Opinion
CLAIM NO. E500479
OPINION FILED JULY 13, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBIN CARROLL AND FLOYD M. THOMAS, JR., Attorney at Law, El Dorado, Arkansas.
Respondents No. 1 represented by JUDY ROBINSON WILBER, Attorney at Law, Little Rock, Arkansas.
Respondents No. 2 represented by JUDY RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
[2] The respondent No. 1 appeals a decision of the Administrative Law Judge filed on February 4, 1999, finding that claimant sustained a compensable aggravation of a pre-existing degenerative condition for which he is entitled to benefits. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed.At the hearing held on October 21, 1998, claimant contended that he sustained a compensable injury to his back on September 28, 1994, when he was carrying and almost dropped a cross-tie. Conversely, respondents contended that claimant's injury fails to meet the statutory requirements of a compensable injury and is, therefore, not compensable. Alternatively, respondent contended that if claimant's injury were compensable, his need for surgery arose out of the pre-existing condition and not the aggravation and that claimant cannot prove that his compensable injury is the major cause of the impairment rating assigned by Dr. Mason. After reviewing the evidence without giving the benefit of the doubt to either party, we agree with respondent. Specifically, we find that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury which is supported by objective medical findings.
It is virtually undisputed that claimant reported an incident on September 28, 1994, having occurred during the course of his employment while carrying a cross-tie. As a result of reporting this injury, claimant was referred to Dr. Douglas Owens. Dr. Owens first examined the claimant on or about October 4, 1994. A review of Dr. Owens' progress note reveals the following findings:
Range of motion is significantly decreased with flexion and extension. Lateral bending is fairly full with minimal pain; it is segmental. Lower extremity exam shows low back pain with forced flexion of the left and the right knee. Forced extension produces no symptoms. He has positive SLR sitting bilaterally. He's unable to heel walk on the right side. Plain films of the lumbosacral spine show no gross abnormalities, except straightening of the normal lordotic curve.
Dr. Owens diagnosed claimant with low-back strain with radicular pain at that time. Valium was prescribed as needed for muscle spasms.
Although Dr. Owens interpreted the x-rays to show a straightening of the normal lordotic curve, the radiology report dated October 4, 1994, does not record this finding. The specific findings from the radiology report state:
The vertebrae are well aligned. There is mild to moderate degenerative narrowing of the intervertebral disc space at the level of L5-S1 with associated hypertrophic spurring. The examination is otherwise unremarkable except for mild spurring in the lower lumbar area and spurring at the level of T12-L1.
Based upon these findings, the radiology physician, Dr. Howard P. Schiele, noted the following impression:
There are mild degenerative and hypertrophic changes as described above.
Claimant was released to return to light-duty work following his examination by Dr. Owens. When claimant's pain failed to subside, an MRI of claimant's lumbar spine was performed. This diagnostic test was read to reveal disc herniations at L4-5 and L5-S1. Claimant was eventually referred to Dr. Zackary Mason, a Little Rock neurosurgeon. After examining the claimant, Dr. Mason ordered a myelogram and post-myelogram CT. Again, these diagnostic tests disclosed disc herniations which prompted Dr. Mason to perform surgery. Despite the MRI and myelogram findings, once Dr. Mason actually viewed claimant's lumbar spine during surgery, he discovered that claimant suffered from spondylosis and facet hypertrophy with no herniated nucleus pulpous. During his deposition, Dr. Mason was asked if he could state within a reasonable degree of medical certainty if the findings discovered through surgery were caused by claimant's work-related lifting incident to which he responded:
No, I can't state that within a reasonable degree of medical certainty. I can only go by the patient's history — that is, that he developed pain after the lifting injury.
Later in his deposition, Dr. Mason was asked:
Q. Can you state within a reasonable degree of medical certainty that the facet hypertrophy that you found became any worse as the result of the one lifting incident on September 28, 1994?
A. No, I can't state that. Certainly these have to develop at sometime. I mean it's usually a slow process in the same way that the spondylotic ridges have to push out at some point. Without the benefit of a scan or something prior to his accident, I don't really have a way of comparing.
Although Dr. Mason was unable to state within a reasonable degree of medical certainty that the objective findings noted during surgery were caused by claimant's work-related lifting incident, he was later asked if claimant's current problem was 50% due to the work-lifting incident as opposed to the pre-existing degenerative condition. A review of Dr. Mason's response to that question is enlightening. Specifically, Dr. Mason stated:
A. Well, it's a difficult thing to answer. Certainly to develop spondylosis and degenerative changes, it takes a long time for that to develop. Based on the patient's history as it's presented to us, he wasn't having these problems. He was able to work without difficulty. So what you have to think is that something happened with this lifting injury that caused even worse injury to the disc and based on the patient's history and what he tells us, you would that, yes, that would be greater than 50 percent what caused his problem, some internal disruption of the disc causing his pain.
It is evident from reviewing Dr. Mason's deposition responses that he is unable to identify any objective medical findings to substantiate the claimant's complaints of pain after the lifting incident. In stating that the lifting incident is more than 50% the cause of claimant's problem, Dr. Mason has made an assumption that the disc was injured in a way not evidenced by objective findings. According to Dr. Mason, all objective findings which were detected clearly pre-existed claimant's lifting incident. This response is further evident through the following questioning of Dr. Mason:
Q. But as far as your objective findings, as far as what is objectively causing him his problems, for all practical purposes and within a reasonable degree of medical certainty, did they exist prior to that injury?
A. Yes. the objective findings would have preexisted his injury simply because it's impossible to develop these changes in a short period of time.
Q. And those objective findings to your knowledge and your expertise are what is causing him his symptoms, which are pain?
A. Yes.
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Q. — the spondylosis and the facet hypertrophy, are those what would be considered degenerative diseases?
A. They're considered degenerative changes of the spine that some people call these degenerative disc disease. It's not actually a disease. It's just a progressive problem that develops.
Q. Often as a result of aging?
A. Yes.
Q. Was his condition consistent with a man of his age that would have worked in heavy manual labor?
A. Yes.
Q. Did I understand you correctly to say earlier that there was no objective evidence of acute changes in his back?
A. At the time of surgery, we did not find an acute change such as a soft disc herniation or something that looked as if it had extruded, causing pressure on the nerve roots. That's only on the external aspect of a disc. I mean we didn't open the disc because there was not an indication to do it, but what I can't answer, and actually no one actually can, is if he had something that shifted or changed inside the disc within the degenerated material that was present that would suddenly give him a big difference in his pain.
Q. So really there's no way of knowing within a reasonable degree of medical certainty if there was a change, an acute change as a result of that injury that caused him the pain?
A. That's exactly right. You can only go by what you find on your tests and a lot of what you have to decide is based on the patient's history — that is, he was reportedly not having any problem until he lifted and then he was having the severe pain afterwards.
Q. So if I understand then correctly, the only indication of there being any connection with his condition and that injury is his reports of pain; is that right?
A. That's correct.
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Q. And can you state within a reasonable degree of medical certainty that there were any — that in your opinion there were any changes at all that resulted from the lifting incident from what you saw, leaving aside from what he told you?
A. No, no, actually not. All you can say is this is the conclusion based on the patient's presentation of his complaints with his pain.
The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of his employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and § 11-9-102(5)(E)(i) (Supp. 1997). He must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(5)(A)(i). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury "by medical evidence supported by `objective findings' as defined in § 11-9-102(16)." "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).
While the MRI, myelogram and post-myelogram CT were read to find disc herniations in claimant's lumbar spine, Dr. Mason was unable to detect any such herniations during surgery. Rather, surgery revealed the presence of only degenerative changes of spondylosis and facet hypertrophy. Dr. Mason confirmed through his deposition that the degenerative changes were not caused by claimant's lifting incident on September 28, 1994. Moreover, Dr. Mason testified that he did not detect any findings of an injury to claimant's lumbar spine having occurred by the lifting incident. Although Dr. Mason speculated that the lifting incident may have caused an internal injury to claimant's discs, this conclusion is not supported by objective medical findings. Dr. Mason arrived at his conclusion of a disc injury based solely upon claimant's subjective complaints of pain. However, as noted by Dr. Mason, the pain could be caused by claimant's pre-existing degenerative condition of spondylosis and facet hypertrophy. Accordingly, we are unable to find, based upon a preponderance of the evidence, that claimant has proven the compensability of either an injury or an aggravation to a degenerative condition by objective medical findings. Dr. Mason's opinion that the lifting incident is the cause of claimant's pain is not supported by any objective medical findings. The evidence reflects that Dr. Mason merely thinks there may be an internal injury to the discs, but this speculation is not confirmed by objective medical evidence.
In reaching this finding, we do note that immediately following the lifting incident, claimant was seen by Dr. Owens who prescribed Valium "as needed for muscle spasms." However, a review of Dr. Owens' medical records fail to disclose the diagnosis of muscle spasms. In Sheila Molock v. Altheimer Public Schools, Full Commission Opinion filed January 6, 1998 (Claim No. E610213), this Commission found that a prescription for medication "as needed when she has muscle spasms associated with her low-back pain" is merely a statement which implies a claimant might be suffering from muscle spasms, but, "in our opinion, is short of a specific finding that she is suffering from a muscle spasm or any other objective finding." In the present claim, there are no recorded complaints of or recorded diagnosis of muscle spasms. Consequently, we find that we cannot rely upon Dr. Owens' prescription of medication as needed for muscle spasms as an objective medical finding that muscle spasms, in fact, were present. Furthermore, we are not persuaded to find that Dr. Owens' comment in his October 4, 1994 report that the x-rays reveal straightening of the normal lordotic curve represents an objective finding of an injury having occurred to claimant's back on September 28, 1994. It is noted that the physician who actually prepared the radiographic report did not detect this alleged straightening of the normal lordotic curve. Consequently, a question arises as to the accuracy of Dr. Owens' conclusion. Dr. Schiele, the physician who reviewed/prepared the radiology report did note mild degenerative and hypertropic changes of claimant's lumbar spine, yet Dr. Owens did not mention these findings in his report wherein he stated claimant had straightening of the normal lordotic curve. Conceivably, Dr. Owens' comment of straightening may have been taken into account when Dr. Schiele recorded degenerative changes. Since we are left to speculate with regard to the differences in the interpretation of the x-rays as read by Dr. Owens and the radiologist, we are unable to conclude by a preponderance of the evidence that Dr. Owens' interpretation satisfies the objective findings requirement. Therefore, we find that claimant has failed to present any objective findings supporting a compensable injury or compensable aggravation of a pre-existing condition.
Accordingly, for those reasons set forth herein, we find that claimant has failed to prove the compensability of his claim. Therefore, we find that this claim should be denied and dismissed.
IT IS SO ORDERED.
DISSENTING OPINION
[19] I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury.It is not disputed that claimant was involved in an accident at work on September 28, 1994, when he experienced back problems as a result of lifting and carrying a railroad cross-tie. Claimant experienced pain in his back and leg, as well as a burning sensation and numbness in his hip and lower extremity. Respondents' argument rest primarily on the contention that since claimant's condition is preexisting, he cannot prove that he suffered an accidental injury that resulted in internal or external physical harm to the body.
Claimant eventually came under the care of Dr. J. Zachary Mason, a neurosurgeon. An MRI scan and a lumbar myelogram were interpreted to show, in addition to degenerative disc disease, herniated discs at L4-5 and L5-S1. However, surgery revealed lumbar spondylosis and facet hypertrophy (degenerative conditions), but no herniated discs.
Even under Act 796 of 1993, aggravations of a preexisting condition are compensable. St. Vincent Infirmary Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). Further, it appears that these aggravations must meet the requirements for compensability set forth in the statute. InFord v. Chemipulp Process, Inc., 63 Ark. App. 260 977 S.W.2d 5 (1998), the Arkansas Court of Appeals stated the following:
During his deposition, Dr. Bernardo stated his belief that the April 1994 incident triggered the symptoms that appellant was experiencing. However, he admitted that during the November 29, 1994, cervical diskectomy, he found severe spondylosis and osteophyte formation, both being pre-existing degenerative conditions, but found no frank herniation of a disk and nothing that indicated an acute injury. Because there is no medical evidence supported by objective findings to establish the existence of an injury, appellant has failed to establish a compensable injury.
The medical evidence reveals some prior complaints of back problems. The last I found was in July 1993. My review of the remaining evidence of preexisting problems indicates primarily complaints of neck symptoms. This coincides with claimant's testimony that generally he had difficulties in his upper back and these difficulties involved strained or pulled muscles. There is no evidence that I could find of lumbar complaints. The evidence does indicate that claimant never had prior back difficulties that prohibited him from working or performing routine daily activities.
Claimant presented credible testimony that the September 1994 accident caused symptoms like none he had ever experienced before. Claimant was seen by Dr. J. Douglas Owens. In a note dated October 4, 1994, Dr. Owen reported that "[p]lain films of the lumbar sacral spine show no gross abnormalities, except straightening of the normal lordotic curve." Dr. Owen prescribed Valium "as needed for muscle spasm." Muscle spasms are considered objective medical findings. High Capacity Products v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). This evidence, coupled with claimant's credible testimony, constitutes a preponderance of the evidence that claimant sustained a compensable aggravation of his preexisting conditions in September 1994.
Moreover, in his deposition Dr. Mason related claimant's current difficulties to the work-related accident. Dr. Mason opined the following:
. . . We defined this — well, we take these two things, his degenerative disc disease and his injury, and we try to figure out what the major cause of his current condition is.
Legally, we define it as if the second injury or this injury was 50 percent of the problem or more. So considering that, is 50 percent of his current problem due to the injury he suffered as opposed to the preexisting condition that he had?
A Well, it's a difficult thing to answer. Certainly to develop spondylosis and degenerative changes, it takes a long time for that to develop. Based on the patient's history as it's presented to us, he wasn't having these problems. He was able to work without difficulty.
So what you have to think is that something happened with this lifting injury that caused even worse injury to the disc and based on the patient's history and what he tells us, you would think that, yes, that would be greater than 50 percent what caused his problem, some internal disruption of the disc causing his pain.
Q So his injury on September the 28th, if that's correct, is 50 percent or more of the cause of his current condition?
A Yes, as far as I can determine based on our information from our tests and from the patient's history.
Q Within a reasonable degree of medical certainty?
A Yes, within a reasonable degree of medical certainty.
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Q And from what you saw during surgery and the tests that you did before surgery and the tests that have been done since the surgery, can you state within a reasonable degree of medical certainty that the lifting incident in September of `94 caused any damage or change to the discs that you looked at during surgery?
A The patient's pain, based on his history, started after the lifting injury and based on that information as well as our findings of degenerated discs, I have felt that his injury was as a result of the lifting injury within a reasonable degree of medical certainty.
Q I didn't understand you. You felt that his lifting injury was what now?
A With the lifting injury that he describes, the pain developing after lifting, yes, I did feel that his problems were — were as a result of the lifting.
Therefore, a preponderance of the evidence indicates that claimant sustained a compensable aggravation of a preexisting condition and that this work-related injury is the major cause of his disability or need for treatment. Thus, based on this evidence, I would also affirm the opinion of the ALJ finding that claimant is entitled to the 11% rating by Dr. Mason for his permanent anatomical impairment.
For the foregoing reasons, I respectfully dissent.
_______________________________ PAT WEST HUMPHREY, Commissioner