TOWERY v. HI-SPEED ELECTRICAL COMPANY, 2000 AWCC 282

CLAIM NO. E908953.

PAUL TOWERY, EMPLOYEE, CLAIMANT v. HI-SPEED ELECTRICAL COMPANY, EMPLOYER, RESPONDENT, CNA, INSURANCE CARRIER, RESPONDENT.

Before the Arkansas Workers’ Compensation Commission
ORDER FILED OCTOBER 31, 2000.

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

Claimant represented by the HONORABLE JOE R. PERRY, Attorney at Law, Marianna, Arkansas.

Respondent represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed in part and reversed in part.

OPINION AND ORDER

The respondents appeal and the claimant cross-appeals an opinion and order filed by the administrative law judge on May 15, 2000. In the opinion and order, the administrative law judge found that the Arkansas Workers’ Compensation Commission has jurisdiction of this claim. We find that the administrative law judge’s decision in this regard must be affirmed. The administrative law judge also found that the claimant sustained a compensable injury on November 7, 1997. We find that the administrative law judge’s decision in this regard must be reversed.

1. Election of Remedies

The respondents initially filed the paperwork in this case in Tennessee. The claimant subsequently filed a claim in Arkansas. The respondents argue an “election of remedies” theory to assert that Arkansas has no jurisdiction over this claim.

As we understand the election of remedies doctrine, the “election” does not occur until a case is pursued to its finality by judgment or settlement. See, generally, Judy A. Smith v.Acadia Marketing d/b/a Harvest Foods, Full Workers’ Compensation Commission, Opinion filed August 14, 1998 (Claim No. D913749);See, also, Sontag v. Orbit Valve Company, 283 Ark. 191, 672 S.W.2d 50 (1984). Clearly, the claimant did not pursue any claim in Tennessee to judgment or to settlement. Under these circumstances, the respondents “election of remedies’ theory does not appear to be supported by any legal authority. We therefore affirm the administrative law judge’s finding that the Arkansas Workers’ Compensation Commission has jurisdiction over this claim.

2. Compensability

The administrative law judge’s finding that the claimant sustained a compensable neck injury arising out of an incident at work on November 7, 1997 relies in relevant part on Dr. Childress’ opinion on causation rendered long after the November 7, 1997 incident. Dr. Childress’ opinion on causation relies on a history provided to him by the claimant that the claimant had no pain or difficulty prior to the incident at work.

After reviewing the entire record, we agree with the respondents’ assertion that the claimant clearly lied to Dr. Childress because the claimant’s medical records submitted at the hearing clearly indicate that the claimant was having problems with his neck off and on before the incident at work. In addition, we note that even the claimant’s testimony acknowledges that he did not begin to experience numbness symptoms until 4-5 months after the incident.

In reaching our decision, we note that the dissent would afford great weight to Dr. Childress’ opinion because there is no evidence that claimant intended to deceive Dr. Childress. We point out that the issue presently before the Commission is whether Dr. Childress’ expert medical opinion was based on accurate factual premises, and not whether the claimant committed fraud when he informed Dr. Childress that he had had no pain or difficulty prior to the boom incident on November 7, 1997. To the extent that the dissent goes on to suggest that perhaps the claimant’s statement to Dr. Childress was even accurate, we point out that, prior to the November 7, 1997 incident, the claimant complained of headaches and pain in the back of the neck along with right to left radiating shoulder pain on July 11, 1996. On March 31, 1997, the claimant reported to a chiropractor with “pains in his arms” and headaches, and was diagnosed with cervicalgia. Likewise, the March 31, 1997 notes in the transcript of Respondents’ Exhibit No. 1, page 9, indicate that the claimant was complaining of, among other things, neck and upper arm problems over the past three months, and headaches at the rate of 2-3 per week. The claimant’s low back and neck problems were apparently bad enough for Dr. Trash to remove him from work for a month. In light of these pre-existing complaints and diagnoses, we find that Dr. Childress’ opinion was based on an inaccurate history provided by the claimant, and those inaccuracies render Dr. Childress’ opinion entitled to essentially no weight, regardless of whether the claimant “intentionally” deceived Dr. Childress when he provided Dr. Childress his medical history.

Under these circumstances, where the claimant lied to Dr. Childress about his relevant history before the incident, we accord Dr. Childress’ causation opinion no weight. We, likewise, reject the administrative law judge’s credibility determination in light of the medical evidence indicating that the claimant lied to Dr. Childress with regard to his highly relevant medical history. In light of the claimant’s documented history of neck problems pre-existing the 1997 incident, the claimant’s acknowledgment that his numbness problems began some four months after the incident at work, and the evidence that the claimant lied to Dr. Childress, we find that the claimant has failed to establish by a preponderance of the credible evidence that his neck problems are causally related to the incident that occurred on November 7, 1997. Consequently, we find that the administrative law judge’s decision in this regard must be reversed.

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner

Commissioner Humphrey concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION

I concur in part and respectfully dissent in part from the principal opinion in this case. I concur in the finding that the election of remedies doctrine does not bar claimant’s claim. However, I find that claimant proved the occurrence of a specific incident injury.

On November 7, 1997, claimant was performing an inspection in Arkansas. He stated that as he was loading a one-man Jenny lift onto a truck, he was struck in the face with the pull bar. Claimant explained that the Jenny lift weighed about 500-600 lbs. He stated that the bar struck his chin and snapped his head back. As a result, claimant contends that he suffered a disc herniation at C6-7, which required surgery.

The Jenny lift incident was witnessed by Ellen Mock. Claimant explained that her spouse owned the company. When he returned from Arkansas, he reported the incident to his supervisor as well as Brett Mock. Claimant introduced an “Accident Investigation Report,” which he completed on November 7, 1997.

Claimant stated that his skin was broken on the inside of his lip. After a few days, he noticed swelling and irritation on the back of his neck. However, it was not very painful. Although claimant did not seek medical treatment, he massaged the back of his neck continuously. Also, he took over-the-counter pain medication. Claimant developed left shoulder problems, including intermittent numbness that extended into his fingers. These symptoms developed in 1998, about five months after the Jenny lift incident.

Claimant initially consulted Dr. Grady Collum in September of 1998. When he consulted Dr. L’Heureux in March of 1999, his symptoms had intensified. A MRI done in May of 1999, showed a disc herniation at C6-7. On June 10, 1999, surgery was performed by Drs. Childress and Lindermuth. A “left anterior iliac crest bone graft and cervical fusion at C6 level” was done.

Dr. Childress opined that the work-related incident was “the likely source of the disc rupture.” I would afford the opinion of Dr. Childress great weight. In a report dated June 4, 1999, Dr. Childress stated:

Mr. Towery is a 38-year-old gentleman, who has had some neck and upper left extremity pain and difficulty for several months. He states the only injury he can recall, is an injury to his face when a boom lift hit him in the face and dazed him a little bit over a year ago. Before that time, he had no pain or difficulty, but since that time he’s had some problems and doesn’t really know if it was definitely related to that or not. Otherwise, he thinks that it may just be something that has gradually occurred. He currently does not have a workers’ compensation claim in, however, he has reported this incident at work. Dr. Lindermuth has seen this patient and done a work up that documents a C6-7 disc pathology.

The principal opinion affords no weight to the opinion of Dr. Childress based on a finding that claimant lied with respect to his medical history. There is no evidence that claimant intended to deceive Dr. Childress. Although claimant has some medical history, I find it inconsistent with the complaints he reported in 1999 that led to the diagnosis and surgical treatment of a disc herniation at C6-7 on the left. There is no record of claimant’s initial treatment for this injury in 1998. However, the 1999 reports all document specific symptoms of left neck pain and upper left extremity pain and numbness. (He also complained of shoulder pain, which was injected based on a diagnosis of shoulder bursitis).

The record also includes a medical report documenting treatment claimant received in 1996. Too, there are some reports in March and April of 1997. Claimant’s neck and shoulders as well as migraine headaches are mentioned in the 1996 report. However, it is apparent that he was treated primarily for back pain. In 1996, claimant characterized the pain as deep joint pain. A March 10, 1997, chart note stated that claimant complained of back pain from the neck to the low back. However, when “pressed” claimant revealed that the pain was actually limited to the mid-lumbar area. According to a chart note dated March 25, 1997, Dr. Shakeb Hashmi’s examination was “neg for any motor or sensory deficits in the lower extremities or any bladder or bowel complaints.” There is no evidence that Dr. Hashmi tested claimant’s upper extremities for deficiencies. Presumably, he would have done so if claimant’s symptoms warranted this examination. However, the pain was deemed “musculo/skeletal lower back pain,” and a bone scan was done in order to eliminate a diagnosis of osteomyelitis of the spine. That test, which proved negative, was done on March 26, 1997. Also, x-rays of claimant’s lumbosacral spine were negative. On March 31, 1997, claimant consulted Dr. James Thrash, a chiropractor. He indicated on a form furnished by Dr. Thrash that the purpose of the appointment was treatment for his back. He also indicated that he had some neck pain and pain in both arms. However, he explained that the reference to both arms was simply a figure of speech. He testified that his work at the time caused right arm and shoulder pain. However, he stated that he had no problems with his left arm. Although counsel for respondents finds this implausible, the medical records support claimant’s explanation. Specifically, a chart note dated March 31, 1997, enumerating claimant’s complaints showed that his upper extremity complaints were limited to his right arm. There is no mention of left arm pain or numbness. Indeed, claimant’s medical history does not include any reference to difficulties with his left upper extremity or numbness.

When claimant sought treatment for his work-related injury, he described different symptoms. According to Dr. Collum’s chart note dated March 10, 1999, he complained of neck pain, left shoulder pain, and numbness in his upper left extremity. A chart note authored by Dr. L’Heureux on March 31, 1999, revealed “two fairly specific points of pain.” A MRI performed on May 28, 1999, showed a disc herniation at C6-7, on the left with nerve root compromise. Dr. John R. Lindermuth examined claimant at Dr. L’Heureux’s request. On June 3, 1999, Dr. Lindermuth determined that claimant needed surgery. His chart note showed that “he has weakness of the biceps on the left as well as decreased tone in the biceps on the left.” Following the surgery, claimant’s left arm pain disappeared.

The Jenny lift incident was witnessed and reported. Claimant’s symptoms developed slowly. They steadily deteriorated. Although claimant had a triphasic bone scan and lumbar spine x-rays prior to the injury, it was not until 1999 that diagnostic testing was done to determine whether claimant had a cervical disc abnormality. There is no evidence that the disc herniation was caused in any other manner. In my view, claimant has established the requisite causal connection. I would award all appropriate benefits.

_______________________________ PAT WEST HUMPHREY, Commissioner