Opinion
CLAIM NO. E013546
OPINION FILED NOVEMBER 21, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ANDREW L. CLARK, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE CHARLES GSCHWEND, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on November 30, 1993. In that opinion and order, the administrative law judge found that the claimant failed to meet his burden of proving that his cervical spine problems are compensable.
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 cervical spine problems are causally related to the work-related accident which occurred on August 2, 1990, as the claimant contends. Therefore, we find that the administrative law judge's decision must be affirmed.
The claimant began working for the respondent employer in 1968, and his duties have included unloading boxcars, filling orders, and operating a forklift and pallet jack. He sustained a work-related injury to his left elbow and foot in 1973 when he fell twenty feet onto a concrete floor. He was treated by Dr. Harold Chakales, an orthopedic surgeon, at the time, and Dr. Chakales performed an open reduction and internal fixation on the left elbow. After the claimant recovered from this injury, he returned to the same job performing the same duties.
The claimant sustained another work-related injury on August 2, 1990. He was moving a stack of seventeen pallets with a pallet jack when his pallet jack became entangled with a pallet jack operated by another employee, causing the pallets to fall onto the claimant. According to the claimant's testimony, pallets weighing 35 to 45 pounds each covered all parts of his body, and co-workers had to pull the pallets from him. Nevertheless, he testified that he did not feel that he was injured at the time, and, after filing an accident report, he completed his shift, which was almost over at the time.
However, his left elbow subsequently became sore and swollen, and he sought medical treatment from his family physician, Dr. Jon R. Ewing. After a period of conservative treatment did not alleviate the claimant's left elbow complaints, Dr. Ewing referred the claimant to Dr. Chakales. Dr. Chakales' conservative treatment also failed to correct the elbow problems, so, on December 4, 1990, Dr. Chakales performed a total elbow replacement on the claimant. On July 30, 1991, Dr. Chakales assigned the claimant a 50% permanent impairment rating to the upper extremity, and he released him from his care. The respondents accepted the compensability of the claimant's left elbow injuries, and they have paid appropriate benefits.
The claimant returned to work for the respondent employer on May 6, 1991, and he continued to work at the same job performing the same duties until April 5, 1993. However, he ceased working in April of 1993 due to problems he was experiencing with his cervical spine. In this regard, the claimant testified that he did not experience any pain in his neck or back prior to the replacement surgery in December of 1990. According to his testimony, the only pain he experienced prior to that time was in his left elbow. However, he testified that he began to experience pain in his right shoulder and neck in December of 1990, although he testified that he never experienced much neck pain. The claimant's wife also testified that he did not complain of any shoulder or neck pain until after the surgery in December of 1990. Although the claimant testified that he was able to perform the requirements of his job, including lifting up to sixty pounds, his testimony indicates that he experienced persistent problems with his right shoulder after December of 1990. These problems worsened, and in April of 1993, he also experienced pains in his chest. Consequently, due to fear of a heart attack, he went to the emergency room on April 6, 1993. The emergency room report indicates that he related a three week history of pain in his right arm and shoulder. Tests at the emergency room ruled out a heart attack. The emergency room physician opined that the problems might be musculoskeletal, and he was referred to Dr. Chakales. However, Dr. Ewing ultimately referred the claimant to Dr. Ron Williams, a neurosurgeon, and tests ordered by Dr. Williams showed a ruptured disc at C5-6. Consequently, on May 17, 1993, Dr. Williams performed an anterior cervical fusion at C5-6.
This Commission has a statutory duty to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704 (c)(2) (1987); see, Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704 (c)(4) (1987); Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). 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. Consequently, the claimant must establish a causal relationship between the employment and the disabling condition. 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 the greater weight of the evidence that his cervical problems are causally related to the August 2, 1992, injury. Dr. Ewing's records indicate that he had previously treated the claimant for complaints of right shoulder pain on May 24, 1990, and Dr. Ewing diagnosed bursitis at that time. Despite the testimony of the claimant and his wife regarding the absence of any shoulder or neck complaints prior to December of 1990, Dr. Ewing's records also indicate that the claimant was complaining of cervical pain shortly after the August 2, 1990, accident. Dr. Ewing treated the claimant on August 3 and August 6, and his office notes pertaining to those visits only refer to the problems with the claimant's left elbow. However, Dr. Ewing's August 10 office report indicates that the claimant was complaining of cervical pain with radiation into the right extremity. Likewise, Dr. Ewing's August 15 and August 17 notes indicate that the claimant continued to complain of shoulder and cervical pain with radiation into the right arm, and Dr. Ewing's August 17 note indicates that the claimant was experiencing numbness in the fingers of his right hand. In addition, Dr. Ewing's August 17 notes states that he "was beginning to suspicion cervical disc injury." Again, on August 24, Dr. Ewing's notes indicates that the claimant was complaining of exquisite cervical pain radiating into his right arm, and he diagnosed cervical disc syndrome and bursitis of the right shoulder. In fact, despite the fact that the claimant and his wife both testified that he was only experiencing pain in his left elbow during this time, Dr. Ewing's reports seem to place much greater emphasis on cervical and shoulder complaints.
Nevertheless, on October 17, 1990, Dr. Ewing filed a surgeon's final report and bill, and diagnosis, treatment, and findings he reported refer only to the left elbow. Likewise, he completed a surgeon's report on November 29, 1990, and, again, this report only refers to the left elbow. Neither of these reports refers to the cervical spine, the right shoulder, or the right extremity. Interestingly, in a July 2, 1993, letter to the claimant's attorney, Dr. Ewing opines that the claimant's cervical problems are causally related to the August 2, 1993, accident, and, in doing so, he states that a load of pallets fell on the claimant's neck; however, on the form completed November 29, 1990, Dr. Ewing states that "a pallet fell on his left arm" when asked to "[s]tate in patient's own words where and how accident occurred."
Likewise, Dr. Chakales testified that the claimant gave him a history of a pallet falling on his left elbow when he first examined him in August of 1990. In addition, Dr. Chakales testified that the claimant only complained of elbow pain and that he never mentioned any neck or shoulder pain until April 7, 1993. The claimant concedes that he did not discuss his shoulder pain with Dr. Chakales, and he testified that he did not do so because Dr. Chakales was only treating the elbow and because he thought the shoulder pain was only bursitis which was unrelated to the work-related accident.
Dr. Chakales opined that the cervical condition was not causally related to the employment. In this regard, Dr. Chakales testified that he "never received any history from the patient [he] would record as to neck or radiating type pain," and he testified that he would have asked the claimant about pain in other parts of his body in light of the accident that occurred. In addition, Dr. Chakales testified that an acute ruptured disc seldom occurs from the direct trauma of being struck by an object. Although he testified that ruptured discs can occur as a result of trauma or the degenerative process, he also testified that the type of trauma which would most likely cause a ruptured disc was a hyperflexion injury, with the neck being bent forward in an acute angle. Dr. Chakales also testified that he would expect a herniated nucleus pulposus caused by direct trauma to produce pain within six weeks of the occurrence of the trauma.
In short, while there is no question that an accident did occur on that date, the claimant himself asserts that he did not experience any neck or shoulder pain until December of 1990, and he testified that he did not recall any pallet striking his shoulder or neck. In fact, although he testified that he recalled Dr. Ewing treating the bursitis, the claimant asserts that he did not experience any pain other than elbow pain until December of 1990, and his testimony in this regard is corroborated by the testimony of his wife. In addition, even Dr. Ewing apparently concluded that any shoulder or cervical problems that the claimant was experiencing was not related to the accident, for he makes no mention of that condition in either of the forms he completed for workers' compensation purposes. Likewise, the claimant concedes that he did not feel that these problems were related to the accident, and, since Dr. Chakales was only treating the compensable accident, the claimant did not mention the shoulder pain to Dr. Chakales. Moreover, any problems the claimant experienced prior to early 1993 apparently were relatively insignificant. Prior to that time, the claimant was able to perform the heavy manual duties of his employment and to enjoy activities such as deer hunting without difficulty. The insignificance of any problems he may have experienced before early 1993 is also demonstrated by the fact that he reported only a three week history of shoulder and arm pain to the emergency room personnel on April 6, 1993. Furthermore, even at that time, the claimant did not suspect that the problems were related to the August 2, 1990, accident.
Consequently, we find the evidence establishes that the claimant did not experience any significant shoulder or neck pain until well over two years after the work-related accident, and the evidence establishes that any shoulder or neck pain that the claimant did experience was so similar in nature and degree to problems that existed prior to the injury that neither the claimant nor Dr. Ewing suspected that the problems were related to the work-related accident in any way. The mere possibility that the claimant's employment caused or contributed to his condition is not sufficient to support an award of compensation. Instead, the greater weight of the credible evidence must establish that the employment caused or was a substantial contributory cause of the disabling condition.
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 the greater weight of the evidence that his condition was caused by the August 2, 1992, accident. Therefore, we find that the administrative law judge's decision must be, and hereby is, affirmed. This claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey did not participate.