CLAIM NO. F606124
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 3, 2008
Page 1
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Andrew Hatfield, Attorney at Law, Rogers, Arkansas.
Respondent represented by the Honorable Joe D. Byars, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an administrative law judge’s opinion filed September 10, 2007. The administrative law judge found that the claimant failed to prove she sustained a compensable injury. After reviewing the entire record de novo, the Full Commission reverses the opinion of the administrative law judge. The Full Commission finds that the claimant proved she sustained a compensable injury, and that the claimant proved she was entitled to reasonable necessary medical treatment and temporary total disability compensation.
Page 2
I. HISTORY
Teresa Ann Mullins, age 35, testified that she had worked for the respondent-employer since March 2000. The parties stipulated that the employment relationship existed on May 11, 2006. The claimant testified that she was working as a dental assistant. The claimant testified, “I was running behind on — from my last patient. I was hurrying, and I was getting all my — there’s a tray that comes in front of — over the top of the chair. And I was getting all my instruments off the top of it, and instead of calming down and trying to — and putting stuff up where it belongs, I just twisted. And when I did, I pulled something in my lower back.”
Two co-workers corroborated the claimant’s testimony. Linda Gaffney testified, “I came in the room, and Teresa was crying really hard, and she was in a lot of pain, and she couldn’t walk, barely walk. She said she’d turned and hurt her back. And Mary and I helped her out to her car.” Mary Louise Pfeiffer testified, “Teresa was in her operatory working on some of the endo things, and I was kind of outside of the room. I — I was kind of kind of walking back. And she had turned, and she grabbed ahold of the chair, and I could tell that she was in a lot of pain. She almost went to the floor. And that — that was late in the day after just about everybody had already gone.”
The claimant testified that her back was still hurting but that she returned to work the next day. The claimant testified that she began treating with her family physician, Dr. Corwin Petty, on May 16, 2006. An MRI of the claimant’s
Page 3
lumbar spine was taken on May 16, 2006, with the impression, “Normal MRI of the lumbar spine.” The claimant treated with a physical therapist.
The claimant testified that a “Workers’ comp” person referred her to Dr. Tomlinson. Dr. Robert J. Tomlinson examined the claimant on June 2, 2006 and reported, “Evaluation of her x-rays show mild disc space narrowing L5/S1. I have reviewed a MRI scan, which shows some change in signal intensity in the L4/5 disc.” Dr. Tomlinson’s impression was “Lumbar spondylosis with acute lumbosacral strain/sprain.” Dr. Tomlinson planned conservative treatment and stated that the claimant could return to restricted work. A CT of the claimant’s left hip on June 13, 2006 was normal. A CT of the pelvis revealed the following impression: “Spina bifida occulta L-5 with some mild degenerative changes at the facets. No other abnormality is identified.”
The claimant testified that Dr. Petty took her off work on July 6, 2006. The record shows that the claimant was taken off work on July 6, 2006 “for uncontrollable pain, and sedation secondary to medications, interfering with work.” The claimant testified that she felt pain “in my lower back. . . . It was tingling down my leg. I was having tingling on the bottom of my foot.”
Tana M. White, PA-C, corresponded with Dr. Petty on July 13, 2006:
Teresa Mullins was seen in the Neurosurgery Clinic on July 13, 2006 for evaluation of her back pain, bilateral hip pain, and for an assessment of her spina bifida occulta. As you know, Ms. Mullins is a 34-year-old, right handed white female with acute onset of low-back pain after a bending, twisting maneuver while working as a dental assistant. She reports she felt a pop and a pull with a burning sensation that radiated to her left buttocks. . . .
Page 4
She had marked spasms of the paralumbar spine and demonstrated a list to the left. . . .
A CT scan of her lumbar spine revealed evidence of spina bifida occulta at L5, with some mild degenerative changes at the fact joints. A lumbar spine series was performed, which seems to show six lumbar vertebrae. However, Dr. Knox will review these films and make a determination at that time. She has evidence of a spondylo defect at L6. She has significant left lower extremity radiculopathy. . . .
Ms. White informed Dr. Petty that the claimant would be treated conservatively.
Dr. D. Luke Knox examined the claimant on August 17, 2006 and reported, “She has been through the gamut of conservative measures. Her MRI scan seems to indicate an L5-S1 disc bulge. However, she has six lumbar vertebrae, and it appears that there is a significant fullness around the L3 nerve root at L4-5 (This looks like L3-4 due to the sixth lumbar vertebrae). I recommended that Teresa go ahead and proceed with discography.”
The claimant followed up with Dr. Knox on September 14, 2006: “I had her undergo an L3-4 discogram, which was completely normal, as well as placement of Marcaine, which was also completely normal. I could discern no evidence of compressive pathology. I felt that she would improve with a tincture of time. I asked that she remain off work for the next six weeks. We are going to institute a physical therapy program here in the next couple of weeks.”
Following the history of a motor vehicle accident with back pain, a Radiology Report was entered on November 2, 2006:
1. Six non rib lumbar type vertebral bodies.
Page 5
2. Incomplete fusion of the posterior arch of L6 which is a normal variant.
3. No acute fracture, dislocation or destructive process.
The claimant received emergency medical treatment on November 2, 2006 and was assessed with neck and lumbar sprain.
On November 13, 2006, Dr. Knox informed Dr. Petty that the claimant was suffering from cervical pain following the motor vehicle accident. The claimant testified that Dr. Knox released her to light duty on November 13, 2006, and that she returned to work on November 14, 2006. The claimant’s testimony indicated that she returned to work as a hygiene coordinator.
A pre-hearing order was filed on February 14, 2007. The claimant contended that she suffered a compensable injury. The respondent contended that the claimant “has a preexisting back problem and her current problems are continuous of her old problem.” The parties agreed to litigate the following issues: “1. Did the claimant sustain a compensable injury to her lower back. 2. Is the claimant entitled to temporary total disability from July 6, 2006 through November 13, 2006. 3. Medical treatment. 4. Attorney’s fee.”
The administrative law judge found that the claimant failed to prove she sustained a compensable injury. The claimant appeals to the Full Commission.
II. ADJUDICATION
A. Compensability
Ark. Code Ann. § 11-9-102(4)(A) defines “compensable injury”:
(i) An accidental injury causing internal or external physical harm to the body . . .
Page 6
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[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).
The claimant’s burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means the evidence having greater weight or convincing force Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).
An administrative law judge found in the present matter that the claimant did not prove she sustained a compensable injury. The Full Commission reverses this finding. The claimant testified that she was working as a dental assistant for the respondent-employer on May 11, 2006. The claimant testified that she twisted and felt a pull in her lower back while removing dental instruments from the top of a chair. Linda Gaffney and Mary Louise Pfeiffer corroborated the claimant’s testimony. Dr. Tomlinson subsequently examined the claimant and diagnosed “Lumbar spondylosis with acute lumbosacral strain/sprain.” The correspondence of Tana M. White, a physician’s assistant, corroborated the claimant’s testimony of a twisting injury at work. Ms. White examined the claimant and noted “marked spasms of the paralumbar spine.” A
Page 7
report of spasm is an objective medical finding. Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999).
The Full Commission finds that the claimant proved she sustained an accidental injury on May 11, 2006. The Full Commission finds that the accidental injury caused physical harm to the claimant’s low back in the form of a strain/sprain. The injury arose out of and in the course of employment, required medical services, and resulted in disability. The accidental injury was caused by a specific incident and was identifiable by time and place of occurrence on May 11, 2006. The claimant established a compensable injury by objective findings not within her voluntary control, namely, the paralumbar spasms reported by Ms. White. The Full Commission finds that the spasms were causally related to the May 11, 2006 accidental injury.
B. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). The claimant must prove by a preponderance of the evidence that she is entitled to requested medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543
(1999).
Page 8
In the present matter, the Full Commission has determined that the claimant proved she sustained a compensable injury on May 11, 2006. The record demonstrates that the compensable injury was a lumbar strain/sprain. The claimant treated with Dr. Petty, Dr. Tomlinson, Ms. White, and Dr. Knox. We find that the claimant’s treatment with these medical providers was reasonably necessary in connection with the claimant’s compensable injury. The emergency treatment provided on November 2, 2006 following the claimant’s motor vehicle accident was not reasonably necessary in connection with the claimant’s May 11, 2006 compensable injury.
C. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). “Healing period” means “that period for healing of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12). Whether or not a claimant’s healing period has ended is a question of fact for the Commission. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).
In the present matter, the claimant sustained a compensable lumbar strain/sprain on May 11, 2006. The claimant testified that Dr. Tomlinson took her off work on July 6, 2006. The record therefore shows that the claimant was within her healing period and totally incapacitated to earn wages beginning July 6, 2006. The claimant testified that Dr. Knox released her to light duty on
Page 9
November 13, 2006, and that she returned to work on November 14, 2006. The preponderance of evidence in the present matter does not demonstrate that the claimant remained within her healing period for the compensable strain/sprain beyond November 13, 2006. Nor was the claimant totally incapacitated to earn wages after that date. The Full Commission therefore finds that the claimant proved she was entitled to temporary total disability from July 6, 2006 through November 13, 2006.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved she sustained a compensable injury on May 11, 2006. The claimant proved that treatment provided by Dr. Petty, Dr. Tomlinson, Ms. White, and Dr. Knox was reasonably necessary. The claimant proved that she was entitled to temporary total disability compensation from July 6, 2006 through November 13, 2006. The Full Commission reverses the opinion of the administrative law judge. The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715 (Repl. 2002). For prevailing on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
Page 10
___________________________________ PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents.
Page 1