SPALDING v. FIRST STEP SCHOOL, 1997 AWCC 234

CLAIM NO. E416505

SHARON SPALDING, EMPLOYEE, CLAIMANT v. FIRST STEP SCHOOL, EMPLOYER, RESPONDENT and FIREMAN’S FUND INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 27, 1997

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

Claimant represented by C. BURT NEWELL, Attorney at Law, Hot Springs, Arkansas.

Respondents represented by MICHAEL ALEXANDER and KAREN HART McKINNEY, Attorneys at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Respondents appeal a February 21, 1996 opinion of the Administrative Law Judge finding that claimant is entitled to additional benefits.

[3] Claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. Jordan v. TysonFoods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Ark. Code Ann. § 11-9-705 (a)(3) (Repl. 1996). Claimant must prove a causal connection between the admittedly compensable injury and any subsequent problems for which she seeks compensation. Batesv. Frost Logging Company, 38 Ark. App. 36, 827 S.W.2d 664 (1992). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). After our de novo review of the entire record, we find that claimant has met her burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.

[4] On November 29, 1993, claimant sustained an admittedly compensable injury when she fell on her tailbone. X-rays suggested a fractured coccyx, minimally displaced. Thereafter, claimant began experiencing significant problems, including chronic constipation/obstipation, acute appendicitis, clinical depression and migraine headaches. Respondents controverted claimant’s entitlement to any benefits for these conditions which developed subsequent to the compensable injury.

[5] The injury to claimant’s coccyx caused her severe pain. Shortly after the accident, claimant began to experience problems with constipation. Claimant’s primary treating physician has been Dr. Kevin Douglas Hale, a family practitioner. Dr. Hale testified that claimant complained of constipation almost every visit following the injury. In March 1994, claimant was hospitalized with severe abdominal pain. Exploratory surgery was performed by Dr. Gary Meek, a general surgeon. Dr. Meek observed that claimant had an “early acute appendicitis, but her colon was full of stool and she had what I would consider to be a fecal impaction at that time.” Dr. Meek explained that appendicitis is usually caused by a piece of fecalith or stool becoming entrapped in the lumen of the appendix, causing inflammation. The medical evidence indicates that this is what happened with claimant. Dr. Meek stated that the fecal impaction can be caused by narcotic pain medications and/or an underlying neurological problem.

[6] Following the appendectomy, claimant still failed to return to normal bowel function. This resulted in a referral to Dr. Don Slaton, a gastroenterologist. Dr. Slaton ordered extensive diagnostic testing and prescribed numerous medications in an effort to improve claimant’s problems. Dr. Slaton testified that stress or anxiety caused by claimant’s work-related injury and subsequent difficulties were a factor in her symptoms. However, when claimant had an abnormal transit study, Dr. Slaton believed that in addition to stress and possibly prescription pain medication, claimant had some underlying pathological problem causing her symptoms. Thus, a referral was made to Baylor University Medical Center.

[7] In a report dated November 7, 1994, Dr. J. Kent Hamilton summarized the findings by the physicians in Dallas, Texas.

We saw and evaluated Ms. Spalding in regard to her constipation. We in short understand why she is constipated but can offer no good reason or absolute cure for this. She presented with her studies which we reviewed in detail and noticed that she had a fairly marked abnormal transit study with pain up in the sigmoid and rectum. Anal rectal motility demonstrated a pattern consistent with a lower motor neuron defect and she had a defecography which demonstrated failure of relaxation of the anal sphincter. I had her see a neurologist who went over her in detail and did an MRI of the upper spine, lower spine, and pelvis. We found no evidence of hematoma, spinal stenosis, herniated disc or tumor. Dr. Jacobson, one of the colon-rectal surgeons, saw her and agreed with the above and that she had the constipation that one would see in a paraplegic.
At this time we can not make a specific diagnosis. We don’t feel that removal of her coccyx would make any difference here and Dr. Jacobson feels there is nothing they can offer in that regard. The only thing we can suggest, is that she ought to stay on the bulk laxatives and use Duccolax suppositories or enemas as a trigger to have a bowel movement every other day to avoid impaction and episodes requiring hospitalization. This obviously invites why did this happen? The only thing is this remote trauma a year ago, which is really a bazaar thing, which none of us has ever see [sic] before and can offer no subtle diagnosis of a systemic disease which can present like this.
In summary, she has a real anal neurological problem for which we can provide no definitive diagnosis and can only suggest symptomatic therapy. I don’t know that she is going to be happy with all this. She was very tearful about not being able to provide a sure fire cure for this.

[8] Dr. Hale described claimant as “pretty distraught” when she returned from Texas. Due to claimant’s continued difficulties, Dr. Hale sought consultation with Dr. Allen Gocio and Dr. Charles Crocker. Neither physician believed that surgery to remove claimant’s coccyx would improve her condition. However, Dr. Hale insisted that surgery was necessary so he made a referral to Dr. Michael J. Young, an orthopedic surgeon. Dr. Young noted that “[r]adiographs show what appear to be a nonunion of her coccyx with old fracture. Physical exam shows this to be a mobile painful fragment.” On March 6, 1995, Dr. Young performed surgery to remove claimant’s coccyx. Dr. Meek described claimant’s X-ray as “really deformed.” The evidence indicates that following this surgery, claimant’s chronic constipation resolved and she no longer experienced vomiting, leg numbness or excruciating pain. Dr. Hall commented that claimant’s condition made a “dramatic turnaround” as a result of the surgery.

[9] In September 1995, claimant returned to Baylor University Medical Center where her objective testing showed improvement. However, concerning causation, Dr. Hamilton stated the following:

This is a singular case in my experience and I know of no other case report in literature. I have discussed this with our resident motility expert, Dr. Schiller, who has reviewed the tracings. We can not make a definite statement that the coccygeal injury was unequivocally the cause of her constipation. On antidotal basis I would only say that local irritation could have possibly caused some peculiar rectal dysfunction by a mechanism entirely unclear to us, and could have resulted in her constipation. However, there is no body of scientific evidence to fall back on to make a statement of that regard.

[10] The greater weight of the evidence indicates that claimant’s colonic dysfunction was causally related to the compensable injury. Claimant had no difficulty with constipation prior to the coccyx injury. Shortly after the injury, she began to experience chronic constipation/obstipation. While it appears that prescription pain medication probably did not play a significant factor in this condition, Dr. Slaton opined that the stress and anxiety claimant experienced as a result of the injury, along with the underlying neurological abnormalities objectively documented at Baylor University Medical Center caused claimant’s colonic dysfunction. Further, Dr. Hale, who has followed claimant’s progress more than any other physician, felt “certain” that the compensable injury caused claimant’s chronic constipation. Finally, it is significant that claimant’s difficulties resolved following surgery to remove the injured coccyx. Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that her chronic constipation was causally related to the compensable injury. Respondent argues that medical opinions on causation must be supported by objective medical evidence. However, it is the condition or abnormality alleged to be a compensable consequence of the work-related injury that must be supported by objective findings, not the opinion regarding causation. Even opinions stated within a reasonable degree of medical certainty are generally a matter of inferences. Thus, the fact that the physicians in Texas “cannot make a definite statement that the coccygeal injury was unequivocally the cause of her constipation” does not defeat this claim.

[11] We likewise find that claimant has proven by a preponderance of the evidence that the treatment for her appendicitis was causally related to the compensable injury. Claimant was experiencing chronic constipation prior to hospitalization for severe abdominal pain. An acute appendicitis is usually caused by a piece of stool becoming entrapped in the lumen of the appendix, causing inflammation. As noted above, surgery revealed this to be what happened with claimant. Further, this fecal impaction was most likely the result of pain medication and/or the underlying neurological colonic dysfunction. Thus, the greater weight of the evidence indicates that the acute appendicitis was causally related to the compensable injury.

[12] As early as July 1994, Dr. Hale noted that claimant was showing signs consistent with depression. Dr. Hale believed the compensable injury caused claimant a considerable amount of anxiety and stress. At one point, claimant was hospitalized with severe depression.

[13] Subsequently, claimant was hospitalized in February 1995 after taking an overdose of medication and in December 1995 for a similar occurrence. Claimant and Dr. Hale related these difficulties to the problems she experienced following the compensable injury. Further, Dr. Irving Kuo, the psychiatrist treating claimant, related her psychological difficulties to the compensable injury.

I feel with a reasonable degree of certainty that her presenting mental illness to me was caused by traumatic injury that she incurred while she was employed. I feel that if she did not incur that injury she would not have fallen into the depths of depression and emotional despair that she presented to me within the past year. More over [sic] her psychiatric condition has improved as her physical condition has improved with surgery, which entailed the removal of her tailbone.

[14] Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that her psychological difficulties are causally related to the compensable injury.

[15] Finally, claimant received treatment for migraine headaches. Although claimant had suffered migraine headaches in the past, she had not had one in over two years. Dr. Hale related claimant’s headaches to the stress, anxiety and depression caused by the compensable injury. Therefore, we find that claimant has proven by a preponderance of the evidence that the treatment she received for migraine headaches was causally related to the compensable injury.

[16] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that she is entitled to additional benefits for the conditions discussed herein. Respondents are directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.

[17] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[18] Commissioner Wilson dissents.

[19] DISSENTING OPINION
[20] I respectfully dissent from the majority’s opinion finding that the claimant has proved by a preponderance of the evidence that the claimant’s chronic constipation was causally related to her compensable injury; that her treatment for appendicitis was causally related to her compensable injury; that her psychological difficulties are causally related to her compensable injury and that her migraine headaches were causally related to her compensable injury. Based upon my de novo review of the record, I find that the claimant has failed to prove by a preponderance of the evidence that any of these difficulties are causally related to her compensable injury.

[21] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold,265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704 (c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh’s,298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry,22 Ark. App. 196, 737 S.W.2d 663 (1987).

[22] In my opinion, a review of the evidence indicates that the claimant has failed to prove by a preponderance of the credible evidence that her constipation problems, appendicitis, migraine headaches and psychological problems are causally related to her November 29, 1993 compensable injury.

[23] The only evidence in the record relating the claimant’s constipation problems to the claimant’s compensable injury is the claimant’s own testimony and belief as to the causal relationship. The claimant testified that she became subject to chronic constipation after her injury in November 1993. However, the medical records of her family physician do not corroborate the statement. The claimant sought treatment from Dr. Hale on December 2, 1993, December 9, 1993, December 27, 1993, February 22, 1994 and on March 17, 1994. During the three months following the claimant’s injury there is no mention in Dr. Hale’s notes of the claimant complaining of constipation, nor is there any mention in Dr. Hale’s chart notes reflecting that he advised the claimant on how to treat constipation. It was not until March 18, 1994 that the claimant presented to Dr. Hale’s office with pains in the right side of her lower abdomen. It was not until after the claimant had her appendectomy in March of 1994 that both Dr. Hale and Dr. Meek first make mention of the claimant’s constipation in their chart notes. It is of note that when the claimant sought treatment from Dr. Slaton in May of 1994, his history of the claimant stated that the claimant had been having constipation since her appendectomy in March of 1994. Dr. Slaton’s notes further record that the claimant was having regular bowel movements prior to her appendectomy in March of 1994.

[24] The claimant was ultimately referred to specialists at Baylor University for further testing. It was determined that the claimant’s anal sphincter would not relax which was directly related to the claimant’s constipation. The specialist at Baylor could not and did not relate the failure of the claimant’s anal sphincter to relax to the claimant’s pain medication. Dr. Kent Hamilton specifically stated:

At this time we cannot make a specific diagnosis. We don’t feel the removal of her coccyx would make any difference here and Dr. Jacobson feels there is nothing they can offer in that regard. The only thing that we can suggest is that she ought to stay on the bulk laxatives and use Duccolax suppositories or enemas as a trigger to have a bowel movement every other day to avoid impaction and episodes requiring hospitalization. This obviously invites why did this happen? The only thing is this remote trauma a year ago, which is really a bizarre thing, which none of us has ever see; [sic] before and can offer no subtle diagnosis of a systemic disease which can present like this.

[25] Dr. Hamilton further stated:

In short, we understand why she is constipated but can offer no good reason or absolute cure for this.

[26] Thus, the specialists who have seen, examined and treated the claimant can offer no explanation based upon objective medical findings as to the cause of the claimant’s abdominal problems. They simply can make no logical connections supported by objective medical evidence of a natural consequence connecting the broken coccyx to the claimant’s abdominal problems.

[27] In addition to the diagnosis of the failure of the anal sphincter to relax, the claimant was diagnosed with an anal rector motility pattern consistent with lower motor neuron defect. After conferring with Dr. Hamilton regarding the claimant’s test results from Baylor, Dr. Slaton noted in his progress notes:

They have no explanation for her findings . . . However, he does not believe it is due to medication . . . Although they couldn’t say for certain, they could not explain the findings based on any injury.

[28] In his deposition, Dr. Slaton was specifically asked if he could relate the trauma of the fall to the claimant’s problem and he honestly responded that he does not know if there is a cause and effect. Moreover, Dr. Hamilton, the specialist from Baylor noted:

This is a singular case in my experience and I know of no other case report in literature . . . We cannot make a definite statement that the coccygeal injury was unequivocally the cause of her constipation. An antidotal basis I would only say that the local irritation could have possibly caused some peculiar rectal dysfunction by a mechanism entirely unclear to us, and could have resulted in her constipation. However, there is no body of scientific evidence to fall back on to make a statement of that regard.

[29] In his deposition, Dr. Slaton specifically stated that he could not relate by objective evidence the claimant’s upper tract problems with her work-related fall. Moreover, Dr. Slaton further stated that the claimant’s appendectomy is not related to the claimant’s on-the-job injury.

[30] With regard to the August 19, 1994 letter that Dr. Slaton wrote stating that it was his opinion that the claimant’s GI symptoms were related to her use of various pain medications to treat her underlying trauma, Dr. Slaton acknowledged that the only reference in his notes regarding the claimant’s tailbone problems was the note indicating the claimant called his office in August of 1994 requesting a letter relating her GI problems to the medications for her tailbone. Prior to that date and during the four months during which Dr. Slaton was treating the claimant, the claimant made absolutely no mention of her problems with her tailbone. Dr. Slaton was adamant in his deposition that if the claimant had mentioned any problems he would have documented it in his notes. Further, Dr. Slaton stated that if he honestly believed the claimant’s GI problems were related to the pain medication he would have taken steps to have the claimant taken off all of her pain medications. Moreover, Dr. Slaton acknowledged that the only reason why he wrote the August 19th letter was simply because the claimant asked him to do so so that she could seek reimbursement from her insurance.

[31] Therefore, based upon my de novo review of the record, it is my opinion that the claimant’s constipation problems and GI problems cannot be related to her compensable injury on November 19, 1993. For the majority to relate these problems to her work-related injury when the claimant’s treating physicians cannot, is sheer speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. ofCorrection 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).

[32] It is also important to note that the claimant’s decision to have her tailbone removed did not cure her completely. Although the claimant testified she experienced relief from her symptoms after the surgery, Dr. Slaton stated that it was subjective. In addition, the claimant’s manometry improved after her tailbone was removed but she still displayed an abnormal rectorial manometry after the surgery. Dr. Slaton and Dr. Hamilton were unable to relate the removal of the claimant’s tailbone to her improved manometry findings. Moreover, Dr. Slaton noted that even after the tailbone was removed the claimant continued to have an abnormal manometry.

[33] The overwhelming evidence of the record clearly demonstrates that the claimant did not suffer any neurological damage to her digestive tract, her colon, or her lower intestines at the time of her initial injury to her coccyx on November 29, 1993. Moreover, contrary to the claimant’s own testimony, the medical records clearly reveal that the claimant did not provide her medical providers with the history of constipation until after the claimant had developed acute appendicitis and had undergone an appendectomy. Therefore, I find that the claimant’s constipation problems are not causally related to her compensable injury of November 29, 1993.

[34] As to the claimant’s appendicitis and subsequent appendectomy, it is my opinion that this is not causally related to the claimant’s compensable injury as well. Dr. Slaton testified that is was his opinion that the appendicitis was not due to the claimant’s fall at work nor was it due to the claimant’s constipation. Dr. Meek testified that there was no objective medical criteria to make the relationship between the broken coccyx, pain medication, fecal impaction, appendicitis and constipation. Dr. Hamilton noted: “There is no body of scientific evidence to fall back on to support the claimant’s contentions.” The record is simply void of any medical evidence supported by objective findings supporting the claimant’s contention that her appendicitis was causally related to her compensable injury.

[35] The claimant’s contention that her depression and treatment for depression are causally related to her compensable injury is likewise not supported by a preponderance of the evidence. Under Ark. Code Ann. § 11-9-113, the claimant must prove by a preponderance of the evidence that the mental injury or illness is caused by a physical injury to the employee’s body. A mental injury or illness is not compensable unless it is caused by a physical injury to the employee’s body. The evidence shows that the claimant’s onset of depression occurred “after going to Baylor and losing all of my weight and being unable to eat — and I got a lot of negative feedback from family, friends, doctors. Everybody insinuated that it was in my head, that nothing was wrong with me, that I was doing this to myself. It made me very depressed that nobody believed me.” The claimant further testified that she attempted suicide again in December 1995 due to all of the stress. The claimant additionally testified that “the stress of all the medical bills, the stress or fear of losing everything that I had worked so hard for. The fear of losing my job which has happened. Just all the stress combined.” The record clearly reveals that the claimant’s depression did not develop until long after the claimant’s severe constipation began and it increased to the point where she attempted suicide after returning from Baylor. It was at Baylor where the claimant was diagnosed with an irreversible problem with her anal sphincter. My review of the evidence indicates that the claimant’s depression is not related to her compensable injury, rather it is related to her abdominal problems, constipation, and appendicitis which are not causally related to her compensable injury of November 1993.

[36] Although the claimant’s psychiatrist, Dr. Kuo, related the claimant’s mental illness to her traumatic injury at work, the basis for Dr. Kuo’s opinion is based solely on the claimant’s history and the claimant’s own subjective belief that the traumatic injury at work resulted in the mental illness. A medical opinion based solely upon claimant’s history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence.Brewer v. Paragould Housing Authority, FC Opinion filed Jan. 22, 1996 (E417617). The medical evidence simply fails to establish a compensable consequence between the claimant’s compensable injury and the claimant’s subsequent medical problems and eventual mental illness. The claimant’s own testimony reveals that her depression is related to her abdominal problems and not to her broken coccyx. Prior to the onset of the abdominal problems in March of 1995, the claimant did not suffer from any mental illness. Therefore, there is insufficient evidence, in my opinion, to support the claimant’s contention that he mental illness is a compensable consequence off her broken coccyx.

[37] There is no doubt that this is a tragic case and that the claimant has suffered a great deal. However, despite the plethora of medical opinions, no one can say with any degree of medical certainty what actually caused the chronic problems with which the claimant suffered. The cause and effect finding which is crucial to finding consequences of an injury compensable are simply lacking in the present case. Likewise, objective findings which tie the claimant’s problems to her original compensable injury are lacking in the present case. Accordingly, it is my opinion that the claimant has not met her burden of proof as required by Act 796 of 1993. Accordingly, I would reverse the decision of the Administrative Law Judge. Therefore, I respectfully dissent from the majority opinion.

[38] MIKE WILSON, Commissioner