Opinion
CLAIM NOS. E418808 E603880
OPINION FILED FEBRUARY 5, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by J. GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] Respondents appeal an opinion and order filed by the administrative law judge on May 26, 1998. In that opinion and order, the administrative law judge found that in June of 1995, claimant sustained a compensable injury, which was in the form of a recurrence or an aggravation. The administrative law judge awarded temporary total disability benefits and medical benefits. Moreover, the administrative law judge found that claimant sustained an additional anatomical impairment in the amount of 2% to the whole body as a result of the June incident. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge's must be affirmed.On December 1, 1994, claimant sustained a work-related injury to her back. A MRI was performed on December 5, 1994. That test revealed "a protruding disc paracentral at the L4-5 level and mildly effaces the thecal sac and she has a right anterior lateral disc that effaces the S1 nerve root at the L5-S1 level." Claimant completed a two-day course for her back following the injury, and lifting restrictions were imposed by Dr. Frigon, claimant's treating physician.
The record reflects that claimant remained symptomatic following her return to work. In a chart note dated February 10, 1995, Dr. Frigon noted that claimant reported that while moving some boxes, she reinjured her back. Although claimant showed some improvement in March of 1995, Dr. Frigon did not remove claimant's restrictions.
In June of 1995, claimant stated that she re-injured her back when she lifted a bucket of ice. She reported this to Dr. Frigon's office on July 17, 1995, and claimant's account of the injury is reflected in the nurse's hand written notes. Dr. Frigon's chart note for July 17th reflected that claimant reinjured her back. Summarizing the incident, Dr. Frigon stated that the injury occurred "basically by bending over incorrectly." Although Dr. Frigon's note fails to reference the ice bucket incident, a review of her deposition testimony illustrates that claimant attributed her problems to the lifting incident involving the ice bucket. Moreover, Dr. Frigon concluded that the etiology of claimant's L3-4 disc problem was the lifting incident.
Claimant's co-worker, Ms. Delois Cox, testified in claimant's behalf. Ms. Cox stated that she was present when the ice bucket incident occurred. She testified that it was very hot, and a mechanic suggested placing a fan on top of a bucket of ice in order to cool the work area. Ms. Cox stated that when they began cleaning up their work stations, claimant reached down and grabbed the handle of the bucket. She testified that when claimant attempted to lift the bucket, she said "Oh. . . . I think I hurt my back again." Claimant stated that the incident occurred in the manner described by Ms. Cox.
Dr. Frigon ordered a MRI, which produced the following findings: "disc protrusion at and to the right of the midline at L3-4 effacing the dural sac at that level. There appears to be some midline disc protrusion extending slightly to the right at L5-S1 with slight effacement of the dural sac at that level."
At the request of respondents, claimant was examined by Dr. P.B. Simpson on August 11, 1995. Dr. Simpson determined that claimant should undergo myelography. A myelogram and post-myelogram CT confirmed the presence of a herniation at L3-4, on the right side. Dr. Simpson performed surgery on August 15, 1995. In a discharge summary dated August 22, 1995, Dr. Simpson stated that "[a]t the time of surgery she was found to have an extruded fragment down below the space at L3-4 on the right side at the level of the pedicle and just above that."
On August 22, 1995, Dr. Simpson documented a conversation with claimant's worker's compensation case worker. A chart note details Dr. Simpson's opinion with respect to whether claimant sustained a new injury, or a recurrence:
I looked at Ms. Wright's MRI that was done last year on December 5 and it looked like she had a L5, S1 disk on the right side. She had an absent Achilles reflex and I thought that this was where her disk was going to be. As it turns out, the disk is actually at L3-4. I did not see it on the post myelogram CT because we were looking for something along the S1 nerve root because of her absent Achilles reflex. Repeat MRI showed a new lesion at L3-4 on the right side which was actually the culprit. . . . This has to be a new process going on simply because it doesn't fit with what was seen previously, unless one can say that she has been having this problem all along and it was just never picked up.
In a chart note dated September 15, 1995, Dr. Simpson indicated that the surgical procedure had eliminated claimant's leg pain. Dr. Simpson released claimant to return to regular duty on October 30, 1995. He assigned an impairment rating of 10% to the whole body.
The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or, in the alternative, it precipitated by an independent intervening cause.Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Moreover, if a causal connection between the primary injury and subsequent disability exists, "there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances." Guidry v. J R Eads Const. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).
The evidence shows that claimant sustained either a recurrence or an aggravation as a result of the ice bucket incident in June of 1995. According to Dr. Simpson's chart note, it is possible that claimant's physicians failed to detect an existing problem. Indeed, claimant testified that her symptom persisted following her original injury. Claimant also stated that her back hurt a little bit even before the lifting incident which occurred in June of 1995. On the other hand, Dr. Simpson stated that the process appeared to be a new one. Further, Dr. Frigon's deposition testimony indicated that in her opinion, claimant's problem involved a different disc level so it was a new injury. Claimant testified that she experienced an increase in back pain the day after the lifting incident. Whether claimant's injury is characterized as a recurrence or an aggravation, we specifically find that respondents are liable for this injury.
Respondents have advanced the argument that since claimant is unable to provide an injury date, the specific incident requirement of Act 796 is unsatisfied. We disagree. InNathan A. Sheppard v. Calion Lumber Co., Full Commission Opinion filed Oct. 6, 1995 ( E320270), claimant could not identify the precise injury date. We refused to require this information in order to satisfy the specific incident requirement. In Sheppard, we explained that the purpose of the specific incident requirement was to distinguish sudden injury cases from those which develop over a period of time. We reasoned that: "the time can be established by evidence of contemporaneous events which serve to identify the time of occurrence." We find that the testimony of claimant and Ms. Cox serve to establish when claimant's injury occurred; therefore, the specific incident requirement has been satisifed. Further, we find that claimant has established all of the requirements of a specific incident injury.
Claimant contends that she is entitled to an award of temporary total disability benefits for the time period beginning August 5, 1995, and ending October 30, 1995. Entitlement to temporary total disability benefits requires claimant to satisfy a two-prong test: (1) claimant must be within her healing period; and (2) completely incapacitated from earning wages.Arkansas Highway Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for healing the injury, which continues until claimant is as far restored as the permanent nature of the injury will allow. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). In the event that the underlying condition has stabilized and there is no additional treatment that will improve claimant's condition, the healing period has ended. Id. This question is one of fact for the Commission to resolve.
Claimant testified that during the time period in question, she was unable to work. Claimant's surgery was performed on August 15, 1995. After claimant was discharged from the hospital on August 22, 1995, Dr. Simpson followed her progress. In a chart note dated September 15, 1995, Dr. Simpson indicated that claimant was unable to return to work. Subsequently, Dr. Simpson determined that claimant could return to work on October 30, 1995. In reaching this conclusion, Dr. Simpson opined that claimant had reached maximum medical improvement. We find that claimant proved by a preponderance of the evidence that she was totally incapacitated from work from August 5, 1995, through October 30, 1995. Therefore, she is entitled to temporary total disability benefits for this time period.
Claimant further contends that as a result of the injury in June of 1995, she is entitled to an impairment rating of 2% to the whole body. The evidence shows that Dr. Frigon assigned an impairment rating of 8% to the whole body following claimant's initial injury. Dr. Frigon testified by deposition. She stated that based on the abnormal MRI performed on December 5, 1994, an impairment rating of 8% to the whole body was assigned to claimant. She testified that in determining claimant's impairment rating, she used the AMA Guides to the Evaluation of Permanent Impairment. In a report dated October 24, 1995, Dr. Simpson assigned a rating of 10% to the whole body. His report indicated that he used the AMA Guides, and that his opinion is stated within a reasonable degree of medical certainty. In our opinion, an additional impairment rating of 2% to the whole body is consistent with the AMA Guides. Therefore, we find that claimant is entitled to additional permanent partial disability benefits totaling 2% to the whole body for her injury which occurred in June of 1995.
Finally, claimant advances the argument that the medical care she received was reasonable and necessary for the treatment of her work-related injury. We agree. What constitutes reasonable and necessary treatment under the workers' compensation law obligating respondents to provide such medical services "as may be reasonably necessary" for an injured employee is a fact question for the Commission to resolve. Georgia-Pacific Corp. v. Dickins, 58 Ark. App. 266, 950 S.W.2d 463 (1997). Subsequent to the ice bucket incident in June of 1995, claimant apparently sought treatment from Dr. Tracy. Dr. Tracy referred claimant to Dr. Frigon. Dr. Frigon prescribed medication, and ordered claimant to wear a back support. Thereafter, respondents directed claimant to be evaluated by Dr. Simpson. When Dr. Simpson examined claimant on August 11, 1995, he noted that her pain was "significant." He determined that myelography was indicated, based on claimant's abnormal MRI from December 5, 1994, coupled with the absence of a right ankle reflex. Testing revealed the presence of a herniated disc at L3-4, on the right, and claimant was admitted to Jefferson Regional Medical Center on August 15, 1995, for surgery. She was ultimately discharged on August 22, 1995. Dr. Simpson followed claimant during her recuperative period. The evidence shows that claimant's final office visit with Dr. Simpson occurred on October 24, 1995. The evidence shows that claimant obtained medical treatment as a result of the work-related ice bucket incident. The existence of a disc abnormality, which Dr. Simpson suspected, was confirmed by diagnostic testing. Dr. Simpson determined that surgical intervention was required for the treatment of claimant's work-related injury. Following surgery, Dr. Simpson indicated that claimant "improved markedly." In our opinion, claimant has demonstrated the reasonableness and necessity of medical benefits obtained for the treatment of her injury.
Based on our de novo review of the entire record, and for the reasons stated herein, we specifically find that claimant sustained a work-related injury in June of 1995 in the form of a recurrence or an aggravation for which respondents remain liable. We further find that claimant is entitled to an award of temporary total disability benefits for the period beginning August 15, 1995, and ending October 30, 1995. Claimant has also demonstrated that she is entitled to an award of permanent partial disability benefits totaling 2% to the whole body. Finally, we find that the medical care claimant received was reasonably necessary for the treatment of her work-related injury.
The decision of the administrative law judge must therefore be, and hereby is, affirmed.
All accrued benefits shall be paid in a lump sum without a discount and with interest thereon at the lawful date 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, 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 (b) (Repl. 1996).
IT IS SO ORDERED.