CLAIM NO. E317206
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 26, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE AMBER TRUMBO, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE WILLIAM GRIFFIN, II, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The claimant appeals and the respondents cross-appeal an opinion and order filed by the administrative law judge on February 15, 1996. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that he is entitled to an award of permanent benefits for a 5% impairment to his earning capacity.
[7] Ark. Code Ann. § 11-9-102 (5)(F)(ii) (Repl. 1996).Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
[8] Ark. Code Ann. § 11-9-102 (14) (Repl. 1996).“Major cause” is defined by the amended law as follows: Major cause means more than fifty percent (50%) of the cause. A finding of major cause shall be established according to the preponderance of the evidence.
“Disability” is defined by the amended law as follows:
[9] Ark. Code Ann. § 11-9-102 (9) (Repl. 1996). [10] Considering the context in which the terms “permanent benefits” and “disability” are used in Ark. Code Ann. § 11-9-102Disability means incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury.
(5)(F)(ii), the amendments of Act 796 clearly impose a requirement on a claimant seeking compensation for a permanent decrease in earning capacity to show that the compensable injury was the major cause of any decrease in earning capacity. [11] In the present claim, after reviewing the entire record, we find that the claimant failed to prove by a preponderance of the evidence that his compensable injury was the major cause of his disability. The claimant was 54 years old when the work-related injury occurred on October 19, 1993, and the medical evidence indicates that the claimant has been diagnosed and treated for various low back abnormalities prior to the most recent injury. In that regard, the medical records of Dr. William Snow and Dr. Jack Wilson, the claimant’s family physicians, indicate that the claimant was admitted to their clinic and received x-rays to the lower back after falling 30 to 40 feet. In addition, a note from October 4, 1988, indicates that the claimant was seen at that time for back problems and pain radiating down both legs. That note also indicates that the claimant had had “back trouble for yrs.” An x-ray performed at Dr. Wilson’s request on October 4, 1988, indicated changes in the claimant’s lumbar spine secondary to degenerative disc disease at the L3, 4, and 5 disc spaces with slight osteoarthritic changes also noted in the lumbosacral articulations. [12] The records of Dr. Ungerank, the claimant’s chiropractic physician, indicate that he first took a history from the claimant on December 15, 1986, and that at that time the claimant was experiencing low back pain and pain radiating down the front of both legs. Dr. Ungerank’s diagnosis indicated a deterioration of the disc at the L5-S1 level and he recorded a special note not to perform any chiropractic adjustments in the L5 area. [13] With regard to the injury on October 19, 1993, the claimant testified that he had been testing large diameter hoses all day that day before he went outside during his last break to drink a coke. The claimant testified that, when it became time to get up and go back inside, he could not get up from the picnic table where he was sitting. [14] X-rays read by Dr. Elders on October 28, 1993, indicated degenerative lipping but no bridging of the lumbar spine. In addition, x-rays indicated sacralization of the L5 vertebrae with sufficient narrowing of the L5-S1 disc space to indicate the L5-S1 disc space to be nearly fused. In addition, x-rays indicated mild degenerative changes of the facet joints. [15] Dr. M. K. McAlister’s radiological reports from the lumbar myelogram and post-myelogram CT performed on December 21, 1993, indicated a diffusely bulging disc at the L4-5 level that narrows the neural foramina interiorly with no obvious impingement on the exiting nerve roots. Dr. McAlister indicated a “vacuum disc” at the L5-S1 level with appreciable facet disease also indicated at this level. After reviewing these results, Dr. Foster indicated in his office notes on December 28, 1993, that he saw “no evidence of any significant lesions.” In a letter to Dr. Olive dated February 22, 1994, Dr. Foster again interpreted the study as showing “no significant surgical lesions.” After seeing the claimant for a second opinion on March 7, 1994, Dr. Olive made the following observations after reviewing the claimant’s diagnostic test results:
[16] Moreover, Dr. Olive opined that the claimant has sustained degenerative disc disease at the L5-S1 level exacerbated by his injury at work on October 19, 1993. [17] In short, the evidence establishes that the claimant began to experience pain at work after handling large diameter tubing on October 19, 1993. However, the medical evidence indicates that the claimant also has experienced significant degenerative changes in his lower back. In light of the advanced nature of the claimant’s medically diagnosed degenerative disc disease and the relatively minor nature of the work-related injury exacerbating that condition sustained on October 19, 1993, we find that the claimant failed to prove by a preponderance of the evidence that the relatively minor compensable injury sustained on October 19, 1993, is the major cause of any permanent disability that he has sustained. Moreover, we find that the preponderance of the evidence establishes that the claimant’s preexisting degenerative low back problems are the major cause of the disability for which he seeks an award of permanent benefits from the respondents. [18] In reaching our decision, we note that the last two sentences of the claimant’s brief on appeal request either benefits “greatly in excess” of those awarded by the administrative law judge, or, in the alternative, a new hearing. In this regard, the claimant notes that the administrative law judge who filed an opinion and order in this claim was not the same administrative law judge who presided over the hearing. [19] After giving careful consideration to the claimant’s suggestion for a new hearing and the respondents’ objection present claim is not appropriate for several reasons. First, both parties were given a full and fair opportunity to present their evidence at the hearing held on August 2, 1995, and the claimant’s brief does not suggest that the claimant seeks to present any newly discovered evidence, but only that the claimant seeks to insure that the administrative law judge who decides the case has the opportunity to observe the claimant’s demeanor. However, we note that the claimant’s attorney was provided notice that this case had been reassigned for an opinion without a rehearing, and the claimant’s attorney did not take any action on that notice in a timely manner. In addition, we note that the issue of whether the claimant’s compensable injury was the major cause of his disability is a medical issue, and the claimant’s credibility is simply not a point of contention on the issue of major cause. Moreover, according the claimant’s hearing testimony the highest degree of weight, we find that the overwhelming majority of the medical evidence clearly establishes that the claimant’s work-related injury was not the major cause of the disability for which he seeks an award of permanent benefits. Consequently, for the reasons discussed herein, we find that a new evidentiary hearing is not appropriate in the present case. [20] Therefore, after conducting 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 his compensable injury is the major cause of his permanent disability. Therefore, we find that the claimant failed to show that he is entitled to an award of permanent benefits. Consequently, we find that the decision of the administrative law judge must be, and hereby is, reversed. [21] IT IS SO ORDERED.I reviewed the plain films. He has a degenerative disc at L5-S1. I reviewed the enclosed CT scan after the myelogram and it confirms a degenerative change at L5-S1 but he doesn’t have significant spinal stenosis or a ruptured disc.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[22] Commissioner Humphrey dissents.