Opinion
CLAIM NO. E509771
OPINION FILED MAY 12, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ANTHONY W. BARTELS, Attorney at Law, Jonesboro, Arkansas.
Respondents No. 1 represented by the HONORABLE JOHN D. DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on July 2, 1997. In that opinion and order, the administrative law judge found that the claimant has proven by a preponderance of the evidence that his neck injury is a compensable consequence of his May 29, 1995 compensable injury. In addition, the administrative law judge found that the claimant is entitled to a 4% permanent impairment rating assigned by Dr. Kyle and related to his cervical disc herniation. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.The claimant was employed as a jailer at the Jackson County jail when he suffered an admittedly compensable low back injury as a result of a slip and fall incident on May 29, 1995. One of his job duties was to check the cells to make sure each door was secured. A prisoner had sprinkled talcum powder on the floor, unbeknownst to the claimant. When the claimant jerked on the cell handle, his feet apparently hit the powder and slipped out from under him. According to the claimant, his left leg turned under him and he hung by his wrist. He felt a sharp pain in his back, down his leg and in his right knee. At the time of this incident, the claimant did not experience neck pain.
The claimant was treated by several different physicians following his low back injury of May 29, 1995. The claimant was initially seen by Dr. Coleman Kent, a general practitioner to whom he was directed by his employer. Dr. Kent referred the claimant to Dr. Richard Kyle, a Little Rock neurosurgeon, for an evaluation of his spinal problems. Dr. Kyle later referred the claimant to Dr. Terrence Braden, a physiatrist, for treatment of his chronic pain syndrome. In addition to those doctors, the claimant was also seen by Dr. Roy Tyrer, a neurosurgeon in Jonesboro, Arkansas, and Dr. Kevin Foley, a neurosurgeon in Memphis, Tennessee. All of these doctors diagnosed the claimant as suffering from spondylolisthesis in his lower back.
The claimant did not make any mention of any cervical problems until January 1996. At that time, he had been hospitalized at the Northeast Arkansas Rehabilitation Hospital for an intensive period of physical therapy at the direction of Dr. Braden. The claimant stated that after awakening on the second or third day of the hospitalization, he noted that his left hand was closed and that he could not open it. After continuing to report left hand dysfunction, a MRI was eventually performed on the claimant's cervical spine. This MRI indicated that the claimant suffered from a disc herniation at C6-7, for which Dr. Kyle assigned the claimant a 4% anatomical impairment rating to the whole body.
On appeal, Respondent No. 1 contends that the administrative law judge's finding that claimant's cervical injury is a compensable consequence of his May 29, 1995, incident at the jail is not supported by the law or the facts. Respondent No. 1 also contends on appeal that claimant is not entitled to the 4% permanent impairment rating for a cervical injury, if claimant failed to prove that he sustained a compensable cervical injury. Respondent No. 1 does not appeal the finding by the administrative law judge that Dr. Richard Kyle did, in fact, assign a 4% permanent impairment rating in connection with claimant's cervical condition.
As the respondents note on appeal, the administrative law judge was apparently unable to decide from the proof in the record when claimant sustained the cervical condition or what caused the cervical condition. In her decision, the administrative law judge said that the claimant's cervical condition was either caused by the incident on May 29, 1995, or a work-hardening program in January 1996 in connection with claimant's back injury. The administrative law judge even notes in her decision that claimant does not know when he hurt his neck.
The claimant's testimony was somewhat vague as to how the neck injury had occurred. He did indicate that his neck had bothered him slightly after his fall but that his back pain was so severe that he had not noticed it. He also stated that he felt that he had strained his neck while pushing a wheelchair during his stay at the rehabilitation hospital and while doing various physical therapy activities during his stay.
With regard to the cause of the claimant's cervical disc herniation, Dr. Richard Kyle, a treating neurosurgeon, indicated that the herniated disc appeared "older looking" and thus surmised that the neck problems were likely caused by the original injury. He explained in his deposition that a herniated disc may be insidious or acute. He felt it likely that the original injury was responsible for both the neck and back problems.
However, Dr. Terrence Braden noted that claimant had reported a pop in his neck while he was an inpatient at the rehabilitation hospital undergoing a work hardening program, and Dr. Braden felt that claimant had experienced a spontaneous disc rupture at that time.
Claimant's original doctor, Dr. Coleman Kent, noted that claimant had experienced a sudden onset of pain in his neck while undergoing a work hardening program. He stated, "Mr. Driver ruptured a cervical spine disc in a work hardening program and has symptoms from this injury."
After reviewing the reports of Dr. Kent, Dr. Braden, and Dr. Kyle, and the claimant's other treating physicians, the claimant's testimony and all other evidence properly in the record, we find that the greater weight of the evidence in the record establishes that the claimant sustained his cervical disc herniation at the time of the "popping" incident during the course of his work hardening problem, and that this injury is therefore a compensable consequence of the claimant's admittedly compensable work-related injury. Compare, Green v. Coca Cola Bottling Company, 329 Ark. 345, 948 S.W.2d 92 (1997); Fisher v. Poole Truck Line, 57 Ark. App. 268, 944 S.W.2d 853 (1997); Eagle Safe Corporation v. Egan, 39 Ark. App. 79, 842 S.W.2d 438; Preeway, Inc. v. Davis, 22 Ark. App. 132, 736 S.W.2d 21 (1987); Walton v. Federal Express, Full Workers' Compensation Commission, April 14, 1997 (W.C.C. No. E405591); and, Hubbard v. K W Enterprises, Full Workers' Compensation Commission, November 25, 1996 (W.C.C. Nos. E019509/ E209198).
Likewise, we find that the greater weight of the evidence in the record establishes that the cervical disc herniation sustained while the claimant was engaged in a work hardening program was the major cause of the 4% anatomical impairment rating assigned by Dr. Kyle, and we note that this abnormality has been established by objective medical findings (MRI). Consequently, we find that the claimant has established the necessary requirements to establish his entitlement to the 4% anatomical impairment rating for his cervical injury assigned by Dr. Kyle. See, Ark. Code Ann. § 11-9-102(5)(F) (Supp. 1997) and Ark. Code Ann. § 11-9-704(c)(1) (Repl. 1997).
In reaching our conclusions that the preponderance of the evidence establishes that the claimant's herniated cervical disc was caused by the incident while the claimant was enrolled in a work hardening program and that this incident was the major cause of the claimant's cervical injury and impairment, we are particularly persuaded by the fact that the claimant had no history of neck problems prior to the incident at the jail, and by the medical records indicating that claimant never complained of any neck or shoulder problems for at least the first six monthsfollowing the incident at the jail. During this time, claimant was examined by two general practitioners (Drs. Kent and Braden) and three neurosurgeons (Drs. Kyle, Tyrer, and Foley). The records for these doctors during this time indicate that claimant never mentioned anything about any complaints of shoulder, neck or cervical problems.
Dr. Kyle examined claimant four times during the six-month period following the May 1995 incident. On his deposition, Dr. Kyle testified that when he examined claimant during this six-month period, he did not observe anything unusual about the way claimant moved his head or his arms and did not observe anything that made him suspect that claimant might have a cervical herniated disc. In light of this deposition testimony, we accord greater weight to the opinions of Dr. Braden and Dr. Kent (indicating that the cervical injury was causally related to work hardening), than the opinion of Dr. Kyle (indicating that the claimant's cervical injury was causally related to the jail incident).
In reaching our conclusion, we are also persuaded by the claimant's relatively sudden onset of symptoms and the fact that he was engaging in at least somewhat strenuous activity in work hardening. We are also persuaded by the fact that the claimant had reported an incident with his neck, either a "strain" or a "pop" indicating that an injury occurred to his neck while undergoing therapy. We also find it significant that the claimant had not been working or engaging in any other significant activities for several months prior to his work hardening hospitalization. In fact, the purpose of the hospitalization was to encourage the claimant to become more mobile and less dependent on others to assist him in his personal needs.
In short, we find that the greater weight of the evidence in the record indicates that the claimant did not sustain a herniated cervical disc at the jail on May 29, 1995. However, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the preponderance of the evidence in the record establishes that the claimant did sustain a compensable cervical disc herniation during work hardening. Therefore, we find that the administrative law judge's decision must be, and hereby is, affirmed.
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.
Commissioner Wilson dissents.