Opinion
CLAIM NO. F504518
OPINION FILED JUNE 27, 2007
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE EVELYN BROOKS, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by HONORABLE EMILY NEAL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he was entitled to additional medical treatment and additional temporary total disability benefits. Based upon our de novo review of the record, we find that the claimant has failed to meet his burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent employer as a hardware sales associate. The claimant was 24 years old with a high school education. He had also completed several years of college. On September 27, 2003, the claimant was installing display racking with another employee when he suffered a low back injury. The claimant did not report the incident but ended up coming to work the next day and reporting the injury to his supervisor. The claimant sought medical treatment the next day at the emergency room at Washington Regional Medical Center where he was diagnosed with a muscle sprain/strain and was given medication for pain, muscle spasms and inflamation. The claimant was released to return to work with lifting restrictions until October 5, 2003, when he was released to full duty.
The claimant sought medical treatment from Dr. Kirk Johnson, a chiropractor, on October 7, 2003. Dr. Johnson diagnosed the claimant with a back sprain and took x-rays which revealed spondylolisthesis. The claimant underwent an MRI on October 29, 2003, which revealed spondylolisthesis of L5 on S1, degenerative disc disease at L5-S1 desiccation, mild loss of height and annular bulge and no evidence of bony trabecular injury or bone bruise. Dr. Johnson removed the claimant from work for one week on October 31, 2003. On November 6, 2003, Dr. Johnson noticed that the claimant aggravated his lower back pain while he was taking trash out of his home. Dr. Johnson released the claimant to return to full duty again on November 14, 2003, but then placed lifting restrictions of 25 pounds on November 17, 2003. On November 24, 2003, Dr. Johnson placed the claimant on light duty status due to back spasms. He ultimately returned the claimant to full duty as of December 1, 2003.
In a January 7, 2004, correspondence, Dr. Johnson reported that the claimant had not returned for any further treatment since December 3, 2003. On February 27, 2004, the claimant returned to Dr. Johnson apparently suffering a recurrence of low back pain. Dr. Johnson removed the claimant from work and began treating the claimant through May 14, 2004. On May 19, 2004, an independent peer review recommended no further chiropractic treatment therefore the claimant was referred to Dr. Carl Kendrick.
The claimant presented to Dr. Kendrick on June 3, 2004, who stated that the claimant had spondylolisthesis at L5-S1 and had a strain superimposed upon the spondylolisthesis. He prescribed the claimant an exercise regime. Ultimately, Dr. Kendrick returned the claimant to full duty work effective July 15, 2004, with no restrictions.
On July 31, 2004, the claimant returned to the emergency room at Washington Regional with complaints of lower back pain. He saw Dr. Kendrick on August 2, 2004, seeking narcotics. The claimant returned to work but did not return to Dr. Kendrick. On August 27, 2004, he presented to Dr. Kelly Danks who assessed the claimant with spondylosis and spondylolisthesis at L5-S1. At some point, the claimant quit showing up for work and did not seek any further medical treatment until he sought treatment from Dr. Cyril Raben on March 28, 2006. During the interim time period the claimant pursued a social security disability claim which was denied. He appealed and it was denied again. Dr. Raben recommended another MRI of the claimant's lower lumbar spine which was performed on June 5, 2006. That MRI revealed spondylolisthesis with anterior slippage of L5 on S1 by approximately 1 cm.
A compensable injury must be established by medical evidence supported by objective findings, and medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. See, Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Speculation and conjecture cannot substitute for credible evidence. Id. Therefore, in order to prove a compensable injury, a claimant must prove, among other things, a causal relationship between his employment and the injury. McMillan v. U.S. Motors 59 Ark. App. 85, 953 S.W.2d 907 (1997). Objective medical evidence is necessary to establish the existence and extent of an injury, but not essential to establish the causal relationship between the injury and a work-related accident. Horticare Landscape Mgt. V. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002); Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Wal-Mart Stores v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001). Moreover, objective medical evidence is not essential to establish the causal relationship between the injury where objective medical evidence established the injury's existence, and a preponderance of other non-medical evidence establishes a causal relation to a work-related incident. See, Wal-Mart Stores, Inc. v. VanWagner,supra; Wal-Mart v. Leach, supra. In Liaromatis v. Baxter Co. Regional Hosp., ___ Ark. App. ___, ___ S.W.3d ___ (CA 05-1096, May 24, 2006), the Court disagreed with the claimant's argument that the medical evidence must merely establish the existence of the injury. The question, stated the Court, is not whether there are new objective findings, but whether there is a new compensable injury. Id. It is the injury for which appellant seeks benefits that must be proved with objective medical findings. Id.
Objective findings are defined at Ark. Code Ann. § 11-9-102(16)(A)(i) as those findings which cannot come under the voluntary control of the patient. When the Commission determines physical or anatomical impairment, complaints of pain, straight-leg raising tests, or active range of motion tests shall not be considered objective findings. Ark. Code Ann. § 11-9-102(16)(A)(ii)(a) (b). The onset of pain does not satisfy our statutory criteria for benefits. Test results that are based upon the patient's description of the sensations produced by various stimuli are clearly under the voluntary control of the patient and therefore, by statutory definition, do not constitute objective findings. Duke v. Regis Hair Stylists, 55 Ark. 327, 935 S.W.2d 600 (1996). Further, medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. Objective medical evidence is not essential to establish the causal relationship between the injury and a work-related accident where objective medical evidence establishes the extent and existence of the injury, and a preponderance of other non-medical evidence establishes a causal relation to a work-related incident. McDonald, supra.
In our opinion, a review of the evidence demonstrates that the claimant failed to prove by a preponderance of the evidence a causal connection between the claimant's compensable injury and Dr. Raben's recommendation for surgical intervention. The claimant has a congenital defect of spondylolisthesis. At most, the claimant's compensable strain was a temporary aggravation of a pre-existing condition. Accordingly, we reverse the decision of the Administrative Law Judge awarding additional medical treatment.
The claimant is also requesting temporary total disability benefits through a date yet to be determined. We find that the claimant has failed to meet his burden of proof. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002); Ark. State Highway Trans Dept v. Breashers, 272 Ark. 244, 613 S.W.2d 392 (1981). When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary total disability. Id. The healing period is statutorily defined as that period for healing of an injury resulting from an accident. Dallas County Hosp. V. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001). The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Crabtree, supra. The question of when the healing period has ended is a factual determination for the Commission. Ark. Highway Trans. Dept. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).
The persistence of pain may not in and of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id.; Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. McWilliams, supra; J.A. Riggs Tractor v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). In Pallazollo v. Nelms Chevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994), the Court of Appeals stated that in order to be entitled to temporary total disability compensation for an unscheduled injury, a claimant must prove that he remained within his healing period and that he suffered a total incapacity to earn wages (citing Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981)).
The evidence demonstrates that the claimant sustained a temporary aggravation of his underlying condition and was released to return to full duty effective July 15, 2004, with no restrictions. The claimant returned to work for a few weeks and the respondent employer "worked with him" in that he was allowed to sit and answer phones or get up and walk around depending on his needs. Despite being released with no restrictions, the claimant, at the hearing, added another self-limiting requirement of needing to recline at will. He stated that he was not able to find any other employment because he had to be able to sit, stand, and recline at will. The claimant testified that since he decided to stop showing up for work he had not sought any other employment other than a security guard position. He stated that he looked in the paper and in the telephone books and he called around and asked some questions.
The claimant testified that on an average day he sits and watches television and reads. He is able to drive his truck, operate his boat, and enjoys fishing once or twice a month with his friends. The claimant is also admittedly able to hunt and care for and use his gun collection. He is also able to go camping. In short, after consideration of all the evidence of record, we cannot find that the claimant has proven by a preponderance of the evidence that he is entitled to additional temporary total disability benefits. The only possible basis for awarding the claimant temporary total disability benefits is his alleged pain. Pain, in and of itself is not enough to extend the claimant's healing period. Mad Butcher, Inc. v. Parker, Supra. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability benefits.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
DISSENTING OPINION
The Majority is reversing an Administrative Law Judge's decision, and finding that the claimant's requested medical treatment was not causally related to his admittedly compensable injury, and that the claimant was not entitled to additional temporary total disability benefits. For the reasons set out below, I must respectfully dissent from the Majority's decision.
The claimant sustained an admittedly compensable injury to his lower back in September 2003. The injury occurred when the claimant and a co-employee were erecting additional shelves in the respondent's store. The claimant was on top of the ladder and was pushing upward, stretching up over the ladder when he felt a "pop" in his back and experienced a sudden onset of severe pain.
As outlined in the Majority's Opinion, the claimant was furnished medical treatment by the respondent, including extensive chiropractic treatment from Dr. Curt Johnson, an evaluation by Dr. Kelly Danks, a Fayetteville neurosurgeon, and treatment from Dr. Carl Kendrick, a Fayetteville orthopedist. Eventually, as the result of a Change of Physician Order by this Commission, the claimant came under the treatment of Dr. Cyril Rabin, a Fayetteville orthopedist and spinal injury specialist. After being seen by Dr. Rabin, the claimant, after a request by the respondent, was directed to Dr. Michael Calhoun, a Little Rock neurosurgeon, for another evaluation.
The issue presented for our determination is whether the claimant is entitled to additional medical treatment from Dr. Rabin, in the form of spinal surgery and additional temporary total disability benefits to a date yet to be determined. After discussing the claimant's medical history, the Majority states their conclusion as follows:
. . A review of the evidence demonstrates that the claimant failed to prove by a preponderance of the evidence a causal connection between the claimant's compensable injury and Dr. Rabin's recommendation for surgical intervention.
The Majority does not cite any particular evidence for that conclusion but merely makes the cursory statement that, ". . . The claimant's compensable strain was a temporary aggravation of a preexisting condition."
The Majority does not cite any evidence to support their conclusion because there is none. All of the physicians who considered the causal connection between the claimant's continuing back symptoms and his need for medical treatment were of the opinion that it was the result of his admittedly compensable injury. The medical opinions were also uniform in their belief that the surgery recommended by Dr. Rabin was reasonably necessary and was necessitated by the aggravation sustained in the claimant's job-related accident in September 2003.
The first physician to directly address this question was Dr. Danks, who set out his findings in his clinic report of August 27, 2004. In that report, Dr. Danks notes that the claimant had an onset of severe pain following his injury at work and that his extensive chiropractic manipulations had not helped him. The doctor's diagnosis and assessment is set out as follows:
Spondylosis and spondylolisthesis at L5-S1. It is true that this was very probably present prior to his injury; however, it is not unusual for these to become symptomatic after an injury. I gave him some Celebrex to try for his discomfort and we discussed his options. My experience with these is that they do not tend to get better with time and at some time in the future surgical treatment will need to be considered. I have discussed with him that if the pain becomes too disabling we could proceed with surgery. We went over the surgical procedure and went over the anatomical model with him. He will return to see me.
Unfortunately, the claimant did not follow up with his treatment with Dr. Danks as directed, since the respondent refused to allow the claimant to continue seeing him. Instead, the respondent advised the claimant to return to Dr. Carl Kendrick, a Fayetteville orthopedist, who had been seeing the claimant previously. The claimant did not continue seeing Dr. Kendrick because Dr. Kendrick had made it clear that he was not a spinal surgeon and was only wanting the claimant to follow through with back exercises. Since this treatment had not been successful, the claimant, quite correctly, saw no point in returning to Dr. Kendrick. However, I note that even Dr. Kendrick in his report of June 3, 2004, stated that the claimant has "spondylolisthesis at L5-S1, which is congenital. He has strain superimposed upon the disc and that ischronic in nature." (Emphasis added).
Even Dr. Kendrick was of the opinion that the claimant's preexisting spondylolisthesis had been aggravated by his strain and that this aggravation was continuing to cause him problems in the summer of 2004, approximately one year following his injury. Further, Dr. Kendrick's opinion that the condition was chronic would indicate that it was not likely to resolve on its own.
After the respondent's refusal to provide the claimant any meaningful treatment options, the claimant did not receive any medical treatment from August 2004 until he was seen by Dr. Cyril Rabin in March 2006. In Dr. Rabin's report of March 28, 2006, Dr. Rabin diagnoses the claimant as having Grade 1-2 spondylolisthesis with right-sided S1 radiculopathy. Dr. Rabin went on to state that the claimant would most likely require surgical intervention and directed that he undergo some additional testing prior to making a recommendation. In another report, dated May 1, 2006, Dr. Rabin opined that the claimant would be unable to work until further notice. In his report of June 8, 2006, Dr. Rabin reviewed the results of a recent MRI scan and concluded that the claimant would need fusion surgery to correct his problem. In a letter to claimant's counsel, dated July 17, 2006, Dr. Rabin states, "the acute proximate cause of his need for medical attention would be greater than 51% as a result of his on-the-job injury, they did hire him with this condition and the on-the-job injury will now require surgical intervention."
Just prior to the hearing in this matter, Dr. Rabin's deposition was taken. During that deposition, Dr. Rabin reiterated his belief that the claimant needed surgery to correct his condition and that the condition was the result of his job-related injury. In explaining his position, Dr. Rabin noted that spondylolisthesis was generally a congenital condition relating to an inherent weakness in the vertebral connection between L5 and S1 (this problem is sometimes referred to as pars defect). When asked to explain how that type of abnormality could be both congenital and the result of an acute injury, Dr. Rabin explains as follows:
A. Right. He had this condition, and basically what this condition is, is a crack that usually fills in with some type of cartilaginous or fibrous material in the posterior elements, and that crack can remain non-symptomatic for years — forever, okay, but if he is forced through or forces himself through a series of hyperextension load-bearing strains, then those cracks that are filled in with the fibrous or cartilaginous material can break. It can break through that soft tissue or through the bone marrow and at that point it can become symptomatic, and also at that point it can have a progressive slip forward of one vertebral body on the one below it.
Later, in the deposition, Dr. Rabin further elaborates on the nature of the claimant's condition and how it was related to his compensable injury:
A. No. The interesting thing is that it appears that the spondylolisthesis is increasing. In the previous reports everybody mentioned it as a Grade I or a Grade II, so it looks like it's a progressive condition.
Q. Does progressive mean degenerative?
A. It's slipping. Slipping. Well, degenerative probably secondary to the congenital weakness and a traumatic event.
Q. A traumatic event such as the lifting incident that Mr. Jordan described?
A. Some type of hyperextension injury, and the only one that I have on my history that he complained about was the workmen's comp injury that is listed.
Q. If the evidence in this case revealed that Mr. Jordan was complaining of back pain in the days prior to his Home Depot alleged injury, would that tend to change your opinion?
A. As far as causation?
Q. Yes.
A. If he could come up with another sentinel event, if you could come up with another sentinel event, yes, it would change my opinion.
Q. Would you consider and if the evidence in this case ultimately reveals, say, a paint-ball injury, would you consider that to be a possible sentinel event?
A. I'd have to hear the details of the injury.
Q. Okay.
A. Again, as mentioned, the usual and customary way these things are injured and increase in injury is with the load-bearing and hyperextension state, which would be compatible with lifting something up on a ladder over your head (raising both arms over head), arching your back backwards (arching back) and trying to put it up on a shelf. That would be a hyperextension event.
During the hearing, the respondent requested that the claimant be directed to undergo an independent medical exam on the issue as to whether the surgery was appropriate and related to the claimant's injury. The Judge directed that the claimant undergo such an exam at the respondent's expense. Eventually, the claimant was seen by Dr. Michael Calhoun, a Little Rock neurosurgeon, who outlined his findings in a report dated September 21, 2006. Dr. Calhoun reviewed the claimant's medical records and Dr. Rabin's deposition and stated:
I have reviewed the deposition of Dr. Rabin. In essence, he states what I have found to be true as well. Even though the spondylolisthesis was preexisting, Mr. Jordan had no problems prior to the axial loading incident in 2003. Thus, even though this did not cause the spondylolisthesis, it appears to have caused it to become symptomatic. It does appear that Mr. Jordan has undergone rather exhaustive conservative measures. The only possibility would be epidural steroid injections; however, with the length of time since the injury, it is doubtful that they would be of benefit. I agree with Dr. Rabin that the only option is surgical intervention in the form of an L5-S1 decompression and fusion. Whether this be an anterior or posterior or all done posteriorly in the surgeons choice.
My disagreement with the Majority is that there is simply no medical evidence to support the conclusion that they are reaching. All of the doctors who have seen the claimant are of the opinion that his ongoing condition of back pain, limited motion, and related symptoms are the results of his compensable injury. Even Dr. Kendrick, the physician preferred by the respondent, reflected that opinion when he referred to the claimant's condition as an "aggravation" and said it was "chronic."
It is the duty of this Commission to weigh evidence and determine the credibility and weight to be given to testimony and evidence presented before it. However, we are not insulated from review by the Court of Appeals and it has been repeatedly held that we cannot simply disregard testimony and relevant evidence. See Freeman v. ConAgra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). In my opinion, the Majority is simply ignoring all of the medical evidence. The Majority's conclusion that the claimant merely suffered a "temporary aggravation" in the form of a muscle strain was contrary to the findings of every physician who has seen the claimant. It is true that the claimant had a preexisting spinal weakness in the form of a pars defect which made him susceptible to developing spondylolisthesis (a slippage of the L5 vertebrae over S1). But prior to his injury, the claimant led an active life, participating in ROTC, hunting and camping, and engaging in strenuous physical employment in the construction industry, and while employed by this respondent. Significantly, on previous occasions, while working for this respondent, the claimant had been required to lift heavy weights including erecting racks similar to what he was doing at the time of his injury. Further, his employment evaluations indicate that he was doing an exemplary job and his employer was very satisfied with him. As opined by Dr. Rabin, and concurred with by Drs. Kendrick, Danks, and Calhoun, the hyperextensive lifting incident in which the claimant was on a ladder lifting upward caused his asymptomatic spinal defect to develop into spondylolisthesis. When the slippage of the vertebrae occurred, the claimant experienced immediate and severe pain. The claimant's complaints of this pain have been remarkably consistent since the date of his injury. Further, Dr. Rabin indicated that the MRI performed on the claimant in June 2006, when compared to an earlier MRI in 2003, reflects that the condition had gotten worse.
This Commission has considered similar circumstances in the past. At one time, the Majority of this Commission authored a number of opinions asserting that prior degenerative disc disease and other previous spinal problems were a bar to additional medical treatment or additional disability benefits because a claimant could not establish a casual connection between an ongoing need for treatment or benefits and the original injury. However, the Court of Appeals consistently reversed those decisions. One of those reversals was Parker v. Atlantic Research Corporation, 87 Ark. App. 145, 189 S.W.3d 449 (2004). The claimant in that case suffered from cervical spondylosis, a condition similar to that suffered by the claimant in the case at bar. In reviewing the Commission's decision, the Court noted that the Commission had held that a compensable injury superimposed on a preexisting, asymptomatic spinal condition was not sufficient to create a causal connection between the claimant's ongoing treatment for medical treatment and disability benefits. The Court stated their disagreement with that conclusion noting that, "but for the work related injury in this case, there would have been no disability or need for treatment." In support of their reversal of the Commission's decision, the Court quoted from the claimant's treating physician who stated, "the only way her employment could have hurt her from that is if her neck was used in such form on a repeated basis that she made the degenerative disk inflammatory. Then it would have become inflammatory as a result of what she was doing, although it preexisted her employment." The language cited by the Court of Appeals in Parker was remarkably similar to Dr. Rabin's explanation in the present case. That is, the claimant's preexisting condition was not causing any problems until a job-related accident caused it to become symptomatic. But for the job-related accident, the claimant inParker and in the present case, would not have needed the requested medical and disability benefits.
It appears to me that the Majority is attempting to follow earlier decisions which held that a preexisting but asymptomatic condition, made symptomatic by a compensable injury, would only be temporary in nature and could not be the basis for awarding medical or disability benefits. However, that holding was explicitly rejected by the Court of Appeals inParker and a number of other decisions. As concluded by all of the claimant's treating physicians, and explained by Dr. Rabin, the claimant's preexisting but asymptomatic spinal defect might not have caused him any problems for many years, if ever, but for his compensable injury. In finding otherwise, the Majority is substituting its own opinion for that of four trained, medical professionals. In my opinion, that is clear error. While this Commission has the duty to evaluate medical evidence, we cannot simply disregard it and use our own evaluation. As of this writing, the claimant has been dealing with this problem for almost four years. It has been almost three years since Dr. Danks said that surgical treatment was in the claimant's future. I am disturbed that this individual must wait an additional one to two years for the Court of Appeals to rectify our obvious error.
I, likewise, disagree with the Majority's denial of the claimant's request for additional temporary total disability benefits. The Majority is basing this decision on a statement by Dr. Kendrick in his report of July 6, 2004, in which Dr. Kendrick stated that the claimant was being given a "note today to go to work." However, when the claimant attempted to return to work, his employer did not have him return to full duty. According to the claimant's testimony, which was not disputed by either of his two supervisors who also testified at the hearing, after his return to work, he did no more than answer telephones and occasionally assist customers. The claimant testified that he attempted to continue performing these activities but his pain was simply too intense. As noted by the Administrative Law Judge, a claimant is entitled to seek temporary disability benefits while he is within his healing period and unable to perform meaningful employment. In this case, Dr. Rabin's evaluation of the claimant, and the MRI scan performed at his direction, clearly establishes that the claimant's condition had continued to deteriorate through the summer of 2006. Obviously, the claimant was still within his healing period and, despite Dr. Kendrick's direction that he return to work and his attempt to return to work, he still simply was not able to perform any meaningful employment. I would therefore award the claimant temporary total disability benefits from July 6, 2004 to a date yet to be determined.
In summary, it is my opinion that the Majority has erred in reversing the Administrative Law Judge. I do not believe that this Commission can make a factual determination which is totally contrary to all relevant medical evidence. I find this to be particularly disturbing since every physician, including those chosen by the respondents have related the claimant's condition to his admittedly compensable back injury. In addition, I believe the claimant has established his entitlement to additional temporary total disability benefits as he has requested.
For the reasons set out above, I respectfully dissent from the Majority's decision.
__________________________ PHILLIP HOOD, Commissioner