CLAIM NO. E516080
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 23, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE HOWARD GOODE, Attorney at Law, Texarkana, Texas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Reversed.
OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed June 9, 1999. The administrative law judge found that the claimant sustained a compensable injury on October 2, 1995, for which she was entitled to additional temporary total disability compensation and continued medical treatment from Dr. Roshan Sharma. The administrative law judge found that the claimant has a permanent physical impairment in the amount of 15% to the body as a whole, and that she has suffered an additional loss of wage earning capacity in the amount of 60%. After reviewing the entire recor de novo, the Full Commission finds that the claimant failed to prove that she sustained a compensable injury pursuant to Act 796 of 1993. We therefore reverse the opinion of the administrative law judge.
The claimant, age 62, began working for the respondent-employer, County Market, in 1992. The claimant alleged that she injured her back at work after slipping on mop water on October 2, 1995:
I just started falling face forward and I hit my right hip — I had a severe bruise on my right hip, my left knee, my right elbow, and the palms of my hands.
The respondents initially accepted the injury as compensable and provided medical treatment. A neurosurgeon, Dr. Freddie Contreras, began treating the claimant on October 12, 1995, upon referral for evaluation of right hip and right leg pain. Dr. Contreras reviewed an MRI and could see “no obvious abnormalities.” The impression from an MRI of the hips was “essentially normal MRI of the pelvis and hips with benign bone island suspected in the inferior aspect of the neck of the right femur.” The claimant left work on October 12, 1995, and the respondents began paying temporary total disability compensation; the claimant has not since returned to work. A CT of the lumbar spine was taken January 22, 1996, with the impression of “normal CT of the lumbar spine.” On January 31, 1996, Dr. Contreras stated that a lumbar myelogram did not reveal any evidence of a ruptured disc. Dr. Contreras referred the claimant to Dr. Roshan Sharma, a physical medicine and rehabilitation specialist.
Dr. Sharma first examined the claimant on February 6, 1996, and wrote, “Inspection seems to indicate a smaller R calf in comparison with the L, 21 cm from the Medial Malleoulus Prominence, R calf 33 1/2 cm, L 34 cm.” Dr. Sharma further wrote that “it is quite apparent that she does have problems which are not apparent on the radiological film.” Dr. Sharma assessed “Lumbar Radicular Syndrome. Next, depression and significant anxiety.” Dr. Sharma recommended pain management sessions and a lumbosacral corset, and he began administering daily conservative treatment modalities to the claimant for her lower back on February 12, 1996. This treatment included hot pack, electrical stimulation, therapeutic exercises, and application of a TENS unit. Dr. Sharma wrote on February 20, 1996 that he had been unable to obtain written approval for a lumbosacral corset, a pain management class, or therapy.
Dr. Sharma corresponded with Ron Gangluff of Wausau on February 27, 1996, “Mrs. Smith had mentioned that you had personally come down all the way to see her and was it was very nice of you (sic). However, I had some concern when you spoke to my office employee on 2-23-96 at 2:30 p.m. where you seem to be quite upset and had mentioned that you would change the patients (sic) treating physician. I have treated the patients family for the last 4 years and they do know me very well. I am not taking this personally as I know the family very well.” The record shows that the claimant was admitted to HealthSouth Rehabilitation Hospital of Texarkana on May 1, 1996 and discharged on May 13, 1996, apparently on the referral of Dr. Linda Walby. A physical therapist noted that the claimant attended seven sessions of physical therapy which included aquatic therapy. The claimant was issued a TENS unit and reported relief from its application. Although “she was showing signs of gradual improvement”, the claimant failed to continue attending physical therapy despite the recommendation of Dr. Walby.
The claimant returned to Dr. Sharma on May 14, 1996, after she voluntarily stopped treating at the respondents’ expense at HealthSouth:
Patient is doing fairly well. She says she is doing pool therapy and was concerned why I was not participating in her care when I was her treating physician. I told her I have no idea what her adjuster is doing. We agreed to have a consultation with Dr. Walby. Apparently the adjuster did something which was unethical and hense (sic) the patient has been going to Dr. Walby for her therapy needs. When the patient should have returned back to me with consultation reports and other reports.
The carrier appointed a new adjuster by July 10, 1996, but the respondents controverted further benefits after July 19, 1996, citing “no objective findings.” On July 23, 1996, Dr. Sharma reported that the claimant still had significant low back pain which now radiated into both lower extremities. Dr. Sharma planned “different” conservative modalities, which included the previous treatment of hot packs, electrical stimulation, and a TENS unit. Dr. Sharma also sought to arrange a discogram, “Would need approval from her new Adjustor before the above procedure and therapy can be done.” Dr. Sharma wrote on August 14, 1996, “Her Worker’s Comp Adjustor does not think that any further diagnostic evaluation is necessary as she does not have objective medical report or findings, however, her evaluation is not complete and for this particular reason, a discogram has been recommended, but this has not been approved. . . . An appointment for her to see Dr. Patrick Peavey (sic) will be made to arrange for a discogram.”
Dr. Peavy, a radiologist, performed a lumbar discogram on August 22, 1996, with the following impression:
Positive response to provocative injection of the L4-5 interspace associated with midline fissure. The findings suggest internal disc disruption syndrome.
And Dr. Peavy provided the following impression after a CT of the lumbar spine, also taken on August 22, 1996:
Fairly large central annular fissure at L4-5 associated with positive provocative response during performance of the diskogram. There is a small amount of central bulging of what is probably the posterior longitudinal ligament into the sac, but there is no lateralization of extrinsic effect. The fissure does extend along both sides of the paramedian central posterior longitudinal ligament. Findings are consistent with internal disc disruption syndrome at L4-5.
On August 28, 1996, Dr. Sharma wrote, “I believe the patient would benefit from a work conditioning program which will allow her, hopefully, to slowly enter into the work field again. Once again, this depends on the Adjusters (sic) mood.”
Dr. Peavy corresponded with the claimant’s attorney on September 17, 1996:
In the case of Ms. Bobbie Smith, she did appear to have a degenerated disc at L4-5 which appeared to significantly reproduce her clinical pain. The patient was not aware of when the disc was injected, and although some of the provocative response is subjective, in cases such as Ms. Smith, there was an unequivocal pain response to the injection of small amount of contrast into the affected disc which raised the intradiskal pressure. This was confirmed with fissuring seen on the accompanying CT scan.
Diskography is not suitable as a screening examination and is only reserved for the very difficult cases such as this in which it can be useful in determining if there is indeed an organic cause for pain and localization of the particular disc space from which the pain originates. The pattern of fissuring seen can be useful in determining if there is a pathway which could lead to eventual protrusion of disc material.
The record includes (over the respondents’ objection) a Social Security Administration, Notice of Decision — Fully Favorable, dated April 18, 1997. An administrative law judge with the social security administration determined that there was “right SI joint dysfunction, myofascial pain syndrome, piriformis syndrome, muscle spasms, and mild hypertrophic spondylitis of the lumbar. These impairments prevent the claimant from less than sedentary exertion.” The social security administrative law judge found that the claimant was entitled to a period of disability beginning October 12, 1995.
On a form dated May 27, 1997, Dr. Sharma opined that as a result of the workplace injury, the claimant had sustained a herniated disc, L4-L5, as shown by diskogram and clinical findings, in addition to muscle atrophy of the right calf as a result of the herniated disc. Dr. Sharma opined that the claimant was not still in her healing period and assessed a “Permanent Impairment Rating” of 17% on May 27, 1997. An MRI of the lumbar spine was taken May 29, 1997:
Mild disc degeneration at predominantly the L3-4 and L4-5 levels with minimal posterior subligamentous bulging without herniation or significant neural compromise.
Dr. Sharma assigned the claimant a revised “Total Whole Body Impairment” of 15% on July 28, 1997. On August 4, 1997, Dr. Sharma wrote, “Palpation reveals palpable muscle spasms in the low back area inhibiting her trunk range of motion.” Dr. Sharma prescribed the claimant medication for muscle spasm, and said, “She is not to do any lifting, bending, or stooping and is to take bed rest for the next 3-4 days.” Dr. Peavy again corresponded with the claimant’s attorney on August 7, 1997:
The significant objective anatomic findings at the time of the diskogram were confined to the L4-5 level where a fairly large central annular fissure was demonstrated and best observed on the CT scan. The fissure allowed the centrally injected contrast to extend through the fissure back to the posterior longitudinal ligament with some extension beneath the posterior longitudinal ligament both to the right and left of midline at this level. There is a small focal associated bulge at this level.
The other described findings in my report are thought to be of no particular clinical significance.
Beginning in January, 1998, Dr. Sharma again began reporting muscle spasms, which he also said he found in the claimant’s lumbosacral area in April and May, 1998. Dr. Sharma stated on May 7, 1998 that he had reviewed an old MRI, and that the claimant had “subligamentous bulging without herniation of the L3-L4, L4-L5 discs.” Dr. Sharma began the claimant’s “first low back area therapy session” on May 8, 1998, which included moist heat, electrical stimulation, and therapeutic exercises. In correspondence dated July 22, 1998, Dr. Contreras reviewed the claimant’s medical history for counsel, and stated that since he had not seen the claimant in the recent past, he did not feel comfortable assigning an impairment rating or opining regarding whether the claimant had reached maximum medical improvement. The claimant returned to Dr. Contreras in September, 1998, and he reported, “She describes a hole in her right leg and indeed when I examiner (sic) her she has a pretty significant right gastrocnemius atrophy, especially at her upper gastrocs (sic) on the right lateral part of her leg.” Dr. Contreras recommended repeat MRI “to rule out something like a far lateral disc,” but he did not subsequently report any such abnormality.
Counsel deposed Dr. Contreras on January 12, 1999. Dr. Contreras testified that the claimant underwent an MRI, myelogram, and CAT scan subsequent to the injury, but that all three diagnostic tests were normal. He stated, “there did not appear to be a source for her pain relative to the disks or the nerve root in the lumbar spine.” Dr. Contreras also stated that none of these diagnostic tests would reveal “internal disk disruption.” He described a diskogram as a test where a needle is inserted into an individual disk. Dye is then injected into the disk to see if it reproduces the patient’s pain. Following that, the disk is x-rayed to see if any of the dye is leaking, and then normally a CT follows, where the examiner looks for “little cracks in the disks, something that they would call a fissure.” Dr. Contreras testified that diskograms are controversial, that many doctors believe that diskograms are not reliable, “that if you inject contrast into a normal disk it can be painful, and then there are a lot of doctors that feel like diskograms are used by people who are kind of looking for a reason to operate.” Dr. Contreras testified:
Q. In this case you had a normal MRI, normal CT, normal myelogram. Would you then ever take the evidence that you got from a diskogram over these three tests that are more reliable?
A. I would not.
Dr. Contreras stated that although part of the diskogram was certainly subjective, “the CT scan after the diskogram is a little more objective.” Dr. Contreras testified:
Q. Now, following up on that you mentioned that many doctors believe that you can inject dye into many healthy disks and still get a finding on the CT scan after the diskogram; is that right?
A. That’s correct.
Q. So are you saying the diskogram is just unreliable?
A. I think — I think that generally 99 percent of the time they are unreliable.
Q. Okay. And the part that is objective is the — is the CT scan after the diskogram, but you can’t rely on that because many healthy disks do the same thing; is that correct?
A. That’s correct.
Dr. Contreras discussed his notation of “a fair amount of gastrocnemius atrophy” upon reexamining the claimant in September, 1998:
Q. And did you see any atrophy when you initially examined this patient in 1995?
A. No.
Q. Okay. Is there any way to tie this muscle atrophy into the injury that happened back in 1995?
A. The one test that I don’t know if she ever got that I think would be useful would be EMG’s, and that might help determine absolutely whether or not you can relate the two. I don’t think without that you could say that the atrophy is absolutely related to the injury of `95.
Q. So the proper legal terminology is you can’t say with a reasonable degree of medical certainty that the atrophy is definitely related to the `95 injury?
A. I can’t, that’s correct.
Counsel queried Dr. Contreras concerning the impairment rating assigned by Dr. Sharma, although Dr. Contreras stated that he normally referred patients to other physicians for impairment ratings. Dr. Contreras testified that the claimant did not have a herniated disk, a finding for which Dr. Sharma assessed a 7% rating. The 8% rating assigned by Dr. Sharma was based on subjective criteria such as numbness and loss of strength.
Bobbie Smith filed a claim for additional workers’ compensation benefits. The claimant contended that she was entitled to additional temporary total disability compensation from July 30, 1996 through May 27, 1997; that she was entitled to a physical impairment rating of 17% to the body as a whole, as well as wage loss disability; and that she was entitled to ongoing medical benefits. The respondents now controverted the claim in its entirety, contending that there was no objective medical evidence to support a claim of compensability.
Dr. Joseph Greenspan, Fellow American Academy of Physical Medicine and Rehabilitation, Diplomate American Board of Pain Management, offered “the following professional insight” to the claimant’s legal counsel on April 5, 1999:
It is implicitly clear in the medical literature that when MRI and CAT scanning fail to document existing disc pathology due to their high false positive and high false negative rates, discography is the diagnostic gold standard. Accompanying this letter is a list of 90 supportive references.
As a physician who performs and interprets discograms, I believe that the study done on Bobbie Smith represents a positive objective test in accordance With the Arkansas Workman’s Compensation Commission requirements.
After a hearing before the Commission, the administrative law judge found that the claimant sustained an injury arising out of and in the course of her employment, and he ordered the respondents to pay temporary total disability compensation to the claimant “for the period covering October 12, 1995 through July 19, 1996, continuing through May 27, 1997, as a result of the claimant’s compensable injury of October 2, 1995.” The administrative law judge directed the respondents to pay permanent partial disability benefits in the amount of 75% (15% anatomical impairment, 60% wage loss), as well as reasonable and necessary medical treatment “growing out of the claimant’s compensable injury of October 2, 1995.” Respondents appeal to the Full Commission.
The claimant contends that she sustained a compensable injury while working for the respondents on October 2, 1995. She has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that it caused internal or external physical injury to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. StephensTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, we find that the claimant has failed to establish a compensable injury by medical evidence, supported by objective findings. The claimant alleged that she slipped in mop water and fell at work on October 2, 1995. The claimant testified that she fell face forward, and hit and severely bruised her right hip in the accident. There is no medical treatment of record until October 12, 1995, when Dr. Contreras evaluated the claimant for right hip and right leg pain. Dr. Contreras’ physical examination yielded no objective medical findings, and MRI of the pelvis and hips was normal. On January 22, 1996, over three months after the alleged accidental injury, a CT of the lumbar spine was normal. Dr. Contreras referred the claimant to a physiatrist, Dr. Sharma, for conservative management.
Dr. Sharma began treating the claimant in February, 1996, and noted that MRI and x-ray taken in October, 1995 had shown a degenerative condition in the claimant’s lumbar spine, specifically, spondylitis. Dr. Sharma reported that the claimant’s right calf was one-half centimeter smaller than her left calf, a finding which the treating neurosurgeon had not reported following his examination of the claimant in October, 1995. Dr. Sharma did not treat the claimant’s right calf nor refer the claimant to another physician for such treatment; rather, he assessed lumbar radicular syndrome and arranged conservative low back treatment. Dr. Sharma did not attribute the claimant’s “lumbar radicular syndrome” to her alleged accidental injury.
The respondents provided medical treatment for the claimant from October, 1995 through July, 1996, which treatment included comprehensive physical therapy and other conservative treatment modalities at HealthSouth Rehabilitation Hospital. Although the physical therapist reported that the claimant’s condition was improving, and despite the recommendation of Dr. Walby, she voluntarily discontinued her treatment at HealthSouth. Due to the lack of objective medical findings, the respondents controverted further medical treatment after July 19, 1996. At this point, Dr. Sharma sought to arrange a discogram, but stated in writing that the respondents’ assent would be needed before this procedure was carried out. Dr. Sharma subsequently acknowledged that the respondents did not approve discography in the case. Rather than consult with the treating neurosurgeon, Dr. Contreras, Dr. Sharma referred the claimant to another physician for a discogram.
Dr. Patrick Peavy, a radiologist, performed a lumbar discogram in August, 1996, ten months after the claimant allegedly fell on her right hip at work. Dr. Peavy’s findings suggested what he called “internal disc disruption syndrome,” which he based on the claimant’s subjective response to provocative injection at L4-5. Following a lumbar CT in August, 1996, Dr. Peavy described a “large central annular fissure” at L4-5, also “associated with positive provocative response during performance of the diskogram.” In September, 1996, however, Dr. Peavy wrote that the claimant appeared to have a degenerated disc at L4-5, which appeared to significantly reproduce her clinical pain. A lumbar MRI performed in May, 1997 confirmed Dr. Peavy’s previous report of a degenerated disc, showing “mild disc degeneration at predominantly the L3-4 and L4-5 levels with minimal posterior subligamentous bulging without herniation or significant neural compromise.” In August, 1997, Dr. Peavy opined, “The significant objective anatomic findings at the time of the diskogram were confined to the L4-5 level where a fairly large central annular fissure was demonstrated and best observed on the CT scan. . . . There is a small focal associated bulge at this level.”
After de novo review of the entire record, the Full Commission finds that the claimant did not establish a compensable injury by medical evidence, supported by objective findings. Although we agree with the dissent that the radiography/CT component of discography can generate objective findings, the preponderance of evidence clearly establishes that there were no objective medical findings from the time of the alleged specific incident in October, 1995 through July, 1996, after which the respondents controverted further medical benefits. Dr. Peavy’s finding of “internal disc disruption syndrome” in August, 1996 was based on the claimant’s subjective response to a lumbar injection. We find that the claimant’s response to provocative injection was under her voluntary control, and as such, cannot be considered an objective medical finding. See, University of Ark. Med. Sciencesv. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997); see also, Duke v.Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996).
The dissent interprets Dr. Peavy’s findings from discography to mean that “upon injection, the contrast material did not remain stationary. Movement of the dye outside the nucleus of the disc illustrated the fissure.” The dissent thus declares that the results of discography in this case satisfy the objective findings requirement of Act 796 of 1993. Yet, we again point out that Dr. Contreras, a neurosurgeon, declined to elevate the findings of the unauthorized discography arranged by Dr. Sharma over the normal MRI, normal CT, and normal myelogram. Further, Dr. Contreras opined that one could inject dye into a healthy lumbar disc and still observe the “dye movement” upon which the dissent would have the Commission determine that there are objective medical findings. In addition, Dr. Peavy opined that the claimant’s pain generator was a degenerated disc at L4-5; there is absolutely no indication of record that the degenerated disc at L4-5 resulted from the alleged accidental injury. Dr. Peavy supplemented his opinion in August, 1997, stating that the “significant objective anatomic findings at the time of the diskogram were confined to the L4-5 level where a fairly large central annular fissure was demonstrated and best observed on the CT scan. . . . There is a small focal associated bulge at this level.” From the record before the Commission, there is no evidence connecting the bulge at L4-5 to the alleged accidental injury of October, 1995; therefore, the abnormality at L4-5 cannot be considered an objective medical finding establishing a compensable injury. See, Ford v.Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998).
The dissent also maintains that the claimant suffered muscle atrophy in her right calf as a result of the alleged accidental injury, and that Dr. Sharma’s opinion on same “satisfies the statute.” We note that Dr. Contreras examined the claimant for right hip and leg pain and reported no such abnormality in the claimant’s calf. In February, 1996, Dr. Sharma wrote that his physical examination of the claimant “seems to indicate” a smaller right calf. In May, 1997, Dr. Sharma opined that the claimant had sustained a herniated disc at L4-5, and that the claimant had suffered muscle atrophy in her right calf as a result of the herniated disc. The Commission has the authority to accept or reject medical opinions, and our resolution of the medical evidence has the force and effect of a jury verdict. McClain v.Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). The record in the present matter clearly indicates that the claimant did not sustain a herniated disc at L4-5; therefore, Dr. Sharma’s opinion that the claimant suffered muscle atrophy as a result of same is entitled to no weight. Connecting the claimant’s smaller right calf to the alleged injury would require conjecture and speculation. Conjecture and speculation can never be substituted for credible evidence. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 [575 S.W.2d 155](1980).
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant failed to establish a compensable injury by medical evidence, supported by objective findings. We reverse the administrative law judge’s finding that the claimant sustained a compensable injury; this claim is denied and dismissed.
IT IS SO ORDERED.
________________________________
ELDON F. COFFMAN, Chairman
________________________________
MIKE WILSON, Commissioner
Commissioner Humphrey dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion in this case. In my opinion, claimant proved by a preponderance of the evidence that she sustained a specific incident injury on October 2, 1995.
To support a denial of benefits, the majority determined that claimant failed to satisfy the objective findings requirement, stating that “we find that the claimant’s response to provocative injection was under her voluntary control and as such, cannot be considered an objective medical finding.” It is a more complex test, encompassing an examination of the disc structure as well. According to Dorland’s, discography is “radiography of the spine for visualization of an intervertebral disk, after injection into the disk itself of an absorbable contrast material.”
Dr. Patrick W. Peavy performed a discogram on August 22, 1996. The dispersal pattern of the contrast material led Dr. Peavy to conclude that claimant had a fissure at L4-5. Further, he observed the fissure on a CT scan performed following the discogram. In a letter to claimant’s counsel addressing the objectivity of his findings, Dr. Peavy stated:
The significant objective anatomic findings at the time of the diskogram were confirmed to the L4-5 level where a fairly large central annular fissure was demonstrated and best observed on the CT scan. The fissure allowed the centrally injected contrast to extend through the fissure back to the posterior longitudinal ligament with some extension beneath the posterior longitudinal ligament both to the right and left of midline at this level. There is a small focal associated bulge at this level.
It is apparent from Dr. Peavy’s correspondence that upon injection, the contrast material did not remain stationary. Movement of the dye outside the nucleus of the disc illustrated the fissure. The test also revealed a disc bulge at the same level as the fissure. Clearly, these findings are outside of claimant’s voluntary control. I specifically find that a discogram is an objective test that satisfies the statute. Moreover, the objectivity of a discogram is not defeated because one component of the test is claimant’s response to pain. In reaching this conclusion, I have considered our recent case involving a physician’s use of Table 75 of the AMA Guides, which I deem analogous. InHarold Edmondson v. Mid Ark Auto Auction, Full Workers’ Compensation Commission Opinion filed November 24, 1999 (E800680), we rejected the argument advanced by respondents that the use of a table which included medically documented pain as a rating criteria violated the statute with respect to the assignment of anatomical impairment ratings.
In my view, claimant proved a causal connection between the disc bulge and her work-related fall. Claimant testified that she has no history of back complaints. Her testimony is supported by Dr. Sharma’s chart note dated February 6, 1996. In that document, he stated that claimant had “no significant medical history.” Following the fall, claimant developed low back pain.
In addition to the disc bulge and annular fissure at L4-5, the evidence also demonstrated that claimant suffered muscle atrophy in her right calf. In my opinion, the atrophy is related to claimant’s the work-related injury. The majority disagrees, contending that this conclusion may only be reached by resorting to speculation and conjecture. I disagree. Claimant has persistently complained of right leg and right calf pain. She testified that the atrophy developed following the fall. This is documented by Dr. Contreras in a chart note dated December 12, 1995. He testified that at first, there was no atrophy present. Upon reexamination of claimant in September of 1998, Dr. Contreras noted the presence of gastrocnemius atrophy. There is no evidence that claimant had any right extremity pain, weakness, or atrophy prior to the occurrence of her work-related fall. Further, there is no evidence that claimant suffered some other accident since the fall at work. In my view, claimant has established the requisite causal connection.
In reaching this decision, I recognize that Dr. Contreras opined that there was no causal nexus between the injury and the atrophy. However, I find that his opinion is entitled to no weight. This is because counsel for respondents and Dr. Contreras applied an incorrect legal standard during their discussion of this issue. Their colloquy follows:
Q. Okay. Is there any way to tie this muscle atrophy into the injury that happened back in 1995?
A. The one test that I don’t know if she ever got that I think would be useful would be EMG’s, and that might help to determine absolutely whether or not you can relate the two. I don’t think without that you could say that the atrophy is absolutely related to the injury of `95.
Q. So the proper legal terminology is you can’t say with a reasonable degree of medical certainty that the atrophy is definitely related to the `95 injury?
A. I can’t
(Emphasis supplied).
Ark. Code Ann. § 11-9-102 (16) (B) (Supp. 1997) requires that medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. In Frances v. GaylordContainer Corp., ___ Ark. App. ___, ___ S.W.2d ___ (2000), the Court of Appeals addressed this requirement, stating that: “[claimant’s physician] gave the opinion that the work-related accident was the kind of event that could cause the resulting back condition, and this was sufficient to satisfy the relevant statute.”
Dr. Contreras was seeking an absolute connection, and counsel for respondents imposed a definiteness requirement. The infusion of these terms impermissibly narrowed the definition of the phrase “reasonable degree of medical certainty,” and rendered Dr. Contreras’ opinion invalid.
I would award all appropriate medical and permanent benefits.
Based on the foregoing, I respectfully dissent.
______________________________ PAT WEST HUMPHREY, Commissioner