CLAIM NO. E600521
STEVE SMITH, EMPLOYEE, CLAIMANT v. E. H. WILEY TRUCKING, EMPLOYER, RESPONDENT and WAUSAU INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 18, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JACK W. DICKERSON, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on November 4, 1996. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury on August 1, 1995. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed.
[3] The claimant was employed as a long-haul truck driver for the respondent. On August 1, 1995, the claimant was injured in a truck accident near Amarillo, Texas. At the time the accident occurred, the claimant was in the sleeper portion of the cab while his partner was driving the truck. As a result of the accident, the truck rolled over, throwing the claimant about the interior of the sleeper cab. The claimant stated that during the roll over, he struck the middle part of his back on a mount for one of the bunks in the sleeper compartment. The respondent was immediately notified of the accident, and the following day the employer arrived at the scene to assist in the removal of the contents of the wrecked truck. The claimant testified that he attempted to assist in this undertaking but was not able to do so because of back pain. The respondent eventually referred the claimant to Dr. Brian Reilly, a chiropractor in Hot Springs, Arkansas. Dr. Reilly obtained x-rays of the cervical and thoracic portions of the claimant’s spine. Based upon his examination of the claimant and review of those x-rays, Dr. Reilly diagnosed the claimant as suffering from subluxation of the fourth cervical vertebra and the third thoracic vertebra. Dr. Reilly apparently released the claimant to return to work. The claimant testified that he did attempt to return to his employment but his back continued to cause him significant difficulties. The claimant testified that he had requested his employer to send him to another physician but was refused. The claimant testified that in order to obtain some relief from the pain and continue working, he obtained a quantity of a drug he called “Butte”. Apparently, the claimant was referring to Phenylbutazone, an analgesic commonly prescribed for treatment of race horses and other animals. The claimant went on to state that he worked for his employer for approximately one month until he again requested to be sent to a physician. He stated that, at that time, he informed his employer that he was taking “Butte”. Shortly after advising the respondent of this, the respondent requested the claimant undergo a drug test. The drug test was positive for the presence of methamphetamine metabolites. As a result of a positive drug test, the claimant was fired. [4] After leaving the employ of the respondent, the claimant began seeing Dr. Kevin Hale, a physician in Hot Springs, Arkansas. Dr. Hale initially saw the claimant for this problem on November 16, 1995, and noted in his progress note of that date that the claimant was suffering with thoracic spine pain. Dr. Hale saw the claimant again on January 29, 1996, and at that time noted the presence of low back pain. At. Dr. Hale’s direction, a MRI was performed on the claimant on February 23, 1996, which noted a slight central disc bulge in L4-5, but no other disc or spinal abnormalities. For the next few months, the claimant continued to be seen by Dr. Kevin Hale and later by Dr. Michael Young, an orthopedic surgeon also in Hot Springs. Dr. Young treated the claimant conservatively, and referred him to a physical therapy center for additional conservative treatment. [5] The claimant continued under Dr. Young’s treatment in this manner through August 1996. During that time, the claimant continued to complain of pain in his back, including occasional radiating pain into his leg. The notes from the physical therapy clinic and from Dr. Young indicate that the claimant continued to complain of pain in his low back during this time period and obtained only intermittent relief from the physical therapy. Because of the persistence of the claimant’s symptoms, Dr. Young directed that a CT scan and lumbar myelogram be performed on the claimant’s lower back. That test revealed that the claimant had a large disc bulge that was causing nerve root impingement, as well as a disc herniation on another level. The report from Dr. Young explaining those findings did not specify as to which vertebral disc spaces were involved. However, Dr. Young indicated that these findings apparently had been missed by the earlier MRI studies. Dr. Young stated that he would attempt to manage the claimant’s condition non-operatively, but if the symptoms continued, he would consider surgery. All of the physicians who have seen and treated the claimant, as well as the claimant’s physical therapist, indicated that they believed that the claimant’s injuries and complaints of pain were the result of his vehicular accident on August 1, 1995. [6] The claimant testified that he has been unable to work for any significant period of time since leaving the employ of the respondent. The claimant also stated that he was only able to work for the respondent for the month following the accident because his co-workers provided assistance for him in performing his job duties and because of the relief he received from taking “Butte”. The claimant stated that he had attempted to return to work in the construction industry as a heavy equipment operator but was unable to tolerate the level of exertion required. [7] The administrative law judge found that the claimant established that he had suffered a compensable injury on August 1, 1995, and that the disc herniation and bulging disc noted by Dr. Young in his report of September 13, 1996, were causally related to that accident. The administrative law judge also held that the CT scan and lumbar myelogram performed at Dr. Young’s direction were objective findings, sufficient to support an award of benefits. He also found that the claimant was disabled and entitled to temporary total disability benefits from September 1, 1995, to a date yet to be determined. However, the respondents were allowed a credit for any time that the claimant worked and for any unemployment compensation benefits the claimant may have received during that period of time. [8] After conducting a de novo review, we find that the claimant proved by the preponderance of the evidence that he sustained compensable back injuries on August 1, 1995, as he asserts. It is not disputed that the truck accident occurred, and that the claimant reported his injury immediately to his employer. Likewise, he was seen by a doctor a short period after the injury in which he related the same history of injury that he has also consistently described since the accident. [9] The respondents contend in their brief that the condition indicated by the CT scan was not caused by the truck accident on August 1, 1995. They argue that the condition either preexisted that accident or arose as a result of non-job-related activities after the injury. Since the claimant was the only witness to testify at the hearing, a resolution of this case depends a great deal upon the credibility of the claimant. While the administrative law judge did not make any specific findings as to the claimant’s credibility, the administrative law judge obviously found the claimant to be a believable witness since the findings of fact made by the administrative law judge were based almost solely upon the claimant’s testimony. In reviewing the claimant’s testimony, we note that his description of the accident and his resulting injuries and condition was consistent with the histories recorded by all of his treating physicians. He also testified in a straightforward manner and did not appear to unduly exaggerate his symptoms. He was also candid and admitted that he had worked some after the injury even though he did indicate that he was not able to perform these other jobs on a regular basis. We also note that according to the medical records, the claimant consistently complained of symptoms of low back pain with occasional radicular symptoms for several months prior to the CT scan performed in September of 1996, which revealed the bulging and herniated discs. [10] The respondents have noted that the claimant initially complained of an injury to the thoracic region of his back. However, those examinations were in accordance with the claimant’s initial description of having struck the middle part of his back in the accident. Not surprisingly, it was this area of the claimant’s spine that the doctors initially focused on. We believe it is significant that the claimant was not afforded any additional medical care from his employer after his initial visit with Dr. Reilly, a chiropractor. It was over three months later before the claimant went to Dr. Hale, on his own initiative, for treatment of his back problems. On his second visit with Dr. Hale, the doctor indicated in his progress notes that the claimant was suffering from symptoms of a low back injury, and referred the claimant for a MRI of his lumbar spine. This test did not discover the large bulge and herniation found by a later CT scan but did indicate that the claimant did have a small bulging disc. [11] In short, we find that the claimant was a credible witness and that his injury to his low back did arise as a result of the compensable injury occurring on or about August 1, 1995. We also find that the CT scan performed on the claimant in September 1996 is objective medical evidence sufficient to support the existence of an injury and an award of appropriate benefits. [12] The next issue that must be dealt with is the claimant’s entitlement to temporary disability benefits. An injured employee is entitled to temporary total disability compensation during that period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway andTransportation Department v. Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). In this case, the injuries to the claimant’s lumbar spine are still unresolved and the claimant is still receiving treatment for them. He also has been symptomatic during the entire time from the injury. Therefore, we find that the claimant remains within his healing period. [13] In addition, the claimant’s credible testimony establishes his incapacity to earn wages. In this regard, the claimant testified that he was only able to continue working for the respondent because of assistance from his co-workers and the fact that he was taking Phenylbutazone. While the doctors have not addressed the claimant’s disability, they did note the claimant’s consistent symptomology and did eventually diagnose a back condition which is frequently disabling. [14] In reaching our decision, we also believe that it is significant that the claimant has attempted to return to work on several occasions but has not been able to do so because the pain, stiffness, and other disabling symptoms of his condition. We find that based upon the credible testimony of the claimant in regard to the disabling characteristics of his injury, as well as the medical evidence corroborating the existence of those disabilities, the claimant has established his entitlement to temporary total disability benefits by a preponderance of the evidence. We further find that this period of disability began on September 1, 1995, and continues through to a date yet to be determined. [15] Therefore, after conducting a de novo review of the entire record, and for the reasons set out above, we find that the claimant suffered a compensable injury to his back on or about August 1, 1995. We further find that as a result of that condition, the claimant became temporarily totally disabled on September 1, 1995, and remains in that state to a date yet to be determined. The respondents are hereby ordered and directed to provide to the claimant temporary total disability benefits during that period, although the respondents are entitled to a credit against liability for periods that the claimant was employed or received unemployment benefits (not reimbursed to ESD) after September 1, 1995. The respondents are further ordered and directed to provide to the claimant all reasonable and necessary medical treatment for his compensable injury. [16] Therefore, we find that the decision of the administrative law judge must be, and hereby is, affirmed. [17] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. §
11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. §
11-9-715 (Repl. 1996). [18] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[19] Commissioner Wilson dissents.
[20] DISSENTING OPINION
[21] I must respectfully dissent from the majority opinion finding that claimant sustained a compensable lower back injury on August 1, 1995 when claimant was involved in a motor vehicle accident. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof.
[22] The medical records in this case indicate that claimant did not complain of lower back pain until January 29, 1996, approximately six full months after the motor vehicle accident. Moreover, the first objective testing in the form of an MRI revealed no significant disc herniation or canal stenosis although a slight central bulge was seen at L4-5. This examination was performed on February 23, 1996, almost seven months after claimant’s motor vehicle accident. It was not until September 4, 1996, thirteen months after claimant’s motor vehicle accident that objective testing in the form of a myelogram CT scan “appeared to show evidence of nerve root compression at one level and a small herniated disc at another.” [23] Contemporaneously with the accident, and as reflected in the first medical reports, claimant merely sustained an injury to this thoracic and cervical spine. Claimant was treated by a chiropractor just days after the accident with complaints of only middle and upper back pain. When claimant was first seen by his family physician following the accident on November 16, 1995, claimant did not complain of any lower back pain but merely thoracic spine pain secondary to the motor vehicle accident. Claimant’s failure to report any lower back pain on his first doctor’s visits closer in time to the actual date of the accident, and the fact that objective findings of a lower back injury were not detected until over a year after the accident, persuade me that claimant’s lower back problems are not related to claimant’s motor vehicle accident. Therefore, I cannot agree with the majority’s finding that claimant sustained a compensable lower back injury on August 1, 1995, during the course and scope of his employment. Accordingly, I must respectfully dissent. [24] MIKE WILSON, Commissioner