Opinion
CLAIM NO. E306319
OPINION FILED AUGUST 18, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CONRAD ODOM, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE WAYNE HARRIS, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on December 28, 1993. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that the lower back difficulties which she experienced in and after May of 1993 were causally related to her compensable injury of October 23, 1992. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.
The claimant began working on the respondent employer's assembly line in May of 1992. Her duties involved the cleaning and assembling of stereo speakers, and this involved stooping, bending, and lifting weights of approximately five pounds with some frequency. In October of 1992, she began to experience low back pain. She was unable to attribute the onset of this pain to any particular incident or activity, although there was an increase in her work activities around that time. She first sought medical treatment at the emergency room of St. Mary's Hospital on October 23, 1992, and she subsequently came under the care of Dr. Tim Yawn and Dr. Gary Moffitt, general practitioners. The physical examinations of Dr. Yawn and Dr. Moffitt revealed only minimal physical findings, and they diagnosed a very mild lumbosacral strain. After a period of physical therapy, Dr. Yawn released the claimant on December 7, 1992. The respondent employer provided light duty work, and the claimant missed only one day of work with the respondent employer as a result of this condition. The claimant was also working part-time for Burger King when these problems developed, and she did not miss any significant time from that job as a result of her low back problems.
The respondent employer laid off the claimant in December of 1992 as part of a general lay off. Soon afterward she began working on the assembly line at Emerson Electric putting together small electric motors. Like her job with the respondent employer, this job also involved bending, stooping, and occasional lifting of 3-5 pounds. However, the claimant and a co-employee who also had worked for the respondent employer and Emerson Electric testified that the job at Emerson Electric required less physical exertion. In this regard, the claimant testified that the Emerson Electric job did not require her to carry as much at one time, and she testified that there was less pushing and bending involved with the Emerson Electric Job.
Nevertheless, in May of 1993, the claimant sought treatment from Dr. John Huskins, a general practitioner, for low back pain, and Dr. Huskins took her off work for a period of time. On June 14, 1993, a MRI was performed which showed mild annular bulging at L5-S1, with a possible minimal disc protrusion and associated minimal encroachment upon the thecal sac. Based on these findings, Dr. Huskins referred the claimant to Dr. Cyril A. Raben, an orthopedic specialist. Dr. Raben's August 3, 1993, note indicates that the claimant had discontinued physical therapy and work hardening and that she was working full time, and his report indicates that her condition had markedly improved. Consequently, he released her from his care.
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 her 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.
When an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury.Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Consequently, when subsequent complications are the natural and probable result of the original injury, the employer remains liable. On the other hand, if the subsequent complications result from a new injury, the employer is relieved of liability for compensation benefits.
The Arkansas Supreme Court discussed this issue as follows in Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W.2d 465 (1976) (quoting 4 Arthur Larson, The Law of Workmen's Compensation § 95.23 (1990)):
If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. . . . This group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.
Likewise, the Arkansas Court of Appeals made the following comments in Halstead Industries v. Jones, 270 Ark. 85, 603 S.W.2d 456 (Ark.App. 1980):
When the symptoms of a back injury persist and culminate in a second disability without the intervention of a new injury the second disability is properly classified as a recurrence of the first injury, and the insurance carrier at the time of the original injury remains liable.
In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that the low back problems she experienced in 1993 were a natural consequence of the October 23, 1992, injury. In this regard, the evidence does not support the claimant's contention that she experienced low back problems continually after the initial onset while she was working for the respondent employer. Dr. Yawn's December 7, 1992, office notes indicate that the claimant advised him that "she has had no problems with any pain in this area." In addition, John C. Slamons, personnel manager for the respondent employer, testified that he talked to the claimant in early December and that she advised him that she was not experiencing any residual problems. Then, on the application for employment with Emerson Electric that she completed on December 29, 1992, the claimant did not mention any back problems in response to a question pertaining to physical limitations. Significantly, although the claimant testified that her condition began to worsen after she left the respondent employer's employment in December of 1992, she was treated for unrelated problems on a number of occasions in March and April of 1993 by Dr. Yawn, but she did not relate any complaints of low back pain to Dr. Yawn despite the fact that he had previously treated her for those complaints. Moreover, Dr. Yawn's April 8, 1993, note states that "[s]he denies any back pain." We also note that the evidence indicates that the physical requirements of the claimant's job at Emerson Electric appear to be very similar to duties she was performing for the respondent employer when she experienced the problems in October of 1993.
In short, we find that the preponderance of the evidence establishes that the claimant sustained a very minor low back strain while she was working for the respondent employer. In fact, the evidence establishes that this injury was so minor that she was able to continue performing light duty work for the respondent employer and perform her regular duties at Burger King after working all day for the respondent employer. The evidence also establishes that this injury had completely resolved by December 7, 1993, and that the claimant did not experience any further back problems until May of 1993. Consequently, we find that the preponderance of the evidence does not establish that the problems the claimant began experiencing in May of 1993 were the natural and probable result of the compensable injury she sustained on October 23, 1993.
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 a preponderance of the evidence that the difficulties she began experiencing in May of 1993 are causally related to the compensable October 23, 1993, injury. Therefore, we find that the administrative law judge's decision must be, and hereby is, affirmed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.