Opinion
CLAIM NO. F003987
OPINION FILED OCTOBER 24, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by HONORABLE BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals an opinion and order of the Administrative Law Judge filed February 7, 2002 finding that she failed to show an aggravation of her compensable injury. Upon our de novo review of the record, we find that this decision should be reversed.
Claimant suffered an admittedly compensable injury to her hip, leg, and low back on March 7, 2000. Respondents paid benefits until June 8, 2000, but controverted the claim prior to claimant's subsequent surgery. They contend that claimant's surgery was to remove a preexisting tumor and is, therefore, not compensable. Claimant argues that her compensable injury aggravated her preexisting tumor, such that the tumor had to be surgically removed. Claimant requests benefits from June 8, 2000 through September 28, 2000, the date she was released to full duty.
Claimant, 35, worked as a nursery attendant. She testified that she felt "a lot of pain" in her hip and going down her leg when she crawled underneath a baby bed to retrieve a pacifier. Claimant notified her supervisor, but continued to work, not believing that she had sustained a serious injury. On March 20, 2000, claimant treated with Dr. Michael Sung, who referred her to Dr. William Blankenship, an orthopedic specialist. Dr. Blankenship next referred claimant to Dr. S. Berry Thompson, an orthopedic surgeon. Respondents paid claimant temporary total disability benefits through June 8, 2000, the date doctors recommended claimant undergo surgery. Dr. Thompson performed surgery on claimant on July 31, 2000 and released claimant to full duty on September 28, 2000 with a 10% impairment rating.
At issue is whether the work-related incident of March 7, 2000 constitutes an aggravation of claimant's preexisting pelvic bone tumor.
Claimant was diagnosed with a preexisting lesion that was a fibrous dysplasia of bone. Claimant contends that her work-related injury aggravated this bone tumor. An aggravation, being a new injury with an independent cause, must meet the requirements for a compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). To be compensable, an injury must be established by medical evidence supported by objective findings, which are defined as findings that cannot come under the voluntary control of the patient. Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). Ark. Code Ann. § 11-9-102 (4) (Repl. 2002), further provides in pertinent part:
(A) "Compensable injury" means:
(I) An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence.
To prove a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, claimant must establish by a preponderance of the evidence: (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) that the injury was caused by a specific incident and identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
Claimant injured her hip, leg, and back while performing her employment duties on March 7, 2000. Respondents accepted her injury as compensable and began paying benefits. Claimant reported right hip and leg pain and lower back pain when she first treated with Dr. Sung about two weeks after her accident. (Claimant's Ex. B, p. 1). When examined by Dr. Blankenship on April 7, 2000, claimant reported that she may have twisted her back when crawling under the crib. Dr. Blankenship diagnosed claimant with "acute low back pain with right lower extremity radiculopathy, possibly on a discogenic basis," upon notation of a possible "osteophyte formation on the anterior superior margin of the body of L5 and L4 and the inferior margin of the body of L3." He then placed claimant on a 15-pound weight-lifting restriction.
An MRI of April 12, 2000 was normal, but some abnormalities were seen on claimant's triple phase bone scan of April 19, 2000, which revealed, "[i]ncreased uptake at the level of the right anterior-superior iliac spine [pelvic bone]. An evulsion injury of the sartorius is suspected. Other bony abnormalities at this site cannot be excluded by bone scan alone and if clinical symptoms persist, additional imaging with MRI may be of some benefit." A second MRI of claimant's pelvis area on May 15, 2000, revealed "[possible] intrinsic lesion in and around the iliac crest and anterosuperior iliac spine." A subsequent CT scan revealed evidence of a lytic lesion involving the anterior superior iliac spine.
Respondents controverted benefits on June 8, 2000 when Dr. Thompson recommended surgery. Claimant underwent surgery, but her July 31, 2000 biopsy revealed a benign bone tumor, not a fracture. However, Dr. Thompson stated in deposition that from the time of claimant's injury until the time of her biopsy, claimant had ample time for a fracture to heal. He also stated that based on claimant's pathology and diagnosis, he believed that her bone tumor was aggravated by her work.
Back in May when you saw her for the first time, you authored a report, thinking that the fracture may have aggravated or been aggravated by a work injury?
That's correct.
Okay. But when you got in there and did surgery in July, you did not find any evidence that she had actually had a fracture?
This did not change my opinion. The surgical findings did not change my opinion.
So your opinion that was that the bone tumor, even though it wasn't caused by a work-related incident, was made symptomatic by the work-related incident?
Yes.
Dr. Thompson bolstered his theory that claimant's work-related accident aggravated her condition with his opinion that such tumors normally only become symptomatic upon certain conditions.
Okay. What type of symptoms would you expect an individual to have from a bone tumor such as Ms. Robinson's.
Well, honestly, most of the time they are found without symptoms.
Okay. How does this tumor become symptomatic?
It can very easily become symptomatic with an injury. The bone is — the surrounding bone is not as strong as it normally would be. And so stress placed in the area might render it symptomatic, from either tearing the muscles loose from it or fracturing the bone.
***
. . . Are there occasions when [lesions] become symptomatic without a mechanism of injury or some type of trauma?
I would not expect fibrous dysplasia to become symptomatic without some trauma. (emphasis added).
In weighing the expert medical opinion, we find that claimant has shown a specific work-related incident which caused her need for medical treatment. Additionally, we find that claimant has provided objective medical evidence of such injury and has shown a causal connection between her work and her need for treatment. Dr. Thompson further stated:
. . . [B]asically the only objective finding that you had was the bone lesion; is that true?
No, that's not true. We had a positive bone scan, which was hot. It showed increased uptake, which suggests that if that was the major factor, that suggested it was an acute injury.
Respondents dispute this position, arguing that they are not responsible for further treatment since claimant's surgery was to remove a preexisting bone tumor. Respondents presented an opposing opinion by Dr. Bruce Safman, an independent consultant, who stated that based on his review of the records of Drs. Blankenship and Thompson, claimant's lumbar and hip MRI's, and claimant's bone and CT scans, "I do not think there is any supporting evidence in the medical records received that any pathology to the anterior portion of the iliac crest occurred at the time of her injury."
Dr. Safaman, upon later examination of Dr. Sung's notes, conceded that he could not state whether claimant's current condition was caused by her admittedly compensable injury:
Based on the lack of information in the notes, I have no basis on which to determine whether or not there was any iliac crest pain initially. It is not known whether Dr. Sung's reference to right "hip" pain referred to the iliac crest or not. Thus, I believe that we will have to accept the patient's verbalization that her symptoms are related to her initial injury, as there is no good documentation regarding the specific localization of her pain no (sic) the findings on her initial examinations between March 20th and April 4, 2000.
It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given to their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). When there are contradictions in the evidence, it is within the Commission's province to reconcile contradicting evidence and to determine the true facts. Arkansas Dept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Moorelock v. Kearney Co. v. Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
It is noteworthy that Dr. Thompson, claimant's treating physician and surgeon, believes that claimant's condition was caused by her work:
It is my impression this probably presents an enchondroma in the area of the anterior superior iliac spine. The increased uptake on the bone scan would suggest that she fractured into it at the time of her on the job injury. I believe that it does need excision by curettage for treatment and to confirm the diagnosis. It is my opinion that while the underlying lesion is not directly related to her on the job injury, the fracture into it is and this represents a pre-existing condition with an aggravation at work. The aggravation and accounting for more than 50 percent of the problem and thus does qualify under workers' compensation law to be covered. (Respondent's Ex., p. 59).
While the Commission is empowered with the authority to weigh medical evidence and to examine the basis of an expert's opinion in deciding what weight to give it, it may not arbitrarily disregard the testimony of any witness. Hill v. Baptist Medical Center, 74 Ark. App. 250, 48 S.W.3d 544 (2001). See Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994).
Dr. Safman concludes that Dr. Sung's notes fail to indicate the "true" origin of claimant's pain, but we find that Dr. Sung's medical records and Dr. Thompson's opinions compel the conclusion that claimant suffered from right iliac crest pain from the beginning and that her complaints are consistent with Dr. Thompson's opinion that her injury at work caused her tumor to become symptomatic, thus creating her need for surgery.
The fact the claimant suffers from a preexisting bone tumor does not preclude an award of benefits for her surgery to remove such tumor. A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Geneva Jones v. Wackenhut Corp., Full Commission Opinion, filed May 15, 2000 ( E901848).
This Commission had held that where a preponderance of the evidence indicated that claimant's need for knee replacement surgery was accelerated by a compensable injury, the surgery was reasonable and necessary for treatment of the compensable injury. Id., citing Nashville Livestock Comm'n v. Cox, 302 Ark. 69 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962); Conway Convalescent Center v. Murphree, 266 Ark. App. 985, 585 S.W.2d 462; St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).
As is commonly stated, the employer takes the employee as he finds him. Murphree supra. In such cases, the test is not whether the injury caused the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition. However, although a disabling symptom of a pre-existing condition may be compensable if it is brought on by an accident arising out of and in the course of employment, the employee's entitlement to compensation ends when his condition is restored to the condition that existed before the injury unless the injury contributes to the condition by accelerating or combining with the pre-existing condition.
Id., citing Arkansas Power Light Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959).
In Davis v. Helena Chemical Co., claimant suffered from a preexisting lumbar degenerative condition before sustaining a compensable injury. Full Commission Opinion, filed August 3, 1999 ( D406121). The Full Commission affirmed an Administrative Law Judge's finding that claimant was entitled to additional medical testing, stating:
The respondents' and the dissents' central argument in this case is that the treatment the claimant is presently receiving is because of an ongoing degenerative condition which would be occurring whether or not the claimant suffered an injury in 1984. However, this argument overlooks the fact that the claimant's previously asymptomatic degenerative process physically progressed and became symptomatic because of his 1984 compensable injury . . . the compensable injury, not some speculative event, is what resulted in the claimant's present condition.
Id.
The Full Commission later upheld a finding of compensability where symptoms of claimant's preexisting condition were asymptomatic for five years prior to the compensable event. Jerry Hambelton v. Guy King Sons Bituminous Casualty Corp., Full Commission Opinion, filed February 22, 2001 ( E904812). The Commission held that a preponderance of the evidence showed that claimant's symptoms were the result of his compensable injury, despite the fact that claimant had a preexisting ongoing degenerative process. Id. at 19.
Based on our review of claimant's medical records and the opinions of her treating physicians (who were in the best position to evaluate claimant's condition), we find that claimant's work-related injury did cause her preexisting bone tumor to become symptomatic, thus accelerating her need for treatment. Accordingly, we reverse the decision of the Administrative Law Judge and award benefits. Specifically, we find that claimant is entitled to: (1) medical benefits subsequent to June 8, 2000, to include her July 31, 2000, surgery; (2) permanent disability benefits for her 10% impairment rating; (3) temporary disability benefits from June 8, 2000, through September 28, 2000; and (4) the maximum statutory attorney's fee for controversion.
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.
______________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion's findings. I write separately only to address the dissent's assertions that (1) no physical evidence of any fracture aggravating the claimant's lesion was ever found so that (2) Dr. Thompson's opinion that a fracture caused the claimant's preexisting bone lesion to become symptomatic requires speculation and conjecture.
As I understand Dr. Thompson's explanations, but for trauma to the asymptomatic tumor, (1) the claimant would not have developed symptoms and (2) the subsequent bone scan would not have been "hot."
The dissent seems to reject Dr. Thompson's explanation because (1) Dr. Thompson explained that the "hot" spot on the bone scan would be associated with fracture and (2) Dr. Thompson did not visually observe a fracture or a healed fracture during surgery. Therefore, the dissent concludes that Dr. Thompson's medical explanation as to "what happened" must be invalid.
I note that the dissent's argument includes an implied premise that, if a fracture did in fact occur at the time of the claimant's injury, that fracture would necessarily have been still visible to Dr. Thompson during surgery. However, I point out that Dr. Thompson is the orthopedic surgeon, and his testimony makes it clear enough to me that the viability of his medical explanation was not contingent on whether or not he could visually observe a fracture during surgery. Obviously, the relationship, or lack of relationship, between the tumor, the hot spot, and the purported fracture presents complex orthopedic medical questions. Absent any evidence in the record to support the dissent's implied premise that a work-related fracture occurring on March 7, 2000 would necessarily be visually detectable during the July 31, 2000 surgery, I am constrained to point out that it is not Dr. Thompson who has engaged in speculation and conjecture in drawing conclusions about this case.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion, as I would affirm the Administrative Law Judge's opinion that the claimant failed to prove by a preponderance of the evidence that she suffered a compensable aggravation injury.
The claimant had a pre-existing tumor that became symptomatic and required medical treatment. Dr. Thompson opined that a traumatic injury caused a fracture which made the tumor symptomatic. Based on the history provided by the claimant of an injury at work, Thompson attributed the fracture to the claimant's alleged work injury. However, no physical evidence of this fracture was ever found. Dr. Thompson's opinion that an unobserved fracture caused the claimant's pre-existing bone lesion to become symptomatic requires conjecture and speculation. 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).
Because I agree with the Administrative Law Judge's conclusion that the claimant failed to prove by a preponderance of the evidence that she suffered a compensable aggravation injury on March 7, 2000, I must respectfully dissent from the majority opinion.
_____________________________ JOE E. YATES, Commissioner