Opinion
CLAIM NO. E315989
OPINION FILED JUNE 24, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by CONSTANCE CLARK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
An Administrative Law Judge entered an opinion and order in the above-captioned case on June 27, 1995, finding that claimant was entitled to continuing medical treatment from Dr. John Park subsequent to February 20, 1995. Respondent now appeals from that opinion and order, contending that the administrative law judge erred in characterizing claimant's post-injury shoulder dislocations as recurrences of his original injury.
Following our de novo review of the entire record, we specifically find that claimant has demonstrated, by a preponderance of the credible evidence, that his ongoing shoulder problems are recurrences of his original compensable injury of September 23, 1993, and that he is therefore entitled to continuing medical treatment from Dr. Park subsequent to February 20, 1995.
On September 23, 1993, claimant and a co-worker were attempting to install a machine known as an "idler." The machine fell onto claimant's shoulder and dislocated it when the co-worker lost his grip. Claimant testified that the idler was 16 feet long and weighed between 60 and 75 pounds. Claimant sought medical treatment the following day, and Dr. Mark Kendrick diagnosed an anteriorly dislocated left shoulder, which he successfully reduced.
Following this initial consultation, claimant made repeated follow-up visits to Dr. Kendrick from September 28 until November 8, 1993. During this time, claimant reported little improvement in his shoulder, with pain and tenderness persisting. On November 8, Dr. Kendrick prescribed physical therapy, which claimant attended on November 17. However, he was unable to keep subsequent physical therapy appointments due to an emergency trip to California to assist his child, and stated that following his return on December 2, he was not allowed to continue with any physical therapy. Respondents apparently perceived claimant's necessary absence and resulting inability to keep his appointments as sufficient cause for terminating benefits.
Respondents accepted the September 23, 1993 injury as compensable and paid claimant's medical expenses and temporary total disability benefits relating thereto from September 24 until December 2, 1993. For reasons not delineated in the record, claimant did not return to work until approximately February, 1994 (when he went to work for a different employer). Shortly afterward, in either March or April of 1994, claimant's shoulder again dislocated when he attempted to lift a box at work. A third dislocation occurred in either June or July of 1994 when claimant "rolled over" in bed. Finally, a fourth dislocation took place in November, 1994, when claimant attempted to operate a circular saw at a construction site. Claimant testified that he had never had shoulder problems of any kind prior to the initial compensable injury of September 23, 1993.
Following a referral by Dr. Kendrick, claimant consulted with Dr. John Park, an orthopedist, in early October, 1994. There is some question in the record as to whether claimant also saw Dr. Park earlier in 1994, but the consultations in October, 1994 and January, 1995, are clearly documented. Dr. Park opined in an October 11, 1994 letter to Dr. Kendrick that claimant was a candidate for surgical exam and reconstruction, since he would be prone to dislocation unless the movements of his left arm were severely restricted. By January 6, 1995, Dr. Park recognized the presence of an impingement syndrome and possible rotator cuff tear. He also noted that if conservative therapy failed, surgical intervention would be claimant's only option.
Respondent contends on appeal that the administrative law judge mischaracterized claimant's subsequent shoulder dislocations as "recurrences," when in fact they should have been classified as "independent intervening causes." As such, respondent further contends that Ark. Code Ann. § 11-9-102 (5)(F)(iii) (Repl. 1996) bars continued compensation:
Under this 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.
The facts of this case do not support a finding that the episodes involving claimant's shoulder, subsequent to the original compensable injury, are independent intervening causes which disqualify him from receiving additional benefits under the statutory provision set out above. The presence of an independent intervening cause is determined by application of the well established "causal connection" analysis:
In Guidry v. J.R. Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984), we said that the question is whether there is a causal connection between the primary injury and the subsequent disability; and if there is such a connection, there is no independent intervening cause unless the subsequent disability was triggered by activity on the part of the claimant which was unreasonable under the circumstances.
Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993).
It should be noted that while Ark. Code Ann. § 11-9-102 (5)(F)(iii) (Repl. 1996), quoted above, eliminated any requirement of negligence or recklessness on the part of a claimant for a finding of an independent intervening cause, the Arkansas Court of Appeals had previously said as much in Guidry (e.g., that such conduct was not a necessary prerequisite to an independent intervening cause). Thus, the basic "causal connection" inquiry we must conduct was left unaltered by Act 796 of 1993.
A causal connection exists between a compensable injury and a subsequent disability when the latter is the "natural and probable result" of the former. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983) (citing Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W.2d 315 (1960)). If a causal connection does link an initial injury with a subsequent disability, the employer and insurer on the risk at the time of the first injury remain liable. Id.
We accept claimant's testimony as credible, and observe from the record that he never had any shoulder difficulties prior to the original compensable dislocation on September 23, 1993. This injury clearly weakened claimant's shoulder and he thereafter experienced numerous recurrent dislocations. Furthermore, it is clear from Dr. Park's communications with Dr. Kendrick that claimant can anticipate a significant chance of future dislocation. If not for the weakness occasioned by the original injury, claimant would have suffered neither the three subsequent shoulder dislocations nor face the ongoing threat of additional problems.
There can hardly be a better example of a series of "natural and probable consequences" of a compensable injury than the facts in the instant case. Respondent's assertion that these episodes are independent intervening causes lacks not only a factual basis but cannot subsist when examined under the "causal connection" analysis.
CONCLUSION
Based on our de novo review of the entire record, and the reasons discussed hereinabove, we specifically find that claimant's shoulder dislocations subsequent to the original injury are recurrences of that injury and are not independent intervening causes. Accordingly, Ark. Code Ann. § 11-9-102 (5)(F)(iii) does not operate to end claimant's benefits in this case. The Administrative Law Judge's decision should be, and hereby is, affirmed.
Respondents are hereby ordered to pay for continuing medical treatment of claimant's injured left shoulder, and any 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. 1987).
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 (b) (Rep. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant is entitled to additional medical expenses for medical treatment performed on claimant's shoulder by Dr. Park of Fayetteville subsequent to February 20, 1995. In my opinion, the evidence indicates that claimant's current shoulder difficulties are the result of three nonwork-related independent intervening causes and not causally related to his work-related injury. Thus, as stated, I would reverse the decision of the Administrative Law Judge.
Claimant contends that he is entitled to additional benefits causally related to his work-related injury. Respondent controverts any additional medical treatment or benefits.
In my opinion, Ark. Code Ann. § 11-9-102 (5)(F)(iii) bars claimant from any recovery. This codes section provides:
(iii) Under subdivision (5)(F) of this section, 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 the need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of the claimant. (Emphasis added.)
The three shoulder dislocations claimant experienced after his injury constitute independent intervening causes which have caused more disability or at least prolonged disability. Thus, as stated, I would reverse the decision of the Administrative Law Judge.
I find it significant that claimant voluntarily terminated his treatment. Although claimant contends that it is for an emergency trip to California, there is no evidence to support this other than claimant's testimony. After missing his appointments, claimant was released to return to work by Dr. Kendrick. There is no evidence in the record beyond claimant's testimony that he attempted to receive additional medical treatment or resume his physical therapy.
After being released, claimant did not return to work for respondent. Claimant worked at various jobs all involving substantial physical exertion. For example, claimant has worked at construction, plumbing and horse shoeing. Claimant said one of his subsequent shoulder dislocations occurred while lifting boxes weighing from 80 to 90 pounds. In my opinion, common sense says that, if claimant's shoulder had continued to cause him difficulties, he would not be attempting to lift boxes of such magnitude. (The original injury was caused while an idler weighing approximately 60 pounds was thrust upon claimant.) Besides the aforementioned, claimant experienced two other dislocations. In my opinion, these three events constitute independent intervening causes.
Keep in mind, when claimant was released to return to work, there was no indication of the need for surgery. However, after these three dislocations, Dr. Park has determined that surgery may be necessary. Yet, there is no evidence that Dr. Kendrick, claimant's treating physician, or Mark Scarbrough, the physical therapist, even considered claimant to a surgical candidate prior to these three events.
In my opinion, any condition claimant has following November 17, 1993, is not related to the work-related injury. Claimant went over a year without seeking out any medical treatment. In fact, it appears that when claimant did seek medical treatment it was after a third popping out incident and at the direction of his attorney. There is no indication that any of these independent intervening causes were causally related to claimant's work-related injury. There is insufficient medical and lay testimony establishing a causal relationship between claimant's original work-related injury and his present condition. The code is clear, to bar recovery an act does not require claimant act in an unreasonable manner. Even assuming a remote causal relationship, these subsequent incidents (lifting a 90 pound box) is an independent intervening cause which relieves respondent from any liability. Therefore, I respectfully dissent from the majority opinion.
ALICE L. HOLCOMB, Commissioner