Opinion
CLAIM NO. E209639
OPINION FILED JUNE 4, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RUSSELL BYRNE, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE JAMES H. McKENZIE, Attorney at Law, Hope, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on April 6, 1995. In that opinion and order, the administrative law judge found that this claim is not barred by the statute of limitations and that the claimant's back problems are causally related to a compensable injury. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that his back problems are causally related to his compensable injury. Therefore, we find that the administrative law judge's decision must be reversed.
The claimant sustained an admittedly compensable injury on May 9, 1992, when he slipped in some oil while carrying a 50 pound sack of meal, twisting his back as he fell. He was first treated for complaints of low back pain by Dr. A. D. Copeland, a general practitioner on June 8, 1992. The claimant was not complaining of any radiation of pain into his legs, and Dr. Copeland's report indicates that the claimant was ambulating with only slight limpness and stiffness. Dr. Copeland's examination revealed slight pain to palpation, and it revealed some decreased range of motion. However, the straight leg raising maneuver and neurological examination were normal. Based on these findings, Dr. Copeland diagnosed a low back strain. On June 15, 1992, the claimant saw Dr. Michael Downs, a general practitioner in the same office with Dr. Copeland. Dr. Downs' examination revealed "no discernible abnormalities other than subjective pain." On June 25, 1992, the claimant returned to Dr. Downs. Dr. Downs' report indicates that the claimant advised him that he was not having any back pain other than mild aching and discomfort. The claimant was able to "foreflex" to the floor, and he had no palpable tenderness. Thus, Dr. Downs' concluded that the claimant was "fully recuperated," and he released him to return to work.
The claimant did return to work, and he continued to lift 50 pound sacks of meal. However, he testified that he did not have any problems doing his job, and his testimony indicates that he did not experience any problems until later that year, when he began to experience pain and numbness in his left leg and foot. He testified that he did not associate this leg pain with his back injury or with his employment, and he sought treatment on his own initiative from Dr. Khoa C. Nguyen, a general practitioner, on November 17, 1992. He advised Dr. Nguyen that he did not recall any accident or injury. He saw Dr. Nguyen on three occasions in November of 1992. However, Dr. Nguyen treated him conservatively, and he released him to return to work on November 30, 1992, with no restrictions.
After the claimant returned to work on November 30, 1992, he did not have any more problems with his left leg for some period of time, and he continued to work with no problems. However, at some point, the claimant again began to experience leg problems which were worse than the leg problems he previously experienced. Consequently, he returned to Dr. Nguyen on December 31, 1993. The claimant still did not relate this pain to his back, and he advised Dr. Nguyen that he did not recall any accident that might have caused the pain. Dr. Nguyen again treated the claimant conservatively. However, when the claimant's complaints persisted, Dr. Nguyen referred him to Dr. Berry Green, an orthopedic specialist.
Dr. Green first examined the claimant on February 14, 1994. Dr. Green's neurological examination suggested lumbar nerve root involvement, and a MRI revealed a herniated nucleus pulposus at L5. However, Dr. Green determined that the claimant's symptoms were not severe enough to warrant surgery. Although the claimant had denied any recollection of injury upon questioning by Dr. Nguyen, he gave Dr. Green a history which included the May 9, 1992, compensable injury, and the claimant indicated to Dr. Green that he had experienced problems since the occurrence of this accident that had gradually increased in severity. Based on this history, Dr. Green opined that the condition was "[i]n all probability" caused by the May 9, 1992, accident.
When the claimant's problems persisted, Dr. Green referred the claimant to Dr. Thomas Fletcher, a neurologist, and on July 11, 1994, Dr. Fletcher performed a laminectomy at L5-S1. Dr. Fletcher was also given a history which indicated that the claimant's problems had progressively worsened since the occurrence of the May 9, 1992, compensable injury. Based on this history and the fact that the claimant had no back problems prior to that accident, Dr. Fletcher opined that it was probable that the compensable injury was the cause of the claimant's condition. In this regard, Dr. Fletcher testified he did not think that the disc ruptured at the time of the injury. Instead, he opined that the accident resulted in a bulge which weakened the disc and later resulted in the herniation. However, when Dr. Fletcher was read Dr. Downs' office note which indicated that the claimant was not experiencing any pain whatsoever, Dr. Fletcher testified that he could not be sure whether bulging was present at that time or not, and he indicated that this note, especially the absence of pain, was not consistent with a bulge, although the disc could have been weakened. In this regard, no diagnostic tests were performed prior to the February 15, 1994, MRI. However, Dr. Fletcher was read Dr. Downs' office note which indicated that the claimant was not experiencing any pain when he released him to return to work, and Dr. Fletcher was read the portions of the claimant's deposition where he admitted that he did not experience any problems after he returned to work involving periodic heavy lifting. In addition, Dr. Fletcher was informed that the claimant did not see any physician from June 25, 1992 until November 17, 1992, and that the claimant did not see any physician from November 30, 1992 until December 31, 1993. Considering these facts, Dr. Fletcher concluded that "it certainly sounds as if he was not having what you would call a significant degree of difficulty." Moreover, based on these facts, Dr. Fletcher declined to render an opinion within a reasonable degree of medical certainty regarding the causal effect of the compensable injury on the herniated nucleus pulposus. Prior to learning these facts, Dr. Fletcher considered the causal relationship between the compensable injury and the herniated nucleus pulposus to be a probability, but, after learning these additional facts, he concluded that he could not provide an opinion regarding the causal relationship "with a great deal of certainty."
The claimant has the burden of proving by a preponderance of the evidence that he sustained an injury arising out of and in the course of his 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 the disabling injury. Lybrand v. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra. In this regard, the claimant has the burden of establishing his entitlement to the compensation sought by a preponderance of the evidence. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992); Lybrand v. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra.
In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that his herniated nucleus pulposus is causally related to his compensable injury. The medical evidence and the claimant's own testimony shows that the May 9, 1992, injury was relatively minor and that he completely recovered from this injury. Moreover, the evidence shows that his ability to return to work at relatively heavy labor without experiencing any problems whatsoever for a long period of time is not consistent with a ruptured or weakened disc. While Dr. Green and Dr. Fletcher both initially opined that the claimant's herniated nucleus pulposus was causally related to the compensable injury, these opinions were based on a misunderstanding of the history. Furthermore, when informed of the actual history, Dr. Fletcher equivocated on his opinion.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that his back condition is causally related to his compensable injury. Therefore, we find that the administrative law judge's decision must be, and hereby is, reversed. In light of this decision, it is not necessary for us to consider the statute of limitations issues raised by the parties.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant has failed to prove by a preponderance of the evidence that his July 11, 1994 back surgery was causally related to his compensable injury of May 9, 1992.
Drs. Barry Green and Thomas Fletcher, both orthopedic specialists, attributed claimant's herniated disc to his original injury. Dr. Green's March 14, 1994 office report states that claimant's disc herniation was "in all probability" the result of his work-related injury. Dr. Fletcher, claimant's surgeon, opined in two separate letters (dated June 14, 1994, and October 18, 1994 respectively) that:
His problem involves the L5-S1 herniation and from the history that I have obtained it appears to be related back to the work injury he had in 1992.
And:
In reply to your letter of October 11, 1994, concerning Mr. Louis Calloway, it is probable that Mr. Calloway's current back problems are related to the fall that he had May 9, 1992. . . It is my opinion that the lumbar disc problem for which I performed surgery is due to the work injury, therefore.
Uncontradicted medical evidence of the same quality and quantity as that set out above would, in many cases, satisfy a claimant's evidentiary burden. Unfortunately, the majority has given undue weight to a portion of Dr. Fletcher's January 3, 1995 deposition, in which he appears to retreat from his position in the foregoing letters.
During that deposition, counsel for respondent pointed out to Dr. Fletcher that claimant did not see a doctor from June 25, 1992 until November 17, 1992 and from November 30, 1992 until December 31, 1993. In addition, the majority notes that:
When Dr. Fletcher was read Dr. Downs' office note which indicated that the claimant was not experiencing any pain whatsoever, Dr. Fletcher testified that he could not be sure whether bulging was present at that time or not, and he indicated that this note, especially the absence of pain, was not consistent with a bulge, although the disc could have been weakened. (Emphasis added).
My review of the record indicates that it was not Dr. Downs' office note that respondent's counsel read to Dr. Fletcher during the deposition. Instead, the document brought to his attention was Dr. Downs' letter of June 23, 1992. That letter states, in pertinent part, that:
He states at this time that he has no further pain. Is able to conduct himself in normal activities without any discomfort. He is ready to return to work. On examination I could find no evidence of back pain whatsoever. . . I think he can safely return to work without any difficulties.
Dr. Downs, in all likelihood, based the above letter on his office note of the same day. Unfortunately, the contents of that note seem to have been diluted during its translation into the letter eventually read during Dr. Fletcher's deposition:
States he feels much better at this time. Would like to return to work. He is having no further back pain other than mild aching and discomfort. . . May return to work on the 25th. He would like to wait until next week but I don't think this is necessary since he seems to be fully recuperated. (Emphasis added).
Dr. Fletcher was not given the benefit of hearing the contents of the office note upon which Dr. Downs' June 23, 1992 letter was predicated. Because Dr. Fletcher's apparent retreat from his earlier opinion stems largely from his being led to believe that claimant was pain free by June 25, 1992, I cannot conclude that he still could have been maneuvered to equivocate had he been informed that claimant was indeed reporting pain at that time. Accordingly, I do not attach the degree of significance to Dr. Fletcher's perceived "retreat" as the majority does, and consider his original opinion on causation to remain valid.
For the reasons set forth hereinabove, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner