TURNER v. MEYERS BAKERIES, INC., 1998 AWCC 333

CLAIM NO. E700329

BOBBY L. TURNER, EMPLOYEE, CLAIMANT v. MEYERS BAKERIES, INC., EMPLOYER, RESPONDENT and INSURISK, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 15, 1998

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

Claimant represented by the HONORABLE MICHAEL A. FRIEDMAN, Attorneys at Law, Texarkana, Arkansas.

Respondents represented by the HONORABLE JAMES H. McKENZIE, Attorney at Law, Hope, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the Administrative Law Judge on August 13, 1997. In that opinion and order, the Administrative Law Judge found that the claimant proved by a preponderance of the evidence that he sustained a compensable cervical injury on October 18, 1996. After conducting a de novo
review of the entire record, we find that the Administrative Law judge’s decision must be reversed. [3] The events underlying the claimant’s claim that he sustained a compensable neck injury on October 18, 1996, are not in dispute. The claimant was employed in the respondent’s bakery. On October 18, 1996, the claimant was carrying a bucket of bread crumbs (approximately 5 gallons in capacity) up a flight of stairs that had a rail. The container of bread crumbs had two handles, and the claimant testified that he was carrying the container with both hands and holding the container away from his body so that he could look underneath the container at the steps he was climbing. While climbing the stairs, the claimant experienced a sharp pain in his lower back. When he experienced the sharp pain, one of his legs gave away and he fell against the guard rail but held onto the bucket. The claimant immediately got up and continued his job duties. [4] The claimant developed persistent low back pain and sought medical treatment several days later. When the claimant informed the respondents of the incident, and indicated that he felt that he had sustained a low back injury on the stairs, the respondents initially accepted the injury as compensable. However, diagnostic testing indicated that the claimant was in fact not experiencing a low back injury. Instead, the claimant was actually experiencing a spinal cord compression in his neck from a herniated cervical disk which was causing low back pain and radicular symptoms. The claimant asserts that his herniated cervical disk was caused or aggravated by the incident on the stairs on October 18, 1996. The claimant must establish the causal relationship between his work duties and his cervical injury by a preponderance of the evidence.Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664
(1992); Lybrand v. Arkansas Oak Flooring Co., 266 Ark. 946, 588 S.W.2d 449 (1979). [5] In the present case, we find that the claimant has failed to prove by a preponderance of the evidence that his herniated cervical disk was caused or aggravated by the rail incident as he asserts. Instead, on this record, we find it just as likely, and arguably more likely, that the claimant’s herniated cervical disk symptoms pre-existed and precipitated the incident on the stairs on October 16, 1996. Therefore, we find that the claimant has failed to meet his burden of proof by a preponderance of the evidence that the incident on October 18, 1996, caused the claimant’s herniated cervical disk or aggravated an underlying cervical disk abnormality. [6] In reaching our decision, we note that the Administrative Law Judge placed significant weight in determining the causation issue on the following correspondence of Dr. Lowell Harris, the physician who had initially treated the claimant, in his letter dated January 24, 1997:

Both of these [a large cervical disc and a smaller lumbar disc] seem to have been related to an injury that he got at Meyers Bakery, as far as I know, and it [the large cervical disc] was causing his back problems as well as causing the disability in his lower extremities.

[7] In assessing the weight to be accorded Dr. Harris’ correspondence as to the causation issue, we note that Dr. Harris’ correspondence only indicates that the claimant’s disk abnormalities were “related” to an “injury” that the claimant sustained at Meyers Bakery. Dr. Harris did not elaborate on the more direct question as to whether the cervical disk abnormalities preexisted and precipitated the “injury” (i.e. caused the sharp low back pain and fall against the guardrail) or whether the incident caused the cervical disk abnormality to occur or to become symptomatic. [8] The only medical provider from whom either party obtained deposition testimony was Dr. Freddie L. Contreras, the claimant’s first neurosurgical specialist. Dr. Contreras testified as following under examination from the respondents’ attorney:

Q. What history did he give you concerning the October 18, 1996, incident, which you referred to in your record, please?
A. He was rather vague about it to be honest. You know, I tried to get him to tell me exactly what he had done to hurt himself, and all he would tell me was that he lifted heavy things at work. I think he used the term like in buckets and he was carrying them up ladders and that — or up some steps, I think, and that’s when he hurt himself.
Later, the respondents’ attorney read to Dr. Contreras relevant portions of the claimant’s recent deposition testimony regarding the incident and confirmed that Dr. Contreras had already read other relevant portions of the claimant’s deposition testimony. Thereafter, Dr. Contreras answered as follows further questioning from the respondent’s attorney:
Q. In hearing that and what you’ve read in the deposition, in your opinion, is there a causal relationship within a reasonable degree of medical certainty between the incident of October 18, 1997, and the disc herniation at C4-5 and the disc bulge at C5-6 and the C6-7 osteophytosis, if I say that right, shown on the MRI, which is in the St. Michael’s records?
A. Let me make sure I understand this. Do you believe that I think the fall caused them or do I think they pre-existed the fall?
Q. My question is, within a reasonable degree of medical certainty, do you think that the incident which he described caused those MRI findings?
A. I’m not sure, to be absolutely honest. It could be that he had this going on already and was becoming clumsy because of his myelopathy. Are you following me?

Q. Okay, sir.

A. In other words, he just described slipping on the stairs. If he had that disc that was causing his myelopathy, then he could’ve slipped because his leg was weak or clumsy from the pressure on the spinal cord.
Q. Alright, sir. The other findings of the MRI was in the lower back area in the L3-4, L4-5 area.

A. Yes, sir.

Q. In your opinion, was there a causal relationship within a reasonable degree of medical certainty between the incident as Mr. Turner describes it on October 18, 1996, and the degenerative changes you found in the L3-4 or L4-5 area?

A. No, sir.

Likewise, Dr. Contreras gave the following ambiguous testimony when questioned by the claimant’s attorney:
Q. Mr. McKenzie made several comments about the pre-existing injury, perhaps, is what he said, that could have caused this, and I want you to say again your opinion as to what caused this past injury.

A. What I think caused his fall on the stairs?

Q. No, the result of the fall. Would you please — what were there [sic] results of the fall?
A. This is a complicated situation, because I don’t think that Mr. Turner really understood, even though I tried to explain to him what was going on. I honestly believe that he may have slipped because of his myelopathy. In other words, the myelopathy may have pre-dated his fall. I don’t know that as a fact, so I can’t say whether or not the fall on the stairs caused a myelopathy or not because I don’t have an examination of him prior to the fall. In his deposition he commented that his leg just slipped out from under him. That might signify that he was already developing a myelopathy at the time of the fall and that the fall was because of the myelopathy. Did that help any?
Q. Yes, and then I was just going to have you just reiterate again then what the results were of the fall.
A. Okay. When I saw Mr. Turner, he had a severe spastic myelopathy and needed surgery. Whether or not the fall caused the myelopathy or the myelopathy pre-dated the fall, I can’t exactly say. I’m sorry, I just don’t know. All I can tell you is that when I saw Mr. Turner, he thought the problem was in his back, but the problem was actually in his neck. And I tried to explain that to him.

[9] In short, we interpret Dr. Contreras’ testimony as indicating that two equally plausible scenarios exist to account for the claimant’s cervical disk herniation and myelopathy symptoms in his lower back. Either preexisting spinal cord impingement in his neck caused the claimant to experience low back pain as he proceeded up the stairs (and induced the “fall” against the guardrail), or the claimant experienced a low back injury going up the stairs which caused the claimant to fall against the guardrail and experience a cervical disk herniation or an aggravation of a preexisting disk herniation. In light of our belief that the different scenarios are equally plausible on these facts, we find that the claimant failed to prove by a preponderance of the evidence that his disk herniation was caused or aggravated by the incident on October 18, 1996. In reaching our decision, we are particularly persuaded by the evidence that the claimant experienced low back pain and a give away of his footprior to his fall against the rail, and by the apparently minor nature of the incident when the claimant “fell” against the rail but held onto the bucket. In light of Dr. Contreras’ deposition testimony, the evidence that the claimant experienced back pain and give away in his leg before the incident, and the lack of evidence establishing that the claimant did in fact sustain a lowback injury to precipitate the fall against the guard rail, we find that the claimant has failed to establish by a preponderance of the evidence that the guard rail incident on October 18, 1996, caused or aggravated his cervical disk abnormality. [10] Therefore, for the reasons discussed herein, we find that the decision of the Administrative Law Judge must be, and hereby is, reversed. [11] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[12] Commissioner Humphrey dissents.