CLAIM NOS. F303457, F303458
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 10, 2004
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by HONORABLE MICHAEL RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals, respondent no. 1 cross-appeals and respondent no. 2 cross-appeals a decision by the Administrative Law Judge finding that the claimant sustained a compensable injury in September of 2001 and again in December of 2002, and apportioning the payment of benefits equally between respondent no. 1 and no. 2. The Administrative Law Judge also found that the claimant did not report his injury until April 4, 2003, therefore he was not entitled to any benefits prior to that date. The Administrative Law Judge further concluded that the claimant failed to prove his entitlement to temporary total disability benefits. Based upon our de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained compensable work-related injuries in both 2001 and 2002. Accordingly, the claim should be denied and dismissed.
The claimant was 29 years old and a high school graduate who went to work for the respondent employer on September 18, 2000, as a welder. The claimant initially worked assembling large machines for Superior Wheel. The claimant explained that this job required him to stand for his entire shift and assemble parts weighing from twenty up to one hundred pounds onto the machine. The claimant switched to a job at a Scroll Technologies after about six months. The job at Scroll Technologies required him to stand for his entire shift but the lifting was not as great.
The evidence demonstrates that the claimant was seen by Dr. Al Gordon in August of 2001 for low back pain. Dr. Gordon’s records reflect that the claimant had been experiencing pain for approximately six months prior to this visit. The claimant had pain going down into his right leg as well as numbness and tingling. The claimant had an MRI in September of 2001. He was then assigned another job which was much less physical than the Scroll Technologies job.
In April of 2002, the claimant went to see Dr. Reddell, a chiropractor. The claimant had sought treatment from Dr. Reddell back in 1996 for middle back problems.
In November of 2002, the claimant was placed back in the job at Scroll Technologies. On January 24, 2003, he was seen by a Dr. Marc Valley for recurrent back pain. Dr. Valley placed the claimant on light duty. The claimant was allowed to sit as he loaded small parts into a machine. In February of 2003, the claimant was seen by Dr. Gallaher. The claimant told his foreman, Mr. Strayhorn, that he could not work as much overtime because he did not have a babysitter. The claimant was terminated for not being available to work. The claimant was observed by video surveillance working at his church and has collected unemployment benefits since his termination from the respondent employer.
Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002) defines “compensable injury” as “[a]n accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is `accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence.” Wal-Mart Stores, Inc. v.Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002). The phrase “arising out of the employment refers to the origin or cause of the accident,” so the employee was required to show that a causal connection existed between the injury and his employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). An injury occurs “‘in the course of employment’ when it occurs within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose, or advancing the employer’s interest directly or indirectly.”City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). Under the statute, for an accidental injury to be compensable, the claimant must show that he/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 as defined in § 11-9-102(16). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence. See Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002); Clardyv. Medi-Homes LTC Servs., 75 Ark. App. 156, 55 S.W.3d 791 (2001).
Our review of the evidence demonstrates that the claimant did not sustain an injury while in the course and scope of his employment for the respondent employer in either September of 2001 or December of 2002. The claimant testified that he experienced back pain prior to the time he was hired by the respondent employer in September of 2000. The record reflects that the claimant sought medical treatment from a chiropractor, Dr. Reddell, in September of 1996. On the patient history form the claimant completed for Dr. Reddell the claimant indicated that he had slipped and fallen on a wet floor 3 or 4 times within the past year, that he had flipped over riding a four-wheeler and that he had twisted a certain way while laying drain pipe and his right leg would give way. Dr. Reddell’s records indicated that the claimant was treated 19 times between September 23, 1996 and December 4, 1996.
The record reflects that the claimant did not seek any medical treatment between December of 1996 until August 20, 2001, when he was treated by Dr. Gordon, his family physician. The claimant did not ask the respondent employer to send him to the doctor, but he sought treatment from Dr. Gordon on his own. Dr. Gordon’s chart notes for the August 20, 2001, visit contained no mention of any sort of work injury. The doctor recorded a history of “low back pain x6 months.” There is also no mention of a work injury in Dr. Gordon’s September 25, 2001, chart note nor in his records in any other way. The claimant filed a claim with his group health carrier for the treatment he received in September of 2001. He checked the “no” box in response to the question “Was the illness/accident related to employment?” When the claimant returned on April 22, 2002, to Dr. Reddell on the form he filled out that day, he circled “no” in response to the questions “Is your visit to this clinic in reference to an accident?” In addition, the claimant did not circle “work comp” option, which followed this question.
Based upon our de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury in September 2001 or November of 2002. The claimant has a history of back problems preceding his employment with the respondent employer. There is absolutely no mention of in any of the medical records of a work-related injury. Further, the claimant failed to report an injury to his employer or ask the respondent employer to send him to a doctor. The claimant filed his claims with his group health carrier and he did not take any action to file a workers’ compensation claim until he was terminated in March of 2003. Simply put, the claimant cannot meet his burden of proof. Accordingly, we hereby reverse the decision of the Administrative Law Judge. This claim is denied and dismissed.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION SHELBY W. TURNER, Commissioner.
I dissent from the opinion of the majority. I find that Claimant has proved by a preponderance of the evidence that he sustained compensable work-related injuries in 2001 and 2002. Specifically, I find that Claimant incurred a compensable aggravation in 2001 of his previous back injury and an aggravation and recurrence to his back condition in 2002. I also find that Claimant is entitled to temporary total disability benefits from March 4, 2003, to a date yet to be determined. I, therefore, dissent from the majority opinion.
Claimant worked on the Scroll Technologies job for Respondent in the spring of 2001 after having worked for Respondent for approximately six months. While working on the Scroll job, Claimant frequently picked 20-pound parts off of a pallet which required him to bend and lift below knee level. Claimant then twisted these parts into a punch press and had to lift the part numerous times before it was completed. This job also required him to stand for eight hours and bend and twist frequently. Claimant frequently worked overtime while working in this position.
In August, 2001, after approximately six months of working on the Scroll job, Claimant sought treatment from Dr. Gordon and complained of back pain and right leg pain. Dr. Gordon recorded that his chief complaint was “low back pain x 6 months” and Claimant was diagnosed with low back muscle strain. On September 28, 2001, Dr. Gordon ordered an MRI which showed a disc protrusion at L5-S1 and an annulus bulge at L4-5.
Claimant gave deposition testimony that he told his supervisor, James Strayhorn, that he should not run the parts for the Scroll job anymore due to back pain and that he again mentioned this to Strayhorn after he began seeing Dr. Gordon for back pain. Claimant also testified that he had not filed a workers’ compensation claim or asked to go to the company doctor because he didn’t know what the procedures were for reporting or how to see a company doctor.
In September, 2001, Strayhorn placed Claimant in a less demanding position that did not require bending, twisting, or heavy lifting. Claimant worked in that position until November, 2002. Claimant testified that the pain became less intense but never completely resolved. On April 22, 2002, Claimant was treated by Dr. Reddell, a chiropractor. Claimant complained of lower back pain that “was radiating down my leg but not lately.” On Dr. Reddell’s questionnaire, Claimant responded that “lifting” was the cause of his condition.
In November, 2002, Respondent reassigned Claimant to the Scroll position. Within a few weeks, Claimant’s severe back pain symptoms returned as intense at the previous episode in August, 2001. Claimant also testified that later that month he told Strayhorn that he “shouldn’t be running the parts because it’s bothering my back” and that he complained routinely about his back hurting at work. Claimant, however, was not reassigned and he continued to work the Scroll job until the end of December, 2002, at which time he went to the emergency room because he “got down on [his] back” and could not walk.
Claimant testified that he returned to work and told his supervisor, Bill Goforth, that he was going to have to be off work for the month of January due to his back pain. MRI results from January 29, 2003 show a large disk protrusion at L5-S1, a bulge at L4-5 with narrowing, a disc protrusion at L3-4, and a bulge at T10-11. Dr. Reagan Gallaher noted that Claimant complained of right hip and leg pain and right calf cramping. Claimant testified that he went to see Dr. Bonner because he was instructed by Respondent to see the company doctor, Dr. Bonner. Dr. Bonner referred Claimant to Dr. Gallaher, a neurosurgeon.
Dr. Gallaher diagnosed Claimant as having “right L5 radiculopathy secondary to herniated disc.” Dr. Gallaher referred claimant to Dr. Mark Valley, a pain management specialist. In a pain questionnaire dated March 14, 2003, Claimant states that his work is the cause of his back pain, denies having an active workers’ compensation claim, and states that he does have an active disability claim.
In February, 2003, Claimant moved to a light-duty position in which he was allowed to alternate between sitting and standing while working with very lightweight parts. In February, 2003, Claimant completed a pain questionnaire in Dr. Mark Valley’s office, in which he stated that his back started hurting when he began running parts. It is undisputed that Claimant was terminated on March 3, 2003, after informing Respondent that he was unable to work overtime because he did not have a babysitter for his children.
James Strayhorn, the plant manager, testified that he knew Claimant had been going to the doctor because of his back, and that Claimant had been placed in alternative work positions due to his back pain. Mr. Strayhorn, however, stated that the tubes on the Scroll job weighed 12 1/2 pounds, not 20 pounds, and that only three different lifts were required per part in order to process the tubes. Mr. Strayhorn also recognized that he moved Claimant to different jobs in October 2001 and January 2003 pursuant to doctors’ notes.
At the hearing, Claimant testified that he still has significant back and right leg pain and cannot stand for long periods of time. Claimant has not worked anywhere since last working for Respondent on March 3, 2003. His previous work experience includes working as a factory assembler, deputy jailer, and tractor mechanic. In a letter dated April 4, 2003 from Dr. Gallaher to Claimant’s attorney, Dr. Gallaher states that, if conservative treatment fails, he may consider a lumbar discectomy, but he is hesitant to because of claimant’s youthful age, 29. Dr. Gallaher stated that he had not seen Claimant in two months, and therefore could not state whether Claimant has reached MMI.
Claimant also gave undisputed deposition testimony that in early November, 2002 he was injured when a piece of metal struck his arm. He testified that he was given cash to go see a doctor and instructed to tell the doctor that the injury happened at home.
Based on the foregoing testimony, I find that Claimant incurred an aggravation of his previous back injury in 2001 and an aggravation and recurrence to his back condition in 2002. An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. PierceBros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. See NashvilleLivestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990). As is commonly stated, the employer takes the employee as he finds him. In such cases, the test is not whether the injury causes the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition.
Claimant has proved by a preponderance of the evidence that his 2001 and 2002 injuries are compensable. It is undisputed that Claimant began experiencing back pain after being assigned to the Scroll job in 2001, a position that required him to continuously bend, twist, and lift medium weight parts at a level below his knees. He credibly testified that he had not experienced pain since the resolution of his previous injury in 1996 and that he began experiencing back pain in 2001 after working on the Scroll job for about six months. The MRI of September, 2001, showed a disc protrusion at L5-S1 and a disc bulge at L4/5. Claimant credibly testified that his back was much less symptomatic after being reassigned to a less strenuous position in September, 2001, where he worked until November, 2002. Claimant experienced a sudden increase in his back pain, which led to pain and numbness in his left leg in November and December, 2002, after being reassigned to the Scroll job. The MRI of January, 2003, shows that Claimant’s back condition became worse as evidenced by a new disc herniation at L3-4 and a bulge at T10-11, which were not present on the September 2001 MRI, in addition to the herniations at L5-S1 and L4-5. I, therefore, find that the majority has erred in denying benefits to Claimant for these injuries in 2001 and 2002.
I also find that Claimant is entitled to temporary total disability benefits because he has remained in his healing period since March 4, 2003, and there is insufficient evidence that Claimant has the capacity to earn the same or any part of the wages that he was receiving at the time of the injury. See Sanyo Manufacturing Corp. v. Leisure, 12 Ark. App. 274, 281-82 (1984). Claimant credibly testified that he has continued to have significant lower back and right leg pain and that he cannot find work within his physical limitations. I, therefore, find that Claimant is entitled to temporary total disability benefits from March 4, 2003 to a date to be determined.
Based on the foregoing evidence, I find that Claimant incurred compensable injuries in 2001 and 2002 and that Claimant is entitled to temporary total disability benefits from March 4, 2003, to a date yet to be determined. For these reasons, I dissent from the majority opinion.
______________________________ SHELBY W. TURNER, Commissioner