TENNISON v. THE ARKANSAS BANK, 1997 AWCC 134

CLAIM NO. E312905

FRANCES TENNISON, EMPLOYEE, CLAIMANT v. THE ARKANSAS BANK, EMPLOYER, RESPONDENT and UNITED STATES FIDELITY GUARANTEE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 13, 1997

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

Claimant represented by the HONORABLE JOHN C. BARTTELT, Attorney at Law, Jonesboro, Arkansas.

Respondents represented by the HONORABLE CAROL L. WORLEY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on March 20, 1996. In that opinion and order the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury to the C6-7 level of the spine. 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 testified that she had worked for the bank approximately 13 years when she began to experience the problems associated with her cervical injury. The claimant testified that her primary job duties involved research services for customers regarding their banking activities. According to the claimant she filled approximately 6 to 10 research requests per day and her duties required her to retrieve and use written banking records in fulfilling the research requests.

[4] With regard to her 1995 C6-7 injury at issue in the present claim, the claimant testified that she returned to work at the bank in October of 1994 after undergoing a C5-6 anterior cervical diskectomy and fusion in August of 1994. With regard to her physical duties after returning to work in October of 1994, the claimant testified that she was required to sort through and carry back to her desk ledger books which were stored in the bank vault. According to the claimant these ledger books contained computer printouts and the ledger books might be as much as 8 to 10 inches thick. In addition, the claimant testified that the ledger books are stacked one on top of another and that she was required to sort through the stack removing the ledgers on top of the book that she specifically required and then to restack the ledgers after removing the book needed for her research services. The claimant testified that she was also required to sort through boxes of computer paper which might weight 15 to 20 pounds but that she was not required to lift these boxes after she returned to work in October of 1994. Likewise, the claimant testified she was required to file checks into drawers stored in the bank vault. However, the claimant testified that when she returned to work in October of 1994 she was no longer required to carry these drawers to her desk. Instead, she would take the checks to the vault and file the checks in the drawers in the vault.

[5] The claimant testified that her work load increased significantly in January of 1995 when customers submitted larger numbers of requests for research services in anticipation of filling out tax returns. The claimant testified that during the course of her employment in early January of 1995 she began to notice a strain in her neck and arms. In addition, the claimant testified that in late January of 1995, where she was required on one occasion to carry an 8 pound postal meter from the bank to her car, from her car to the post office, and back again to the bank. According to the claimant, when she awoke the next morning she was experiencing a numbness in her arms which she associated with carrying the postal meter the day before. In March of 1995, Dr. Kenneth Tonymon, a neurosurgeon performed surgery to the C6-7 level of the claimant’s spine for a herniated disk.

[6] Since the claimant contends that she sustained a compensable gradual onset injury arising out of and during the course of her employment in late 1994 and early 1995, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Consequently, the requirements of Ark. Code Ann. § 11-9-102 (5)(A)(ii) (Repl. 1996) are controlling. If the claimant fails to establish by a preponderance of the evidence any of the requirements necessary for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied.

[7] In the present claim, we find the claimant failed to prove by a preponderance of the evidence that any work-related injury was the major cause of her disability or need for treatment. See, Ark. Code Ann. § 11-9-102 (5)(E) (ii) (Repl. 1996). In this regard, the medical evidence shows that the claimant was 63 years old at the time of the alleged gradual onset injury and had experienced significant degenerative changes at various levels in her cervical spine which preexisted her most recent injury at the C6-7. Dr. Woodruff, the claimant’s family physician, followed the claimant for what appears to be extensive cervical pain in the right C6-7 area of the spine since at least September 23, 1992. In October of 1992, Dr. Woodruff ascertained that a MRI of the cervical spine was required, which Dr. Woodruff indicated showed degenerative disc disease of the cervical spine. According to Dr. Woodruff’s records, the claimant again presented in July of 1993 with symptoms consistent with a cervical radiculopathy involving the C6-7 level of the spine on the right side. Those symptoms included discomfort in the right arm down to the thumb. A cervical myelogram performed on August 27, 1993, indicated as follows:

At C4-C5 there is a small bar of osteophytes that efface the sac and appear to cause the cord to be displaced slightly. Severe cord compression was not seen. Severe nerve root compression was not detected.
C5-C6 shows a slightly larger bar of osteophytes extending across the canal causing mild to moderate narrowing and some slight flattening of the cord. There is some mild flattening of the nerve roots, but severe compression or total cutoff was not seen.
C6-C7 did not show as much of a ventral bar of osteophytes. There did appear to be some poor filling of the left C7 nerve root compared to the right however.

[8] Likewise a post myelogram cervical CT scan indicated as follows:

C4-5 shows a small bar of osteophytes with narrowing in the canal down to 11mm, which is mild. Only mild narrowing of the foramina was seen.
C5-6 shows a slightly more prominent bar of osteophytes and disc material at the canal down to 10mm. There is also some mild narrowing of the nerve roots bilaterally, although there still is partial filling of the nerve roots. No severe compression.
C6-7 shows a left paracentral osteophyte and disc bulge with some mild narrowing of the left neuroforamen compared to the right. Once again complete cutoff of the nerve root is not seen.

[9] When the claimant’s cervical complaints persisted, Dr. Woodruff ordered a MRI of the cervical spine on May 18, 1994. The radiological report from that scan indicated as follows:

Diffuse osteophytosis C4-C5 effacing the anterior subarachnoid space. No compromise of the cord nor roots.
Osteophytosis C5-C6 narrowing of the right foramen compared to the left. There appears to be some compromise of the exiting right C6 root at this time. There appears to be some associated disc bulging as well.
Disc bulging C6-C7 eccentric to the left of midline. No compromise of the cord and no compromise of nerve roots.

[10] When the claimant’s radicular symptoms persisted Dr. Kenneth Tonymon, a neurosurgeon, performed a C5-6 intracervical diskectomy and fusion at the C5-6 level on August 18, 1994. According to a September 29, 1994, report Dr. Tonymon indicated that the claimant’s arm symptoms were much better and Dr. Tonymon released the claimant to return to work in two weeks with the bank as a bookkeeper.

[11] With regard to the onset of her present injury, the claimant underwent a CT scan on February 7, 1995, which Dr. Tonymon interpreted as indicating a left paracentral herniated nucleus pulposus at the C6-7 level of the spine. In a report dated February 16, 1995, Dr. Tonymon indicated that the herniated disc had developed since the August 27, 1993, myelogram study.

[12] As the respondents have noted, the claimant did not initially attribute her 1995 cervical injury to any particular incident or injury on her Form AR-N. Nor did the claimant initially report any incident or injury to Dr. Woodruff. According to a letter prepared by Dr. Tonymon on April 3, 1995, he first received an indication from the claimant that she felt her condition was work-related when she telephoned him on February 23, 1995, and stated that she believed her injury was work related. In that regard, the claimant explained that she had to work quite hard during January with an exceptional work load. According to the claimant’s history provided to Dr. Tonymon at that time, she had been experiencing mild neck pain in January of 1995, but the postage meter incident in late January caused her to develop pain to the degree that she was unable to sleep. With regard to the claimant’s account of her injury onset, Dr. Tonymon made the following statement:

Certainly, this history is consistent with that which might precipitate HNP. I do feel to a reasonable degree of certainty that this was the precipitating incident for the HNP at C6-7 and the ensuing symptomatology. I do feel that Ms. Tennison’s HNP was a direct result of a work-related injury.

[13] In assessing the weight to be accorded Dr. Tonymon’s opinion, we note that the claimant was employed in a relatively sedentary job position, and that the claimant has been experiencing cervical difficulties since 1992, although the C6-7 abnormality obviously worsened after the diagnostic testing in August of 1993. In light of the claimant’s well documented preexisting degenerative abnormalities at the C6-7 level of the spine and her relatively sedentary work duties, we find that Dr. Tonymon’s opinion is not consistent with the greater weight of the medical evidence and we find that the claimant failed to prove by a preponderance of the evidence that any alleged work-related gradual onset injury was the major cause of her disability or need for medical treatment.

[14] Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury. Consequently, we find that the administrative law judge’s decision must be, and hereby is, affirmed.

[15] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[16] Commissioner Humphrey dissents.