CLAIM NOS. E600628 E600629
Before the Arkansas Workers’ Compensation Commission
ORDER FILED SEPTEMBER 14, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GREGORY R. GILES, Attorney at Law, Texarkana, Arkansas.
Respondent represented by the HONORABLE NELSON V. SHAW, Attorney at Law, Texarkana, Arkansas.
Decision of the administrative law judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on December 3, 1998. In that opinion and order, the administrative law judge found that the claimant sustained an injury to his back arising out of and in the course of his employment on December 12, 1994. After conducting a denovo review of the entire record, we find that the decision of the administrative law judge must be reversed. [3] The claimant asserts that he sustained work-related back injuries on December 12, 1994, and on July 1, 1995 that are causally related to a herniated disk at the L5-S1 level indicated by MRI on January 8, 1996, and for which the claimant underwent surgery on March 15, 1996. However, on this record, we find that the claimant has failed to prove by a preponderance of the credible evidence that he sustained an L5-S1 disk injury on December 12, 1994 or on July 1, 1995. [4] In reaching this decision, we initially note that the claimant has a medical history indicating two bouts of back problems in 1993 before he became employed by the respondents. In fact, the records of Dr. Darrell Frost, a chiropractor, indicate that Dr. Frost treated the claimant on six occasions between April 23, 1993 and May 7, 1993, for low-back problems following a “slipping” incident. Dr. Frost’s various diagnoses at that time included “lumbar disk syndrome”, “sciatic radiculitis”, “thoracic muscle spasms”, and “lumbar sprain/strain”. Dr. Frost treated the claimant again on December 13, on a one-time basis after the claimant went fishing at night and hurt his back while standing up. [5] The claimant became employed by the respondent shortly before the incident at work on December 12, 1994, when a tire press fell on the claimant’s shoulder. In finding that the claimant failed to establish that he sustained an L5-S1 disk injury as a result of this incident, we are persuaded not only by the claimant’s history of pre-existing back problems and treatment in 1993, but also by the fact that the claimant admittedly did not seek any medical treatment for his back for over six months after the December 12, 1994 incident. [6] The record indicates that the claimant first sought medical treatment in 1995 in early July shortly after experiencing back pain while bending over to pick up a wrench at work on July 1, 1995. In assessing the potential significance of the December 12, 1994 incident to the claimant’s back history, we note that a “Workers’ Compensation Questionnaire” signed by the claimant on July 3, 1995 refers to a history of prior injury in 1993, but does not list the incident in December of 1994. [7] In assessing the potential significance of the July 1, 1995 bending incident as a cause of the claimant’s herniated disk identified by MRI on January 8, 1996, we note that the claimant only underwent eight sessions of chiropractic treatment by Dr. Bookout between July 3, 1995, and July 19, 1995, and Dr. Bookout’s July 19, 1995, note states that the claimant said he felt a lot better on July 19, 1995. This is the only record of medical treatment obtained by the claimant between the July 1, 1995 bending incident, and a camping trip in November of 1995 where the claimant slept on the ground and used a chainsaw to cut limbs. According to a November 30, 1995 letter from Dr. Bookout, the claimant presented with the following history in November of 1995 and received the indicated amount of treatment:
[8] When the claimant presented to Dr. Purifoy on December 12, 1995, Dr. Purifoy recorded the following history:Mr. Wright entered this office November 20 and November 22, 1995 for treatment of his low back. Mr. Wright stated he was doing some lifting and noticed his low back became stiff and sore. He had had some more serious problems back in July and wanted to make sure this was not an aggravation of his old problem or that this was not the beginning of another problem.
[9] In short, although the administrative law judge found that the claimant sustained a compensable back injury on December 12, 1994, the claimant did not seek any medical treatment for this incident, and the claimant apparently did not attach any significance to that incident himself since the December, 1994 incident is not referred to in histories taken in July of 1995, November of 1995, or on December 12, 1995. To the extent that the claimant asserts that the bending incident in July of 1995 caused or aggravated an L5-S1 disk injury, we are persuaded by the evidence that the claimant had back problems in April of 1993 for which he obtained approximately the same number of chiropractic treatments that he obtained in July of 1995, and we are persuaded by Dr. Bookout’s notation that the claimant indicated that he felt a lot better on July 19, 1995. We are also persuaded by the fact that the claimant did not receive any additional medical treatment until after the camping and chainsaw episode in November of 1995. [10] In reaching our decision that the claimant failed to prove by a preponderance of the credible evidence that he sustained his L5-S1 disk injury on December 12, 1994, or on July 1, 1995, we find that the medical history provided to Dr. Bookout for his July 17, 1997 opinion, to Dr. Knight for his July 25, 1997 opinion, and to Dr. Contreras for his October 28, 1997 opinion is inaccurate. In this regard, Dr. Bookout and Dr. Contreras were asked to render an opinion on causation with the following assumption:This 33-year-old white male is seen complaining of low back pain after cutting wood about a month ago. He has had pain in his left back into the hip and left leg. Feels like he has a pinched nerve. He has been taking Ibuprofen, using a heating pad, but his condition has persisted.
[11] Notably, Dr. Contreras specifically opined that the claimant’s “diagnosed condition is the result of the work-related accident or work-related activities” because “The patient had no pain in his back until the work injury.” Likewise, Dr. Knight states his opinion as follows: “The history is clearly that of no prior symptoms to industrial injuries . . .” [12] However, we find that the information provided to Dr. Bookout and Dr. Contreras that the claimant was treated for a “back sprain” in 1993 was inaccurate. As discussed above, the claimant was actually treated for two different bouts of back pain in 1993, and his diagnosis in April of 1993 included not only “back sprain”, but also “lumbar disk syndrome”, “sciatic radiculitis” and “thoracic muscle spasms”. [13] In light of the evidence that the claimant was diagnosed with a “lumbar disk syndrome” in 1993, had two bouts of back pain in 1993 after slipping and after standing, that the claimant did not seek any medical treatment after the 1994 tire press incident, that the claimant improved “a lot” shortly after the July, 1995 bending incident, but then sought treatment again after using a chainsaw in November of 1995, we find that the claimant has failed to prove that any medical treatment that he sought after July of 1995 is causally related to the incident in December of 1994, or the incident in July of 1995. Based on that same evidence, we find that the claimant failed to prove by a preponderance of the evidence that the incident in December of 1994 or the incident in July of 1995, caused or aggravated the herniated L5-S1 disk identified by MRI on January 8, 1996. [14] Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed. [15] IT IS SO ORDERED. [16] _______________________________2. Please assume further that prior to the December 12, 1994 on-the-job injury, Mr. Wright had no prior significant back problems. In 1993, he was treated for a back sprain by Dr. Frost, a chiropractor in Atlanta, Texas, and missed no work as result of the treatment.
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner [17] Commissioner Humphrey dissents. [18] DISSENTING OPINION
[19] An ALJ found that claimant sustained a compensable injury; that claimant was entitled to temporary total disability benefits from March 15, 1996 to July 2, 1996; and that claimant was entitled to benefits for a permanent anatomical impairment of 7% to the body as a whole. The only issue argued by either party on appeal to the Commission is that of compensability. I would affirm the opinion of the ALJ in this case. Accordingly, I must respectfully dissent from the opinion of the majority. [20] Claimant was a pipefitter for the employer. On December 12, 1994, claimant was involved in a work-related incident, which he described in the following manner:
[21] An accident form was not filled out on that day because forms were not available. However, a form was filled out on December 13, 1994. Claimant injured his shoulder and lower back but did not immediately seek medical attention or miss any time from work. [22] Although claimant continued to experience pain and a burning sensation radiating into his hip, he endured work until July 1, 1995, when he was involved in another work-related incident causing increased pain after bending over to pick up a wrench. Claimant reported the incident to Elmer Starrett, Sr., the job steward and to Gary Guffey, his foreman at that time. Claimant missed two or three days of work and thereafter filled out the accident report. Claimant described the symptoms he experienced in July 1995 as the same as those experienced in December 1994, only “more intense.” Claimant received limited treatment by Dr. Bookout, a chiropractor, whose bills were paid by Eddie Suggitt, the president of the employer. [23] Claimant continued to work but experienced pain with most activities. In November 1995, claimant was hunting and camping when he experienced similar pains after using a light chain saw and sleeping on the ground over a weekend. Claimant returned to Dr. Bookout but was eventually referred to Dr. Norris Knight and an MRI scan was performed revealing a herniated nucleus pulposes at L5-S1, as well as some incidental degenerative disc disease. [24] Claimant came under the care of Dr. Contreras, who performed surgery on March 15, 1996 and eventually released claimant on July 2, 1996. Claimant has currently returned to employment earning the same or more than the wages he was earning at the time of the work-related incidents. [25] Claimant has had prior back difficulties. In April 1993 he received a strain to his back after slipping on mud. Claimant received limited chiropractic treatment but did not miss any time from work. Once released by the chiropractor, claimant had no further problems with his back until the December 1994 accident. [26] I find that claimant has proven by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment in December 1994. Claimant’s testimony concerning the incident is credible and Lefevers and Moore witnessed the accident. Further, several co-workers testified that claimant informed them of the accident on that day. There is a form filled out reporting the injury in a timely manner and this report is signed by Paul Moore, claimant’s supervisor at the time. [27] While claimant admirably continued to work, he experienced sporadic or intermittent flareups of his condition. In July 1995, claimant bent over and experienced a significant increase in his symptoms. In my opinion, since claimant remained symptomatic, this incident was properly characterized by the ALJ as merely a recurrence of the prior work-related injury. A report was also filled out concerning this incident and apparently signed by Eddie Suggitt. [28] Although Suggitt denies signing this report, I believe his testimony lacks credibility. First, he has no explanation as to why his signature appears on the report. Further, Suggitt incredibly testified that upon receiving the chiropractor’s bills for treatment following the July 1995 accident, he, out of the goodness of his heart, paid these bills voluntarily. This testimony is rendered even more incredible when you consider that claimant had group or some other type of health insurance policy that would have covered at least part of this expense in the event this claim was denied. I believe the more plausible explanation is the testimony of various witnesses indicating that the employer has a practice of paying the expenses of injured workers and keeping them on the payroll in order to avoid reporting the accident as work-related. [29] I also do not believe the November 1996 increase in symptoms after camping represents an independent intervening cause. There was no “accident.” Claimant merely had an increase in his symptoms after performing or engaging in increased physical activities. There is simply insufficient evidence to find that this occurrence in any way caused or contributed to claimant’s underlying condition. [30] As far as objective medical findings, there are understandably not any immediately following the December 1994 injury because claimant stoically returned to work and avoided seeking medical treatment. Following the July 1995 injury, muscle spasms were noted by the chiropractor. Furthermore, once sophisticated diagnostic tests were performed in early 1996, the MRI scan revealed a herniated nucleus pulposes at L5-S1. Thus, there are ample objective medical findings to support the compensable injury. [31] Finally, the only medical opinions in the record support a finding of compensability. Drs. Chris Bookout, Norris C. Knight and Freddie Contreras each opined that claimant’s condition was work-related and that their opinions were expressed within a reasonable degree of medical certainty. Each doctor was fully aware of claimant’s history. Moreover, there are no other medical opinions in the record and respondent understandably chose not to depose or otherwise cross examine any of these physicians. [32] Therefore, based on the above, I find that claimant has met his burden of proof and accordingly, would affirm the opinion of the Administrative Law Judge awarding benefits. [33] _______________________________ PAT WEST HUMPHREY, CommissionerA. Me and Philip Lefevers and Paul Moore were working on this tire press, and I was up on this press working on it, and the air line blew out, which allowed this loader to come down on my shoulder and shove me down about a foot, foot and a half, and caught on the forklift and stopped it.
Q. This is a piece of equipment that came loose and fell on top of you, is that right, or fell down on top of you?
A. Yes. The piece of equipment is held up by air, and when the air line blew out, it lost its air and it fell on me.