Opinion
CLAIM NO. F002818
OPINION FILED JANUARY 31, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by the HONORABLE CAROL L. WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an award of benefits to claimant based on an aggravation type injury claimant sustained while working. Based on ourde novo review of the entire record, we affirm the Administrative Law Judge's ruling.
I. History
Claimant has a long history of degenerative disc disease. She sustained an admittedly compensable injury on May 10, 1999 to her shoulders, left hip, neck, upper thoracic spine, and lower back when she slipped in a puddle of water.
On March 5, 2000, claimant (while working as a licensed practicing nurse for respondent) injured herself while trying to keep a nursing home patient from falling from a wheelchair. Claimant testified that at about 11:30 a.m. that morning, she was passing a patient in the hall and looked back to find her falling from her chair, "I ran over there and caught her. And when I caught her, I caught her with, I fell to my knees and I caught her with both of my hands. And my shoulders, my muscles and everything pulled in my shoulders, both my shoulders, my back, and my neck." (Record, p. 6). Claimant received surgery for a torn rotator cuff on June 17, 2000 as a result of this injury.
Claimant contends that she suffered an aggravation, or new injury, and that the Administrative Law Judge's decision is proper. Respondents argue that claimant merely suffered a recurrence of an old injury, not an aggravation, and that her temporary total disability rate should be based upon her salary as it existed on May 10, 1999 and not as it existed on March 5, 2000.
Analysis
Courts have frequently discussed the distinction between a recurrence and an aggravation of a preexisting injury. When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence and the employer remains liable.Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence is not a new injury but simply another period of incapacitation resulting from the previous injury. Pinkston v. General Tire Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990).
An aggravation is a new injury resulting from an independent incident.Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). 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).
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 if it was precipitated by an independent intervening cause. See Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983); Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). Liability is only affected where it is found that the second episode resulted from an independent intervening cause. Id. If there is a causal connection between the primary injury and the subsequent disability, there is not independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Id. The determination of whether there is a causal connection between the injury and the disability is a question of fact for the Commission to determine. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).
Here, the Administrative Law Judge ruled that claimant sustained an "aggravation" type injury based on medical reports of claimant's physicians wherein Dr. Foster stated:
I feel Ms. Wheeler's symptomotology and problems in her neck and in her shoulders are all pre-existing degenerative problems; however, they certainly can be exacerbated by an on-the-job injury to the result that she might need to seek treatment and/or surgery for them . . . I clearly do believe that her injuries are work-related. (Claimant's Ex. 1, p. 36-37).
Claimant also testified that she had more severe pain after her March 5, 2000 fall. If claimant is successful in her argument that she did suffer an aggravation, she also must meet all elements of a specific incident injury. To prove a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, claimant must establish: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability of death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1999). If 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).
Conclusion
Based on the evidence, we find that claimant did suffer an aggravation, or new injury. Claimant testified that she experienced severe pain after her second fall and that this fall caused her need for additional medical treatment. We also find that claimant did satisfy all elements of compensability for a specific incident injury and therefore affirm the Administrative Law Judge's decision.
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 to address arguments raised by the dissent and the respondents on appeal.
I. Aggravation versus recurrence.
The dissent asserts that the claimant's objective findings prior to March 5, 2000 were the same as her objective findings after March 5, 2000. The dissent argues that the claimant's testimony is the only evidence to establish that her shoulder hurt differently and worse after March 5, 2000. On that basis, the dissent asserts that the claimant's problems after March 5, 2000 were a recurrence of her problems that existed before March 5, 2000.
However, I note that the claimant's physical therapist made notations of muscle spasms in the trapezius muscles on March 30, 2000, and the 27th Edition of Dorland's Medical Dictionary indicates that the trapezius muscle rotates the scapula to raise the shoulder in abduction of the arm and draws the scapula backwards. Therefore, although the respondents assert in their brief on appeal that spasm of the trapezius muscle must relate to the neck and cannot possibly be an objective finding of an aggravation to a shoulder condition, I note that the trapezius muscle is associated with motion of the shoulder. Therefore, the physical therapist's notation of trapezius muscle spasms shortly after the March 5, 2000 incident indicates that the claimant experienced an aggravation (a new injury to the shoulder objectively verified by muscle spasm in the trapezius) and not a recurrence on March 5, 2000. To the extent that the respondents and the dissent suggest that the claimant's increased symptoms are only supported by the claimant's self-serving and uncorroborated testimony, I also note that the respondents' attorney stipulated at the hearing that the claimant's ex-husband would corroborate the claimant's testimony.
II. Dr. Burnett's treatment as "unauthorized."
The claimant has seen both Dr. Burnett and Dr. Foster after her March 5, 2000 injury. The claimant has explained that Dr. Burnett was her original treating physician after the admittedly compensable 1999 injury. Even after Dr. Foster's surgery, the claimant still has numerous persistent complaints in her neck, shoulders, and other parts of her body. I gather that Dr. Burnett has proposed performing a bone scan to test the claimant for "fibromyalgia."
The respondents argue on appeal that any treatment that the claimant sought from Dr. Burnett after her March 5, 2000 injury was "unauthorized." I see several problems with this argument. First, this argument was never specifically raised before the Administrative Law Judge prior to the hearing. Therefore, the claimant's attorney was not provided an opportunity to present evidence on this allegation. Second, the claimant testified that Dr. Burnett was her initial treating physician after her May 10, 1999 injury. The respondents did not make any attempt to rebut this testimony, and the respondents have taken the position that the claimant's March 5, 2000 injury was a recurrence of her prior May 10, 1999 injury. Likewise, the claimant testified that Dr. Burnett was the first doctor that she saw with regard to her March 5, 2000 injury. (T. 22) Furthermore, the respondents have failed to present into the record any evidence by Form AR-N or otherwise, that the claimant was made aware of the change of physician rules as provided for by Ark. Code Ann. § 11-9-514(c)(2). Therefore, the respondents have failed to meet the threshold requirement to establish that the claimant should have, but failed, to properly follow the change of physician rules.
For each and all of these reasons, it appears to me that the respondents' argument on appeal that Dr. Burnett's treatment has been "unauthorized" must fail.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant suffered an aggravation of her May 10, 1999, injury on March 5, 2000. Based upon my de novo review of the record, I find that the claimant failed to meet her burden of proof.
The claimant sustained an admittedly compensable injury on May 10, 1999. This injury resulted in the claimant injuring her right shoulder, as well as other parts of her body. After that injury, the claimant experienced a series of "flare-ups" and complained consistently of right shoulder pain. On two separate occasions, her doctor recommended surgery. The claimant now contends that she made her condition worse on March 5, 2000, when she reached out and grabbed a patient who was falling out of a wheelchair. The claimant ultimately underwent surgery on June 1, 2000.
The evidence shows that surgery had been recommended to the claimant as early as August of 1999. Surgery was again recommended in December of 1999. However, the surgical recommendation was based upon the claimant's degenerative problems. From the time claimant went back to work after the 1999 injury, until March 5, 2000, the claimant continued to complain of pain and received medical attention for her shoulder. The only evidence that we have to support a finding that her shoulder symptoms were worse after the wheelchair incident on March 5, 2000, is the claimant's own assertion that it hurt differently and hurt worse. The objective findings prior to March 5, 2000, were not any different than the objective findings after March 5, 2000.
It is clear that the claimant sustained a recurrence of an old injury on March 5, 2000. The testimony and the medical records fail to support a finding that the claimant suffered a new injury or an aggravation on March 5, 2000. There is absolutely no evidence demonstrating that the claimant's objective findings worsened subsequent to March 5, 2000. Therefore, the claimant's correct temporary total disability rate should be based upon her salary on May 10, 1999, and not on March 5, 2000. Therefore, the correct compensation rate should be based upon the wages the claimant was earning on May 10, 1999.
After considering all the evidence, I find that the claimant has sustained a recurrence of her May 10, 1999, injury on March 5, 2000. Therefore, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner