CLAIM NO. E221450
DONALD SWANNER, EMPLOYEE, CLAIMANT v. ARKANSAS STATE UNIVERSITY, EMPLOYER, RESPONDENT NO. 1 and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT NO. 1 and SECOND INJURY FUND RESPONDENT NO. 2
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 28, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HENRY H. BOYCE, Attorney at Law, Newport, Arkansas.
Respondent No. 1 represented by RICHARD SMITH, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part as modified and reversed in part.
[1] OPINION AND ORDER
[2] Claimant appeals an opinion of the Administrative Law Judge filed on January 10, 1994.
[3] The Administrative Law Judge found that on July 28, 1992, claimant sustained a compensable injury to his back. Neither party challenges this finding on appeal. Therefore, we find that claimant has proven by a preponderance of the evidence that he sustained a compensable injury in July 1992.
[4] The Administrative Law Judge also found that claimant’s preexisting back condition was only temporarily aggravated and that sufficient benefits have been paid by respondent. We disagree with the Administrative Law Judge’s determination that claimant’s back condition is no worse now than it was prior to the July 1992 compensable injury.
[5] Claimant suffers from scoliosis which is simply a crooked spine. He sustained a prior back injury while employed with the City of Jonesboro in 1986. In addition to the preexisting scoliosis, claimant’s injury was diagnosed as a back strain with myositis and myofascitis and a ligament strain to the lumbosacral spine. In other words, claimant strained the musculature of his spine. Although a CT scan was interpreted to reveal stenosis, Dr. Roberts and Dr. Goza subsequently determined that this finding was very questionable, especially in light of a normal bone scan and myelogram. There was no evidence of a herniated nucleus pulposus. Thereafter, claimant continued to require periodic medical treatment for back discomfort. However, claimant was able to perform his job duties with the employer and those required of him on Dr. McGrew’s ranch. These duties involved heavy labor.
[6] Dr. McGrew described claimant’s July 1992 compensable injury as a “concussion type injury to the spine.” As late as December 1991, a CT scan revealed “multiple abnormalities, none of which seem particularly severe.” Subsequent to the compensable injury, an MRI scan done in October 1992 revealed a herniated nucleus pulposus. However, a myelogram and post myelogram CT scan failed to confirm the diagnosis of herniated nucleus pulposus. Therefore, Dr. Ricca did not recommend surgery. Claimant’s condition continued to progressively worsen. An MRI scan done in March 1993 again revealed a herniated nucleus pulposus and not much change from October 1992 “except there is slightly more asymmetry on the right at the L3-L4 level.”
[7] Based on the above evidence, we find that claimant’s preexisting condition was significantly aggravated by the compensable injury and has caused his back difficulties to progress at a much faster rate. In addition, there is sufficient credible evidence that the compensable injury most likely resulted in a herniated nucleus pulposus. At the least, claimant has become disabled and his symptoms much more severe. Furthermore, Dr. McGrew opined that the compensable injury caused the rapid progression of claimant’s preexisting disease. Therefore, we find that claimant continues to experience the disabling effects of the compensable injury and is entitled to additional benefits.
[8] Finally, the Administrative Law Judge erred in determining that claimant is not entitled to benefits for permanent disability because this issue was not raised by either party. Thus, we reverse this finding.
[9] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that he sustained a compensable injury but modify the opinion to find that claimant continues to experience the disabling effects of the compensable injury and is entitled to additional benefits. Additionally, we reverse the opinion of the Administrative Law Judge finding that claimant is not entitled to benefits for permanent disability. 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.
[10] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[11] Commissioner Tatum concurs in part and dissents in part.
[12] CONCURRING AND DISSENTING OPINION
[13] I concur in part and dissent in part with the majority’s decision. I concur that claimant proved by a preponderance of the credible evidence that he sustained a compensable injury. However, in my opinion, a preponderance of the credible evidence does not indicate that claimant has suffered additional permanent disability as a result of his compensable injury and, in my opinion, he is not entitled to ongoing medical treatment for said injury. I would affirm and adopt Administrative Law Judge Mazzanti’s 1-10-94 opinion.
[14] Therefore, I concur in part and dissent in part with the majority’s opinion.
[15] ALLYN C. TATUM, Commissioner
