PRICE v. ATLANTIS PLASTICS, 1998 AWCC 49

CLAIM NO. E602176

JUANITA PRICE, EMPLOYEE, CLAIMANT v. ATLANTIS PLASTICS, EMPLOYER, RESPONDENT NO. 1 and LIBERTY MUTUAL, INSURANCE CARRIER, RESPONDENT NO. 1 and TRAVELERS INSURANCE CO., CARRIER, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 6, 1998

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

Claimant represented by TIM SHARUM, Attorney at Law, Ft. Smith, Arkansas.

Respondent No. 1 represented by JAMES ARNOLD, II, Attorney at Law, Ft. Smith, Arkansas.

Respondent No. 2 represented by PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed April 7, 1997 finding that claimant sustained a temporary aggravation of a pre-existing degenerative condition on July 17, 1995, and that the medical treatment received by claimant through April 8, 1996, is reasonable and necessary medical treatment of claimant’s compensable temporary aggravation. Based upon our de novo review of the entire record, we find that these findings of the Administrative Law Judge are supported by a preponderance of the evidence and should therefore be affirmed. The record reveals that claimant has a long standing history of compensable upper extremity and neck injuries since 1991. The injury which is the subject of the present claim occurred on July 17, 1995. Claimant testified that on July 17, 1995, as she was working on machine number 10 the gate on that machine jammed and it pulled her arm. Claimant initially experienced pain in her forearm but the pain traveled up her arm into her shoulder and into her neck. Claimant reported the incident to her supervisor but did not seek medical attention until one month after the incident occurred. Claimant was initially treated for this injury by Dr. Marilyn Barr. Dr. Barr’s medical records dated August 17, 1995, state:

She states that about three or four weeks ago she pulled a gate open on the press at work, and this caused a great deal of pain. The gate apparently was jammed, and the harder she pulled the more trouble she had. She stated she reported it at that time. This pain has waxed and waned since then. It is slowly getting worse. She states that opening the gates on her machines does make it worse. . . . on examination today she complains of a lot of pain on palpation of the shoulder. The trapezius muscles on the left are tight almost to the cervical and the occipital area. She has full range of motion of the arm though abduction especially causes pain. She states that just yesterday she slipped on oil at work and hit the floor. She hit her knee at that time. She states it was witnessed, and she reported it. This was after I talked to her about her numerous workmens’ comp claims.

[3] Dr. Barr eventually diagnosed claimant with acute cervical strain and treated her conservatively with medication and physical therapy. In late August, 1995 Dr. Barr referred claimant to Dr. James Trusell, an orthopedic specialist. Dr. Trusell, like Dr. Barr, diagnosed claimant with cervical ligamentous strain. Beginning on September 22, 1995, claimant began treatment with Dr. Barr’s partner, Dr. Michael Callaway. Dr. Callaway continued claimant’s conservative treatment of medication and physical therapy. Although claimant’s muscle spasms and tenderness originally associated with the July 17, 1995, incident eventually resolved, claimant continued to complain of pain in her shoulder and neck area. Due to claimant’s continued complaints, Dr. Callaway referred claimant to Dr. Albert McDade, a neurosurgeon in March of 1996. [4] In her opinion, the Administrative Law Judge found that the claimant sustained a temporary aggravation of her pre-existing degenerative condition as a result of the incident on July 17, 1995. Neither party has appealed this finding. Consequently, the only issue currently before the Commission is claimant’s entitlement to medical treatment subsequent to April 8, 1996. Claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary. Norma Beatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (D612291); B.R.Hollingshead v. Colson Caster, Full Workers’ Compensation Commission, Aug. 27, 1993 (D703346). In workers’ compensation cases, the burden rests upon the claimant to establish his claim for compensation by a preponderance of the evidence. Kuhn v.Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlettv. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). [5] When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy.Deborah Jones v. Seba, Inc., FC Opinion Dec. 13, 1989 (D512553). [6] The record clearly indicates that prior to the July 17, 1995, incident claimant suffered from a pre-existing degenerative condition in her cervical spine. In fact, claimant testified that even prior to the July ’95 incident she was never pain free in her neck and shoulder area for an extended period of time. As previously noted, claimant had sustained previous compensable injuries about her left shoulder and neck. The first such injury documented in the record occurred in 1991 when claimant was an employee of Tyson Foods. The record reveals that in May of 1991 claimant was seen by her treating physician for pain in her shoulder and neck and was diagnosed with tendinitis. In 1993 claimant was seen at Sparks Regional Medical Center for pain in her shoulder radiating into her neck as a result of another work-related incident. In 1994 claimant injured her left shoulder and neck and was diagnosed with a muscle strain. X-rays taken on August 31, 1995, revealed degenerative cervical spondylosis at C5-6, clearly evidencing the pre-existing degenerative condition in claimant’s cervical spine. An MRI performed on February 15, 1996, documented the degenerative disc disease as “moderately pronounced degenerative changes at C5-6 with diffuse posterior spur as well as mild to moderate canal narrowing at this level. No additional findings of significance noted.” [7] In our opinion, there is no indication in the medical records or from claimant’s testimony indicating that she sustained anything other than a cervical strain in July of 1995 for which she received competent medical treatment from Dr. Barr, Dr. Callaway, Dr. Trusell, and eventually Dr. MacDade. The treatment recommended by Dr. MacDade in his April 8, 1996, medical report is to treat the degenerative condition, not the less severe muscle strain. If in fact claimant suffers from a neurological problem in her cervical spine, claimant has failed to show that the neurological problem is a result of the temporary aggravation which she sustained on July 17, 1995. This is clearly evident by the fact that claimant testified she was never free of pain in her neck even prior to the July 17th incident. The medical records indicate that claimant has been lectured on numerous occasions by her treating physician with regard to claimant’s smoking and obesity. Dr. Callaway indicated in several medical records that these conditions are not beneficial to claimant’s degenerative disc disease in her cervical spine. In my opinion, there is no evidence that claimant’s current symptoms are a result of claimant’s temporary aggravation of her underlying condition which she sustained on July 17, 1995. Claimant’s current symptoms are a result of that pre-existing condition. The temporary aggravation which manifested itself in the form of tenderness and muscle spasms resolved after a period of conservative treatment of medication and physical therapy. Accordingly, we cannot find that the treatment recommended by Dr. MacDade or that further treatment after April 8, 1996, is reasonable and necessary medical treatment of claimant’s temporary aggravation of her pre-existing condition. Therefore, we agree with the decision of the Administrative Law Judge and affirm same. [8] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[9] Commissioner Humphrey dissents.