PHILPOTT v. CARGILL, 2002 AWCC 66

CLAIM NO. F002377

DWAYNE PHILPOTT, EMPLOYEE, CLAIMANT v. CARGILL, INC., EMPLOYER, RESPONDENT, CRAWFORD COMPANY, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 15, 2002

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 TIMOTHY BROOKS, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Reversed.

OPINION AND ORDER
The respondent appeals from a decision of the Administrative Law Judge filed on July 11, 2001. We have carefully conducted a de novo review of the entire record herein, and it is our opinion that the Administrative Law Judge’s decision should be reversed. The Administrative Law Judge found, in relevant part, that the claimant proved by a preponderance of the evidence that he sustained a compensable gradual onset injury to his back; that the claimant failed to prove that he was entitled to temporary total disability; and, that the respondents should pay all medical costs subsequent to March 10, 2000, the date on which the claimant notified the respondent that he was seeking benefits for a work-related injury.

To establish a compensable gradual onset back injury, a claimant must prove by a preponderance of the evidence that: (1) he sustained an injury that caused internal or external physical harm to the body; (2)the injury arose out of and in the course of his employment; and (3)the injury is the major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(A)(ii), § 11-9-102(4)(A)(ii)(b), and §11-9-102(E)(ii) (Supp. 2001). Furthermore, the injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). Objective medical evidence is not required to establish the causal connection between the injury and the employment Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d (1999).

The claimant was fifty years old at the time of the hearing. He is not able to read or write, has done manual labor since he was in his late teens, and has been in two or three car accidents. He lives on a 20 acre farm and raises some cattle. The claimant had worked in the respondent’s hatchery since 1987. He worked 50 hours per week, four days per week. Two of those days he spent working as an egg racker, moving cases of eggs using a pallet jack, which involved bending, stooping, lifting, reaching and standing. The other two days of the week were spent “candling” individual cases of eggs.

The claimant’s family physician was Dr. Hall. The claimant had been treated by Dr. Hall over the years for several work-related injuries, including wrist pain and headaches, which the claimant expressly related to his work. On cross-examination the claimant agreed that he began experiencing back pain in 1996 or 1997. He finally sought treatment for this problem from Dr. Hall on March 15, 1999, at which time he told Dr. Hall that he did not know what was causing his back problems.

The claimant signed paperwork for temporary disability in March 1999. The form was partially filled in by his wife. In response to the question, “Is this Condition Due to an Occupational Injury or Disease?” a box marked “No” was checked.

The claimant saw Dr. Hall several times in 1999. Clinic notes reflect visits in February, August and October. In August 1999 the claimant complained of allergies and digestive problems. In October 1999 he complained of vomiting and headache. In February 2000 it was headache and sinus. On none of these occasions was back pain listed in the numbered problems complained of by the claimant.

On February 17, 2000, almost one year after he began treating the claimant’s back pain, in a letter to the claimant’s attorney, Dr. Hall for the first time states that it is his opinion that the claimant’s job activities, “would be a major precipitating cause of his osteoarthritis of the lumbar spien (sic) with paraveretebral spasm.” The claimant did not report his back problem to the respondents as being a work-related injury until March 10, 2000.

The claimant saw Dr. Raben on referral from Dr. Hall on May 8, 2000. Dr. Raben’s clinic note from this date indicates that the claimant has smoked a pack of cigarettes per day for the past 35 years. After a review of x-rays and other medical history he diagnosed the claimant as having degenerative disc disease and arthritic changes of the lumbar spine. Dr. Raben sent the claimant for an MRI after the appointment that day, and in an MRI report dated May 8, 2000, Dr. Harris wrote that his impression was that the claimant had degenerative disc disease and osteoarthritic changes.

At the respondent’s request, the claimant was seen for an independent medical examination by Dr. Runnels. Dr. Runnels wrote on April 26, 2001, “the degenerative disc disease, osteoarthritis, etc., are a condition of aging of the cartilage. It starts early in life and proceeds through life until one dies, gradually worsening as years pass by. People with such problems find that, as they get older, they cannot do as much bending, lifting, etc., as they did when they were young without having back pain. This is the situation I believe Mr. Philpott is in. His smoking accelerates degeneration of the discs as well. . . .” Dr. Runnels agreed with Dr. Harris’ MRI report impression and noted that he would “underline mild” when describing the claimant’s degenerative disc condition.

Based upon the foregoing facts, we find that the claimant failed to prove that he sustained a compensable gradual onset injury. The Commission has the duty of weighing the medical evidence as it does any other evidence, and the resolution of any conflicting medical evidence is a question of fact for the Commission to resolve. CDI Contractors v.McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). We find convincing Dr. Runnels conclusion that the claimant’s degenerative and arthritic problems are simply part of his aging process, especially in light of the claimant’s life-long history of manual labor and farm work. Dr. Raben did not make any conclusions one way or another about the cause of the claimant’s problems. And we do not find Dr. Hall’s letter to the claimant’s attorney persuasive. Dr. Hall did not link the claimant’s problems to his employment for almost a year. Further, his statement that the claimant’s job activities “would be a major precipitating cause of his osteoarthritis,” does not specifically meet that statutorily required determination that the injury is the major cause of the disability or need for treatment.

It took the claimant and Dr. Hall a year to conjure a connection between the claimant’s problems and his employment; and it would require conjecture and speculation on our part to determine that the claimant’s work activities were the cause of his back problems. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark.Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991).Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970).Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125
(1993).

For the foregoing reasons, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable gradual onset injury to his back. The Administrative Law Judge’s opinion is reversed, and the claimant’s claim for benefits is denied and dismissed.

IT IS SO ORDERED.

_______________________________ JOE E. YATES, Commissioner

Chairman Coffman concurs.

CONCURRING OPINION

SHELBY W. TURNER, Commissioner

I concur in the principal opinion’s conclusion. I agree that Dr. Runnels’ opinion in this case should be entitled to more weight than the written opinion offered in the record by Dr. Hall, a general practitioner. On this point, I point out that, although Dr. Runnels only performed a one-time medical evaluation, Dr. Runnels is a neurosurgeon. More importantly, I further note that Dr. Runnels rendered his opinionafter all diagnostic testing was finished, whereas Dr. Hall rendered his written opinion in the record before the claimant had undergone his MRI or his discogram. Under these circumstances, I do not agree with the dissent’s assertion that the opinion of Dr. Hall should be accorded more weight than the opinion of Dr. Runnels on the medical question at issue just because Dr. Hall had been the claimant’s regular treating physician.

I also point out that our resolution of the compensability issue presented in this case renders moot the discussion on temporary total disability and notice beginning on the seventh page of the dissenting opinion. Therefore, I do not reach these issues at this time.

______________________________ ELDON F. COFFMAN, Chairman

Commissioner Turner dissents.

DISSENTING OPINION

SHELBY W. TURNER, Commissioner

I must respectfully dissent from the majority opinion reversing an award of benefits to claimant for a gradual onset back injury.

Claimant appealed and respondents cross-appealed an Administrative Law Judge decision that: (1) claimant proved by a preponderance of the evidence that he sustained a gradual onset type injury while working for respondent employer;(2) claimant failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits; and (3) respondents are not liable for payment of benefits to claimant until after March 10, 2000, when claimant notified respondents of his work-related injury. The majority opinion reverses this decision and finds that claimant failed to prove that he sustained a gradual onset type injury, thereby making moot all subsequent issues. However, upon myde novo review of the record, I would affirm the Administrative Law Judge’s decision with regard to compensability and reverse on the issues of claimant’s entitlement to temporary total disability benefits and the beginning date of respondents’ liability.

History

Claimant is 50 years old and has an eighth-grade education. He did not earn his GED and can neither read nor write, except for his name. Claimant worked in respondent employer’s poultry factory from May of 1987 until March of 1999 as an “egg racker” and a “candler.” He worked placing flats of eggs — weighing between 30 to 60 pounds — onto pallets and then placing them into incubators. This work involved continuous standing, lifting, bending, and twisting. Claimant testified that in the approximately 12 years that he was employed by respondent employer, he never worked less than 45 hours per week and normally worked about 50 hours per week.

Claimant stated that he began having back pain and subsequently treated with his family physician in March of 1999. Claimant stopped work the same month, stating that he could not handle his work load due to the severity of his pain. Claimant was ultimately diagnosed with degenerative disc disease.

Adjudication

a. Gradual onset injury

At issue is whether claimant suffered a gradual onset type injury; whether he is entitled to temporary total disability benefits; and when, if at all, respondents’ liability began with regard to claimant’s condition.

To prove a gradual onset type injury to the back, Ark. Code Ann. §11-9-102 (Repl. 1999), requires that a claimant show: (1) an injury arising in and out of the course of employment; (2) the injury caused internal or external physical harm to the body that required medical services; (3) medical evidence supported by objective findings establishing the injury; and (4) the back injury was not caused by a specific incident and is the major cause of the disability or need for treatment. Claimants must prove, by a preponderance of the evidence, a causal relationship between the injury and the employment. GerberProducts v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985);Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677
(1998).

Claimant testified that he visited his family practitioner for back pain in March of 1999. Dr. Bill Hall notes on June 25, 1999:

I have been treating Dwayne Philpott since 3/15/99. . . . Patient had paravertebral muscle spasm and extremely tender lumbosacral joint. X-rays of the lumbar spine showed mild osteoarthritis involving the lumbar spine. He continues to have rather severe pain in this joint secondary to this sprain and is considered not able to work in view of the fact that his work requires bending, stooping and lifting. I do not think that he can engage in these activities until at least 8/4/99.

Dr. Hall attributed claimant’s back problems to his work, and stated on February 17, 2000:

My charts indicated that Mr. Philpott has worked at a job that requires him to stoop, bend, strain and lift. It is my opinion that such activity would be a major precipitating cause of his osteoarthritis of the lumbar spine with paravertebral spasm.

On May 15, 2000, Dr. Cyril Raben noted MRI results of, “desiccation at L3/L4 and L1/L2 greater than other levels on T-two weighting,” and “mild osteoarthritic changes at multiple levels of the lumbar spine.” Dr. Raben further noted on June 6, 2000 that a CT scan revealed, “an annular tear at the L4/L5 inner space nearly full circumferential. [W]hat we are dealing with appears to be an annular disruption of the L4/L5 and L2/L3 inner spaces.”

Claimant received disc space injections, but still complained of severe back pain. Dr. Raben noted on June 30, 2000:

At this point, I see nothing really that I have to offer in the way of surgical intervention and would suggest a chronic pain management program. We need to get his wife an intermittent leave of absence from work to help in taking him back and forth to the doctor.

On April 10, 2001, Dr. Runnels, upon respondents’ request, performed an independent examination on claimant. While Dr. Runnels disagrees with Dr. Hall as to the cause of claimant’s condition, he did confirm findings of “multilevel lumbar degenerative disc disease and posterior facet changes.”

The majority opinion finds that claimant failed to prove compensability for a gradual onset type injury and cites an independent medical evaluation by Dr. Runnels as providing sufficient evidence that claimant’s problems relate to his aging process and smoking habits — not to his work. While Dr. Hall opines a connection between claimant’s work and his condition, the majority opinion gives deference to Dr. Runnels’ one-time evaluation of the claimant.

The Commission’s authority to resolve conflicting evidence also extends to medical testimony. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). We are entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and medical evidence. Id. In Hambelton v. Guy King Sons, Full Commission Opinion, Filed February 21, 2001 (E904812), the Full Commission affirmed the Administrative Law Judge’s determination that the opinions of the treating physician were entitled to greater weight than the lone report of an independent medical examiner. The independent medical examiner inHambelton based his medical assessment on previously prepared medical reports, and not an actual examination as in the present case. Unquestionably, the facts surrounding the medical opinion espoused inHambelton differ somewhat from the facts in the present case. Nevertheless, I believe the connection lies in the basic presumption that a treating physician (who has had greater contact with the patient) is, in most cases, better informed and better prepared to render a more accurate opinion on a patient’s health condition. Therefore, I would give greater weight to the opinion of claimant’s treating physician, Dr. Hall, than to the opinion of Dr. Runnels who was hired by respondents to challenge Dr. Hall’s earlier opinion.

In my opinion, there is ample objective medical evidence of claimant’s injury via his CT scans, MRI findings and paravertebral muscle spasms reported on exam. I find, based on claimant’s testimony and other medical reports, that claimant presented credible evidence that his current condition was caused by his work.

Specifically, I find that claimant’s long years of heavy manual labor while working for respondent employer is the major cause of his disability and need for treatment. Accordingly, I find that claimant has met his burden of proof that he sustained a compensable gradual onset type injury.

Temporary Total Disability

Since I find that claimant did prove that he sustained a compensable injury, I now address the issue of disability benefits.

To be entitled to temporary total disability benefits, claimant must remain in his healing period and be totally unable to earn wages. Ark.State Hwy. Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages.J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51
(1990). The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve the condition, the healing period has ended. Nixv. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The Commission has the duty of weighing the medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Id.; McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989).

Dr. Hall opined on April 6, 2000, that claimant would not be able to work in his condition:

I have been treating Dwyane Philpott for degenerative disc disease, which is primarily in his lumbar spine since March 1999. He has moderate osteoarthritic changes on x-ray, but has considerable muscle spasm. His condition is aggravated by any activity requiring stooping, lifting or bending and it makes it impossible for him to pursue his occupation of many years. I do not think he can engage in any occupation that involves the above activities, and I believe that his ability to be trained in a different occupation is very limited. I do not think he is able to pursue gainful employment. . . .

Claimant is now receiving Social Security benefits for his disability. He has been unable to work since March of 1999. I further find that claimant has proven his entitlement to temporary total disability benefits.

Notice

The Administrative Law Judge ruled that respondents are not liable for claimant’s work-related injury until March 10, 2000 because that is when claimant first informed respondents that he had a work-related injury. Claimant testified that he told Dr. Hall in March of 1999 that he was unsure of the exact cause of his pain, but that he had experienced pain from work. Dr. Hall released claimant from work until August 4, 1999 because his work caused him pain. Dr. Hall later opined that claimant’s work was the major cause of his injury and need for treatment.

Ark. Code Ann. § 11-9-701 provides the notice requirement for workers’ compensation claims, and states:

(a)(1) Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer on a form prescribed or approved by the Workers’ Compensation Commission and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to receipt of the employee’s report of injury.

(b)(1) Failure to give notice shall not bar any claim:

(A) If the employer had knowledge of the injury or death;

(B) If the employee had no knowledge that the condition or disease arose out of and in the course of employment; or
(C) If the Commission excuses the failure on the grounds that for some satisfactory reason the notice could not be given. (Emphasis added).

Claimant testified that after he was taken off work in March of 1999, he applied for disability benefits with respondent employer and received help filling out the forms. At that time, he informed his employer that he could not work due to his pain. Upon being questioned by employer’s representative as to the cause of his pain, claimant responded that he did not know whether or not it was work related. Claimant thus satisfies section (B) of § 11-9-701 which relieves an employee of the responsibility of notice if he is unaware that the injury arose out of and in the course of his employment. The fact that claimant initially was unaware of the exact cause of his pain does not preclude an award of benefits. I therefore find that respondents were aware of claimant’s injury (and possible workers’ compensation claim) before March 10, 2000 and should be held liable for benefits beginning in March of 1999.

Accordingly, I would affirm the Administrative Law Judge on the issue of compensability, but reverse on the issues of temporary total disability benefits and the date respondents’ liability began with regard to claimant’s injury. Specifically, I find that claimant did prove a gradual onset type injury; that he is entitled to temporary total disability benefits; and that respondents’ liability for claimant’s injury began in March of 1999.

For the foregoing reasons, I must respectfully dissent from the majority opinion denying claimant all benefits.

______________________________ SHELBY W. TURNER, Commissioner