Opinion
CLAIM NO. E506717
OPINION FILED FEBRUARY 9, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] The claimant appeals a decision by the Administrative Law Judge finding that the claimant failed to prove by a preponderance of the evidence that there was a causal relationship between the claimant's compensable fall in April of 1995 and the surgery performed in July of 1995. After conducting a de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence the existence of a causal relationship between his compensable injury of April 17, 1995 and his surgery of July 13, 1995. Accordingly, we affirm the decision of the Administrative Law Judge.The claimant has a long history of lumbar problems as well as cervical problems. Prior to 1980, the claimant had muscle spasms. On October 1, 1980, he sustained a work-related back injury and was diagnosed by Dr. John Adametz with a back strain. Dr. Adametz treated the claimant conservatively and assigned a 5% permanent physical impairment rating to the body as a whole. On May 15, 1985, the claimant suffered a second back injury. He was diagnosed with a herniated disc at L5-S1 on the left. The claimant was examined by Drs. Zachery Mason, John Lohstoter and Thomas Fletcher. Dr. S. Berry Thompson performed surgery on the claimant and assigned him a 20% permanent physical impairment rating to the body as a whole. Dr. Thompson released the claimant to return to work on March 30, 1987. In September 1988, Dr. Thompson performed a percutaneous lumbar diskectomy on the claimant to remove a disc fragment at L5-S1.
In 1991, the claimant went to work for Dillards after graduating from Pulaski Vocational Technical School. The claimant quit his employment with Dillards in November of 1992 because sitting all day caused back pain. Also in 1991, Dr. Richard Jordan implanted an epidural stimulator in an effort to control claimant's back pain. The claimant was also admitted to Bridgeway Hospital because he had become addicted to the pain medications he was taking.
In July 1993, Dr. Jordan performed a lumbar laminectomy at L5-S1 on the left. This surgery was necessitated by a noncompensable injury sustained while the claimant was salvaging property following a house fire. Additionally, in June and December of 1994 Dr. Jordan performed surgeries at C6-7. The later surgery was a fusion. In October 1994 and February 1995, Dr. Jordan performed radio frequency facet neurotomies on the claimant's lumbar spine to relieve pain. The claimant further had surgery performed on L5-S1 on the right on July 13, 1995. The latter surgery is the subject of the current appeal before the Commission.
The claimant was injured on April 17, 1995 when he slipped and fell while measuring a house for the respondent. The claimant was walking across a wet yard when he fell to the ground striking his left buttocks and bruising his left hand. The claimant experienced pain in his left hip and leg and he reported the incident to his supervisor. The claimant came under the care of Dr. Robert Ritchie who prescribed physical therapy. The claimant tried to return to work on April 24, 1995 but was unable to handle the job. On May 12, 1995 Dr. Ritchie released the claimant to return to work observing "it is difficult to separate this incident from his chronic problems."
On July 4, 1995, the claimant was working on his car when he experienced "a sudden onset of lower back pain that incapacitated him to the point to where he had to crawl to his trailer and call the paramedics to come pick him up." Thereafter, Dr. Richard Jordan performed surgery at L5-S1 to remove the long present scar tissue pressing on the nerve root. The claimant contends that the respondent is liable for the July 13, 1995 surgery and other benefits because the July 13, 1995 surgery was the natural probable result and consequence of the claimant's April 17, 1995 incident. The respondent contends that they are not liable for the claimant's July 13, 1995 surgery because the July 4, 1995 incident constituted an intervening cause. Based upon our de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that there is a causal relationship between the claimant's fall on April 17, 1995 and the surgery performed by Dr. Jordan in July of 1995.
The evidence simply does not support a finding that the claimant's surgery was causally related to his April 17, 1995 injury. For us to find that the claimant's surgery was related to his April 17, 1995 compensable injury, would require us to resort to 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).
When the primary injury is shown to have risen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). 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. McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). A recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. This principle has been consistently applied in cases where a second complication is found to be a natural and probable result of the first injury. Only where it is found that the second episode has resulted from an independent intervening cause, will liability be affected. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
Further, Ark. Code Ann. § 11-9-102(5)(F) states:
(I) When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability as provided by this chapter.
(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
(iii) Under the subdivision (5)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.
A review of the medical evidence between July 1993 and April 1995 indicates that the claimant has had chronic, ongoing problems with pain in his lumbar spine. On July 27, 1993, Dr. Jordan examined the claimant after his recent hemilaminectomy on the left with diskectomy at L5-S1. Dr. Jordan imposed a lifting restriction of no more than five pounds and prescribed Darvocet for pain. On October 11, 1993, Dr. Jordan again saw the claimant and his office notes indicate that he directed the claimant to come to his office because he had missed appointments while continuing to call for pain medication. As of October 1993 the claimant was taking Darvocet at the rate of three to five per day along with Voltaren and Soma. Dr. Jordan prescribed more Darvocet and the claimant also received prescriptions for Sinaquan, an anti-depressant, and Soma, a muscle relaxant.
By July 11, 1994, the claimant was taking pain medication on a daily basis for his back pain and left sciatica. The claimant was also using an epidural stimulator continuously while taking Darvocet three to five times daily. Dr. Jordan encouraged the claimant to resume taking Prozac and he prescribed additional Darvocet and Soma. Between January 11, 1994 and June 13, 1994, the claimant underwent a C6-7 hemilaminectomy and diskectomy and more pain medication was prescribed. On June 27, 1994 the claimant returned to Dr. Jordan's office for an examination of a cervical condition and he was given prescriptions for Darvocet and Soma. On July 5, 1994, the claimant again saw Dr. Jordan who noted that the claimant was recovering nicely from his cervical laminectomy. Dr. Jordan prescribed Tylenol No. 3's for the claimant. On August 16, 1994, the claimant called Dr. Jordan complaining of increased back pain and that his stimulator had become less effective. The doctor reprogrammed the claimant's stimulator and recorded that the claimant had been using Darvocet sometimes exceeding eight per day. The claimant was given Mepergan Fortis for pain and advised not to take more than six Darvocets a day. It is noted that the claimant was also taking Prozac at this time.
On October 5, 1994, the claimant returned to Dr. Jordan's office with complaints of "intractable back pain." He was given a lumbar epidural steroid injection and Darvocet and Vistaril were prescribed. These medications did not adequately control the claimant's pain. On October 14, 1994, Dr. Jordan performed a bilateral radial frequency lumbar facet neurotomy at L2-S2 with epidural steroid injection. Approximately two months later on November 13, 1994, the claimant returned to Dr. Jordan's office complaining again of intractable back and neck pain. The claimant was given another lumber epidural steroid injection, more Darvocet, Soma and Prozac. On February 6, 1995, the claimant returned to see Dr. Jordan after having an anteriorial cervical diskectomy with fusion at C6-C7 on December 29, 1994. At this time, the claimant's daily medications included Darvocet which he was taking six to eight times a day, Soma which he was taking three times a day, Vistaril which he was taking one capsule with each Darvocet, and one Prozac a day. On February 20, 1995, Dr. Jordan performed another bilateral radio frequency facet neurotomy with an epidural steroid injection.
Approximately one month before the claimant's compensable injury of April 17, 1994, the claimant sought treatment again from Dr. Jordan on March 13, 1995. The claimant reported that his cervical fusion was doing fairly well but that he continued to have "a great deal of problem with his low back." The claimant continued to take Darvocet, Soma and Prozac.
On April 17, 1995, the claimant sought treatment from Dr. Robert R. Ritchie, his family physician. Dr. Ritchie treated the claimant from May 9, 1995 until May 29, 1995. The claimant complained of left foot numbness and tightness of the musculature of his left lumbar spine. Dr. Ritchie referred the claimant to Harry Morton, PT, at Jacksonville Physical Therapy. Mr. Morton's reports reflect that the claimant complained of left leg and foot pain that was better. Dr. Ritchie released the claimant to return to work on May 28, 1995. Dr. Ritchie indicated in his notes that he had difficulty separating any sequelae of the April 17th incident from the claimant's current back problems and he did not attempt to do so.
Dr. Jordan only saw the claimant once between April 17th and July 4, 1995. In June of 1995, the claimant complained of right hip pain as well as back and leg pain. The claimant also told Dr. Jordan that his right foot and left leg tingled. It is of interest to note that the physical therapist's notes dated between May 18th and May 26, 1995 do not note any reference to any right-sided pain. On July 4, 1995, the claimant was putting transmission fluid in his car. The claimant stated he could not get up and had to crawl to his trailer and call the ambulance. The July 4, 1995 Baptist Memorial Center Emergency Room history and physical report states that the claimant presented to the emergency room after experiencing incapacitating pain while working on his car. Upon arrival at the emergency room, the history and physical notes that he was complaining of some radicular pain of his right lower extremity. We would point out that after the April 17th fall, the claimant experienced left-sided pain. However, after the July 4th incident, the claimant complained exclusively of right-sided pain. Dr. Jordan subsequently performed surgery, a right hemilaminectomy and exacerbation of the neural canal at L5. The surgery was performed after a post myelogram CT showed a right paracentral disc protrusion at L5-S1. However, the surgery did not disclose a disc protrusion interfering with nearby nerve roots. Dr. Jordan merely dissected scar tissue from the claimant's previous surgeries.
Dr. Jordan has explained that the claimant suffers from arachnoiditis with periodic exacerbations from ruptured discs and he would return to his baseline following surgery.
The medical evidence shows that the claimant was having problems for many months before the April 17, 1995 compensable injury. The claimant was taking multiple medications to control the pain. In addition, the claimant had increasing symptomatology in 1994. The back surgery that the claimant ultimately underwent in July of 1995, in our opinion, was caused by a nerve root being bound up by epidural scarring that could have been present in the claimant for years. The record is void of any medical evidence indicating that the April 17th fall was what required the claimant to need surgery in July of 1995.
The claimant relies heavily on Dr. Jordan's January 24, 1996 report. However, in order to reach the conclusion stated by Dr. Jordan, you must completely ignore the medical reports of Dr. Ritchie and Mr. Harry Morton, the treating physician and physical therapist who actually saw the claimant frequently after his fall in April 1995. Dr. Jordan had only one office visit with the claimant between April 17th and the July 4th incident. Dr. Ritchie and Mr. Morton had extensive contact with the claimant over this period of time and they are in a much better position to describe claimant's complaints of pain. Dr. Ritchie and Mr. Morton's notes indicate that the claimant continued to complain ofleft leg and hip pain while undergoing physical therapy. It was not until sometime later that the claimant complained of right leg pain. In our opinion, the claimant's surgery in July 1995 was caused by a flare-up of the claimant's preexisting arachnoiditis. There is simply no proof to support a conclusion that it was anything other than a recurrence of the claimant's preexisting arachnoiditis.
Therefore, based upon our de novo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that his July 1995 surgery was causally related to his April 17, 1995 compensable injury. Accordingly, we affirm the decision of the Administrative Law Judge.
IT IS SO ORDERED.
DISSENTING OPINION
[24] I must respectfully dissent from the majority opinion finding that claimant has failed to prove the existence of a causal relationship between his compensable injury of April 17, 1995, and his surgery of July 13, 1995.Claimant has an extensive history of low back difficulties beginning with a work-related injury on October 1, 1980. Over the years, claimant has undergone a number of surgical procedures involving his lower back, including the implantation of an electrical stimulator. By early 1995, claimant had managed to find employment which permitted him to alternately sit and move about during the day. His duties consisted of driving to various residences and surveying the property for tax assessment purposes. On April 17, 1995, claimant experienced the following episode:
A. It was early in the morning. I had started my route and one of the first houses — I don't remember whether it was the first house or — but it was one of the first in the morning. I walked through the gates and I noticed the yard was wet and there was those in-ground sprinklers. And I just assumed that they left them on all night. I did — I asked the — no. The residents were not home. So, I just took down what information I could and then measured the house. When I got on the back side, it was extremely wet. It was saturated to the point that it was almost hard to walk through. I was trying to take a measurement on the house leaning over some brush and a kind of planter area. And when I leaned out, my feet went out from under me. I just twisted and landed on my left buttock.
Claimant explained that he felt a "sharp . . . piercing" pain which extended down his left leg following the above-described injury. Though he finished his shift on the 17th, claimant notified a supervisor of his fall the following day and received instructions to obtain medical care. Claimant's family physician, Dr. Robert R. Ritchie, appears to have taken him off work through May 9, 1995. Claimant stated that he did attempt to work "a couple of hours" following Dr. Ritchie's release, but thereafter "couldn't hardly walk." Claimant then informed his superiors that he could not continue, and has not returned to respondent employer since that time.
Unfortunately, claimant suffered another episode involving his lower back on July 4, 1995, which he explained as follows:
The car I was driving required more transmission fluid than it did gas. So, I proceeded to put a quart in it to go see my children. And all I had to do was raise up the hood and pour the fluid in. Because I had left the funnel in there . . . and when I got through putting the fluid in, I just couldn't straighten up . . . I crawled back into the house and called the paramedics.
Following the episode in April of 1995, claimant had eventually returned to the care of Dr. F. Richard Jordan, a North Little Rock neurosurgeon who had managed claimant both conservatively and surgically for some time. Dr. Jordan obtained a lumbar CT scan on July 7, 1995, which revealed a "disc protrusion" at the L5-S1 level. Suspecting nerve root compression, Dr. Jordan performed a surgical exploration of claimant's neural canal on July 13, 1995, but detected no nerve root impingement at either the L4-5 or L5-S1 levels. In a letter dated January 24, 1996, Dr. Jordan offered his opinion as to the cause of claimant's need for surgery:
I had no knowledge of the July 4th incident until I went back and reviewed the chart. I was not on call that day and the admission was discussed with Dr. Steven Cathey. I had been treating Mr. Collie for the problems following the fall in April and my information in July was that he had simply gotten worse in the course of daily activities. When I questioned him in the office on 12/11/95, he indicated that he was merely pouring in transmission fluid and then couldn't straighten up and had had actually no additional incident. My conclusion is that the 7/4/95 incident is not relevant in causation. Therefore, it is my opinion that the surgery done in July of 1995 was the result of the slip and fall incident at work in April of '95 and that the April fall was the major cause for the reason of medical treatment and surgery and loss of work. The findings at surgery were those of epidural scarring. The 7/4/95 incident can be characterized as a recurrence of the problems from the April fall . . . to a reasonable degree of medical certainty I believe he is 25% impaired. This does not include the cervical problems for which he has had two surgeries as well.
Where a second period of complications is found to be a "natural and probable result" of a previous compensable injury, the employer on the risk at the time of the first injury remains liable. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). However, the employer's liability is terminated if the second period of complications is found to be the result of an independent intervening cause. Id.
Based on Dr. Jordan's comments of January 24, 1996, I would find that claimant's eventual need for surgery arose from the injury he sustained in April, 1995. Indeed, Dr. Jordan has gone so far as to describe the episode in April as the "major cause for the reason of medical treatment and surgery and loss of work." Accordingly, I would find that claimant has proven, by a preponderance of the credible evidence, that his low back surgery of July 13, 1995, is causally related to his compensable injury of April 17, 1995.
As set out above, I must respectfully dissent from the majority opinion.
PAT WEST HUMPHREY, Commissioner