clark’s opinion should be accorded no weight: (1) the claimant never really fell on his left side in the work-related incident on June 30, 1999; (2) even if he did fall on his side, he lied to Dr. Clark about the amount of trauma and pain he sustained; and (3) Dr. Clark’s medical opinion is not stated within a reasonable degree of medical certainty.

With regard to the respondents’ first argument, the Administrative Law Judge, who heard the live testimony and observed the claimant’s’s demeanor, obviously found the claimant’s hearing testimony credible as to “what happened” credible, and the respondents have failed to provide us any persuasive evidence that the Administrative Law Judge’s credibility determination should be reversed.

The respondents have also failed to establish that the claimant provided Dr. Clark an inaccurate history particularly where, as here, the respondents did not depose Dr. Clark to find out exactly what history, if any, the claimant provided Dr. Clark in addition to the history contained in Dr. Clark’s reports. While the respondents seek to draw some inference from Dr. Clark’s reports that the claimant must have reported experiencing significant hip pain in the incident at work, we point out that nowhere do Dr. Clark’s reports indicate that either (1) the claimant reported experiencing significant pain in the incident or that (2) Dr. Clark’s causation opinions are based on any requirement that the claimant would need to experience significant hip pain in the fall to cause avascular necrosis in the hip. Moreover, the respondents’ second argument is nothing more than speculation and conjecture.

With regard to the respondents’ third argument, we agree with the Administrative Law Judge that Dr. Clark’s opinions quoted above, taken together and in their entirety, clearly go beyond possibilities and establish that the incident at issue was the cause of the claimant’s avascular necrosis. Therefore, we also reject the respondents’ argument that Dr. Clark’s opinion on causation is not stated within a reasonable degree of medical certainty. Accord Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, ____ S.W.3d ___ (2001).

Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the Administrative Law Judge must be, and hereby is, affirmed.

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 Wilson dissents.

DISSENTING OPINION MIKE WILSON, Commissioner

I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that his avascular necrosis of the left hip is a compensable injury. Based upon my de novo
review of the record, I would reverse the decision of the Administrative Law Judge.

The only evidence in the record tying the claimant’s avascular necrosis to the June 30, 1999, incident is the May 9, 2000, correspondence by Dr. Clark. Dr. Clark relied upon the claimant’s history to make the determination that the incident in 1999 was the cause of the claimant’s avascular necrosis. This is based upon Dr. Clark’s misconception that the claimant had a traumatic hip injury in June of 1999. Dr. Clark’s determination that the 1999 trauma was the most likely cause was based upon the belief that the claimant sustained a noticeable injury to his left hip at that time. Dr. Clark stated that it would have felt like a contusion. However, the claimant conceded that he did not experience any pain in his left hip at the time of the injury involving his ribs.

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. ParagouldHousing Authority, 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-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402
(1983).

In my opinion, Dr. Clark’s testimony that the claimant’s trauma in 1999 is the cause of his avascular necrosis is based on speculation and conjecture. 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 Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Accordingly, I give little weight to Dr. Clark’s opinion. The evidence clearly shows that the claimant did not have any pain whatsoever in his hip following the accident on June 30, 1999. Therefore, Dr. Clark’s hypothesis of how the avascular necrosis came about is entitled to no weight. Accordingly, I would reverse the decision of the Administrative Law Judge and deny and dismiss this claim. Therefore, I must respectfully dissent from the majority opinion.

_______________________________ MIKE WILSON, Commissioner