Opinion
CLAIM NO. E810504
ORDER FILED SEPTEMBER 12, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.
Respondent represented by the HONORABLE LESLIE EVITTS, III, Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on May 10, 2000. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that she sustained a compensable gradual-onset back injury for which she is entitled to medical treatment and temporary total disability compensation for the periods from August 10, 1998 to August 26, 1998, and again from September 8, 1998 to a date yet to be determined. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed.
The elements of a gradual-onset injury are found in Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996): an injury causing internal or external physical harm to the body arising out of and in the course of employment that is not caused by a specific incident or is not identifiable by time and place of occurrence. Gradual-onset injuries specifically include back injuries that are not identifiable by time and place of occurrence or are not caused by a specific incident. Ark. Code Ann. § 11-9-102(5)(A)(ii)(b) Repl. 1996). A compensable injury must be proven by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). The objective medical evidence must prove an injury exists, but it does not have to prove the circumstances under which the injury was sustained or the precise time of the injury's occurrence. Aeroquip, Inc. v. Tilley, 59 Ark. App. 163, 954 S.W.2d 305 (Nov. 12, 1997). Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). The gradual-onset injury must also be proven to be the "major cause" of the disability or need for treatment. Ark. Code Ann. § 11-9-102(E)(ii) (Repl. 1996).
In the present case, the preponderance of the evidence establishes that the claimant sustained a gradual onset back injury arising out of and in the course of performing her employment duties between November of 1997 and September of 1998, when she was no longer able to work due to her back injury.
In this regard, the preponderance of the evidence indicates that on November 6, 1997, the claimant was involved in a work-related incident, the occurrence of which does not appear to be disputed. The claimant felt a pop in her lower back when she twisted while lifting boxes. She immediately reported the incident to Art Porter and shortly thereafter to Becky Hall, the company nurse. She was allowed to perform light duty work for one day. After resting over the weekend, the claimant returned to her regular duties on the following Monday.
The administrative law judge found that the claimant failed to prove the compensability of this incident pursuant to Act 796 of 1993 because there were no contemporaneous objective medical findings to support the injury. We note that it is not surprising that there are no contemporaneous medical findings in the record, however, since the claimant avoided seeing a physician by self-treating her symptoms with rest and heat.
The claimant continued to perform her regular duties but had good days and bad days. It was common for her to return home from work and immediately use an ointment (Flexall) and lie on a heating pad. This occurred on most every day. She continued in this pattern for approximately nine months.
The claimant testified that on August 8, 1999, she had "a very hard day. . .at work." She testified that the boxes she was required to lift were heavier. The claimant's symptoms appeared to increase, and she continued her normal routine of treatment on Sunday. However, on Monday morning, August 10, she "couldn't move." The employer was notified of the claimant's condition and she was examined by Dr. Demetrio Suguitan. Dr. Suguitan took the claimant off work until August 26, 1999, when she returned to light duty, working two hours on and two hours off with a twenty pound lifting restriction. She worked until approximately September 8th and has been unable to work since.
Betty Hicks, a co-worker, testified that she was aware of the November 1997 injury. Hicks added that thereafter, the claimant could not perform her job duties as easily and often cried due to back pain. Hicks added that she had to help the claimant perform her job duties on occasion. Hicks also testified that the claimant was "very" tough.
Danny Hamilton, also a co-worker, testified that he was unaware of the claimant ever experiencing back problems prior to the November 1997 incident. Hamilton added that after the incident, the claimant complained of back pain.
Wayne Powell, the claimant's husband, likewise testified that he was not aware of the claimant experiencing any problems with her back prior to the November 1997 incident. Powell testified that after the November 1997 incident, the claimant was frequently in pain but had good days and bad days. Powell added that on Saturday, August 8, 1998, the claimant was "in bad pain." Powell added that on the following Monday, the claimant was unable to get out of bed due to the pain. Additionally, Lawaynea Cox, the claimant's daughter, generally corroborated the above testimony concerning the absence of back pain or complaints prior to November 1997, and claimant's continued difficulties thereafter.
We also find that the claimant has established her back injury with objective medical findings, and we find that the claimant has proven by a preponderance of the evidence that her work-related back injury is the major cause of the need for medical treatment and the temporary disability at issue in this case. In making these two findings, we first address the respondents' contention on page 5 of their reply brief that the claimant has presented no objective medical evidence to support a finding that her work is the major cause of her current condition. As an initial matter, the Arkansas Court of Appeals has previously admonished the Commission for attempting to apply the analysis currently advocated by the respondents, stating:
Arkansas Code Annotated Section 11-9-102(5)(E)(ii) provides that the burden of proof for injuries falling within the definition of compensable injury that are not caused by a specific incident or are not identifiable by time and place of occurrence, such as carpal tunnel syndrome, shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment. Thus, in the present case, appellee had the burden of proving by a preponderance of the evidence that her carpal tunnel syndrome injury was the major cause of the disability or need for treatment. Tyson Foods, Inc. v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998). However, the Commission erred as a matter of law in its application of Ark. Code Ann. Section 11-9-102(5)(E)(ii) because it required a finding that appellant's work, as opposed to her injury, was the major cause of the disability or need for treatment. It appears that the Commission has mistakenly confused the requirements for establishing a causal connection between a claimant's work and his/her injury, and the added requirement after 1993 that an alleged compensable injury must be the major cause of the claimant's disability or need for treatment where the injury is not caused by a specific incident or is not identifiable by time and place of occurrence. These are two distinct requirements that do not coincide with each other.
Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. 17, 977 S.W.2d 239 (1998).
Likewise, to the extent that the respondents seem to suggest that the claimant must establish the causation requirement by "objective" medical findings, the Arkansas Supreme Court has more recently also indicated:
Appellant asserts that medical evidence is necessary not only to establish the existence of an injury, but also to establish that a work-related accident caused the injury. Appellant, therefore, contends objective medical evidence of causation is elemental to proper proof of a compensable injury.
This court has not previously addressed this question. However, the Arkansas Court of Appeals has in at least two published opinions directly confronted the issue. In Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997), a worker alleged injury to his back when he fell while pulling a tarp over a load on a truck. The worker went to the emergency room and complained of neck pain, but it was not until several weeks later that an MRI revealed herniation at C4-C5 in his spinal column. The employer contested compensability. It contested it, not as to the existence of the injury, but as to the injury's causation by a work-related incident. The employer contended that objective medical evidence was necessary to show that the injury occurred on the alleged date or while working for the employer. The Court of Appeals held to the contrary, stating, "Were we to interpret the Act so strictly as to require objective medical evidence to prove non-medical elements of compensability, we would defeat the overriding legislative intent. Consequently, we hold the requirement that a compensable injury must be established by medical evidence supported by objective findings applies only to the existence and extent of the injury." Id. At 280. The Court of Appeals cited to Stephens Truck Lines in Aeroquip, Inc. v. Tilley, 59 Ark. App. 163, 954 S.W.2d 305 (1997). In Tilley, a worker with prior back problems alleged injury to his back from being pulled across a table by a 700 to 800 pound work implement. The Court upheld the Commission's award citing Millican and stating, "A claimant need not offer objective medical evidence to prove circumstances under which the injury was sustained or the precise time of the injury's occurrence." Id. At 168.
We find the Court of Appeal's reasoning in Millican and Tilley persuasive. We therefore adopt the holding in Millican that objective medical evidence is necessary to establish the existence and extent of any injury but not essential to establish the causal relationship between the injury and a work-related accident. The plethora of possible causes for work-related injuries includes many that can be established by common-sense observation and deduction. To require medical proof of causation in every case appears out of line with the general policy of economy and efficiency contained within the workers' compensation law. To be sure, there will be circumstances where medical evidence will be necessary to establish that a particular injury resulted from a work-related incident but not in every case.
Adopting the Millican holding does not fully resolve this case, however. It means that appellee need not produce objective medical evidence that the fall she said occurred on November 25, 1994, caused her injury where objective medical evidence established the injury's existence, and a preponderance of other non-medical evidence established a causal relation to a work-related incident. The remaining question, then, is did appellee meet her burden with the evidence she did produce?
Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
For reasons already discussed above, we have found that the claimant in the present case proved by a preponderance of the credible evidence in the record that she sustained a back injury that arose out of and in the course of her employment duties between November of 1997 and September of 1998. Therefore, the claimant has established that a causal connection exists between her back problems at issue and her employment duties. The claimant has also established her back injury with objective medical findings of muscle spasm in the record. In this regard, Dr. Suguitan diagnosed the claimant with back strain with possible disc protrusion beginning on August 17, 1998. While very few medical reports in the record discuss whether or not muscle spasms were present, those reports which do discuss the issue all seem to suggest or confirm the presence of either muscle spasms or trigger points. See, (Cl EX1, pg. 3; Cl EX 2, pg. 3; Cl EX 3, pg. 4; Cl EX4, pg. 1.) These objective medical findings likewise indicate that the claimant has experienced internal harm to the body.
The preponderance of the evidence in the record likewise establishes that the claimant's work-related back problems sustained between November of 1997 and September of 1998 are the major cause of her temporary disability and need for medical treatment at issue in this claim. The respondents and the dissent assert that the claimant in fact has a history of low-back complaints. However, a preponderance of the evidence, including the witness testimony and the history that the claimant gave her physicians, indicate that the claimant's current low-back complaints date back only to the incident at work in November of 1997, when she experienced a back pop at work. See, e.g., Cl. EX 2, pg. 4; Cl. EX. 1, pg. 8. Although the respondents have presented into evidence records from the Booneville Holt-Krock Clinic between November 4, 1994 and February 14, 1997, these record do not indicate that the claimant was treated for low-back complaints prior to her initial work-related pop in November of 1997. Notably, the 52-year-old claimant has also undergone diagnostic studies including a lumbar CT scan and an MRI. Dr. Deland Burks, a radiologist, interpreted the claimant's August 10, 1998 CT scan as indicating a small central/right paracentral disc protrusion/herniation at L5-S1 with mild impression upon the thecal sac and mild disc bulging at the L4-5 level. The claimant was then evaluated by Dr. John Landherr, a neurosurgeon for her lower back pain on October 22, 1998. Dr. Landherr interpreted the claimant's October 5, 1998 MRI study as showing degenerative disc disease at the L4-5 and L5-S1 levels of the spine, and Dr. Landherr opined that the claimant does not have any surgically treatable lesion as a result of any abnormalities indicated by MRI. Dr. Landherr diagnosed the claimant with functional low-back pain, for which the claimant has received treatment from other physicians, including therapy and pain management.
In short, a preponderance of the evidence establishes that the claimant's back was asymptomatic prior to November of 1997. In addition, as a result of the claimant's work-related back problems, the claimant's physicians have prescribed diagnostic testing, physical therapy, and pain treatment, and she has been unable to work through the date of the hearing. Under these circumstances, we find that a preponderance of the evidence establishes that the claimant's work-related injury is the major cause of her temporary disability and need for medical treatment at issue in this case.
Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-99-102(13) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of her injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present case, there appears to be no dispute on appeal that the claimant was off work from August 10, 1998 until August 26, 1998, and from September 8, 1998, through the date of the hearing on April 8, 1999. Likewise, Dr. Short's last report in the record indicates that Dr. Short is "not optimistic" that the claimant will be capable of returning to significant lifting work in the future. However, Dr. Short had not yet released the claimant from his care, and Dr. Short indicated that additional conservative treatment, including medication and a lumbar support would be appropriate. Therefore, the preponderance of the evidence indicates that the claimant is not yet as far restored as the permanent nature of her injury will permit. Consequently, we find that the administrative law judge's award of temporary total disability compensation from August 10, 1998 until August 26, 1998, and from September 8, 1998 to a date yet to be determined must be affirmed.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the administrative law judge's decision 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 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.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ PAT WEST HUMPHREY, Commissioner
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant proved by a preponderance of the evidence that she sustained a gradual onset type injury to her low back and awarding temporary total disability for the periods August 10, 1998 to August 26, 1998 and September 8, 1998 to a date yet to be determined. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof. Accordingly, I would reverse the decision of the Administrative Law Judge.
The claimant testified that on November 6, 1997, while lifting boxes she stepped on a loose board causing her right foot and leg to twist. According to the claimant, she felt a pop in her lower back and hip and that she could not move for a few minutes. The following morning she reported the incident to the plant nurse, filled out an accident report and was placed on light-duty. The claimant did not work over the week-end and returned to her regular job duties on the following Monday. The respondent's plant nurse cancelled a doctors appointment for the claimant scheduled that day because the claimant was much better. The claimant testified that she continued to have pain in her hip and low back and that she would have "good days and bad days". However, the record reflects that the claimant never missed any work due to back complaints and she never sought medical attention for back problems during the time period of November 1997 through August of 1998. Although she went to the doctor at least twice during that time period for other complaints.
The claimant testified that on August 8, 1998, her job involved lifting boxes that weighed between 60 and 75 pounds. The claimant alleges that she hurt her lower back on or about August 8, 1998. She stated that she went home after work and took two "suds baths", applied mineral ice to her back and used the heating pad. She testified that she laid around on Sunday and the following Monday she woke up in severe pain unable to go to work. The claimant failed to report to her supervisor or to the respondent employer that she was hurting when she left work on Saturday.
The claimant's supervisor, Anthony Stump, testified that the claimant called him at home that Monday morning August 10, 1998, advising him that she woke up in pain and was not able to report to work that day. Mr. Stump testified that the claimant told him that she did not know what caused her problems and that she made the comment that she "didn't think she had done anything in particular to provoke it." She also advised Mr. Stump that when she left work on August 8, 1998, she felt normal. The claimant made no suggestion to Mr. Stump that her current problems were related back to the occurrence in November 1997.
Becky Price, the respondent's plant nurse, testified that the claimant called her on Monday August 10, 1998, to report that she would be unable to report to work that day due to her back complaints. The claimant was unable to relate to Ms. Price what happened to make her back hurt nor did she make the suggestion that her back complaints were work-related.
The claimant sought medical treatment from Dr. Demetrio Suguitan on August 10, 1998. Dr. Suguitan noted that the claimant had a history of lower back pain "ever since she twisted it and she had the same problem about a year ago." A CT scan revealed a small central/right paracentral disc protrusion, herniation at L5-S1 with mild bulging at L4-5. A handwritten noted dated August 14, 1998, reflects that the claimant's pain was better. On August 24, 1998, Dr. Suguitan noted that the claimant was doing okay. He released her to return to work on August 25, 1998, with two hours on and two hours off, a lifting restriction of twenty pounds for two weeks and then she could return to regular work duties.
On September 9, 1998, Dr. Suguitan noted that the claimant was seen on August 17, 1998, and was doing very well with the TENS unit. He noted that the claimant was having the pain again and he referred her to Dr. Landherr, a neurosurgeon.
On October 8, 1998, the claimant again saw Dr. Suguitan for complaints of back pain. Dr. Suguitan noted that the claimant's exacerbation of back pain started that morning when she just woke up with it. Dr. Landherr examined the claimant on October 22, 1998. An MRI revealed degenerative disc disease at L4-5 and L5-S1. Dr. Landherr found there was no surgically treatable lesion and returned the claimant to her primary care physician for additional treatment.
The claimant was subsequently referred to Dr. Bradley Short who examined her on November 17, 1998. Dr. Short diagnosed the claimant with degenerative disc disease, lumbago, back pain and osteoarthritis. Dr. Short noted that he suspected she had quadratus labiorum spasm because of the length of time she had been in pain. Quadratus labiorum spasm is a component of chronic pain syndrome.
On December 11, 1998, the claimant reported to Dr. Suguitan with complaints of exacerbation of back pain. She reported to Dr. Suguitan that her pain happened that afternoon while she was "just sweeping".
Dr. Short admitted the claimant for treatment at Health South Rehabilitation Hospital on December 30, 1998. The claimant was discharged from Health South on January 9, 1999, with a diagnosis of degenerative joint disease, degenerative disc disease, osteoarthritis, muscle spasm, lumbago, chronic pain syndrome and situational depression.
Simply because the claimant did not sustain a specific incident identifiable by time and place of occurrence, her claim does not automatically fail. Act 796 does recognize certain specified exceptions to the general limitation of compensable injuries to those injuries which are caused by specific incident and which are identifiable by time and place of occurrence. These exceptions are set forth in Ark. Code Ann. § 11-9-102(5)(A)(ii) through § 11-9-102(5)(A)(i)(v) (Supp. 1997). To satisfy the definitional requirements for injuries falling under Ark. Code Ann. § 11-9-102(5)(A)(ii), the employee still must prove by a preponderance of the evidence that she sustained internal or external damage to the body as the result of an injury that arose out of and in the course of employment, and the employee still must establish the compensability of the claim with medical evidence, supported by objective findings. However, in addition to these requirements, if the injury falls under one of the exceptions enumerated under Ark. Code Ann. § 11-9-102(5)(A)(ii), the "resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment." Ark. Code Ann. § 11-9-102(5)(E)(ii) (Supp. 1997). (Emphasis added.)
In applying the controlling law under Act 796 of 1993 to the evidence in this case, the Commission is to strictly construe the Act. Ark. Code Ann. § 11-9-704(C)(3). Under the gradual onset exception to the specific incident requirement, the claimant must establish a causal connection between her injury and her employment by medical evidence supported by objective findings and she must establish that her injury is the major cause of her disability or need for treatment. I find that the claimant in the present case has simply failed to meet her burden of proof on the major cause requirement.
In my opinion, the record does not support a finding that the claimant sustained a gradual onset work-related injury. The claimant failed to report her complaints to the respondent at the time of her alleged August 8, 1998, problems. She did not advise her supervisor or the respondents plant nurse of her back complaints. She reported to them that she did not know what caused her complaints and that she just woke up with them.
The claimant's mere allegation that her back hurt while she was working on August 8, 1998, does not constitute proof that the pain is causally related to her employment. The record reflects that the claimant has a history of degenerative disc disease and associated low back complaints. The medical evidence reflects that the claimant has degenerative disc disease at L4-5 and L5-S1. Dr. Landherr diagnosed the claimant with degenerative disc disease and dismissed her from his care because she was not a surgical candidate. Dr. Short has also diagnosed the claimant with degenerative disc disease. There is no credible evidence in the record that the claimant's degenerative disc disease was caused or exacerbated by the claimant's employment.
The claimant presented the testimony of her co-workers that she continued to have problems after the November 1997 incident. However, the claimant did not seek any medical attention for her back problems. In addition, Ms. Price had made an appointment for the claimant with Dr. Suguitan for Monday, November 11, 1997, but the claimant told Ms. Price that she was feeling fine. Ms. Price cancelled the appointment and the claimant never complained of back problems between November, 1997 and August, 1998 to Ms. Price or her superiors.
The evidence fails to support a finding that the claimant incurred a gradual onset back injury. The claimant reported to Mr. Stump, her supervisor, that she "felt normal" when she left work on August 8, 1998, and that she did not know what caused her back pain. The claimant testified that she just "woke up" with it.
Based on all the foregoing, I would reverse the decision of the Administrative Law Judge. Therefore, I respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner