Opinion
CLAIM NO. E107904
OPINION FILED MARCH 10, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JEFFREY M. GRAHAM, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MONTE D. ESTES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an opinion and order filed by the administrative law judge on April 29, 1996. 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 "unexplained" fall arising out of and in the course of his employment on April 16, 1991. In addition, the administrative law judge found that the claimant did not require "nursing services". After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.
The claimant was assigned the task of applying caulk to cracks between limestone tiles in a walkway outside Robinson Auditorium on April 16, 1991, when a co-worker found the claimant lying unconscious on the walkway. When the claimant was last seen by the same co-worker approximately 20 minutes earlier, the claimant was bent over applying caulk as assigned.
When a MEMS paramedic arrived, he determined that the claimant's air flow was highly restricted, and that the claimant was cyanotic. The paramedic applied a jaw thrust that opened the claimant's airway, and MEMS transported the claimant to University Hospital. In route, the claimant's heart rate increased from 30 to 100-110, and the claimant's color improved dramatically. The paramedic testified that he did not observe any evidence of seizure activity at the scene or in route to the hospital ER. However, the claimant did experience seizure activity in the hospital ER.
The claimant remained hospitalized at University Hospital from April 16, 1991, until April 22, 1991. The claimant was then transferred to Baptist Memorial Medical Center where he remained hospitalized until May 13, 1991. The claimant underwent rehabilitation at Baptist Rehabilitation Institute from May 13, 1991, through July 6, 1991, when he was released to his mother's care. The claimant was subsequently enrolled in the Timber Ridge Neurorehabilitation Program from July 1, 1993, through August 1, 1993, for additional rehabilitation training. The claimant then returned to live with his mother.
The administrative law judge found that the claimant's healing period ended on October 19, 1993, (based on repeat psychological testing performed by Dr. Douglas Stevens in 1995), and no party has appealed the administrative law judge's decision in this regard. In addition, the parties have stipulated that the claimant is permanently and totally disabled as a result of brain damage sustained as a result of the April 16, 1991, incident.
Since the claimant's injury occurred prior to July 1, 1993, this claim is governed by the provisions of the Arkansas Workers' Compensation Law as it existed prior to the amendments of Act 796 of 1993.
For an employee's injury to be compensable under the Arkansas Workers' Compensation Law, it must result from an injury "arising out of and in the course of employment." Ark. Code Ann. § 11-9-401 (1987). An injury occurs "in the course of employment" when it occurs "within the time and space boundaries of the employment, while the employee is carrying out the employer's purpose, or advancing the employer's interests directly or indirectly." City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). The phrase "arising out of the employment" refers to the origin or cause of the accident, so it must be shown that a causal connection exists between the injury and the employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). In order for an injury to arise out of the employment, it must be a natural or probable consequence or incident of the employment and a natural result of one of its risks. J G Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark.App. 1980).
The Arkansas Workers' Compensation Law does not contain a statutory presumption that "unexplained injuries" are compensable. Nevertheless, the Arkansas Courts have clearly indicated that an "unexplained injury" is compensable under the Arkansas Workers' Compensation law. See, Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987); Roc-Arc Water Co. v. Moore, 10 Ark. App. 349 (1984). As the Court of Appeals explained in Moore:
When one suffers an injury at work, the cause is, obviously, either known or unknown. Larson's treatise on workers' compensation law states that the most common example of a situation in which the cause of the harm is unknown is the unexplained fall in the course of employment and that most courts confronted with that situation have seen fit to award compensation. 1 Larson, The Law of Workmen's Compensation, § 10.31, at 3-87 (1985). However, injuries from idiopathic falls do not arise out of the employment unless the employment contributes to the risk or aggravates the injury by, for example, placing the employee in a position which increases the dangerous effect of the fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. Larson § 12.11.
The word "idiopathic" is defined in Webster's Third New International Dictionary, Unabridged (1976), as (1) peculiar to the individual, (2) arising spontaneously or from an obscure or unknown cause. Although the two concepts are frequently confused, Larson says "unexplained fall cases begin with a completely neutral origin of the mishap, while idiopathic-fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie showing of personal origin." Larson § 12.11, at 3-314.
Our Arkansas cases have followed the above rules.
In the present claim, we find that the preponderance of the evidence establishes that the claimant sustained an "unexplained" injury, and not an idiopathic injury. As discussed, the claimant was last seen bent over applying caulk to a limestone walkway, as assigned, 20 minutes before he was discovered unconscious by a co-worker, Tim Gosser. Mr. Gosser testified that he had spoken with the claimant earlier that morning and that there did not appear to be anything abnormal with the claimant's condition. The paramedic who responded testified that he did not identify any indications of seizure (including incontinence, scratches other than forehead abrasion, blood in saliva) at the scene or in the ambulance, and he did not observe any foreign objects in the claimant's mouth or in the surrounding area. Likewise, the claimant's post-injury blood alcohol and drug screen were negative, and there were no medical records submitted into evidence for any type of medical treatment provided by any physician for any medical abnormalities prior to April 16, 1991.
Moreover, we note that the claimant's "Discharge Summary" from University Hospital strongly suggests evidence that the cause of the claimant's injury is simply unknown. In that document prepared by Dr. Kirkland Nolan on August 27, 1991, Dr. Nolan summarized as follows regarding the possible causes of the claimant's anoxic brain injury:
It was felt that Mr. Pack either had a seizure and, as a result, closed off his glottis and had anoxic damage or for some other reason maybe he had anoxic damage and seizures resulted from that. [Emphasis Added].
Thus, according to Dr. Nolan, the doctors apparently suspected seizure as a possible cause of injury leading to the claimant's anoxic condition, however, the physicians also recognized that the claimant's ER seizure activity could have resulted from the anoxic condition originally observed by the paramedic on the scene.
In reaching our decision, we note that the respondents suggest on appeal that the claimant's apparent history of alcohol use is consistent with either an alcohol-related seizure or an alcohol-related syncope experience. However, we again note that the paramedic did not find any evidence of seizure at the scene or during the trip to the hospital. Likewise, Dr. Barron testified that an alcohol-related syncope experience occurs only when alcohol is present in the blood stream, not later after the alcohol is no longer in the body (as in this case). Dr. Barron also testified that he is not aware of any studies indicating that chronic alcohol use increases the risk of seizure over the risk of the normal population. Moreover, Dr. Barron testified that the claimant's liver enzyme results were not consistent with chronic alcohol abuse, and Dr. Barron testified that factors related to the claimant's injury other than alcohol usage could account for the claimant's SGOT levels. The respondents did not present any expert medical testimony to rebut the testimony of the paramedic or of Dr. Barron in these regards. Consequently, after a de novo review of the entire record, and for the reasons discussed herein, we find that the greater weight of the evidence in the record established that the claimant sustained a compensable "unexplained" fall.
The claimant also seeks an award of "nursing services" for the period beginning on July 6, 1991 (when the claimant was released from the Baptist Rehabilitation Institute) to July 1, 1993 (when the claimant entered the Timber Ridge rehabilitation program), and from August 1, 1993 (when the claimant completed training at Timber Ridge) until a date yet to be determined. However, we find that the claimant failed to prove that nursing services were reasonably necessary for his compensable injury after his release from the Baptist Rehabilitation Institute on July 6, 1991.
In this regard, we note that, while the claimant has sustained a relatively severe cognitive dysfunction, rendering the claimant permanently and totally disabled for employment purposes, the claimant has fortunately experienced minimal physical limitations. In fact, the claimant's physicians have repeatedly emphasized that the claimant should engage in out-of-home programs to the greatest extent possible. A UAMS medical report dated April 20, 1993, indicates that the claimant became enrolled in computer training at the Adult Education School in North Little Rock for a period of months in late 1991 and early 1992. Likewise, a UAMS report dated January 27, 1994, indicates that the claimant again participated in out-of-home computer education 3-4 times per week at the Adult Education School between August and December of 1993. Moreover, both the medical records and the testimony of the claimant's mother indicate that the claimant has sustained a permanent motivational dysfunction which requires "verbal cues" in order to get the claimant to dress, bathe, prepare meals, or perform the other routine activities associated with daily living. However, we do not believe the claimant's mother's "verbal cues" fall within the definition of "nursing services", as that term has been interpreted through a series of decisions by the Arkansas Courts. See, Sisk v. Philpot, 244 Ark. 79, 423 S.W.2d 871 (1968), J.P. Price Lumber Co. v. Adams, 258 Ark. 631, 527 S.W.2d 932 (1975); Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W.2d 138 (1977); Pickens-Bond Construction Co. v. St. Paul Insurance Co., 266 Ark. 323, 584 S.W.2d 21 (1979); Tubbs v. Dixie Bearing, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1983);Wasson v. Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984).
In reaching our decision, we note that the claimant's mother also testified that she recalled the claimant experiencing a lack of bladder and bowel control when he returned home in July of 1991, which she testified may have required four to six months for toilet retraining. In assessing the weight to be accorded the recollection of the claimant's mother in this regard we note that the July, 1991 records of Baptist Rehabilitation Institute do not indicate any bladder or bowel control problems, upon release, and we note that the claimant was actually enrolled in an out-of-home computer training program during a portion of the alleged period of incontinence. Therefore, we find that the greater weight of the evidence indicates that the claimant did not experience any incontinence after July of 1991, to such a degree as to require the assistance of nursing services.
Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant sustained a compensable "unexplained" injury. In addition, we find that the claimant failed to prove by a preponderance of the evidence that nursing services were reasonably necessary for his compensable injury for any period after his release from Baptist Rehabilitation Institute in July of 1991. Therefore, we find that the decision of the administrative law judge must be, and hereby is, affirmed.
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 in part on this appeal before the Full Commission, 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.
CONCURRING AND DISSENTING OPINION
I concur in part and dissent in part from the majority opinion. Based upon my de novo review of the entire record, I find that claimant has failed to prove by a preponderance of the evidence that his injury which occurred on April 16, 1991, is compensable. Accordingly, I dissent from this finding of the majority. However, although I find that claimant has failed to prove the compensability of his injury, I concur with the majority's finding that claimant has failed to prove entitlement to nursing services.
The facts in this case are tragic indeed. Twenty minutes after being seen working on his hands and knees caulking the sidewalk, claimant was found lying unconscious by his co-workers. No one knows what happened to the claimant and no physician has been able to provide an opinion regarding causation which is not rooted in speculation and conjecture. Claimant's injury has sadly left him brain damaged and claimant is unable to provide any further insight into the cause of his injury.
All we have to go on are medical theories and hypothesis based solely on speculation. The Administrative Law Judge, the claimant, and in part the majority rely upon Dr. Edwin Barron's "theory" regarding how claimant's injury occurred. In order for Dr. Barron's theory to work one must first speculate that claimant stood from his kneeling position on the floor, one must next speculate that due to claimant's viral illness the activity of standing resulted in a vaso-vagil response. There is simply no evidence in the record to support this rank speculation.
The record is replete with numerous other theories including possible alcohol abuse or a seizure and as a result closed off his glottis and had an anoxic damage. In short, there is simply insufficient evidence in the record to arrive at any conclusion or causation.
As noted by the majority, the court has previously defined the difference between unexplained injuries and idiopathic injuries. Idiopathic injuries begin with an origin which is admittedly personal in nature. In my opinion, all evidence in this case can easily point to the cause of claimant's injury being admittedly personal. There is nothing in the record to show that claimant's injury arose out of his employment and not from an idiopathic cause. The only medical record which indicates claimant's injury may have arisen out of his employment is that of Dr. Barron's hypothesis regarding claimant's injury. The hypothesis is, as noted above, simply speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). While the Administrative Law Judge and the majority may have done the charitable thing, I cannot find that when all sympathy is placed aside and the facts in this case are reviewed impartially that claimant sustained a compensable injury. Accordingly, I must respectfully dissent from the majority's finding that the claimant's injury on April 16, 1991, is compensable.
MIKE WILSON, Commissioner