Opinion
CLAIM NO. E214345
OPINION FILED JUNE 21, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DAVID C. PEEPLES, Attorney at Law, West Memphis, Arkansas.
Respondents represented by the HONORABLE WILLIAM J. STANLEY, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an opinion and order filed by the administrative law judge on August 30, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a five percent (5%) permanent physical impairment as a result of a compensable injury. In addition, the administrative law judge found that the claimant's claim is not barred by the defense established in Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). After conducting a de novo review of the entire record, we find that the respondents failed to prove by a preponderance of the evidence that this claim is barred by theShippers defense. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. However, we also find that the claimant failed to prove by a preponderance of the evidence that she sustained any permanent physical impairment or permanent disability as a result of her compensable injury. Consequently, the administrative law judge's decision in this regard must be reversed.
The claimant and her husband were employed by the respondent employer as over the road truck drivers based out of a terminal in Batesville, Arkansas. On February 10, 1992, the claimant was stepping to the ground under icy conditions at a rest stop in Flagstaff, Arizona when she slipped and fell. According to the claimant, she "did the splits", with her left leg extended behind her and her right leg extended to the front. After the fall, the claimant and her husband called Batesville to report the accident, then completed their haul to California and returned to Batesville.
On her return to Arkansas, the respondent employer referred the claimant to Dr. Bill Waldrip in Batesville on February 14, 1992. According to the claimant, Dr. Waldrip prescribed rest and medication, and the claimant and her husband left Batesville to return to their home in Selmer, Tennessee. After a follow-up office visit in Batesville two weeks later, Dr. Waldrip referred the claimant to the Campbell Clinic in Memphis, Tennessee where she was followed by Dr. Canale and Dr. Leventhal beginning March 9, 1992. A physical examination at that time indicated the following results:
The patient has a full range of motion of her cervical, thoracic, and lumbar spine. There is no complaint of lumbar pain with range of motion. She has some mild left paraspinal muscular tenderness in the lower lumbar region. She has no tenderness over her SI joints or sciatic notch. There is some tenderness bilaterally over the greater trochanter. There is negative straight leg raise test in both the sitting and supine positions. There is a full range of motion on the hips bilaterally. The patient complains of inner thigh pain with abductor and external rotation, left greater than right. She has a full range of motion of bilateral knees and ankles. Motor and sensation are completely intact. Deep tendon reflexes are 2+/4 at the knees and ankles. There is good capillary refill distally. The patient ambulates with a normal gait and can heel and toe walk with minimal difficulty.
Based on his physical examination, the claimant's reported pain and negative x-ray results, Dr. Canale diagnosed muscle pulls in the adductor muscles of the inner thigh of both legs, which Dr. Canale expected to resolve within six weeks from the date the injury occurred. Dr. Canale prescribed exercise to promote strength and range of motion in the adductor muscles, and indicated that the claimant should be able to return to work within two weeks of the March 9, 1992, examination.
On March 23, 1992, the claimant returned to the Campbell Clinic complaining of low back and left leg pain suggesting a possible radiculopathy. Dr. Leventhal's clinical examination on that date indicated a positive straight leg raising test and some sciatic notch tenderness, but no objective weakness in the claimant's legs or any reflex abnormalities. For the sake of completeness, Dr. Leventhal ordered a bone scan to rule out a possible occult pelvic fracture and a lumbar MRI. However, the whole body bone scan was entirely normal without any uptake in the claimant's pelvis area, lumbar spine or hips. The lumbar MRI indicated degenerative changes at the L4-5 level but no evidence of a focal disc herniation or other abnormality of the claimant's spine.
On a follow-up visit on March 30, 1992, the claimant complained of diffuse pain in the area of her pelvis, groin and hips, and indicated that she was still not able to return to work because she did not feel capable of using her leg to operate the clutch in her truck. A clinical examination indicated no objective neurological findings, and Dr. Leventhal again prescribed hip and leg exercises to strengthen the claimant's adductor musculature. Dr. Leventhal also suggested a weight loss and exercise program to address the claimant's low back complaints.
During a follow-up visit on May 11, 1992, Dr. Leventhal made the following observations regarding the claimant's condition:
Mrs. Rinehart returns today for recheck. She has still not returned to work. Her back is not bothering her. She still complains, however, of pain in both groins, left greater than right. I have examined her again thoroughly. She has no objective neurologic deficits, negative straight leg raising and good range of motion of both hips. I find no significant orthopaedic pathology present. I have given her a release to return to work. She is discharged from my care at this time. No permanent impairment.
The claimant returned to the Campbell Clinic on May 23, 1992 and at that time, Dr. Canale made the following observations:
Ms. Rinehart is back today still complaining of back and groin pain. She still points to the area of her groin and in the inguinal area where she hurts, although she has reasonably wide adduction here today. We have x-rayed her today, and I really see nothing on AP or lateral suggestive of a myositis or an avulsion from her pubis. I have read with interest Dr. Leventhal's notes and agree with him 100 percent. Evidently, her bone scan and MRI were negative, and this has been going on since February. I really have nothing for her at the present time. She does not require any surgery. Our modalities, including physical therapy, anti-inflammatories, and Medrol Dose Pak have been used without much relief. I think she should probably return to work as Dr. Leventhal has indicated. Objectively, I see no evidence of permanent disability.
The claimant next presented to Dr. Robert Barnett, a Jackson, Tennessee orthopedist, for a disability evaluation conducted on September 21, 1992. The claimant testified that her Social Security attorney referred her to Dr. Barnett, who had previously treated her following a work-related back injury in 1983. The claimant's medical history, as described in a report prepared by Dr. Barnett, includes high blood pressure, a deep vein thrombosis, a history of pulmonary embolus, a history of back pain, a history of torn muscles in the right shoulder, a hysterectomy, a stomach bypass for weight loss, placement of a vena cava filter for her embolism, and gall bladder surgery. Following a physical examination and x-rays, Dr. Barnett reported as follows in a letter to the claimant's workers' compensation attorney:
Coraell Rinehart has had a long history of back problems. On a one time examination, it is impossible for me to separate what she had prior to this accident and what she has had since the accident. She certainly has osteoporosis and degenerative changes which could have been aggravated by her fall. I guess according to the AMA Guidelines, if she has a medically documented injury that has persisted for six months superimposed upon degenerative changes of a significant degree which she has osteoporosis and degenerative changes, the book allows a 7% impairment rating and this is due to aggravation of preexisting degenerative condition.
The claimant testified that she has not attempted to return to work since February 10, 1992, and that she does not feel capable of returning to work. In that regard, the claimant testified that when she stands for any length of time, her feet and legs swell and go to sleep. According to the claimant, her feet and legs also swell when she sits. The claimant testified that she experiences extreme pain in the groin area when she walks, and that her "hip joints feel like they're going to come out" if she attempts to walk around the block. In addition, the claimant testified that she gets "quicky pains" in her back if she leans over the wrong way to pick something up.
The claimant has sustained a number of prior work-related injuries. In 1980, the claimant remained off work for eight days following a lifting injury affecting her back. A slip and fall incident in 1983 caused injuries to the low back and shoulder which, according to the claimant, required approximately two weeks of hospitalization. Following that injury, Dr. Barnett diagnosed the claimant with aggravation of a degenerative low back condition, and in January of 1985, the claimant received a 5% impairment rating for chronic lumbosacral strain for her 1983 injury. The claimant also required hospitalization for approximately three days following a 1988 slip and fall injury when climbing between the cab and sleeper of a large truck. According to the claimant, she landed on her left leg in the 1988 fall and experienced complications when a blood clot developed in her leg.
The respondents submitted into evidence the claimant's 1991 employment application which the claimant completed prior to starting work for the respondent employer as a truck driver. Included on that application were the following questions and answers:
Have you had any back injuries? No
Have you received Workmen's Compensation? No
How much time have you lost from work in the last 3 years from illness? None
With regard to her incorrect application answers, the claimant testified that she denied any prior back injuries on her employment application because "I figured if they knew I'd had a prior back injury it might keep me from getting the job." Similarly, the claimant testified that she denied any prior workers' compensation claims because "I would think they might not hire me or something if I put that on there." With regard to her incorrect answer regarding lost time from work during the last three years, the claimant testified that her incorrect answer was not intentional, but that she had miscounted the number of months between her 1988 injury and her 1991 application.
Mr. Troy Wolverton, the respondent employer's present personnel and safety supervisor, testified that the questions regarding prior injuries were asked on employment applications in 1991 because truck driving for the respondent employer is strenuous, requiring lifting, opening trailer doors and using trailer dollies. According to Mr. Wolverton, the respondent employer in 1991 required applicants with prior back injuries to get checked by the company physician as part of the application process. Mr. Wolverton testified that to his knowledge, a prior back injury would not automatically eliminate an applicant from getting a trucking job, although he was not aware of any specific instances where the respondent had hired someone reporting a prior back injury.
In Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), the Arkansas Supreme Court held that an employee is required to give truthful answers to a prospective employer's questions about his or her pre-employment health condition, and that a false representation on an employment application will bar recovery under the Arkansas Workers' Compensation Act if the following test is met by the employer:
(1) The employee must have knowingly and willfully made a false representation as to her physical condition;
(2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and
(3) There must have been a causal connection between the false representation and the injury.
The employer has the burden of proof where the Shippers defense is an issue. Tahutini v. Tastybird Foods, 18 Ark. App. 82, 711 S.W.2d 173 (1986).
In the present claim, the claimant candidly testified that she made false representations regarding her physical condition in her employment application, and we find that the claimant knowingly and willfully made a false representation as to her physical condition.
However, we find that the respondents failed to establish a causal connection between the false representations on the claimant's employment application and the work-related injury sustained on February 10, 1992. In this regard, a causal relationship must exist between the previous injury or condition which the employee misrepresented and the injury for which she seeks compensation. Foust v. Ward School Bus Mfg. Co., 271 Ark. 411, 609 S.W.2d 88 (Ark.App. 1980). Furthermore, the causal relationship must be based on expert medical testimony except in the most obvious cases. Smith v. Carrier Air Conditioning, 21 Ark. App. 162, 730 S.W.2d 509 (1987); Baldwin v. Club Products Co., 270 Ark. 155, 604 S.W.2d 568 (Ark.App. 1980).
In the present claim, the medical evidence indicates that the claimant sustained back-related injuries in 1980 and 1983, and a vascular injury to the left leg in 1988. However, we find that the evidence fails to establish an obvious causal connection between the prior injuries, and the adductor musculature injury diagnosed and treated by Dr. Canale and Dr. Leventhal after the 1992 work-related injury. Accordingly, we find that the respondents failed to prove the third requirement of theShippers defense
The claimant has the burden of proving by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). Consequently, the claimant must establish a causal relationship between the employment and any subsequent disabling condition. Lybrand v. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra.
In the present claim, we find that a preponderance of the evidence establishes that the claimant sustained a temporary injury which completely resolved, and we find that her subsequent problems are not causally related to the February 10, 1992, injury. As discussed, both Dr. Leventhal and Dr. Canale diagnosed the claimant with a relatively minor muscle pull. Extensive diagnostic testing, including multiple x-rays, a whole body bone scan and an MRI of the claimant's lower back are consistent with the soft tissue injury diagnosed by the claimant's attending physicians. Both physicians found that the claimant's complaints were not indicative of any neurologic or orthopedic pathology, and both physicians released the claimant to return to work withno permanent impairment as a result of her compensable injury.
In reaching our decision, we note that Dr. Barnett indicated after his evaluation of the claimant in November of 1992 that the claimant may have aggravated her degenerative low back condition as a result of her work-related injury. However, Dr. Barnett candidly admitted that it was not possible to ascertain the extent, if any, that the claimant's work-related injury contributed to her back complaints reported in November of 1992. Furthermore, Dr. Barnett's evaluation was clearly based to a large degree, if not totally, on the claimant's subjective complaints. In that regard, we find that the claimant's willful misrepresentations regarding prior injuries on her employment application significantly diminishes the weight to be accorded the claimant's testimony, and therefore significantly diminishes the weight to be accorded Dr. Barnett's one time disability evaluation.
In short, the preponderance of the evidence indicates that the claimant sustained a relatively minor work-related injury for which her attending physicians found no permanent impairment, and we find that the medical evidence does not support a conclusion that the current complaints and restrictions indicated by the claimant are causally related to the February 10, 1992, injury. Accordingly, after carefully considering the medical findings of Dr. Canale, Dr. Leventhal, and Dr. Barnett, the claimant's testimony, and all other matters properly in the record, we find that the preponderance of the evidence indicates that the injury sustained by the claimant was temporary in nature and that she completely recovered from the February 10, 1992, injury. Therefore, we find that she failed to establish by a preponderance of the evidence that any current problems are causally related to her compensable injury. Consequently, we find that she failed to establish by a preponderance of the evidence that she sustained any permanent physical impairment or permanent disability as a result of the February 10, 1992, injury.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the respondents failed to prove by a preponderance of the evidence that this claim is barred by the Shippers defense. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. However, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to any compensation for a permanent disability. Therefore, we find that the administrative law judge's decision in this regard must be, and hereby is, reversed. This claim is denied and dismissed.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur with that portion of the majority opinion finding that the Shippers Transport defense does not apply to this case because respondent failed to show a causal connection between the false representations on claimant's employment application and her February 10, 1992 work-related injury. However, I must respectfully dissent from the remainder of the majority opinion finding that claimant failed to show a causal connection between her work-related injury and current back problems, and accordingly reversing the administrative law judge's award of a 5% permanent disability rating.
Dr. Robert J. Barnett, an orthopedic specialist, opined in a November 17, 1992 letter that claimant's fall on February 10, 1992 could have aggravated her pre-existing back problems. Unfortunately, this medical evidence of a causal connection is given little weight by the majority due to the fact that Dr. Barnett's evaluation "was clearly based to a large degree, if not totally, on the claimant's subjective complaints."
Because claimant made admittedly false representations on her employment application with respondent in 1991, the majority gives her testimony little weight and assumes her representations to Dr. Barnett to be of equally diminished value. Accordingly, the majority gives little influence to Dr. Barnett's opinion as well. I do not believe the majority's assumption is well-founded.
Claimant testified that she made certain false representations on her employment application in 1991 because she feared respondent would not hire her if she revealed her previous back injury and workers' compensation claims. She presented her medical history to Dr. Barnett in September, 1992 — well over a year after submitting her application to respondent. There is absolutely nothing in the record that would indicate claimant provided false information to anyone for any purpose other than the 1991 employment application. While the majority apparently believes otherwise, claimant's fear of being penalized for having a pre-existing back injury does not equate with a motive to provide false information when seeking assistance from a physician.
I also find it interesting that out of the three physicians claimant consulted regarding her work-related injury, the majority singles out only Dr. Barnett's evaluation as one that might be tainted by claimant's prior untruthfulness. I can see no reason for this extreme selectivity other than the fact that Dr. Barnett alone assigned claimant an impairment rating and also affirmatively opined that her current problems might be causally related to her 1992 injury.
For the foregoing reasons, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner
CONCURRING AND DISSENTING OPINION
Although I concur with the ultimate result reached by the majority finding that the claimant is not entitled to any compensation for permanent disability, based upon my de novo review, I find that the respondents proved by a preponderance of the evidence that the claim is barred by the Shippers defense. Accordingly, I respectfully dissent from the majority's opinion finding that the respondents failed to prove by a preponderance of the evidence that this claim is barred by the Shippers defense.
The claimant sustained an admittedly compensable injury on February 10, 1992, when she slipped and fell while emerging from her truck at a rest stop in Flagstaff, Arizona. The respondents accepted the claim as compensable and paid benefits to the claimant from February 1992 through May 26, 1992. The claimant was released to return to work on May 26, 1992, with no permanent impairment. However, she has not worked since the February, 1992 injury. The respondents challenge the claimant's claim for additional workers' compensation benefits.
The respondents allege that the claimant is barred from receiving benefits under the doctrine set forth in Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232. After conducting a de novo review of the entire record, I find that the respondents proved by a preponderance of the evidence that this claim is barred by the Shippers defense. Accordingly, I would reverse the decision of the Administrative Law Judge in this regard.
In the Shippers case, the Arkansas Supreme Court recognized that public policy places an obligation on an employee to give truthful answers to a prospective employer's questions about his pre-employment health condition. The Court held that a false representation on an employment application will bar recovery under our Workers' Compensation Act if the following are proven by the employer:
(1) the employee must have knowingly and willingly made a false representation as to his physical condition;
(2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and
(3) there must have been a causal connection between the false representation and the injury.
An employer must prove each element of the Shippers defense by a preponderance of the evidence before recovery will be barred under the Act. Tahutini v. Tastybird Foods, 18 Ark. App. 82, 711 S.W.2d 173 (1986).
The claimant applied for a job as an over-the-road truck driver with the respondent in August of 1991. She completed an employment application whereby she was asked if she had any back injuries or had received workers' compensation. The claimant answered both of these questions negatively. The claimant also stated on the application that she had not missed any time from work in the past three years due to illness. The claimant admits that she knowingly concealed and falsely represented her physical condition on the employment application form. She testified that she completed the application that way because ". . . I would think they might not hire me or something if I put that on there." (Tr. 26) In addition, she stated, "Well, I figured if they knew I'd had a prior back injury it might keep me from getting the job." (Tr. 27) It was also stipulated in the record that the answers regarding previous back injuries and workers' compensation injuries given by the claimant on her employment application with the respondent are incorrect.
Evidence was presented at the hearing of the claimant's previous on-the-job injuries, the benefits paid and the time lost from work as a result of these injuries. On November 25, 1980, the claimant sustained a strain to her back and was off work for one week and one day. The claimant received indemnity and medical benefits as a result of this injury. On September 23, 1983, the claimant sustained an injury to her low back, dorsal region, both hips and left leg to the foot while employed by J.R. Hakar. The claimant was hospitalized twice and received a permanent partial disability rating of 5% to the body as a whole for chronic lumbosacral strain. As a result of this injury, the claimant entered a Joint Petition settlement for $9,500.00 in addition to the $26,006.10 paid in medical and indemnity benefits. In 1988, the claimant sustained a work-related injury to her left leg wherein she sustained a blood clot to her leg. The claimant was hospitalized for four days for treatment.
Accordingly, I find that the claimant knowingly and willingly made a false representation as to her physical condition by indicating that she had no previous back injuries, had never received workers' compensation benefits, and had not lost time from work in the last three years from illness. Therefore, the first element of the Shippers defense has been satisfied. I would note that the Administrative Law Judge correctly found that the claimant satisfied the first element of the Shippers defense.
The second element of the Shippers test is met by the testimony of Troy Wolverton, the supervisor of the respondent's personnel and safety department. Mr. Wolverton testified that he was familiar with the employment application filled out by the claimant and that the application contained questions regarding prior injuries because truck driving was strenuous, required lifting, opening trailer doors, and the use of a freight dollie. Mr. Wolverton testified that in 1991 the respondent required applicants with prior back injuries be examined by the company physician as part of the application process to ensure that the applicant was capable of performing the required job duties. Mr. Wolverton concluded that the respondent relied upon the claimant's employment application answers in making an employment decision.
The third element of the Shippers test requires a causal connection between the injuries that were concealed and the claimant's present difficulties. This causal connection must be established by medical evidence except in the most obvious cases.Baldwin v. Club Products Company, 270 Ark. 155, 604 S.W.2d 568 (Ark.App. 1980). The claimant had pain in her low back, dorsal region, both hips, left leg, stiffness and aggravation with standing as early as 1983. The claimant has sustained at least three work-related injuries prior to the 1992 injury as well as a significant medical history that includes high blood pressure, deep vain thrombosis, pulmonary embolus, hysterectomy, stomach bypass for weight loss, and placement of a vena cava filter. In addition, the claimant's physician, Dr. Robert Barnett, in a report dated November 17, 1992, stated that:
[I]t is impossible for me to separate what she had prior to this accident and what she had since the accident. She certainly has osteoporosis and degenerative changes which could have been aggravated by her fall.
It is obvious that the claimant had a number of pre-existing conditions and the claimant's current disability now stems from an aggravation of one of these pre-existing conditions. Additionally, the claimant's treating physician, Dr. Canale, stated in a report dated May 26, 1992, that the claimant could return to work and that he could see no objective evidence of permanent disability. I find that there is a causal relationship between the claimant's prior physical conditions and current disability, thereby satisfying the third prong of the Shippers test.
Accordingly, for the foregoing reasons, I would reverse the decision of the Administrative Law Judge and find that this claim is barred by the Shippers defense. Therefore, I respectfully dissent from the majority opinion.
ALICE L. HOLCOMB, Commissioner