CLAIM NO. E103083
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 12, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAMES F. SWINDOLL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE RICHARD SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an administrative law judge’s opinion filed May 8, 1998. The administrative law judge found that problems which the claimant experienced as a result of a purported incident occurring in September, 1996, were a recurrence of her prior compensable injuries. We have reviewed the entire record de novo. We find that the claimant’s 1991-92 compensable injuries resolved by May, 1996. We further find that the problems claimant experienced as a result of the alleged September, 1996 incident were a consequence of the claimant’s degenerative disc disease and were neither a new injury nor an aggravation of a preexisting condition. Therefore, we reverse the decision of the administrative law judge and dismiss this claim. [3] The claimant, age 53, became a state employee in 1986. The claimant sustained a compensable injury on January 28, 1991, when she was involved in a motor vehicle accident. Dr. Randal Bowlin examined the claimant on the date of injury, and he reported that the claimant had suffered a lumbar strain and contused left hip. The record reflects that the claimant did not complain of any pain symptoms in her neck or other anatomical regions. The claimant was treated conservatively, and the respondents paid temporary disability and medical benefits. In an unsigned office note dated February 11, 1991, physical therapy for the claimant’s neck and shoulders was requested, until an orthopedist could examine the claimant. Three weeks after the compensable injury, a chiropractor diagnosed cervical, thoracic, and lumbar sprain. The record indicates that Dr. Bowlin referred the claimant to an orthopaedist, Dr. Edward Saer, III, who first saw the claimant on April 4, 1991. The claimant had discontinued physical therapy at that time, because she said it was not helping her. The claimant, who had been diagnosed with a lumbar strain over two months earlier, now complained of pain primarily in the neck and upper back. Dr. Saer stated that the claimant “clinically appears depressed,” and he continued conservative care. On April 25, 1991, Dr. Saer wrote that the claimant was experiencing a “musculoligamentous problem,” and he scheduled diagnostic testing. A subsequent bone scan was normal. A MRI of the cervical spine, taken April 30, 1991, showed mild disc bulge at C6-7, minimally eccentric toward the patient’s right, with no evidence of HNP. Dr. Saer continued conservative treatment and encouraged the claimant to remain active. [4] The claimant returned to Dr. Saer in June, 1991. The claimant reported that she still felt pain on “any given day,” but her motion was good and there was no spasm. Nevertheless, the claimant sought the treatment of Dr. Harold Chakales, another orthopedic surgeon, who became the claimant’s primary physician. The record does not show why the claimant stopped treating with Dr. Saer. At Dr. Chakales’ behest, electromyography and nerve conduction studies were carried out on June 24, 1991. The impression was normal nerve conduction studies of the peroneal and median nerves, and normal electromyographic studies of the muscles examined. The claimant returned to Dr. Chakales on June 27, 1991, and she was not doing well. Dr. Chakales began trigger injections. Dr. Chakales reported low back pain and spasm in July, 1991. The record contains an unsigned physician’s notation, dated July 18, 1991. The claimant maintained that she had sustained whiplash in the January, 1991 motor vehicle accident, although the record indicates no such trauma. [5] The claimant returned to Dr. Chakales on August 1, 1991, when clinical examination showed “true spasm, tightness of the neck and forward flexion extension.” Dr. Chakales administered another injection and continued physical therapy. Dr. Chakales released the claimant to return to work as of August 19, 1991, but she did not return to work at that time. On September 4, 1991, Dr. Chakales wrote:
[6] Dr. Chakales corresponded on January 15, 1992, nearly one year after the compensable lumbar strain:At this time, clinically she was clinically better. Range of motion of the neck was better and she was back at work. From an orthopedic standpoint, her course is now stabilized. We will discontinue all physical therapy. We will give her some pain pills and muscle relaxers. I will have her come back to see me in a month. Hopefully, she will be able to be treated on a non-operative basis.
On September 13, 1991, however, Dr. Chakales restricted the claimant’s work to 20 hours per week. In October, 1991, Dr. Chakales again found “true spasm” in the claimant’s neck. X-ray of the lumbar spine showed degenerative disc disease. Dr. Chakales planned to release the claimant from his care by December, 1991. On December 18, 1991, though, the claimant still complained of neck pain and spasm. X-ray of the neck showed cervical lordosis. Dr. Chakales reported that x-ray of the lumbar spine was normal (although lumbar x-ray taken in October, 1991 showed degenerative disc disease).
[7] On March 2, 1992, Dr. Fernando Padilla, a hematologist, opined that the claimant suffered from “beta thalassemia,” a congenital form of anemia. Dr. Padilla said there was no cure or effective treatment for this condition. On March 27, 1992, the claimant returned to Dr. Chakales in “an agitated state” and had been off from work for four days. Dr. Chakales again found “true spasm” in the claimant’s neck, and he planned to keep her off work until April 13, 1992. [8] The parties stipulated that the claimant aggravated herback condition on or about April 23, 1992. At hearing, the claimant testified that she re-injured her neckAt this time, clinically she was doing better. Electromyographic study was done and this was normal. At this time, I am going to release Ms. Montgomery to return to full-time work on February 3, 1992. At this time, I think she has had an adequate period of time to heal.
In spite of this anticipated release, on February 26, 1992, Dr. Chakales wrote that the claimant had a “recurrent strain” of her neck. Clinical examination showed paracervical spasm, but neurological examination was normal. The claimant said that she was able to tolerate her working conditions, and Dr. Chakales again hoped to release her from his care in the near future.
when she leaned back in a chair and fell against a wall. On April 27, 1992, Dr. Chakales reported that the claimant had fallen to the floor, rather than against a wall:
[9] I x-rayed (sic) cervical spine today, nine projections, show a satisfactory cervical lordosis. . . . No evidence of any fractures. She does have some previous spondylosis. . . . Examination shows she has a great deal of muscle spasm. She is tight. She also has straightening of the lumbar lordosis, muscle spasm and positive bilateral sciatica. [10] From a clinical standpoint, she suffers an acute cervical strain and an acute lumbar strain.Ms. Ginger Montgomery . . . was involved in an accident on 4/23/92. She fell out of a secretary’s chair and landed on her back and neck. She twisted her neck and back. She started having headaches, pain radiating into both shoulders, pain in her back and into her hips.
[11] In April, 1993, Dr. Chakales reported that the claimant had “re-twisted her neck and back.” Dr. Chakales again discharged the claimant in May, 1993, but repeated and chronic treatment continued. In September, 1993, Dr. Chakales once again pronounced “maximum healing” and once more released the claimant from his care. However, additional “flare-ups” occurred in December, 1993, April, 1994, and May, 1994. The claimant presented to Conway Regional Medical Center in July, 1994, complaining of right hip pain which was exacerbated by movement. The record manifests that the claimant’s medication prescription had been depleted, and that she sought analgesic or muscle relaxant. The Conway Regional physician described diffuse lumbar tenderness but did not report spasm. The diagnosis was low back pain, and Soma was prescribed for the claimant. [12] This pattern continued when the claimant returned to Dr. Chakales in August, 1994. She complained of back pain; the doctor found spasm and prescribed pain pills and muscle relaxers. In September, 1994, Dr. Chakales found that the claimant’s latest “acute flare-up . . . has subsided.” Nevertheless, the flare-ups, periodic treatment and releases, pain medication prescriptions, and sporadic work attendance continued throughout 1995 and 1996. On May 30, 1996, Dr. Chakales testified in a tort action in Faulkner Circuit Court regarding the claimant’s condition:Dr. Chakales injected medication and prescribed physical therapy. The respondents accepted this reported aggravation as compensable and paid additional medical benefits. On May 27, 1992, Dr. Chakales stated that clinically the claimant’s course had stabilized. He planned to totally release the claimant from his care in four weeks. On June 26, 1992, Dr. Chakales released the claimant from his care, as planned. He assigned a 5-10% anatomical impairment as a “residual of this injury.” This complete release lasted approximately three months. The claimant returned to Dr. Chakales in September, 1992, at which time he diagnosed subacromial bursitis and acute cervical strain. Periodic treatment and prescription medication for pain complaints continued. A third electrodiagnostic consultation took place in March, 1993, but these studies continued to be normal. A March, 1993 MRI of the lumbar spine showed mild narrowing and degeneration with mild concentric bulge of the disc at L3/L4 and L4/L5. Dr. Howard Cockrill opined that this study showed early degeneration, without herniation, of the L5/S1 disc. Dr. Chakales said, “we are dealing primarily with a lumbar strain.”
Q. Okay. We are 5 year and 5 months, Doctor, now, after this automobile accident.
A. Yes.
Q. I assume that when she has a flare-up now, it is as a result of this underlying degenerative changes in her back which don’t have anything to do with this automobile accident?
A. I think that’s a correct assumption.
* * *
Q. Doctor, is it safe for me to assume that if you see her in the future, it is for acute flare-ups of this underlying degenerative condition which she has?
A. That’s correct. But in addition to that, being that she’s in the menopausal age group, she’ll be developing osteoporosis, and she’ll be developing an osteopenia where she’ll be washing out the calcium and phosphorous out of her system. She’ll be developing — bone density will get less, and she may even be a candidate, and may develop compression fractures. So, people like her will have an ongoing problem of neck and back pain the rest of their life.
Q. Unrelated to this automobile accident of January of 1991?
[13] On September 23, 1996, Dr. Chakales reported that the claimant had experienced another flare-up of low back pain, and yet another flare-up occurring on or about October 1, 1996. X-ray of the lumbar spine and pelvis taken October 3, 1996 showed evidence of degenerative disc disease. Dr. Chakales corresponded on October 14, 1996:A. I think that what we have to consider is that the automobile accident is just one of the things that happened in the history of her chronic back condition.
In the present matter, the claimant testified that, on September 6, 1996, a Friday, while seated at work, she reached to remove a file from a file cabinet. The claimant testified that her back “just kind of hung up,” and that she “couldn’t straighten up real well.” The claimant testified that her pain was severe, worse than before, and that she felt a back spasm. The claimant testified that she was unable to stand upright or drive herself home due to the unrelenting pain. Yet, she did manage to immediately complete, sign, and submit an Employee’s Notice of Injury, which described a pulling and sting in her mid-back and side. On a separate form dated September 10, 1996, the claimant wrote that she had been involved in an auto accident in the 1980’s, but she could not remember the exact date. The claimant remarked on the form that she had scheduled an appointment with Dr. Chakales for September 12, 1996, in order to evaluate “if new injury has occurred.” A Clinic Note from Dr. Chakales’ records, dated September 12, 1996, indicates:
She has had an acute flare up of her back problem on Thursday, September 5, 1996. She now comes in complaining of low back pain and pain in her right hip: Physical examination shows spasm and tightness of the lower lumbar spine in forward flexion/extension, lateral rotation and lateral bending. This is an acute flare-up of her condition.
Of course, this clinic note does not reflect an injury which allegedly occurred on Friday, September 6, 1996. Rather, this note describes another “flare-up” occurring Thursday, September 5, 1996 and does not mention any “bending to grab a file” injury.
[14] I have released her to return to see me on an as needed basis. I feel this is just a flare up of her chronic lumbar and cervical disc disease. I feel she will have intermittent flare ups but should be treated only when she needs to be seen by me. [15] On October 25, 1996, the claimant presented to a Conway orthopaedist, Dr. Robert McCarron:Since my letter of April 1996, Ms. Ginger Montgomery has been seen by me on several occasions. She was seen on May 22, June 12, July 10, July 24, August 21, September 12, September 23, October 3, and most recently October 14, 1996. When I last saw her on October 3, 1996, she had had an injection of Cortisone into the trigger area. She came in complaining of low back pain at that time. Physical examination showed a white female with restriction of motion of the back. . . .
We placed her on physical therapy. When she returned to see me today her course had stabilized. At this time, physical examination shows some tightness of the neck and low back in forward flexion/extension, lateral rotation and lateral bending.
She has an extremely involved story with four injuries going back to 1981 and the most recent one was in September of this year when she bent forward. She started having pain down the lateral aspect of her leg. . . . She began her chronic problems going back 14 or 15 years and primarily involves her neck. She is in tears as she relates a story about having a chronic pain problem that has been unsolvable. She reports having to sit a lot at work in one position and use a phone, which increases her symptoms. . . . She reports that sitting, standing, walking, bending, coughing and getting up from a seated position all increase her pain.
* * *
[16] IMPRESSION: This lady definitely has some lumbar spine pathology. Cascading spine implies a certain amount of instability in the lumbar spine. She also has some underlying degenerative changes in the neck and I suspect her psychological stress is aggravating this discomfort if not both areas of discomfort.[17] The respondents controverted the claimant’s entitlement to benefits for the alleged injury of September 6, 1996. The claimant contends that she sustained either a recurrence of her prior work-related injuries on September 6, 1996, or that she sustained a new injury on that date, when she allegedly bent over to retrieve a file from a file cabinet. The administrative law judge found that the September 6, 1996 incident resulted in a recurrence of the claimant’s prior compensable injuries. The administrative law judge found that there was no independent intervening cause:The claimant returned to Dr. McCarron on April 16, 1997. Dr. McCarron again stated that the claimant had “a cascading type of lumbar spine with instability” in addition to “some upper extremity myositis.” Dr. McCarron continued conservative treatment.
[18] In the within matter, the pre-hearing order declares that the issue for consideration is whether the claimant sustained a compensable injury on September 6, 1996. We find that the weight of evidence indicates that the claimant did not sustain a compensable injury on September 6, 1996. In order to establish a compensable injury pursuant to Act 796 of 1993, the claimant must prove, by a preponderance of the evidence, that she sustained an accidental injury causing physical harm. The claimant must prove that this injury arose out of and in the course of her employment, and that the injury required medical services or resulted in disability or death. In addition, the injury must be established by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102 (Repl. 1997). [19] First, we note that the claimant’s various accounts as to “what happened” are inconsistent. It is exclusively the function of this Commission to determine the credibility of witnesses and the weight to be given their testimony. Johnson v. RicelandFoods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). The claimant testified that she hurt her back on Friday, September 6, 1996, while reaching to remove a file. The claimant testified that the pain was so intense that she could not stand up straight or drive. Yet, she submitted a Notice of Injury within the hour, which described a pulling and sting in her mid-back andside. The record indicates that the claimant was not sure if a “new injury” had occurred. On September 12, 1996, Dr. Chakales reported that the claimant had sustained an “acute flare up” on Thursday, September 5, 1996; we again point out that the claimant contends that she sustained an accidental injury on Friday, September 6, 1996. In any event, the claimant complained of pain in her low back and right hip. The record does not show that the claimant informed her doctor of the alleged incident of September 6, 1996. A few weeks later, the claimant told Dr. McCarron that she had experienced pain in herleg after bending in September, 1996. The record therefore shows that the claimant was not sure which part of her anatomy was injured, if any, in the alleged September, 1996 incident. From our de novo review of the record, we are unable to determine which of the three different accounts of injury given by the claimant might be accurate. [20] There are other earlier inconsistencies in the record of a similar nature. The claimant told Dr. Chakales that she had sustained “whiplash” in the January, 1991 incident; however, there is no indication in the record that the claimant ever sustained such an injury. The claimant testified that she re-injured her neck in April, 1992, when she supposedly leaned back in a chair and fell against a wall. The claimant told Dr. Chakales, though, that she hit the floor after falling out of her chair, twisting her neck and back. [21] In reaching our conclusion that the claimant failed to establish a new injury in 1996, we find that the claimant has failed to establish a new injury through objective medical findings, pursuant to Act 796 of 1993. The claimant contends that she was injured on Friday, September 6, 1996. On September 12, 1996, Dr. Chakales reported that the claimant had sustained an acute flare-up on Thursday, September 5, 1996. The claimant complained of low back and right hip pain, although she complained of mid-back and side pain on September 6, 1996. At any rate, Dr. Chakales reported lumbar spasm on September 12, 1996. A doctor’s report of spasm is a “purely objective” finding, but it is not enough to establish compensability. The claimant must still show that a causal connection exists between these objective findings and her employment. Ford v.Chemipulp Process, Inc., 64 Ark. App. ___, ___ S.W.2d ___ (Oct. 28, 1998). Dr. Chakales had reported lumbar and cervical spasm for five years before this alleged accidental injury, and he did not relate the report of spasm in September, 1996 to a workplace incident. Causal connection is generally a matter of inference, and possibilities play a proper, important role.Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). The record suggests, and Dr. Chakales’ testimony confirms, that the claimant’s subjective and objective difficulties relate to her degenerative condition, not a September, 1996 accidental injury. We therefore find that the claimant failed to prove that she sustained an accidental injury in accordance with Act 796 of 1993. [22] In addition, we find that the administrative law judge erred in determining that the claimant’s problems after September 6, 1996 “merely constituted a continuation of the problems she had experienced since the occurrence of the January of 1991 accident.” The administrative law judge placed significant weight on the claimant’s long and frequent course of medical treatment and symptoms. However, we place considerably greater weight on the May, 1996 deposition testimony of Dr. Chakales, the claimant’s primary treating physician. In said testimony, Dr. Chakales concluded that the claimant’s earlier work-related injuries had resolved well before May, 1996, and that the claimant’s multiple flare-ups were simply recurrences of an underlying degenerative condition. We interpret Dr. Chakales’ testimony to indicate that the claimant’s 1991-92 compensable injuries had resolved long before May, 1996; therefore, we find that the claimant has failed to establish, by a preponderance of the credible evidence, that her flare-ups after May, 1996 were a recurrence of her 1991-92 compensable injuries, which had previously resolved. Instead, we find that the preponderance of the evidence establishes that the claimant’s flare-ups were simply recurrences of her underlying degenerative condition. [23] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant’s 1991-92 compensable injuries resolved by May, 1996. We find that the greater weight of credibleInstead, I find that the greater weight of the evidence establishes that the problems that the claimant experienced on and after September 6, 1996, merely constituted a continuation of the problems she had experienced since the occurrence of the January of 1991 accident. In this regard, the claimant has complained of severe problems with her neck and low back since the occurrence of the January of 1991 accident, and she has complained since that these problems severely limit her ability to function. The medical evidence establishes that the nature and severity of her complaints have remained essentially unchanged since the occurrence of the 1991 accident. In fact, she has sought medical treatment for these complaints almost once every month since the occurrence of that accident, and she has not gone longer than two to three months without seeking medical treatment for these complaints. Likewise, she conceded at the hearing that the problems that she experienced on September 6, 1996, were the same problems, involving the same symptoms which affected the same areas of her body, that she had been experiencing.
The administrative law judge thus found that the September 6, 1996 incident was, at most, a recurrence of the prior compensable injuries sustained by the claimant. The administrative law judge ordered the respondents to pay benefits accordingly; after de novo review, we reverse. The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury, or if it was precipitated by an independent intervening cause. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), citing Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). If there is a causal connection between the primary and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Guidry v. J R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).
evidence indicates that the flare-ups claimant experienced after May, 1996 were recurrences of her degenerative disc disease and were neither a new injury nor an aggravation of a pre-existing condition. Consequently, we reverse the administrative law judge’s finding that the claimant’s problems were a recurrence of her prior compensable injuries, and we hereby dismiss this claim. [24] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[25] Commissioner Humphrey dissents. DISSENTING OPINION
[26] I respectfully dissent from the majority opinion finding that claimant failed to prove the compensability of her claim.