Opinion
CLAIM NO. E206699
OPINION FILED JULY 30, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAMES GERARD SCHULZE, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MIKE PICKENS, Attorney at Law, Little Rock, Arkansas.
ORDER
This matter comes on for review by the Full Commission from the remand of the Court of Appeals dated March 6, 1996. As we interpret the Court's decision, the Court found that the claimant proved by a preponderance of the evidence that her temporomandibular joint pain was caused by the cervical injury that she sustained from an automobile accident that arose out of her employment. Therefore, based on our interpretation of the Court's decision, we must find that the claimant proved by a preponderance of the evidence that her temporomandibular joint pain was caused by the cervical injury that she sustained from an automobile accident that arose out of her employment. Accordingly, we find that the administrative law judge's decision must be, and hereby is, affirmed. The respondents are ordered and directed to comply with the order contained in the administrative law judge's decision.
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion. After reviewing the decision of the Court of Appeals, and based upon myde novo review of the record in light of the Court of Appeal's decision, I find that the claimant failed to prove by a preponderance of the evidence that her TMJ pain is causally related to her compensable automobile accident. The Court of Appeals held that our opinion finding the claimant failed to prove a causal condition between her TMJ and compensable injury is not supported by substantial evidence. The Court went on to say that the Commission should have analyzed the evidence to determine whether the respondent produced any evidence to counter the opinion of Dr. Barron and if not, the only evidence is in favor of the claimant.
In our original opinion that has now been reversed, we found that the claimant failed to prove by a preponderance of the evidence that she suffers from temporomandibular joint problems which were causally related to her employment. However, in doing so we found that the weight to be afforded Dr. Woodiel's opinion on the causation issue is minimized by the lack of evidence suggesting that he is qualified, as a dentist or otherwise, to examine and evaluate injuries to the cervical spine and to render opinions based on that evaluation.
I do not read the Court of Appeals decision as a finding that the claimant met her burden of proof. To the contrary, I read the opinion as stating that we must analyze the evidence in light of the Court's ruling. We are not mandated to find the claim compensable, rather, we must set forth sufficient substantial evidence in our opinion explaining our finding and in so doing we cannot discredit Dr. Woodiel because he is a dentist and credit Drs. McFall and Graham because they are dentists, nor can we ignore Dr. Barron's passing reference to the claimant's TMJ.
The Court stated that it was prejudicial error to ignore Dr. Barron's medical record which stated that the claimant's TMJ and loosened gold crown was "possibly secondary to the MVA." Although we must live with the Court's holding, I do not agree with the Court's interpretation of the evidence. Dr. Barron did not treat the claimant for her alleged TMJ syndrome. In the handwritten notes from Dr. Barron's first examination of the claimant, Dr. Barron noted: ". . . Was told by a dentist possible TMJ due to MVA . . ." The typed notes following the first examination indicate that Dr. Barron found TMJ tenderness. These notes further reflect Dr. Barron's assessment of: "TMJ. She does have a gold crown that is loose, possibly secondary to the MVA." Finally, in his final report of August 26, 1992 which summarized his treatment and findings, Dr. Barron noted, "Debbie Hubley is in today after being initially seen on 4-13-92 for an injury that occurred on 4-3-92. She was assessed as having a cervical and lumbar strain, possible HNP with an MRI being done to rule out HNP. Concussive injury, short term memory loss, multiple soft tissue injury and TMJ secondary to a loose gold crown that had occurred secondary to the MVA. . . ." Interestingly, since Dr. Barron actually treated the claimant for her cervical and lumbar pain, his office notes of August 26, 1992, follow up on the diagnosis and treatment of these conditions. It should be noted that although Dr. Barron's original assessment included a possible HNP, the subsequent MRI did not confirm this original assessment, thus he noted as much. Since Dr. Barron did not treat the claimant for the alleged TMJ there was no need for his office notes to follow up on his original assessment of this condition. Moreover, Dr. Barron's "assessment" of the TMJ is nothing more than a reliance upon the history and causal connection as told to Dr. Barron by the claimant. We have previously held that a claimant's own belief as to the causal relationship, no matter how sincere that belief may be, is not sufficient to meet the claimant's burden of proof. Killenburger v. Big D Liquor, Full Commission Opinion, August 29, 1995, No. E408248.
The only connection Dr. Barron makes regarding causation is based upon the claimant's history that she broke a tooth as a result of the accident. Dr. Barron's notes indicate that the claimant's TMJ is secondary to the broken tooth. As explained below, it would be speculation to find that the broken tooth is causally related to the accident. Dr. Barron's "opinion" based upon speculation is insufficient to prove by a preponderance of the evidence a causal connection. 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).
Moreover, Dr. Barron's records are based upon an incorrect history, as the claimant did not break a tooth, rather a crown became loose and the tooth was pulled. Although Dr. Barron noted that the TMJ as "possibly" caused by the broken tooth which was caused by the accident, his opinion is based on the incorrect history of a broken tooth and not a loose crown. Furthermore, as explained below, his notations are merely a recitation of causation as provided to him by the claimant.
Based upon my de novo review of the entire record, I find that the claimant has failed to prove by a preponderance of the credible evidence that her alleged TMJ is causally related to her compensable injury. In so finding, I note that the original emergency room records indicate that a thorough and complete examination was performed, which included an examination of the claimant's mouth and jaw. The note specifically states: "There is a small abrasion on the left cheek with some superficial contusion. No bony deformity is noted. No TMJ discomfort is noted. No chipped or avulsed teeth are appreciated." (emphasis added) Interestingly, there is no mention of a chipped, broken or loosened tooth when the claimant returned to the emergency room two days after the accident seeking treatment for loss of memory and severe headaches. During this second ER visit a complete examination of the claimant's head and neck was performed, including but not limited to a complete head CT scan. One would expect that if the claimant had a broken or loose tooth as a result of the automobile accident it would have been discovered on one of these two examinations or that some form of complaint about a loose or painful tooth would have been made by the claimant. However, it was not until five days after the accident that the claimant first experienced pain in her mouth. The pain was so excruciating that she awoke in the middle of the night and began calling dentists. As explained by Dr. Woodiel a crown can loosen on its own or for any number of reasons. (Dr. Woodiel's depo. p. 41). Dr. Woodiel specifically referred to sticky, chewy food as one cause of loose crowns. Given the claimant's poor dental hygiene habits, it would be pure speculation to conclude that the claimant's loose tooth is a result of the compensable accident. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, supra. In light of the emergency room records, and Dr. Woodiel's explanation regarding the ease with which a crown may loosen, there is simple no credible evidence to link the loose crown to the compensable injury.
Dr. Woodiel, on the other hand, does not base his opinion upon the broken tooth. Instead, Dr. Woodiel's opinion is: "Muscle spasm. I think that's the causative factor, is muscle spasm." However, Dr. Woodiel determined that claimant was predisposed to develop TMJ pain. The claimant has a high vault in her mouth, wear on her teeth, crowding of the lower anterior teeth, flaring of the upper anterior teeth, an inclination on the lower posterior teeth to go in toward the tongue, cervical erosion or notching next to the gum, improperly positioned teeth and a discrepancy in the mid-line of her teeth. (Dr. Woodiel's depo. p. 8-9) Dr. Woodiel is not of the opinion that the accident caused the TMJ pain but the muscle spasms which developed as a result of the accident were a contributing factor. It is well established in Arkansas law that the burden rests upon the claimant in a workers' compensation claim to establish his claim for compensation. Voss v. Ward's Pulpwood Yard, 248 Ark. 465, 425 S.W.2d 629 (1970). A claimant seeking workers' compensation benefits must prove that "the injury or death arose out of and in the course of the employment." Arkansas Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Furthermore, "there is no presumption that an injury arose out and in the course of employment. Id. at 35, 812 S.W.2d at 694. Rather, there must be affirmative proof of distinctive employment risks as the cause of the injury. The connection with the employment cannot be supplied by speculation." Gerber Products v. McDonald's, 15 Ark App. 226, 691 S.W.2d 879 (1995). For the claimant to establish that her TMJ was a compensable injury, she must demonstrate a causal connection between her TMJ and her employment. Auto Salvage Co. v. Rogers, 232 Ark. 1013, 342 S.W.2d 85 (1961).
A review of the evidence indicates that the claimant had several risk factors making her a prime candidate to develop TMJ. As noted, the claimant has a high vault in her mouth, wear on her teeth, crowding of the lower anterior teeth, flaring of the upper anterior teeth, an inclination on the lower posterior teeth to go in toward the tongue, cervical erosion or notching next to the gum, improperly positioned teeth, and a discrepancy in the midline of her teeth. Despite the aforementioned factors, the claimant contends that her TMJ is the direct result of the accident. However, there is insufficient medical evidence from either medical doctors or dentists to support this conclusion. In Dr. Woodiel's own words, "The muscles that would not function normally would be aggravated by any whipping or popping of it. It aggravated that condition. Or you've got a sprained ankle, and you step down on it and turn it again. You've aggravated that. That was the way I was using that, when I say `greatly aggravated'". (Dr. Woodiel's depo. p. 42) Thus, claimant already had the condition, she merely "sprained" it again. According to Dr. Woodiel's explanation, she had it before and she had it after. My review of the medical evidence to include the reports from claimant's dentists, does not persuade me that the claimant has proven by a preponderance of the evidence that her TMJ is compensable,
Accordingly, I do not agree that the Court of Appeals held that the claimant's TMJ pain is compensable nor do I agree that we are mandated by the Court of Appeals to so find. Based upon myde novo review of the entire record and in accordance with the holding of the Court of Appeals, for those reasons set forth above, I find that the claimant failed to prove by a preponderance of the evidence that her TMJ pain is causally related to her compensable injury. Therefore, I respectfully dissent from the majority opinion.
ALICE L. HOLCOMB, Commissioner