CLAIM NO. F005852
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 15, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals to the Full Workers’ Compensation Commission an Administrative Law Judge’s opinion filed September 7, 2001. The Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that the respondents were liable for medical treatment or other benefits associated with surgery performed by Dr. Danks. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
The parties stipulated that Douglas Lee Monroe suffered a compensable contusion to his left posterior chest wall when a load lock fell and struck him on December 27, 1999. The respondents provided medical treatment related to Mr. Monroe’s compensable injury. Subsequent diagnostic testing revealed a malignant tumor and fracture in the claimant’s thoracic spine at T2-3. Dr. Craig Cooper’s impression on February 24, 2000 was “Lung mass with erosion into bone.”
The claimant eventually began treating with a neurosurgeon, Dr. Kelly Danks, who performed surgery in April, 2000. Sadly, the claimant passed away on August 25, 2000.
Mr. Monroe’s decedent claimed entitlement to additional worker’s compensation. The claimant contended that the respondents were liable for medical treatment for surgery performed by Dr. Danks. The claimant contended that the decedent’s estate was entitled to a period of temporary total disability compensation following surgery.
Dr. Danks testified in a deposition taken November 16, 2000:
Q. Judging from what you’ve seen, can you formulate an opinion within a reasonable degree of medical certainty about whether a cargo jack, a metal bar, hitting this man as it fell in December, 1999, caused any fracture in his vertebrae at T2 or T3?
A. I think that they — I don’t know if it necessarily caused a fracture. I think that brought the symptoms to attention. It could have been any minor incident that could have started this and by history I’m told his symptoms started and did not relent at the time of his accident.
I don’t see where he ever got any relief. He continued to have pain. Therefore, the instant (sic) began the symptoms but it’s not what caused the symptoms. They’re two different things.
Q. All right. But your surgery was not necessitated by an accident that happened back in December?
A. No, absolutely not.
Q. And your surgery had nothing to do with some sequelae of a December, 1999 accident?
A. No, not at all. Nor — this was going to become symptomatic with or without an incident.
The parties submitted the case to the Commission on the briefs and evidence submitted. The Administrative Law Judge found that the surgical procedure performed by Dr. Danks was not causally related to the claimant’s work-related injury, nor was it related to any aggravation of a pre-existing condition. The Administrative Law Judge therefore determined that the respondents were not liable for payment of medical treatment associated with the surgical procedure performed by Dr. Danks. The Administrative Law Judge also found that the respondents were not liable for payment of temporary total disability compensation associated with the period of time the claimant was off work as a result of his surgery. The claimant appeals to the Full Commission.
II. ADJUDICATION
When an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury. McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). When subsequent complications are the natural and probable result of the original injury, the employer remains liable. The basic test is whether there is a causal connection between the two episodes. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). 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 (1992). The determination of whether a causal connection exists is a question of fact for the Workers’ Compensation Commission. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).
In the present matter, the Dissenting Opinion asserts that the Full Commission has ignored the opinion of the treating physician, and that we have not considered the logical consequences of the claimant’s compensable injury in light of the claimant’s pre-existing physical condition. The Dissenting Opinion excerpts a portion of Dr. Danks’ testimony to contend that the compensable injury caused the claimant’s thoracic fracture, and that Dr. Danks’ treatment was thus related to the claimant’s compensable injury. The Dissenting Opinion also contends that cancerous tumors had weakened the structural integrity of the claimant’s spine, and that therefore the respondents were liable for the medical treatment at issue, because the claimant was more susceptible to injury.
Nevertheless, the claimant contended that the respondents were liable for surgery and related medical treatment performed by Dr. Kelly Danks. Dr. Danks agreed at deposition that the claimant’s cancerous tumor was “coincidental” to the compensable injury. Dr. Danks opined that the claimant’s tumor, not the compensable injury, was the reason for his surgery. As the Full Commission has noted supra, Dr. Danks expressly testified that the surgery he performed was “absolutely not” related to the claimant’s compensable injury. Dr. Danks testified, “I don’t think the accident was the precipitant of what I had to do.” The Full Commission also notes the medical opinion of Dr. Craig Cooper, who treated the claimant subsequent to the compensable injury and before the claimant was referred to Dr. Danks:
I also discussed with him that the mass is not work related and in all likelihood is the cause of his back pain. The injury is just a serendipitously brought attention to that area (sic). This needs to be handled on his personal insurance. He understands and agrees.
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove by a preponderance of the evidence that the respondents were liable for medical treatment associated with surgery performed by Dr. Danks. We also affirm the Administrative Law Judge’s finding that the respondents were not liable for any period of temporary total disability resulting from surgery performed by Dr. Danks. This claim is denied and dismissed.
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
____________________________________________________ MIKE WILSON, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION SHELBY W. TURNER, Commissioner
I must respectfully dissent from the majority opinion finding that the medical treatment and related disability benefits sought by the claimant are not causally related to his admittedly compensable injury. In my opinion, the majority has ignored the opinions of the claimant’s treating physician and has not considered the logical consequences of the claimant’s injury in the light of his physical condition at the time of his injury.
The respondent has conceded that on December 27, 1999, the claimant was struck in the upper back by a falling metal bar. According to respondent’s attorney, this bar weighed approximately 13 pounds. There is also no dispute in this case that subsequent to his injury, the claimant was diagnosed with lung cancer.
The claimant’s cancer was in an advanced state at the time of his compensable injury. In fact, the cancer would cause the claimant’s death eight months later. There is no doubt that the cancer’s progress had resulted in some deterioration and weakening in the claimant’s spine. This is clearly established during the deposition testimony of the claimant’s treating physician, Dr. Kelly Danks, a Fayetteville neurosurgeon. Respondent’s attorney questioned Dr. Danks on the likelihood of a blow to the back by a 13 pound metal bar, causing vertebral fractures. As a result of that questioning, Dr. Danks made the following statement:
Q: I mean, is a finding that he had a contusion on the left chest wall inferior to the scapula consistent with a blow to the back would fracture a vertebrae at T2 or T3?
A: Well, again — only if that vertebrae is diseased — if it is previously — has been diseased and weakened because of cancer.
Q: Even if it were diseased, would a blow from a thirteen pound bar following over —
A: It could. It — I mean, people can — when they have cancer, they can fracture their spine by just standing up. I mean, it doesn’t take — when they loose the integrity of that spine because of disease, it’s, you know, not unheard of.
As indicated by Dr. Danks, a blow such as that received by the claimant most certainly could cause the type of injury sustained in this case. As Dr. Danks stated, people with advanced cancers, such as that suffered by the claimant, can some time injure their spines simply by standing up. In this case, the claimant did far more than stand up. He was struck in the area of the back near where the vertebral fractures occurred by a metal bar.
It is highly significant that prior to this accident, the claimant had not suffered any symptoms associated with a spinal injury. However, immediately after the injury, he began suffering from pain associated with his upper back and neck and was soon suffering from numbness in his hands and arms.
The temporal connection between the onset of symptoms and the compensable injury is simply too much to write off as a mere coincidence. Had the symptoms complained of by the claimant been solely the result of spinal degeneration caused by his advancing cancer, the symptoms would have almost certainly arisen either well before the injury or well after. Instead, the symptoms arose only after the claimant was struck by a falling metal bar. It is simply impossible, given the claimant’s condition, that the type of injury he sustained at work would not have caused an injury to his spinal vertebrae. It is obvious that the symptoms complained of by the claimant began soon after the injury he received at work and their severity continued to escalate.
It may be true that had the claimant been cancer free, his injury at work might not have been serious. However, the structural integrity of the claimant’s spine was clearly weakened by the tumors that were growing in his body at the time of injury. The respondent cannot avoid its liability in this claim simply because an unknown health condition rendered the claimant more susceptible to injury than he would have been had he not been in the advanced stages of a terminal illness at the time of his job-related injury.
For the reasons set out above, the decision of the Administrative Law Judge should be reversed and the claimant should be awarded the benefits requested.
___________________________________ SHELBY W. TURNER, Commissioner