Opinion
CLAIM NO. E912436, E913862 E913863
OPINION FILED MAY 23, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by HONORABLE RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal to the Full Commission an Administrative Law Judge's opinion filed July 19, 2000. The Administrative Law Judge found that claimant is entitled to continuing medical treatment for recurrence of a compensable back injury he suffered while employed by respondent. Upon our de novo review of the record, the Commission affirms the Administrative Law Judge's decision.
I. HISTORY
Claimant, is a 13-year employee of respondent-employer. He worked as a Life Skills Trainer I during the course of his employment and when he sustained an admittedly compensable low back injury on February 4, 1998. Claimant serves mentally challenged patients and is responsible for assisting clients with getting dressed and groomed.
Claimant contends that he exacerbated his back injury of February 4, 1998, on May 9, 1999, and September 1, 1999. He requests temporary total disability benefits from May 9, 1999, through October 26, 1999. Respondents argue that claimant's May 9, 1999, injury was not work related — attributable to an intervening cause — and that claimant's September 1, 1999, injury is simply a continuation of that injury so that neither are compensable.
On February 4, 1998, claimant initially injured his low back when he bent over to tie a patient's shoe, experiencing, "a real sharp pain to my back and some pains to my right leg." (Record, p. 11). Respondent-employer then sent claimant to treatment with Dr. Haygood who placed claimant off work for two weeks before returning him to full duty.
Claimant maintains that he re-injured his low back on May 9, 1999, while lifting a patient out of his bed into a wheelchair and felt, "very sharp pains to my back and going down my leg, but further down my leg." (Record, p. 12). Claimant testified that he informed Michael Nelson, Life Skills Trainer I (weekend supervisor), that his back was hurting but did not fill out an Incident Report at that time because he felt that he would be alright. He finished his shift and went home, but saw Dr. Dorman, his family physician, on May 11, 1999, for his pain and informed him that he had been injured on the job.
Claimant further testified that on May 11, 1999, after seeing Dr. Dorman, he attempted to complete an Incident Report. He stated that he asked Lou Simpson, respondent-employer's workers' compensation clerk, about completing the necessary paperwork and was told he would not receive any benefits. Ms. Marlys Bost, PECD claim manager, informed claimant that workers' compensation would not accept his claim because he did not suffer an on-the-job injury. In proffered testimony, respondents also state that Ms. Bost refused to pre-authorize claimant's medical treatment by Dr. Dorman because: (1) he was not an authorized treating physician, and (2) apparently, more than one year had passed since claimant last received medical benefits. Such testimony also inferred that claimant failed to allege that he suffered a work-related injury.
Mr. Furlow testified that on May 11, 1999, claimant brought him a doctor's notice and informed him that he would be off work and specifically stated that he had not suffered a work-related injury. Mr. Furlow stated that he was not on duty at the time of claimant's injury. Mr. Furlow further testified as to the procedure whereby an employee would file a workers' compensation claim. He stated that an employee would first tell a supervisor who would then inform Ms. Simpson. He specifically stated that Ms. Simpson would only call Ms. Bost if there was an allegation of an on-the-job injury.
Also during this time frame, claimant was diagnosed with a kidney stone and notes that the pain he experienced from that condition was to his side, back and stomach. Noting claimant's overall condition, Dr. Dorman diagnosed claimant with lumbar strain and stated that the pain, "radiates down right leg, can't bend or lift." (Claimant's Ex. 2, p. 5). Dr. Dorman ordered an MRI which showed a moderate-sized ruptured disc at L5-S1 and a bulging disc at L4-L5. (Claimant's Ex. 2, p. 9). Dr. Dorman released claimant to full duty on June 2, 1999, but claimant stated that he continued to experience some pain. (Claimant's Ex. 2, p. 13).
On September 1, 1999, claimant again injured his low back when a patient pushed him over a bed and claimant fell to the floor. Claimant described this injury as different from the one he previously suffered because of the location of his pain and the additional problems he was experiencing,
The pain to my back was severe, but not like to my leg and around my ankle. And I also was having problems with erections. I had no feeling from the knee down whatsoever, none. I had always hurt, my leg always hurt, and it would be off and on. But at this particular time it was just a constant pain, especially in the buttocks and around my ankle.
Claimant stated that he did complete an Incident Report and informed Jerry Furlow, DDS team leader, of the injury. Respondent-employer sent claimant to Dr. Michael Ford, a general practitioner. Dr. Ford then referred claimant to Dr. Robert Dickens, a neurosurgeon, who performed a CT scan, revealing a large ruptured disc at L5-S1 with fragmentation on which Dr. Dickens later performed surgery. Claimant testified that prior to his September injury, he had never experienced erectile dysfunction, loss of reflex in his right leg or numbness below his knee into his foot. He describes all of these symptoms as developing after the September injury.
In a September 9, 1999, office note, Dr. Dickens reported:
Two weeks ago [claimant] was at work and was pushed down by a client injuring his back. He then started developing hip and leg pain which has become increasingly severe. His pain radiates from his hip down the lateral leg into the lateral calf and into his foot. He has numbness associated with the pain in that distribution.
(Claimant's Ex. 2, p. 17). Dr. Dickens performed surgery on claimant's back on September 29, 1999. Finally, Dr. Dorman noted on November 30, 1999, that:
[Claimant] was injured at work on Sunday, May 9, 1999, while lifting a patient. He was seen in the clinic the following Tuesday, May 11, 1999, and was diagnosed with an acute lumbar sprain as a result of this injury. (emphasis added).
(Claimant's Ex. 2, p. 25).
II. ADJUDICATION
Although respondents' first argument for reversal is that the Administrative Law Judge erred when he refused to allow rebuttal testimony to refute surprise testimony, this Commission will address that issue last since the issue of whether claimant sustained a compensable injury will determine whether that question need be addressed.
For the claimant to establish a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the following requirements of Ark. Code Ann. § 11-9-102 (5)(A)(i) (Supp. 1999), must be established: (1) proof by a preponderance of the evidence of an injury arising out of an in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of a claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). The determination of whether there is a causal connection between the injury and the disability is a question of fact for the Commission to determine. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).
The court determined that Act 796 of 1993 did not nullify existing law regarding independent intervening cause. Under the Guidry test, if there is a causal connection between the primary injury and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), citing Guidry v. J R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).
In Randy Davis v. Old Dominion Freight Line, Inc., the claimant suffered a compensable injury to his right ankle that was surgically repaired, 341 Ark. 751 20 S.W.3d 326 (2000). However, prior to stabilization, the claimant re-injured his ankle when he stepped on it awkwardly while trying to avoid stepping on his niece. Davis' physician stated that the subsequent incident disrupted the prior surgical repair and increased symptoms of Davis' condition. A denial of workers' compensation benefits was subsequently the legal standard applied in these cases is set forth in Ark. Code Ann. § 11-9-102 (5)(F)(iii) (Repl. 1996), now codified as § 11-9-102 (4)(F)(iii) (Supp. 1999).
Under this subdivision (5)(F), benefits shall not be payable for a condition which results from nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment.
The court accepted Davis' argument that respondents' interpretation that Act 796 of 1993 nullified previous precedent would mean that all nonwork-related incidents that prolong disability or need for treatment would automatically be deemed independent intervening cause as a matter of law. The court also accepted Davis' argument that, on the contrary, § 11-9-102 codified preexisting case law and, specifically, the Guidry test. It noted that in Guidry the appellate court also outlined conduct that would subject claimants to liability for their injury:
— not only can there be an independent intervening cause without negligence or recklessness on the claimant's part, but unreasonable conduct on a claimant's part may create an independent intervening cause which would otherwise not exist.
Guidry, 11 Ark.App. at 224, 669 S.W.2d at 486.
Here, claimant has shown by a preponderance of the credible evidence that he suffered from a specific injury identifiable by time and place of occurrence. The Commission finds that claimant's May 9, 1999, and September 1, 1999, injuries do arise from his employment because they occurred as a direct result of his contact with patients as part of his employment services. There also is objective medical evidence establishing these injuries via an MRI (for the May 9, 1999, injury) and a CT scan (for the September 1, 1999, injury).
While respondents argue that claimant failed to establish a causal connection between his injuries and his employment services, the evidence does not support that position. Claimant testified that he informed respondent-employer that he was injured while at work and the preponderance of the evidence substantiates his testimony. Claimant also testified that he informed his medical doctors of this fact and this is corroborated by their medical notes. Although Mr. Furlow testified for the respondents that claimant specifically told him that he had not suffered a work-related injury, this testimony is contrary to the facts. Claimant testified that after the May 9, 1999, injury, he asked for workers' compensation forms and Ms. Bost of PECD told him that his claim would not be paid. Mr. Furlow corroborated this statement by testifying that PECD would have only been called if the injury was allegedly work related. Based on a preponderance of the credible evidence, we find that claimant did establish that he suffered a compensable injury.
Respondents further argue that claimant's May 9, 1999, injury was not work-related — rather it was caused by an intervening act. However, the only intervening act that is mentioned is the fact that claimant suffered from kidney stones. The fact that claimant suffered from a kidney stone does not negate the compensability of his low back injury. Claimant testified that the pain he experienced from his kidney stone was different from that related to his low back injury. He described his kidney stone pain as being concentrated mainly in his back and stomach, whereas his low back pain radiated down his leg and into his foot. He also experienced problems with having erections because of his low back injury. With full knowledge of his previous diagnosis of having a kidney stone, Dr. Dorman nevertheless, diagnosed the claimant with lumbar strain related to his on-the-job injury of May 9, 1999. Claimant also contends that he re-injured his low back on September 1, 1999, and we find his testimony to be credible and the medical evidence supportive of this position. Accordingly, the Commission finds that there is no intervening independent cause creating the claimant's disability. We further find that the injury claimant suffered on September 1, 1999, was an exacerbation of his May 9, 1999, injury.
Since we do find that claimant sustained a compensable low back injury, the next issue on appeal to be addressed is whether the Administrative Law Judge erred by excluding the testimony of Marlys Bost, PECD claims manager, who was present on the day of the hearing.
Respondents argue that this ruling was unreasonable and contrary to the letter and spirit of Ark. Code Ann. § 11-9-705(a)(1), which provides in pertinent part:
(a)(1) In making an investigation or inquiry or conducting a hearing, the Workers' Compensation Commission shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter, but may make such investigation or inquiry, or conduct the hearing, in a manner that will best ascertain the rights of the parties.
Respondents object to the Administrative Law Judge's decision to disallow Ms. Bost's testimony where: (1) the Rule was invoked, she had not been sworn in and had remained in the courtroom, and respondents specifically indicated that she would not be called as a witness, and (2) she had not been named on the witness list. (Record, p. 42). Respondents argue that Ms. Bost should have been allowed to testify because claimant presented surprise testimony that needed to be rebutted.
The admissibility of rebuttal evidence lies within the discretion of the Administrative Law Judge. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). The exclusion of testimony offered on rebuttal is also within the discretion of the Administrative Law Judge. Wilkins v. El Dorado Wesson R.R., 282 Ark. 236, 668 S.W.2d 6 (1984); Dinger v. Keith Watercare, Inc., Full Commission Opinion, Filed May 11, 2000 ( E713795). Generally, one who offers evidence has the burden of proving its admissibility. Benson v. Shuler Drilling Co., 316 Ark. 101, 875 S.W.2d 552 (1994). The Workers' Compensation Commission has broad discretion with reference to admission of evidence and its decision will not be reversed absent a showing of abuse of that discretion. Southwest Pipe Supply v. Hoover, 13 Ark.App. 144, 680 S.W.2d 723 (1984); Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992) ; Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993).
Jerry Furlow is the only witness respondents list on their Pre-hearing Information Filing. While respondents correctly state that the Commission is not bound by technical rules of civil procedure, it is bound to conduct itself in a manner conducive to fairness. See Twyla D. Bryant v. Staffmark, Inc., Full Commission Opinion, Filed March 23, 2001 ( F006077). Respondents attempted to introduce evidence on the date of hearing, without prior notice to the claimant. The Administrative Law Judge sustained the claimant's objection to said testimony. The introduction of evidence is a matter within the sound discretion of the Administrative Law Judge. Benson, 316 Ark. at 107. In light of all the evidence presented, we find that the Administrative Law Judge did not err in refusing to allow Ms. Bosts' testimony.
Accordingly, we would affirm the decision of the Administrative Law Judge and award claimant temporary total disability benefits from May 9, 1999, through October 26, 1999.
Based on our de novo review of the record, and for the reasons stated herein, the Full Commission affirms the Administrative Law Judge's decision and find that claimant is entitled to temporary total disability benefits from May 9, 1999, through October 26, 1999.
All 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. 1996). 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 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.