Opinion
CLAIM NO. E616744
OPINION FILED SEPTEMBER 7, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JEFF MOBLEY, Attorney at Law, Russellville, Arkansas.
Respondents represented by JOHN R. PEEL, Attorney at Law, Russellville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the Administrative Law Judge on February 9, 1999. In that opinion and order, the Administrative Law Judge determined that a preponderance of the evidence failed to establish the occurrence of an independent intervening cause. The Administrative Law Judge further found that claimant's continuing problems are causally related to his compensable injury, and respondents are liable for the medical treatment provided. Based on our de novo review of the record, we find that a preponderance of the evidence fails to support the existence of an independent intervening cause. We further find that claimant's additional medical problems are causally related to his compensable injury. Therefore, respondents are liable for the treatment provided following claimant's compensable injury. We thus affirm the decision of the Administrative Law Judge.Claimant worked as a load builder. He testified that in this capacity, he gathered materials for the purpose of filling orders for respondent employer's customers. He sustained an admittedly compensable injury to his right foot on December 9, 1996. Claimant testified that he punctured his foot as a result of stepping on a piece of rebar wire. He reported the injury to his supervisor, Buddy Grimes. Mr. Grimes advised claimant to consult the company physician, Dr. Stanley Bradley. However, claimant chose instead to seek treatment from his family physician, Dr. William Barron. He explained that consulting the company physician entailed a long wait at the clinic.
In a chart note dated December 9, 1996, Dr. Barron described the puncture wound, and indicated that x-ray films were negative. He outlined a treatment plan that included elevation, ice, antibiotics, and pain medication. However, the chart note does not refer to claimant's inability to work. Indeed, claimant testified that Dr. Barron did not instruct him to stay off work. Moreover, he stated that Dr. Barron failed to provide an off work slip. He testified that he interpreted Dr. Barron's instructions to mean that his foot should be elevated and iced when he was at home. Claimant testified that in his experience, remaining at home without a doctor's note would jeopardize his employment status. He stated that Dr. Barron inquired about the date of his last tetanus shot; however, he was unable to provide that information.
Following his appointment with Dr. Barron, claimant returned to work and completed his shift. He returned to Dr. Barron on December 11, 1996. Claimant testified that he informed Dr. Barron that more than five years had lapsed since his last tetanus shot. In his chart note for December 11, 1996, Dr. Barron indicated that claimant had developed a secondary infection in his foot. He noted that claimant's foot was red and swollen.
Claimant testified that he worked until December 12, 1996, when he was unable to continue due to pain. He returned to Dr. Barron, and his chart note for December 12, 1996, indicated that claimant should not work. This is the first indication that Dr. Barron ever advised claimant to remain off work.
In a letter dated December 20, 1996, Dr. Barron chronicled the treatment he provided claimant. He indicated that he encouraged claimant to consult the company physician. Dr. Barron noted that claimant returned without an appointment on December 13, 1996; however, he decided not to wait for treatment. Although the letter stated that claimant chose to go shopping instead, claimant testified he never made this statement. He specifically stated that he did not go shopping after leaving Dr. Barron's office on the 13th.
Dr. Bradley examined claimant on December 16, 1996. He suspected osteomyelitis, and ordered a bone scan, which was done on December 18, 1996. The test "showed a hot spot at the right second MTP." Based on the test results, claimant was admitted to the hospital for intravenous antibiotic therapy. Also, Dr. Bradley referred claimant to Dr. Robert May. On December 23, 1996, Dr. May performed surgery. The operative report described the procedure as follows: "Incision and drainage, right foot, chronic infection, involving the metatarsal phalangeal joint of the right second toe." Dr. May continued to monitor claimant's progress after surgery, and released him to return to work on January 13, 1997.
In a letter dated September 22, 1998, Dr. Barron opined that claimant would not have developed osteomyelitis if he "had followed [Dr. Barron's] instructions by staying off his foot and coming back for follow up visits as he was instructed." Dr. Barron has indicated that this opinion is stated within a reasonable degree of medical certainty.
In Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), the Court of Appeals addressed the test for determining the existence of an independent intervening cause:
. . . The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). If there is a causal connection between the primary and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Guidry v. J Respondent Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).
The evidence shows that claimant initially injured his foot after stepping on the rebar wire in the course and scope of his employment, and the evidence shows that no other incident occurred at work or away from work resulting in the injury of claimant's foot. Thus, we find that the osteomyelitis developed as a natural progression of the injury sustained by claimant. Accordingly, claimant has demonstrated the requisite causal connection.
The next issue is whether claimant's conduct was unreasonable under the circumstances. In resolving the issue of whether the triggering activity is unreasonable under the circumstance, the Court of Appeals has previously considered claimant's knowledge of his condition. See Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993); Lunsford v. Rich Mountain Electric Coop., 33 Ark. App. 66, 800 S.W.2d 732 (1990).
The medical records show that Dr. Barron did not advise claimant to remain off work until December 12, 1996. However, the evidence shows that claimant developed an infection before he was advised to remain off work. Dr. Barron's chart note for December 11, 1996, reflected the existence of a secondary infection. There is no evidence that Dr. Barron ever gave claimant an off work slip. Claimant stated that he followed Dr. Barron's instructions with respect to treatment and medication. He testified that Dr. Barron instructed him to apply ice and elevate his foot when he was at home. It is claimant's testimony that he believed that if he remained home from work without an off work slip, his job would be imperiled. In our opinion, claimant followed the advise of his physician, and there is no evidence to support a finding that he engaged in any conduct that could be deemed unreasonable under the circumstances. Accordingly, no independent intervening cause exists. In making this determination, we note that claimant completed the eighth grade, and subsequently obtained a G.E.D.
In determining that no independent intervening cause exists, we have considered the opinion of Dr. Barron. He documented that claimant developed an infection in a chart note dated December 11, 1996. However, there is no indication in Dr. Barron's chart note that he advised claimant to remain off work. It was not until the following day that his chart note referenced claimant's work status. Also, Dr. Barron stated that claimant failed to return for follow up visits in accordance with his instructions. However, the only follow up appointment claimant did not keep was on December 13, 1996. Claimant testified that Dr. Barron's waiting room was full, and he chose not to remain. Although claimant did not return to Dr. Barron, he obtained medical treatment on December 16, 1996, from Dr. Bradley. Thus, we accord Dr. Barron's opinion virtually no weight.
In reaching our decision, we also note the dissent's argument that the Court of Appeals failed to adequately consider the statutory language in Ark. Code Ann. § 11-9-102(5)(F)(iii) in deciding Georgia-Pacific v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). We point out, however, that this Commission is constrained to apply the precedent in Carter absent some further evidence from the Court of Appeals or the Supreme Court to the contrary. See generally, Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998). See also, Ray C. Miles v. Georgia-Pacific Corporation, Full Workers' Compensation Commission, April 1, 1999 (W.C.C. No. E712393).
Accordingly, based on our de novo review of the record, and for the reasons stated herein, we find that the evidence fails to establish the occurrence of an independent intervening cause. Therefore, liability is not severed, and respondents are responsible for the medical treatment claimant obtained following his compensable injury.
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, 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.
_______________________________
DISSENTING OPINION
[22] I respectfully dissent from the majority's opinion. In my opinion, Ark. Code Ann. § 11-9-102(5)(F)(3)is squarely on point. This section 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 need for treatment. A non-work-related independent intervening cause does not require negligence or recklessness on the part of the claimant.
In a recent Opinion regarding independent intervening cause, this Commission looked to the guidance of the Arkansas Court of Appeals in Georgia Pacific v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998) to determine the test which we should apply.See, Ray Mills v. Georgia Pacific Corporation, Full Commission Opinion filed April 1, 1999 ( E712393). In Georgia Pacific Corporation v. Carter, supra, the Court of Appeals set forth the well-established test for determining whether a claimant's current condition is an aggravation or recurrence of a compensable injury. This test is as follows:
The test for determining whether a subsequent episode is a recurrence or aggravation is whether the subsequent episode was a natural and probable result of the first injury, or if it was precipitated by an independent intervening cause. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). If there is a causal connection between the primary and subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Guidry v. J R Eades Construction Company, 11 Ark. App. 219, 669 S.W.2d. 483 (1984).
In my opinion, the reliance upon this test for determining whether an independent intervening cause severs a respondent's liability is misplaced. A review of the Court's analysis inGeorgia Pacific Corporation v. Carter fails to reveal that the Court considered the applicability of the independent intervening cause language in Act 796. Moreover, Ark. Code Ann. § 11-9-102(5)(F)(3) specifically states that a non-work related independent intervening cause does not require negligence or recklessness on the part of the claimant, while the test for an aggravation or recurrence relied upon by the Court in Carter continues to place emphasis on whether the activity was unreasonable. The reasonableness of the activity is an element of consideration for negligent or reckless acts. The majority finds that the claimant did not act unreasonably when he "followed" his physician's advice. On the contrary, I find that by continuing to work, claimant either intentionally or recklessly ignored the advice to keep his foot elevated. Regardless of one's educational background, instructions to keep your foot elevated, and to ice your foot can only mean one thing: "Stay off your foot." By working claimant disregarded these instructions.
In my opinion, the evidence overwhelmingly indicates that claimant's failure to follow his physician's advice to elevate his foot and keep it iced resulted in the development of osteomyelitis. Whether claimant's actions are reckless or negligent or whether they are deemed unreasonable is of no consequence. The evidence reflects that claimant's failure to follow his physician's advice is an independent cause of claimant's prolonged disability and need for treatment. Claimant's failure to follow his physician's advice intervened in claimant's healing to cause the osteomyelitis to develop. While there is a connection between claimant's injury and the subsequent development of osteomylitis, the record demonstrates that osteomylitis would not be a natural and probable progression of the injury but for claimant's failure to follow his doctor's advice. Consequently, it is my opinion that claimant's actions provide the causative link between the injury and the osteomylitis. It is these actions which are independently responsible for claimant's present situation. Therefore, I find that Ark. Code Ann. § 11-9-102(5)(F)(3) operates to severe respondent's liability. Accordingly, I find that the decision of the Administrative Law Judge awarding claimant benefits for the treatment of the osteomyelitis must be reversed. My review of the record reveals that the osteomyelitis developed as a result of the independent intervening cause of claimant's failure to follow his physician's advice. Therefore, I respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner