NICHOLAS v. COOPER TIRE RUBBER COMPANY, 2003 AWCC 74

CLAIM NO. F200225

MICHAEL S. NICHOLAS, EMPLOYEE, CLAIMANT v. COOPER TIRE RUBBER COMPANY, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 16, 2003

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by HONORABLE NELSON V. SHAW, Attorney at Law, Texarkana, Texas.

Respondents represented by HONORABLE WILLIAM G. BULLOCK, Attorney at Law, Texarkana, Texas.

Decision of the Administrative Law Judge: Reversed.

OPINION AND ORDER
The respondent appeals an Administrative Law Judge’s opinion filed July 11, 2002. The Administrative Law Judge found, “On October 11, 2000, the claimant sustained an injury and aggravation of his pre-existing cervical spine condition.” After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge.

I. HISTORY
Michael Stephen Nicholas, age 42, testified that he began working at Cooper in May 1987. Mr. Nicholas’ left arm was caught and pulled into a machine at work in October 1998. The claimant began complaining of pain in his left shoulder and cervical spine after undergoing physical therapy. The claimant reported being involved in a head-on collision in December 1998 (nonwork-related). An emergency physician’s impression was “Cervical strain, lumbar strain, shoulder contusion, multiple trunk contusions.” An MRI of the cervical spine was taken in December 1998, with the following impression:

1. DEGENERATIVE DISC DISEASE INVOLVING THE LOWER CERVICAL SPINE WITH DISC SPACE NARROWING, DISC SPACE DESICCATION, AND MILD GENERALIZED DISC BULGING AT THE C5-C6 AND C6-C7 LEVELS.
2. MILD EDEMA SEEN WITHIN THE SOFT TISSUES BETWEEN THE SPINOUS PROCESSES AT THE C5-C6 AND C6-C7 LEVELS WHICH MAY REPRESENT LIGAMENTOUS OR MUSCULAR EDEMA FROM STRAIN OR TEAR.

The claimant began treating with Dr. Joel T. Patterson. Dr. Patterson eventually arranged a CT of the cervical spine, taken in June 1999 with the following impression:

1. MILD DEGENERATIVE DISC DISEASE AT C5-6 AND C6-7 LEVELS.
2. SMALL LEFT POSTERIOR CENTRAL OSTEOPHYTE WITH A SMALL ADJACENT DISC PROTRUSION AT THE C5-6 LEVEL. THIS APPEARS TO PRODUCE MILD NEUROFORAMINAL STENOSIS.

3. MILD GENERALIZED DISC BULGING OF THE C6-7 LEVEL.

In July 1999, Dr. Patterson performed a “C5, 6 anterior cervical diskectomy and fusion with autologous iliac crest bone graft harvest.” In December 1999, Dr. Patterson performed a “Left ulnar nerve transposition. Removal of granuloma in scar tissue, left ring finger.”

The claimant reported a “pop” in his neck at work in June 2000 “after lifting about 25 lbs. of rubber and throwing it across a rack.” A physician’s impression was “Cervical sprain.” Dr. Patterson reported on June 28, 2000:

A couple of weeks ago he was at work carrying some rubber and started having some muscle spasms in his neck radiating from his neck down in between his shoulder blades. Films were done at Dr. Richter’s office. These demonstrate a good fusion construct at 5-6. He has some osteophytes at 6-7. He is complaining of no radiculopathy, simply neck pain and headaches. We are going to try some physical therapy and see how he does with this.

The claimant testified with regard to a specific incident occurring on or about October 11, 2000:

A. My machine was running. I had walked over to a water fountain that is approximately 25 to 30 feet from my work station, had got a drink of water, had turned around and was returning to my work station when a forklift carrying a skid of rubber came around a corner and hit me in the back. It hit my ankles, my shoulder, and my back area.

Q. What happened after it hit you?

A. It knocked me forward. I caught myself on stand (sic) that we use to pull the head with, and I went to sit down at my seat, had three or four — a couple of supervisors, two, three or four people come around, filled out an accident report. It was toward the end of the shift and I went home.

The claimant testified that he did not fall to the ground. The respondent’s attorney examined Michael Yarberry:

Q. Were you actually driving the forklift that was involved in this incident on October 11, 2000?

A. Yes, sir.

Q. And if you would, tell me, did the forklift come in contact with Mr. Nicholas?

A. No, sir.

Q. Was the forklift able to stop before any contact was made with Mr. Nicholas?
A. The forklift stopped but you’ve got about anywhere from about 2,300 to 3,000 pounds in that skid of rubber. So, doing like 5 to 10 miles per hour in between there, you know, you are going to have the force of the skid and that amount of weight coming, sliding off the metal contact. . . .

Q. And did you see what happened to Mr. Nicholas?

A. The skid of rubber hit him in the back.

Q. Where did it hit him?

A. I can’t tell you what point it hit him at but — his back was towards me and the skid came off, hit him, and I saw him lunge forward, you know, about four foot, four to six foot, and then he grabbed his ankle. He was close to his work area so he just sat down. . . .
Q. During the time that you were there, did you observe Mr. Nicholas ever grab his neck or his back?

A. I don’t think so.

The record contains a WCC Form N, indicating that the employer was notified of an accident on October 11, 2000. The claimant reported that he had injured his left ankle, back, and right ankle, and he discussed the cause of injury:

Walking from water fountain back to work station and forklift came around corner stopped but skid of rubber came off fork hitting both ankles from back

A Supervisor’s Accident Or Illness Investigation Report also indicated that an accident had occurred on October 11, 2000, “The skid of rubber the forklift was carrying slid off hit Steve in the legs (lower).”

The claimant testified that he attempted to work the next day, but was unable, because he hurt “From my waist up,” into his shoulders and neck. The claimant attributed this pain to the previous day’s accident. The claimant presented to the company physician, Dr. G. Richter, who reported on October 12, 2000:

He was hit by a skid of rubber that was slid off a forklift which had recently stopped. It hit and bold (sic) him over. It hit him in the back of his ankles and he has some bruising about both his ankles. It’s worse on his left than his right one. He said that’s what really hurt at the time of the accident, but since then he’s had some neck and mid-thoracic type back pain and some shoulder pain. . . .
Exam of his ankles shows a couple of small contusion and abrasions. His left is worse than his right.

Dr. Richter assessed “Cervical and thoracic sprain and contusions in the bilateral ankles.” Ricky Norton, the respondent-employer’s manager of benefits and security, testified that the respondent paid benefits with regard to the accidental injury to the claimant’s ankle.

Dr. Richter reported on October 27, 2000, “He was hit by a forklift on the 11th. . . . X-rays done showed no problems w/his previous fusion. Otherwise, he’s doing some better. Says his pain does feel better.” Dr. Richter assessed “Continued cervical strain.”

An MRI of the cervical spine with contrast was taken on November 16, 2000, with the following impression:

1. PREVIOUS CERVICAL DISCECTOMY AND FUSION AT THE C5-6 INTERSPACE. POSTERIOR SUBLIGAMENTOUS PROTRUSION AT THE 6-7 LEVEL. BOTH LEVELS HAVE ONLY MILD AP CANAL NARROWING AND MARGINAL VERTEBRAL SPURRING CAUSING MILD BILATERAL C6 AND C7 FORAMINAL STENOSIS, MORE SO ON THE LEFT. MINIMAL ARTHRITIC SPURRING ON THE RIGHT AT THE 4-5 INTERSPACE, SLIGHTLY NARROWING THE RIGHT C5 FORAMEN. NO DISC EXTRUSION.

The claimant returned to Dr. Patterson on November 29, 2000:

He was involved in a work related injury several weeks ago. Evidently, he was knocked in the head when a pallet of rubber fell off a fork truck, or something like that. He complains of extreme neck stiffness and pain radiating down the right arm. . . . He did not have these problems prior to this accident. This sounds like a work related injury to me. It is being challenged by Cooper. His MRI demonstrates this problem at 6-7. He had this before. I don’t have his old problems to compare it to, but he does appear now to be symptomatic from this. His fusion at 5-6 looks good. I have recommended some cervical epidural steroids and we will see if these help.

The claimant began receiving epidural steroid injections on November 30, 2000. The claimant returned to Dr. Patterson on January 24, 2001:

The ESI’s worked. He has no pain. He still has a little numbness. On exam, he has fairly decent motor strength. He is not interested in doing anything about this at this point in time. He wants to be reevaluated this summer. We made him an appointment. We will see him back at that point in time.

A cervical myelogram was administered on March 21, 2001:

The C6-7 level has prominent posterior arthritic spurring but no significant disc component. This narrows the ventral subarachnoid space but causes no cord compression. Posterior elements are also mildly hypertrophic at this level and contribute to the overall mild AP stenosis. The dural root sleeves are not markedly truncated, although the left C7 sleeve did not fill quite as well as at the next level. There is no intradural lesion. The 5-6 level has had a previous cervical fusion with no evidence of posterior spurring or recurrent disc extrusion.
IMPRESSION: 1. PREVIOUS CERVICAL FUSION AT THE 5-6 LEVEL WITHOUT SIGNIFICANT ASSOCIATED SPURRING OR CANAL STENOSIS. POSTERIOR SPURRING AND MILD AP STENOSIS AT THE 6-7 LEVEL, AT MOST CAUSING MINIMAL IMPINGEMENT OF THE LEFT C7 ROOT. NO DEFINITE DISC EXTRUSION.

Dr. Patterson reported on March 21, 2001:

He had a myelogram this morning which demonstrated some compression of the C7 nerve roots bilaterally. This correlates with his clinical condition. He has a lot of spondylosis at C6-7 on the scan. I have offered him C6-7 anterior cervical discectomy and fusion with autologous iliac crest bone graft harvest and anterior Orion plate.

Dr. Patterson reported on April 30, 2001:

Mr. Nicholas is a gentleman who underwent a 6-7 anterior cervical diskectomy and fusion about two years ago with good results. He now presents with C7 radiculopathy symptomatic in the form of triceps atrophy. Imaging studies demonstrated 6-7 spondylosis with probable nerve root compression. He was offered and accepted 6-7 anterior cervical diskectomy and fusion with a plate and is being admitted for the same.

Dr. Patterson therefore performed a “C6-C7 anterior cervical diskectomy and fusion with autologous iliac crest bone graft and anterior Orion plate” on April 30, 2001. The claimant testified that he was released to return to work on November 14, 2001.

Mr. Nicholas claimed entitlement to worker’s compensation. The claimant contended that he had sustained a compensable injury on October 11, 2000, for which he was entitled to reasonably necessary medical treatment. The claimant contended that he was entitled to temporary total disability compensation from April 1, 2001 through November 14, 2001. The respondent contended that the claimant’s cervical spine condition and all related treatment was not related to any compensable injury.

The parties deposed Dr. Howard J. Colier, an orthopedic surgeon, on May 3, 2002. Dr. Colier testified that he had reviewed the claimant’s medical files, specifically with regard to necessity of the April 30, 2001 surgery. Dr. Colier determined that the surgery was not medically necessary. The respondent’s attorney examined Dr. Colier:

Q. Now, based upon the documents that you have reviewed at this particular stage in time, do you have an opinion to a reasonable degree of medical certainty, Doctor, as to whether the surgery that was performed by Dr. Joel Patterson on C6-7 of Mr. Nicholas on or about April 30, 2001 was reasonable and necessary treatment?

A. I believe it was not reasonable and necessary. . . .

Q. And would you explain the basis of your opinion in that regard, Doctor?
A. The patient had been — had had the examination, the x-ray examination, in, I believe, March and had the surgery and (sic) April, and there was a lack of conservative treatment in between the initial testing and the surgery. Very little attempt was made to treat the patient conservatively. . . .
Q. And did you see any further studies — let’s put a time frame on it here, Doctor. Did you see anything happen with regard to C6-7 area between the automobile accident treatments in 1998 and early 1999 and the surgery in April of 2001? Do you see any major changes take place?
A. No, there are no major changes that have taken place during that period of time.
Q. Okay. Then with whatever the situation involving Mr. Nicholas’ C6-7 are was in April of 2001, do you have an opinion to a reasonable degree of medical certainty as to what the cause of the C6-7 situation he had was?
A. Yes, I believe it was just a normal progression of the disease process at this level, and not exacerbated by any injury.

The Administrative Law Judge found, “On October 11, 2000, the claimant sustained an injury and aggravation of his pre-existing cervical spine condition.” The Administrative Law Judge awarded temporary total disability compensation and medical treatment from Dr. Patterson. The respondent appeals to the Full Commission.

II. ADJUDICATION
The claimant contends that he sustained a compensable injury to his cervical spine on October 11, 2000. The claimant bears the burden of proving by a preponderance of the evidence that he sustained a compensable injury. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543
(1999). Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(A)(i), defines “compensable injury” as an accidental injury causing physical harm to the body, arising out of and in the course of employment, requiring medical services or resulting in disability or death, and caused by a specific incident identifiable by time and place of occurrence. The claimant must establish a compensable injury by medical evidence supported by objective findings which cannot come under the claimant’s voluntary control. Ark. Code Ann. § 11-9-102(4)(D); Ark. Code Ann. § 11-9-102(16).

In the present matter, the Full Commission reverses the Administrative Law Judge’s finding that the claimant sustained a compensable aggravation of his pre-existing cervical spine condition. We find that the claimant failed to establish such an injury by medical evidence supported by objective findings. The claimant has worked for the respondent since 1987. He first began complaining of cervical spine pain in October 1998, after a work-related injury to his left arm. The claimant was assessed with cervical sprain after an automobile accident in December 1998. A December 1998 MRI showed “mild generalized disc bulging at the C5-C6 and C6-C7 levels.” A CT scan in June 1999 showed mild degeneration at C5-6 and C6-7, and “mild generalized disc bulging of the C6-7 level.” Dr. Patterson performed a diskectomy at C5-6 in July 1999.

The claimant reported a “pop” in his neck after lifting at work in June 2000. Subsequent films showed “a good fusion construct at 5-6. He has some osteophytes at 6-7.” Then the forklift accident occurred in October 2000. The claimant testified that a large skid of rubber slid off a fork and struck “my ankles, my shoulder, and my back area.” The forklift driver confirmed that the claimant was struck, and he saw the claimant grab his ankle. The claimant filled out a Form N on October 11, 2000, describing an injury to his “left ankle, back, and right ankle.” The company physician reported ankle contusions and also assessed “cervical and thoracic sprain.” The claimant testified that he suffered renewed neck pain after the forklift incident. The respondent paid benefits related to the claimant’s ankle.

An October 2000 x-ray showed “no problems w/his previous fusion.” An MRI was taken on November 16, 2000; the findings from this diagnostic test included “Posterior subligamentous protrusion at the 6-7 level. . . . No disc extrusion.” We note that the June 1999 CT, taken before the alleged October 2000 compensable cervical injury, also showed “mild generalized disc bulging of the C6-7 level.” There were no new objective findings shown in the November 2000 MRI. In any event, the claimant returned to Dr. Patterson on November 29, 2000. Dr. Patterson inaccurately reported that the claimant had been “knocked in the head when a pallet fell off a fork truck, or something like that.” Dr. Patterson did not expressly enter an opinion with regard to compensability. Nevertheless, even if Dr. Patterson had so opined, such an opinion would be entitled to minimal weight, given the inaccurate history under which Dr. Patterson was proceeding. See, Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).

Dr. Patterson did expressly report, “His MRI demonstrates this problem at C6-7. He had this before. . . . His fusion at 5-6 looks good.” Although Dr. Patterson reported that the claimant was now symptomatic in the neck, he did not show any new objective findings. The claimant reported significant improvement in January 2001 after receiving injections; Dr. Patterson wrote, “He has no pain.” A cervical myelogram was taken in March 2001, but again, no objective findings of injury were shown.

The preponderance of the evidence before the Full Commission indicates that the claimant did not sustain a compensable injury to his cervical spine as a result of the October 2000 accidental injury to his ankle. We also find that Dr. Colier’s reports are entitled to significant weight. Dr. Colier, an orthopedic surgeon, credibly testified that diagnostic testing showed no major changes from the time of the claimant’s motor vehicle accident in 1998 and Dr. Patterson’s surgery in April 2001. Dr. Colier explicitly opined that there was not a new injury at C6-7, but rather “a normal progression of the disease process at this level.” Dr. Colier’s findings are supported by the other medical evidence of record.

Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove that he sustained a compensable injury to his neck or cervical spine on October 11, 2000. We therefore reverse the opinion of the Administrative Law Judge. This claim is denied and dismissed.

IT IS SO ORDERED.

______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner

Commissioner Turner dissents.