Opinion
CLAIM NO. F307388
OPINION FILED APRIL 21, 2005
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE EDDIE WALKER JR., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by HONORABLE JASON BROWNING, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals a decision of the Administrative Law Judge filed on April 21, 2004. Based upon our de novo review of the entire record, we find the claimant provided credible testimony that he experienced numbness shortly after the first incident on March 28, 2003. That testimony, considered in conjunction with contemporaneous medical records, support a finding that the injury sustained by the claimant due to bending over on July 6, 2003 is caused by the injury he sustained in March 2003. Accordingly, we reverse the Administrative Law Judge's decision denying the claimant payment of medical expenses occurring on or after July 6, 2003 and denying temporary total disability benefits from July 6, 2003 through October 23, 2003.
The claimant's job required him to lift coils weighing in excess of 40 pounds. On Friday, March 28, 2003 the claimant injured himself while lifting a coil at work. He went to the company nurse. The nurse told him the doctor was not available, scheduled him an appointment for the same morning, and gave him 440 milligrams of Aleve. On the Daily Treatment Record completed at that facility, notes indicate the claimant was lifting a coil at 8:00 a.m. when his back started to hurt. The record also indicates the claimant complained of pain in his lower and mid back and left buttocks area.
The claimant returned for his doctor's appointment around two hours later. On the Daily Treatment Record, Dr. Lloyd, the employer's company doctor, noted the claimant had been continuing to lift at work and that his condition was, "not worse but not much better." The Clinical Progress Notes from that visit list the type of injury as, "Low back pain." The progress notes also indicate that the claimant's pain was more severe on his left side. Dr. Lloyd prescribed the claimant a muscle relaxer and released him from working for the rest of the day. The claimant returned to work the next Monday, but noticed that his back was still sore and a portion of his right foot was numb. The claimant waited to see if the numbness would subside. When it did not, the claimant set up another appointment with Dr. Lloyd.
On June 11, 2003, Dr. Lloyd treated the claimant and noted his injury date as March 28, 2003. On the Clinical Progress Notes, Lloyd wrote, "Parethesia, R foot, ? Etiology for radiculopathy, neuropathy etc." He also indicated the claimant complained of numbness in his right foot. Dr. Lloyd prescribed additional medication and set the claimant up for a follow-up visit on July 7, 2003.
On July 6, 2003, the claimant was bending to get an empty coffee can out of a feed barrel. He experienced excruciating pain that caused him to fall. The claimant went to the emergency room. The next day, the claimant returned to Dr. Lloyd. Dr. Lloyd scheduled the claimant for an MRI and released him from working. On the Clinical Progress Notes from the July 7, 2003 appointment, Dr. Lloyd listed the date of injury as March 28, 2003 and noted that the claimant reported, "he was doing better, but then yest. he bent over and had severe acute pain in back." At the top of the Clinical Progress Notes it says, "Advised to file W.C. claim." The MRI revealed the claimant had a herniated disc for which the claimant subsequently received treatment. In advance of the hearing on February 24, 2004, both parties stipulated that the claimant did suffer a compensable injury on March 28, 2003, and stipulated that the employer had paid appropriate benefits during the time period of March 28, 2003 to July 5, 2003. As such, the only issues are whether the claimant's injury in July 2003 had a causal connection to the injury in March 2003 and if so, whether the claimant would be entitled to the payment of medical expenses and temporary total disability benefits from July 6 to October 23, 2003.
Respondents are responsible for benefits that result from an injury that is causally related to a compensable injury. However, the respondent is not responsible for benefits when the injury is sustained due to a non-work related, independent intervening cause which causes or prolongs disability or need for treatment.Richardson v. ACF Industries, 2003 AWCC 120, Claim No. F100097(June 18, 2003); A.C.A. § 11-9-102(4)(F)(b). An intervening cause does not exist unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), citing Guidry v. J R Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). The claimant's knowledge of her condition must be considered in determining whether her conduct was unreasonable under the circumstances. Lunsford v. Rich Mountain Electric Corp., 33 Ark. App. 66, 800S.W.2d 732(1990); Lunsford v. Rich Mountain Electric Corp., 38 Ark. App. 188, 832 S.W.2d 291(1992). However, when a primary injury is shown to have arisen out of the course of employment, the employer is responsible for any natural consequence of that injury. Wackenhunt Corp. v. Jones, 73 Ark. 158, 40 S.W.3d 333(2001).
In the present case, the claimant provided credible testimony that he began experiencing numbness in his foot on March 31, 2003. On June 11, 2003, and during subsequent visits, Dr. Lloyd listed the injury date as March 28, 2003, and Dr. Lloyd also noted the claimant's foot was numb. The claimant's neurosurgeon, Dr. Armstrong, then provided testimony indicating that the claimant's injury on March 28, 2003 and subsequent numbness, would both be indicative of a herniated disc. Dr. Armstrong also testified that he believed within a reasonable degree of medical certainty the claimant's condition was caused by the incident on March 28, 2003.
The existence of causal connection is further supported by the notes Dr. Lloyd made throughout the claimant's treatment. The Clinical Progress Notes completed by Dr. Lloyd indicate that from the initial date of March 28, 2003 and continuing past July 6, 2003, the claimant's injury date was listed as March 28, 2003. The contemporaneous medical reports also indicate Dr. Lloyd advised the claimant to file a worker's compensation claim after the incident on July 6, 2003, and the Clinical Progress Notes dated July 7, 2003 reflect that Dr. Lloyd was aware of the reason for the claimant's acute pain the previous day, indicating that he recommended the claimant file for worker's compensation benefits, with knowledge of his activities. Despite this, he still listed the claimant's injury date as March 28, 2003 and advised the claimant to file a worker's compensation claim. As such, we find it is more probable than not Dr. Lloyd believed the claimant's herniated disc was attributable to the March 28, 2003 injury.
The Commission has the discretion to decide what weight to give to the testimony presented by the physician. Questions of credibility and the weight and sufficiency to be given the evidence are matters within the province of the Commission.Swift-Eckrich, Inc. v. Brock, 63 Ark. App.118, 975 S.W.2d 857(1998). Medical opinions must be stated within a reasonable degree of certainty. Crudup v. Regal Ware Inc., 341 Ark. 804, 20 S.W.3d 791(2001); Ark. Code Ann. § 11-9-102(16)(B). Expert opinions based on "could", "may," or "possibly" lack the definiteness required to prove causal connection. Frances v. Gaylord Container Corp. 341 Ark, 527, 20 S.W.3d 280 (2000). Additionally, the Commission is not bound by a doctor's opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant's claim. Preacher v. Cave City Nursing Home INC., 2004 AWCC 14 Claim No. E512363, citing Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983). However, where a medical opinion is sufficiently clear to remove any reason for the trier of fact to have to guess at the cause of the injury, that opinion is stated within a reasonable degree of medical certainty. Huffy Service First v. Ledbetter, 76 Ark. App. 533, 69 S.W.3d 449(2002), citing Howell v. Scroll Tech., 343 Ark. 297, 35 S.W.3d 800 (2001).
In the present case, the claimant's physician, Dr. Armstrong, testified the likely cause of the herniated disc was the incident on March 28, 2003. The Administrative Law Judge rejected this opinion in part because the claimant had a pre-existing degenerative disc disease that would make him more susceptible to sustaining a herniated disc. In support of his finding, the Administrative Law Judge noted that the claimant had originally complained of pain on his left side and the claimant's herniated disc should have logically occurred on the left side. We find there was insufficient evidence to support that finding, and the Administrative Law Judge's disregard of Dr. Armstrong's testimony amounted to impermissible speculation and conjecture.
When the claimant initially reported his injury in March 2003, he reported pain in his mid and low back; not just on his left side. Additionally, just as the Administrative Law Judge opined that there was no testimony that a person suffering pain on their left side could actually have an injury to their right side, there was also no testimony providing that having pain on one's left side would necessitate having a herniated disc only on that side of the body. Dr. Armstrong testified that he had seen the doctor's notes where the claimant reported the pain was more severe on his left side, yet he made no indication that would be inconsistent with having a herniated disc on the right side of the body. Additionally, the employer's own witness, Dr. Lloyd, admits that on June 11, 2003 he noted the claimant's right foot was numb and that such a symptom was consistent with having a herniated disc.
The Administrative Law Judge also indicated that the claimant's return to work and ability to continue lifting support a finding that the injury was not causally related. The respondent supported the Administrative Law Judge's position by relying on the findings in Graham v Jenkins Engineering, Inc., 2004 AWCC 46, Claim No. F112391. In Graham, the claimant was injured while servicing a dehydrator on March 1, 1998. The claimant was diagnosed with "central and left side herniation C6-7" with "mild minimal spurring associated with mild disc bulging" Id.
The claimant in Graham received treatment for the condition until October 22, 1998. At that time, the claimant's doctor determined the claimant had reached "maximum medical improvement" and advised the claimant to seek periodic treatments due to "flare ups" caused by his work. The claimant returned for treatment on April 4, 1999 and at that time, the claimant's doctor composed a letter indicating that the claimant was treated around once per month. The claimant did not receive treatment between June 3, 1999 and July 7, 2001, at which time the claimant was diagnosed with a "moderate to large extruded disc posterolaterally on the left side at C6-7". Id.
In Graham, the Commission found that causation did not exist, despite hearing testimony from a doctor that the claimant's condition was attributable to the first injury and that there was likely no intervening cause for the claimant's condition as of 2001. Id. While, superficially, the circumstances of Graham seem similar to the current case, in reality, the case is not applicable. In the present case, both parties acknowledge that the claimant was still in his healing period when the incident on July 6, 2003 occurred, whereas, in Graham, the claimant was no longer in his healing period and gave testimony that he was able to fully return to his previous activities. Additionally, inGraham, there was a lapse of over two years between the time of the claimant's last visit to the doctor in 1999 and the time period when he was diagnosed with having a condition necessitating surgery. This is in sharp contrast to the present case where the claimant injured himself in late March 2003, returned to the doctor within a period of just over two months, and then subsequently was scheduled a "follow up" appointment to make sure his condition from the work-related injury had healed.
Additionally, in Graham, the Commission indicated it felt the claimant's credibility was at issue stating, "the claimant's reluctance to be forthcoming during his hearing regarding certain information cast serious doubt upon the claimant's credibility."Id. In the present case, there is no evidence that the claimant failed to give credible testimony as supported by the fact that the claimant and both the claimant's doctor and the respondent's doctor gave consistent testimony regarding the claimant's injury and the circumstances divulged by the claimant regarding his injury.
The respondent also relies on Lane v. Stone Container, in finding the existence of an independent intervening cause. Lane v. Stone Container, 1999 AWCC 210, Claim No. E702828. In Lane, the claimant sustained an injury on October 5, 1996 while lifting paper at work. The claimant's doctor diagnosed him with a lumbosacral strain, prescribed medication, and advised the claimant to return in the next three or four days if his condition worsened or did not improve. The claimant returned to work. After the incident on October 5, 1996, on a date uncertain in October 1996, the claimant passed a physical examination for the National Guard. The claimant subsequently returned to the doctor on December 13, 1996 indicating that he attempted to lift a child weighing 65 pounds over his shoulder on Thanksgiving. Id.
In Lane, the Commission noted that the claimant was able to return to work and able to pass a physical examination prior to seeing the doctor in December 1996, implying that the Commission believed the claimant was out of his healing period. In the present case, all parties agree the claimant was still in his healing period as of July 6, 2003. In Lane, the Commission also noted that the claimant admitted to lying regarding the reason for his increase in pain when making statements to doctors, and went on to indicate it was, in part, rejecting the claimant's arguments due to lacking credibility. Id. As stated before, there is no evidence in the present case to indicate the claimant lacks credibility as his testimony is corroborated by Dr. Lloyd, whom was hired by the employer, and by Dr. Armstrong. Additionally, the claimant declined to file a workers' compensation claim until after being instructed to do so by Dr. Armstrong, on July 7, 2004, which illustrates the claimant had no reason to lie regarding the symptoms he reported to Dr. Lloyd on June 11, 2003.
While the claimant was able to return to work, Dr. Armstrong testified that it would not be unusual for a person with a herniated disc to have symptoms that are initially manifested only in the back and that might resolve; only to have the patient begin suffering from radiculopathy within a short period of time. This is consistent with claimant's testimony that the numbness began around March 31, 2003, and the notation made by Dr. Lloyd that on June 11, 2003, the claimant suffered from numbness in his right foot. This is further corroborated by the testimony of the claimant's wife that the claimant suffered from numbness within three days of March 28, 2003. Furthermore, the claimant initially reported pain in his mid and low back which would be consistent with the symptoms associated with a herniated disc as described by Dr. Armstrong.
The respondent also contends that the incident on July 6, 2003 somehow caused the claimant's herniated disc. The evidence does not support that conclusion and the respondent does not provide any evidence indicating that the simple action of leaning over to pick up a coffee can would amount to acting unreasonably in order to establish an independent intervening cause. Dr. Armstrong testified that the claimant had a "re-herniated disc" and that the nature of a herniated disc is such that once a herniated disc is sustained, any simple daily activity, such as coughing or laughing, would be sufficient to worsen the herniated disc. Dr. Armstrong also testified that he believed the claimant's condition was caused by injuring himself on March 28, 2003, while lifting coils for the employer. The claimant's testimony that his worsened condition came after suffering pain immediately after bending over to reach an empty coffee can is consistent with Dr. Armstrong's testimony that a simple daily activity would be enough to promulgate making the herniated disc worse. It also supports a finding that the claimant's injury was a natural, probable result of the injury sustained on March 28, 2004.
The respondent further contends that the testimony of Dr. Armstrong was given in reliance of the claimant's own statements regarding his actions. However, while being deposed, Dr. Armstrong testified that he relied on the respondent's doctor's notes that the claimant had numbness in his right foot to reach his conclusion. Also, Armstrong was specifically questioned regarding whether he had knowledge the claimant returned to work between March 28, 2003 and July 6, 2003, that the work required heavy lifting, regarding the possibility of the claimant's pre-existing degenerative disease, and regarding various other possibilities that might cause the claimant's condition. Despite being questioned by the respondent's attorney and, therefore, presented with a multitude of other alleged options for the claimant's condition, Dr. Armstrong maintained that he could state, with a reasonable degree of medical certainty, the claimant's condition was caused by the injury on March 28, 2003 and that, but for that event, the claimant's condition would not have worsened.
In conclusion, we find that the claimant sustained an undisputed compensable injury on March 28, 2003, which was causally related to his subsequent injury on July 6, 2003. Therefore, we find the claimant is entitled to additional medical expenses occurring on or after July 6, 2003. As noted by the Administrative Law Judge, it appears to be undisputed that the claimant's treatment was reasonably necessary and that he remained in his healing period and suffered a total incapacity to earn wages from July 6 to October 23, 2003. Therefore, the claimant is entitled to temporary total disability benefits from July 6, 2003 to October 23, 2003.
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. 2002).
Since the claimant's injury occurred after July 1, 2001, the claimant's attorney's fee is governed by the provisions of Ark. Code Ann. § 11-9-715 as amended by Act 1281 of 2001. Compare Ark. Code Ann. § 11-9-715(Repl. 1996) with Ark. Code Ann. § 11-9-715 (Repl. 2002). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $500.00 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion. Based upon my de novo review of the record, I find that the claimant has failed to prove by a preponderance of the evidence that a causal relationship between his admittedly compensable back injury of March 28, 2003, and his subsequent documented right sided disc herniation at L5-1 exists. I agree with the well reasoned opinion of the Administrative Law Judge that the greater weight of the credible evidence would indicate that the most likely or most probable cause of the claimant's right sided disc herniation was solely the non employment related incident on July 6, 2003. In my opinion, the majority has resorted to speculation and conjecture in finding that the claimant's disc herniation is causally related to his work related incident of March 28, 2003. It is well settled that 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). It is clear from reviewing Dr. Armstrong's deposition that he relied upon incorrect information relayed to him by the claimant in forming his causation opinion. The medical records clearly indicate that the claimant experienced pain in his left leg and buttocks after the March 28, 2003, incident; yet the claimant either informed Dr. Armstrong or lead him to believe that he experience problems with his right leg after the March 28, 2003, incident. Moreover, the claimant did not inform Dr. Armstrong of the events of July 6, 2003 that gave rise to his emergency room visit. Accordingly, I must agree with the Administrative Law Judge in finding that Dr. Armstrongs' opinion as to causation should be entitled to little weight. The company physician treating the claimant after the March 28, 2003, work related incident did not assess the claimant with a herniated disc at any time prior to the July 6, 2003, incident. Furthermore, the claimant was fully capable of performing his regular job duties between March 2003, and July 2003. As noted by the Administrative Law Judge, I do not find these activities to be compatible with a person suffering from a herniated disc. In my opinion, the evidence simply does not preponderate in favor of finding that the claimant sustained a herniated disc at the time of his March 28, 2003, work related incident for which the respondents should be liable.
Therefore, I respectfully dissent from the majority opinion.
________________________________ KAREN H. McKINNEY, Commissioner