Opinion
CLAIM NO. E911183
OPINION FILED FEBRUARY 24, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE STEPHEN SHARUM, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by HONORABLE JAMES ARNOLD II, Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an Administrative Law Judge's opinion filed April 24, 2002. The Administrative Law Judge found that the claimant proved he was entitled to additional medical treatment for his compensable injury. The Administrative Law Judge found that the medical services recommended by Dr. Jones on and after June 22, 2001 were not causally related to any independent intervening cause attributable to the claimant's negligence or misconduct. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Randy Jacobs, age 49, testified that he had been employed as a painter for Fort Smith Public Schools since 1987. The parties stipulated that Mr. Jacobs sustained a compensable injury to his right shoulder and elbow on May 19, 1999. The claimant testified that while he was working in a boom truck, "the base fell off, four-foot base, and we fell 35 to 40 foot."
The claimant presented to Dr. Keith F. Holder on May 19, 1999:
Mr. Jacobs, an employee of Fort Smith Public Schools, was in a boom truck of the school's, painting when the boom broke, crashing through the cab of the truck, falling down to the ground. He complains of right arm and elbow pain, and left side back discomfort. He has had a previous history of right shoulder bursitis. The same extremity was injured in this accident when he grabbed the basket trying to prevent further falling.
Dr. Holder's impression was "Right shoulder strain," "Back strain," and "Elbow laceration."
The claimant presented to Dr. Paul Raby for an orthopedic evaluation in September 1999, and a subsequent MRI showed "Tear of the supraspinatus tendon." On September 13, 1999, Dr. Raby performed a "Resection of the acromioclavicular joint, resection of the coracoacromial ligament, acromioplasty and repair of the rotator cuff." Dr. Raby's final diagnosis, on September 30, 1999, was "Repair of the rotator cuff of the right shoulder."
After diagnosing "recurrent rotator cuff tear" in March 2000, the record indicates that Dr. John P. Park repaired the claimant's rotator cuff. Dr. Park noted on April 7, 2000:
At this point, he will be allowed to return to work on 04/17/00, to one arm duty only. He has a side line of rifle shooting and he not to utilize his right arm for any shooting of his gun during this period of time.
Dr. Park saw no "evidence of disruption of the repair" in June 2000. Dr. Park pronounced "maximum medical improvement" on October 11, 2000. However, the claimant testified that he never recovered from the pain in his right shoulder following the compensable injury.
Dr. Gary L. Moffitt wrote to the respondents on December 22, 2000:
First of all, you want to know if Mr. Jacobs can perform painting or sanding with his arms below shoulder level and, in my opinion, he can. Also, you are curious about Mr. Jacobs' hobbies of hunting and shooting a shotgun. As I mentioned to Mr. Jacobs, I feel that these are definitely contraindicated. The amount of jarring that is associated with shooting a gun, particularly a shotgun or high powered rifle, would be potentially detrimental to his situation. Also, to shoot a rifle such as this one has to abduct their shoulder and also work with their arms at shoulder level and I think that this would be contraindicated in Mr. Jacobs (sic) condition and I told him that he does not need to be shooting anymore.
On March 5, 2001, Dr. Park indicated that "re-exploration" of the claimant's shoulder was appropriate. However, the respondents controverted medical treatment after March 5, 2001.
The claimant testified regarding another work-related incident occurring June 21, 2001:
A. I was painting a classroom at Southside High school, and there was some boxes setting on a heater, and I was going to slide that one box over. There was five of them, and I was going to paint that heater. I sent to slide it over, and when I did, my bicep tore out of my shoulder.
Q. Okay. Are you contending that that's a new or a separate injury?
A. No, sir. I'm contending it was still the old injury, because after my bicep tore out, I lost that major catch in my arm.
The claimant visited an orthopaedist, Dr. Greg T. Jones, on June 22, 2001:
He had an injury occur yesterday when he was lifting an object and had a popping sensation and presents at this time with ecchymosis all along the anterior aspect of the shoulder and that episode, which occurred at work, was allegedly reported. The findings and examination changes are most suggestive of a biceps tendon rupture proximally. Examination is further remarkable for weakness to external rotation, anterior crepitance and impingement. . . .
A four view shoulder x-ray series made today demonstrates a flat type I acromion on the outlet view, an appropriate level distal clavicle resection, no dystrophic calcification about the shoulder girdle. No fractures or destructive lesions. Chronic impingement changes at the greater tuberosity of the humerus are evident. . . .
This is clearly a complex case, now well into its maturation since his surgery a year ago by Dr. Park. He has residual weakness, crepitance and findings as detailed above and an acute injury on top of that with an apparent biceps tendon lesion based on the examination findings and ecchymosis.
I believe that in an effort to ascertain if any additional measures might be successful in alleviating his discomfort or improving his function, that a rotator cuff evaluation with an arthrogram to establish his integrity be our first step. . . .
He needs to make sure that if he is carrying this under Worker's Compensation, I do suggest a formal change of position and that the injury sustained at work, which was reported to his superior, is appropriately documented because of the objective findings seen today, I think confirming the presence of a true injury.
Dr. Jones further noted on June 26, 2001:
The ecchymosis continues to demarcate along the anterior aspect of the arm. He has some weakness to supination and tenderness along the tract of the biceps tendon proximally that make me highly suspicious that he has sustained a partial or perhaps a complete rupture of the long head of the biceps. This is likely related to the previous injury and trauma as the mechanism of injury he describes with the recent work incident is not sufficient to have ruptured an otherwise healthy biceps tendon.
The arthrogram demonstrates a small degree of dye leak at the supraspinatus insertion and I think either represents a small area of incomplete healing or perhaps refracture of the previously repaired tendon. . . .
I have identified, I think, three mechanical and perhaps four issues that could be improved with further treatment addressing the shoulder pathology as it currently presents itself. With the persistent impingement related crepitance, now approaching a year and a half after the most recent surgery, represent residual scar tissue and impingement that in some cases, arthroscopic debridement of the subacromial space has yielded substantial improvement in same. If there were confirmation visually of a cuff tear of significance based on the arthrographic findings seen today, then a mini open repair would be my suggestion. I believe that the pain related to the AC joint can be repaired with a fascial re-apposition and although not something to restore "normalcy", in other patients with similar problems, it has been of benefit.
A hearing before the Commission was held on January 25, 2002. The claimant testified that he had restricted his clay target shooting and hunting activities since the compensable shoulder injury, although he had shot two deer and occasionally hunted for quail. The claimant's rifle is a "gas operated semi-automatic" with limited recoil. The claimant denied that these sporting activities had injured his shoulder.
After a hearing before the Commission, the Administrative Law Judge found that the treatment recommended by Dr. Jones was reasonably necessary in connection with the claimant's compensable injury. The Administrative Law Judge essentially determined that the claimant's condition was not the result of an independent intervening cause. The respondents appeal to the Full Commission.
II. ADJUDICATION
The parties stipulated that the claimant sustained a compensable injury to his right shoulder and elbow in May 1999. The employer must promptly provide for the injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). Whether medical treatment is reasonably necessary is a question of fact for the Commission. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). When the primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for every natural consequence that flows from that injury. K II Construction Company v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). The basic test is whether there is a causal connection between the two episodes. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).
In the present matter, the Commission affirms the Administrative Law Judge's finding that the claimant proved he was entitled to additional reasonably necessary medical treatment, including that treatment recommended by Dr. Jones. Our de novo review of the record indicates that the claimant's need for treatment was causally related to his compensable injury. The claimant sustained an admittedly compensable injury to his right shoulder in 1999, which injury led to two shoulder surgeries. The claimant credibly testified that he never fully recovered from these injuries, and the medical records corroborate his testimony. The claimant testified that he did occasionally hunt and sport with a rifle, but that these activities did not cause additional shoulder problems. There are no medical records or any other evidence indicating that the claimant's rifle activities caused any structural damage to the claimant's shoulder, extended the healing period for his compensable injury, or otherwise interfered with the medical treatment connected with the compensable injury. We also attach significant weight to Dr. Jones's opinion that the cause of the claimant's need for treatment was the claimant's compensable injury, in addition to another work-related injury in the respondents' employ.
The Commission recognizes Dr. Moffitt's opinion that shooting a shotgun would be "contraindicated" because of the "jarring" that would take place. The Commission is authorized to accept or reject medical opinion and to determine its medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 [ 999 S.W.2d 695] (1999). We do not place significant weight on Dr. Moffitt's opinion in the present matter, because as indicated supra, there is no indication of record that the claimant caused further injury to himself or extended his healing period as a result of his sporting activities. The treating orthopaedic surgeon, Dr. Jones, did not attribute the claimant's symptoms to anything other than the claimant's compensable injury and his work for the respondents. We also note the testimony of Debbie Morgan, a case manager and registered nurse, who opined that there was a correlation between the claimant's hunting activities and his continued symptoms. From a preponderance of the evidence before us, however, including the reports of the treating physicians, we find that Ms. Morgan's opinion in this regard is based on speculation and conjecture. Speculation and conjecture can never be substituted for credible evidence. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1980).
Based on the record before the Commission, we are unable to find that there was an "independent intervening cause" which would relieve the employer from providing reasonably necessary medical treatment as required by Ark. Code Ann. § 11-9-508(a). The preponderance of evidence shows that the claimant's need for treatment was connected to the 1999 compensable injury and related to the 2001 re-injury which occurred at work. Because the record does not show that the claimant's extracurricular shooting activities were the cause of his need for additional medical treatment, including that treatment recommended by Dr. Jones, we need not address whether these activities were unreasonable. See, Hislip v. Helena/West Helena Schools, 74 Ark. App. 395, 48 S.W.3d 566 (2001). The decision of the Administrative Law Judge is affirmed.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved he was entitled to additional reasonably necessary medical treatment provided in connection with his compensable injury, including that treatment recommended by Dr. Jones. We find that the claimant's continued symptoms were not the result of an independent intervening cause. The Full Commission therefore affirms the opinion of the Administrative Law Judge.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
Commissioner Turner concurs.
CONCURRING OPINION
I concur with the principal opinion's finding that claimant is entitled to additional medical treatment, including the treatment recommended by Dr. Greg Jones. Additionally, I concur with the finding that claimant's condition is not the result of an independent intervening cause.
Respondent has, in my opinion, conveniently seized upon claimant's use of firearms in its search for an independent intervening cause of his shoulder problems. The greater weight of the evidence will not support respondent's position.
Respondent erroneously claims that claimant continued to shoot firearms against the advice of two of his physicians. In the report of his "independent" medical evaluation of claimant, Dr. Moffitt simply noted that claimant was having difficulty shooting firearms. Claimant testified that Dr. Moffitt did not specifically restrict him from any and all shooting. However, Dr. Moffitt subsequently did so at the request of, and in a letter to, respondent.
Further, it has been argued that Dr. Parks permanently restricted claimant from shooting firearms and the following excerpt from Dr. Parks' April 7, 2000 report is cited: "He has a sideline of rifle shooting and he is not to utilize his right arm for any shooting of his gun during this period of time." On its face, the phrase "during this period of time" indicates that Dr. Parks was only temporarily restricting this activity. As noted by the Administrative Law Judge, "this period of time" appears to be "the period immediately following his second surgery." Thus, the greater weight of the evidence does not support a finding that Dr. Park also permanently restricted claimant's use of firearms.
Since the compensable injury, claimant's condition has never really changed much. He has had continuous medical treatment for his chronic symptoms. Simply stated, his shoulder has not healed. His current condition is the natural and probable result or progression of the initial compensable injury and subsequent surgeries. Claimant presented credible testimony that other than the compensable injury, there has been no activity or incident which has made his condition worse. Therefore, claimant's current shoulder difficulties are a mere recurrence of the compensable injury.
More importantly, there is insufficient evidence that claimant even experienced an increase in the magnitude of his symptoms due to his limited and conscientious shooting of firearms. There is absolutely no medical evidence whatsoever that shooting firearms has in any way caused or "triggered" any of claimant's disability or need for treatment. Surprisingly, not even Dr. Moffitt has rendered such an opinion. Without such a causal connection, it really doesn't matter how often claimant shot his firearms or whether claimant was violating the restrictions placed on him by any physician. We don't even consider whether the activity was unreasonable under the circumstances unless first the activity "triggered" claimant's subsequent disability. Hislip v. Helena/West Helena Schools, 74 Ark. App. 395, 48 S.W.3d 566 (2001). Thus, the facts of this case will not support the application of the theory of independent intervening cause.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion.
Based upon my review of the evidence in this case, I find that the claimant's continued recreational gun use, against the advice of two of his physicians, constitutes an independent intervening cause.
The claimant's case manager, Debbie Morgan, testified that Dr. Moffitt advised the claimant on November 7, 2000, that he should not shoot a shotgun or rifle. A letter written November 22, 2000, by Dr. Moffitt states:
He has been heavily involved in shooting shotguns and has even owned his own specialized skeet type of a shooting range. He is having difficulty doing this.
The letter further stated that the claimant had reached maximum medical improvement and should "avoid doing any work that involves using his arms above chest level." In a letter of clarification written December 22, 2000, Dr. Moffitt wrote:
. . . about Mr. Jacobs' hobbies of hunting and shooting a shotgun. As I mentioned to Mr. Jacobs, I feel that these are definitely contraindicated. The amount of jarring that is associated with shooting a gun, particularly a shotgun or high powered rifle, would be potentially detrimental to his situation. Also, to shoot a rifle such as this one has to abduct their shoulder and also work with their arms at shoulder level and I think that this would be contraindicated in Mr. Jacobs' condition and I told him that he does not need to be shooting any more.
Despite this evidence, the claimant testified that Dr. Moffitt did not specifically tell him not to fire a rifle or shotgun; but rather stated that Dr. Moffitt voiced no objection to his doing this on a limited basis. The claimant also testified that neither Dr. Raby nor Dr. Park objected to this activity. However, the claimant was in fact instructed by Dr. Park not to shoot guns. Dr. Park wrote in a clinic note dated April 7, 2000:
He has a sideline of rifle shooting and he is not to utilize his right arm for any shooting of his gun during this period of time.
Despite these admonitions, the claimant testified that since the accident in May 1999 he has gone quail hunting with a shotgun more times than he could count, and hunted quail regularly from November 1, 1999, through January 31, 2000. The claimant admitted that within four days of the beginning of the quail season he began to experience a catch in his shoulder. The claimant owns a shooting range, and admitted that since May 1999 he has continued to shoot his guns at that range. He has deer hunted in both Arkansas and Oklahoma; killing two deer in 2000 and two deer in 2001. He indicated that in 2001 he drove to Iowa on two occasions to pheasant hunt, and indicated that he dove hunted after his second surgery.
If there is a causal connection between a primary injury and a subsequent disability, there is no independent intervening cause, unless the subsequent disability was triggered by an activity on the part of the claimant which was unreasonable under the circumstances. Davis v. Old Dominion Freight Lines, 341 Ark. 751, 20 S.W.3d 326 (2000). If an employee is injured after he knowingly performs an activity that is contrary to his medical restrictions, that behavior constitutes an independent intervening cause relieving the employer of liability.Broadway v. Bass, 41 Ark. App. 111, 848 S.W.2d 445 (1993), Thompson v. Washington Regional Medical Center, 71 Ark. App. 126, 27 S.W.3d 459 (2000).
In the present case, while the defects in the claimant's shoulder identified by Dr. Jones are in the same area injured in the compensable accident of May 1999, it requires speculation to conclude that those defects are a result of incomplete healing, as opposed to a re-injury of that area. However, even if there were a causal connection between the primary injury and the subsequent disability, I find that sufficient evidence was presented to demonstrate that the claimant's need for additional treatment for his right shoulder is the result of an independent intervening cause; namely his recreational use of shotguns for hunting and target shooting, as he was clearly instructed by at least two of his physicians to avoid this activity. It is undisputed that the claimant ignored these instructions and continued to hunt and shoot. The majority opinion does not accurately reflect the claimant's testimony with regard to the extent of his shooting. This behavior was unreasonable under the circumstances and therefore constitutes an independent intervening cause. Because I find that the claimant's continued recreational gun use, against the advice of two of his physicians, constitutes an independent intervening cause, I would reverse the opinion of the Administrative Law Judge, and deny and dismiss this claim. Therefore, I respectfully dissent from the majority opinion.
_____________________________ JOE E. YATES, Commissioner