Opinion
CLAIM NO. E702828
OPINION FILED JULY 15, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by J. GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
MR. HARRY MORTEN, Jacksonville, Arkansas, representing the intervenor, did not appear.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
[2] The claimant appeals a decision of the Administrative Law Judge filed on January 29, 1999, finding that claimant sustained a compensable injury on October 5, 1996; that respondent's liability is severed by an independent intervening event which occurred over the Thanksgiving Holiday in November of 1996; and finding that claimant failed to give proper notice of his injury until March 11, 1997. Claimant filed a timely Notice of Appeal from the finding of the Administrative Law Judge that claimant sustained an independent intervening event in November of 1996, and finding that claimant failed to provide proper notice of the injury until March of 1997. Based upon our de novo review of the entire record, we find that respondent has proven by a preponderance of the credible evidence of record that following claimant's compensable injury in October of 1996, claimant was involved in an independent intervening incident in November of 1996, which severed respondent's liability. We further find that claimant failed to prove by a preponderance of the evidence that he provided proper notice of his injury prior to the independent intervening event.The evidence reflects that claimant has worked for respondent-employer since 1991. Claimant alleges that around October 5, 1996, while working as an assistant machine operator he sustained an injury to his back while lifting shafts of paper which weighed anywhere from 80 to 120 pounds. Claimant described the incident as follows:
A. Yeah. I was an assistant operator, and one of the things I was supposed to do was change out a roll of paper. That meant picking up a hoist, I mean, picking up a shaft and inserting it into another roll; taking one of the old shafts off, which may have had anywhere between 20 and 30 pounds of paper left on it. And I proceeded to pick that up, and that's when I felt like something pulled. I sat it down and went and told my supervisor.
Pursuant to claimant's testimony, claimant advised his supervisor of the injury who then provided claimant with a back brace. The medical evidence reflects that on October 7, 1996, claimant presented to his family physician, Dr. Mitzi Washington, with complaints of lower-back pain. Dr. Washington's clinic note characterized claimant's chief complaint as: "Threw his back out Saturday evening." Dr. Washington performed an examination of claimant's lower back and detected paraspinous muscle spasms. Dr. Washington diagnosed claimant with lumbosacral strain and prescribed medication. Dr. Washington specifically advised the claimant to return to the clinic within the next three to four days if claimant developed new symptoms or if his symptoms did not improve.
In a hand-written note dated December 17, 1996, Dr. Washington noted:
Pt. seen yesterday. Didn't mention anything about back condition. On 12/13/96, back out since Thanksgiving taking Lodiene hot soaks anything else can be done so LM on machine to take muscle relaxers along [with] P.T.
Records from a physical therapist document a history as follows:
Playing [with] kids at home — attempted to lift 65# kid over head on right shoulder.
In a February 4, 1997 Progress Report from the physical therapist, the therapist noted:
Mr. Glen Lane was started on a physical therapy program to resolve left radiculopathy occurring after playing with his children. He reported lifting his children with developing a throbbing pain into the left-mid one/third thigh. He was unable to extend the left leg when walking. Symptoms elevated with sneezing, coughing, and moving in and out of the car.
Likewise, in a February 24, 1997 office report of Dr. Scott Carle, Dr. Washington's medical partner, claimant provided Dr. Carle with the following history:
This is a thirty-two year old black male comes in with two complaints, one being back pain — chronic since November of 1996 and second a eustachian tube dysfunction and scratchy throat over the last four weeks. Further history reveals that this patient has had some sporadic back problems over the last several years. The last precipitating event occurred while at home and playing with children on Thanksgiving Day. He has had some discomfort which radiates into his right hip and buttocks area. He has had limited course of physical therapy with some improvement noted. . .
This history is further seen in the initial evaluation report prepared by Dr. Robert Dickens. Dr. Dickens' March 6, 1997 report contains the following history:
Mr. Lane reports that he has had trouble with back pain off and on for about three years. For the last year his pain has been significantly worse. He has had three separate episodes where his back "went out" on him. The most recent of these events occurred on Thanksgiving Day and was the third of the episodes described to me in the last year. . .
In a subsequent report dated March 11, 1996, Dr. Dickens does record a history as provided to him by the claimant of an acute onset of back pain occurring in October of 1996, while at work. However, this report also indicates that in late November and December claimant's symptoms worsened.
In his Opinion, the Administrative Law Judge found that claimant did sustain a compensable injury in October of 1996. This finding was not appealed by respondent. Consequently, we must now determine whether respondent has presented sufficient evidence to arise to a preponderance of the credible evidence to sever respondent's liability for a non-work-related independent intervening cause following claimant's compensable injury. In this regard, Ark. Code Ann. § 11-9-102 (5)(F)(iii) provides:
Under this subdivision (5)(F), benefits shall not be payable for a condition which results from a non-work-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A non-work-related independent intervening cause does not require negligence or recklessness on the part of the claimant.
Thus, it having been found that claimant sustained a compensable injury in October of 1996, we must determine whether the evidence reveals that claimant was involved in a non-work-related independent intervening cause which caused or prolonged claimant's disability or need for treatment. In our opinion, the medical evidence clearly indicates that over the Thanksgiving holiday in November of 1996, claimant was involved in an incident playing with his children which caused or prolonged claimant's disability or need for treatment. The evidence reflects that between the date of the compensable injury, and the Thanksgiving incident wherein claimant lifted his child, claimant was able to continue working, albeit with medication, but without the need for physical therapy or surgery. A review of the medical records, including that of Dr. Washington, Dr. Carle, Dr. Dickens, and the physical therapist's reports which reflect a history provided by the claimant, all note an increase in symptoms occurring after the Thanksgiving Day incident when claimant lifted his child, weighing 65 pounds. Moreover, in Dr. Dickens' report which records claimant's prior history of sustaining an injury at work in October of 1996, Dr. Dickens also recorded and indicated that claimant's symptoms worsened in late November and December. The worsening coincides with the Thanksgiving Day lifting incident.
Clearly, respondents have asserted the affirmative defense allowed it through Ark. Code Ann. § 11-9-102(5)(F)(iii). Although claimant testified that he provided a false history to all of his medical care providers regarding the Thanksgiving Day incident, we are inclined to give greater weight to the history claimant provided to his medical care providers than to his hearing testimony wherein he is seeking benefits. It is claimant's testimony that he lied to Dr. Washington about what caused the increase in his pain because she was constantly on him to change jobs or to not work so much. Even assuming this testimony to be true, a finding which we do not make, it does not explain why claimant continued with this alleged falsehood when providing a history to all of his other medical care providers.
In finding that the independent intervening cause of the child-lifting incident in November of 1996 has caused or prolonged claimant's disability or need for treatment, we are also persuaded by the evidence which reflects that claimant passed a physical examination for the National Guard after the work-related incident in October of 1996, but prior to the child-lifting incident in November of 1996. Obviously, the October 1996 compensable injury was relatively minor and did not prohibit claimant from passing the National Guard physical examination. In our opinion, the overwhelming evidence of record preponderates in favor of finding that it was not until claimant lifted his child at home that claimant's symptoms developed to the point necessitating surgery. Accordingly, we find that respondent has prevailed on its affirmative defense of Ark. Code Ann. § 11-9-102(5)(F)(iii).
With regard to the notice requirement, we agree with the finding of the Administrative Law Judge that claimant failed to give notice of his October 1996 injury until March of 1997. Although the Administrative Law Judge found claimant sustained a compensable injury in October of 1996, the credible evidence of record does not support a finding that claimant provided notice of this injury to his employer until March of 1997. Claimant testified that he sustained an injury while lifting at work and that he advised his supervisor of the injury. However, claimant's supervisor testified that he was unable to recall claimant complaining of a work-related injury in October of 1996. Rather, claimant's supervisor testified that claimant generally complained of back pain in October of 1996, for which he provided claimant a back brace. According to claimant's supervisor, it was not unusual for employees to complain of pain and request a back brace. However, complaining of pain at work and reporting an injury while at work are not one and the same. Accordingly, we find that claimant has failed to prove by a preponderance of the credible evidence of record that he properly provided notice of an injury in October of 1996. Therefore, we find that the decision of the Administrative Law Judge on this issue should be affirmed.
IT IS SO ORDERED.
CONCURRING OPINION
[19] I concur in the principal opinion's findings regarding both the notice issue and the independent intervening cause issue. I write separately to address issues raised by the dissent.As regards the notice issue, I am inclined to agree with the dissent that Mr. Syke's testimony was rather confusing in that he recalled little of any specific conversations from October of 1996 or from March of 1997. However, I also note that the alleged conversations at issue would, therefore, have occurred 1-1/2 — 2 years prior to Mr. Syke's hearing testimony on December 15, 1998. Obviously, unless Mr. Sykes has a remarkable memory, Mr. Sykes cannot be faulted for not recalling specific conversations from 1-1/2 — 2 years prior unless something out of the ordinary was discussed. Mr. Sykes was adamant in his testimony that he did not have any recollection of the claimant reporting a work-related back injury in October of 1996, and I am persuaded by Mr. Syke's testimony that, if the claimant had reported a work-related injury in the manner the claimant asserts occurred in October of 1996, Mr. Sykes would have completed appropriate paper work. Under these circumstances, I accord greater weight to the testimony of Mr. Sykes than the weight I accord the testimony of the claimant on the issue as to when the claimant first reported an alleged work-related back injury (March 1997 not October 1996).
I also agree with the dissent that lifting a 65-pound child around Thanksgiving was not an "unreasonable activity" on the claimant's part. However, I point out that this question is the second element of a two-part test regarding independent intervening causes. The first element, and the threshold question, is whether there is a causal connection between the initial work-related injury and the claimant's episode of back problems following the lifting incident at home around Thanksgiving. See, Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677(1998).
In the present case, I find that the preponderance of the credible evidence fails to establish any causal connection between the claimant's October back injury and the problems he experienced following the lifting incident around Thanksgiving. In reaching that conclusion, I am particularly persuaded by the fact that (1) the claimant only presented to his physician on one occasion with back problems between the October 5, 1996 injury at work and the subsequent lifting injury at home approximately seven weeks later, (2) the claimant's physician diagnosed the claimant with a strain-type injury on October 7, 1996, and (3) the claimant did not identify the October incident at work to his physician when he next sought medical treatment in December. Instead, in December, the claimant attributed his back problems to the lifting incident at home near Thanksgiving. Under these circumstances, I find the preponderance of the credible evidence establishes that the lifting incident at home was a new injury and not a recurrence of his prior work-related back strain sustained seven weeks earlier.
Therefore, for the reasons discussed above, I concur with the findings in the principal opinion.
_____________________________ ELDON F. COFFMAN, Chairman
DISSENTING OPINION
[27] I must respectfully dissent from the findings of the majority that claimant failed to give respondent employer notice of his injury until March 11, 1997, and an independent intervening cause severed the liability of respondents.Claimant worked as an assistant machine operator for respondent employer, a manufacturer of paper bags. On October 5, 1996, he experienced a pulling and burning sensation in his back when he lifted a shaft to replace a roll of paper. The shafts vary in weight from 80 lbs. to 120 lbs. When a shaft is changed, there is usually between 20 and 30 lbs. of paper remaining on it. Claimant put the shaft down, and informed the machine operator, Dwayne Lockhart, of the incident. He also informed Lockhart that he needed to report the incident to his supervisor, Mark Sykes. Claimant stated that Sykes gave him a back brace, and indicated that he probably could not find a replacement for him. He accepted the back brace and agreed to try to resume his job duties. Claimant stated that Lockhart offered to "cover" him, and he was required only to watch the machine. He spoke with Sykes a few hours later, and discussed again the possibility of obtaining a replacement. He stated that this conversation occurred at 1:00 or 2:00 a.m. Claimant testified that Mr. Sykes indicated that he could not replace him immediately. However, Sykes advised claimant that this might be possible by 3:00 a.m. Claimant stated that when he spoke with Sykes at 3:00 a.m., he was informed no replacement was found. Claimant advised Mr. Sykes that he would stay for the remainder of his shift.
Besides Mark Sykes, claimant stated that he spoke with George Hazlett, another supervisor, regarding his injury in November or December of 1996. Claimant stated that Hazlett had hired claimant, and encouraged him to pursue the matter.
The majority finds that claimant did not report the injury until March of 1997. It is concluded that the credible evidence fails to support claimant's contention that he timely reported a work-related injury. At the hearing, respondents offered the testimony of Mark Sykes, a supervisor, to support their position. The testimony of Sykes is confusing, and entitled to no weight. With respect to his memory, he acknowledged on cross-examination that it was fair to say that he was unable to "directly" recall anything about the events of October and March. Respondents did not offer the testimony of George Hazlett. In my view, claimant's detailed testimony is credible and worthy of belief. Therefore, I find that claimant reported the injury on October 5, 1996.
I also find that no independent intervening cause exists to sever the liability of respondents. Following his work-related injury on October 5, 1996, claimant developed pain that extended into his leg, which became unbearable. He was only able to work because he received prescriptions for narcotic pain medication. Also, claimant indicated that other operators helped him. He stated that he continued to wear the back brace under his shirt through March of 1997. Claimant stated that after the incident in October of 1996, he was incapable of doing his job duties without assistance. Moreover, he had trouble driving, and sitting in one position to watch a movie.
Dr. Mitzi Washington examined claimant on October 7, 1996. Her chart note stated that claimant's back examination revealed paraspinous muscle spasms. She diagnosed a lumbosacral strain. Dr. Washington prescribed medication; however, no diagnostic testing was ordered. Claimant returned for medical treatment in December of 1996. Ultimately, a MRI was performed on February 26, 1997. That test showed a "large central and right paracentral HNP at the L5-S1 level compromising the right S1 nerve root and S2 nerve root."
At the request of Dr. Washington, Dr. Robert Dickins examined claimant on March 6, 1997. Dr. Dickins eventually performed surgery on May 23, 1997.
In my view, there is a causal connection between claimant's primary injury and the subsequent disability. Although Dr. Washington diagnosed only a lumbosacral strain in October of 1996, no diagnostic testing was performed. The evidence shows that claimant's symptoms grew progressively worse. Finally, in February of 1997, diagnostic testing was performed, which revealed the presence of a lumbar disc herniation at L5-S1. Since I find the requisite causal connection, no independent intervening cause may exist without conduct on claimant's part that is unreasonable under the circumstances. Dr. Washington neither excused claimant from work nor restricted his activities. Rather, claimant continued his duties with assistance from co-workers until March of 1997. Assuming arguendo that claimant lifted his child on Thanksgiving Day, his actions are not unreasonable under the circumstances. As stated, no restrictions were imposed by Dr. Washington even though claimant performed strenuous work that required repetitive bending and lifting. Under these circumstances, I cannot find that claimant acted unreasonably. Thus, no independent intervening cause exists.
I would award all appropriate benefits, including medical benefits commencing on October 7, 1996.
Based on the foregoing, I respectfully dissent.
_________________________________ PAT WEST HUMPHREY, Commissioner