Opinion
CLAIM NO. E309038
OPINION FILED APRIL 2, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondents No. 1 represented by the HONORABLE DAVID LANDIS and MARK A. MAYFIELD, Attorneys at Law, Jonesboro, Arkansas.
Respondent No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on April 26, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury on May 19, 1993. In addition, the administrative law judge found that the claimant's request for benefits is barred by the Shippers defense.
After conducting a de novo review of the entire record, we find that the respondents failed to prove by a preponderance of the evidence that the claimant's claim is barred by the doctrine established in Shipper's Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). Therefore, we find that the administrative law judge's decision in this regard must be reversed. However, we find that the greater weight of the evidence established that the claimant sustained a temporary aggravation of a preexisting condition and did not sustain any permanent disability resulting from his compensable injury. Therefore, we find that the administrative law judge's denial of compensation for a permanent disability must be affirmed.
In Shippers Transportation of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), the Arkansas Supreme Court held that an employee is required to give truthful answers to a prospective employer's questions about his or her pre-employment health condition, and that a false representation on an employment application will bar recovery under the Arkansas Workers' Compensation Act if the following test is met by the employer:
(1) The employee must have knowingly and willfully made a false representation as to her physical condition;
(2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and
(3) There must have been a causal connection between the false representation and the injury.
The employer has the burden of proof where the Shippers defense is an issue. Tahutini v. Tastybird Foods, 18 Ark. App. 82 711 S.W.2d 173 (1986).
In the present claim, we find that the respondents failed to prove the first element of the Shipper's defense. In this regard, the claimant's employment application filed in the record does not contain any questions which ask about the claimant's physical condition. Likewise, Marvin Clute, the regional risk manager for the respondent employer, testified that the claimant was at no time sent to a physician for a post-application physical after being hired by the respondent. Mr. Clute testified that, had the respondent (a temporary employment service) known about the claimant's extensive back problems, they would have attempted to make accommodations to place the claimant in a job consistent with his extensive preexisting low back limitations. However, Mr. Clute's testimony indicates that the respondent never requested from the claimant any representation regarding his physical condition. Consequently, based on Mr. Clute's testimony and the claimant's employment application, we find that the claimant never made any affirmative representation regarding his physical condition to the respondent at any time during the employment process. Therefore, we find that the respondents failed to prove by a preponderance of the evidence in the record that claimant's claim for benefits is barred by theShippers defense.
However, we also find that the greater weight of the credible evidence establishes that the claimant sustained only a temporary aggravation of a preexisting low back condition, and we find that the claimant's current disability is not causally related to the relatively minor compensable injury sustained while employed by the respondent employer.
In this regard, the claimant testified that he felt a back pop while trying to lift a container of turkey parts and ice at work on May 19, 1993. The claimant testified that he reported the incident immediately. At the time of the incident, the claimant was working his second week as a temporary employee at the poultry processing facility. Subsequent diagnostic tests indicated significant abnormalities at the L1-2, L4-5, and L5-S1 levels of the claimant's lumbar spine. Dr. Robert Abraham ultimately assigned the claimant a 23% permanent anatomical impairment for his lumbar abnormalities.
With regard to preexisting abnormalities and medical treatment alleged by the respondents, the claimant testified that he did not receive any medical treatment for his lower back in 1993 prior to the incident and that records presented into evidence by the respondents indicating that he presented to the VA hospital in Shreveport for back problems on April 23, 1993, and on May 2, 1993 (shortly before the alleged work-related injury on May 19, 1993) are in error.
Likewise, in a deposition over one year prior to the hearing, the claimant testified that he did not receive any treatment at the Shreveport VA in 1993, and that he would obtain for the respondents documentation showing that medical records indicating that he received treatment at the Shreveport VA in 1993 were in error. However, the claimant acknowledged at the hearing that he did not attempt to obtain any documentation that the dates indicated in the 1993 VA reports are incorrect. After a careful review of the 1993 VA medical reports submitted into evidence, we find that the claimant presented to the Shreveport VA with back complaints on April 23, 1993, and on May 2, 1993, as well as later in that year.
Moreover, the claimant's medical records from the Shreveport VA include diagnostic test results from 1991 indicating significant abnormalities at the L1-2, L4-5, and L5-S1 level of the claimant's spine essentially identical to abnormalities indicated by diagnostic testing after the May 19, 1993, incident. The Shreveport VA records also indicate that the claimant presented with extensive complaints in 1991 and early 1992 (as well as presenting with complaints in 1993 just days before the work-related incident). In addition, the claimant acknowledged on cross-examination that the VA physicians had recommended surgery prior to 1993, but that he elected not to undergo the surgery offered by the VA.
The claimant was seen by a number of specialists after the May 19, 1993, incident. Dr. Abraham ultimately assigned the claimant a 23% impairment to the body as a whole based on abnormalities identified through diagnostic testing at the L1-2, L4-5, and L5-S1, levels of the spine. The medical records indicate that neither Dr. Abraham or any of the other physician referrals obtained through the respondent were ever made aware of the claimant's extensive history of preexisting back abnormalities.
The only physician who has reviewed and commented on the claimant's medical condition in light of the medical records from the VA is Dr. Larry Mahon, an orthopedic surgeon. The respondents provided Dr. Mahon a copy of both sets of the claimant's medical records and asked Dr. Mahon to comment on the nature of the claimant's condition. Dr. Mahon indicated in a letter dated October 13, 1995, that "it would appear that this patient had temporary aggravation of a prior-existing condition," and the claimant has not presented any evidence to rebut Dr. Mahon's opinion. Moreover, since Dr. Mahon is the only physician to have reviewed the claimant's post-injury condition in light of the claimant's extensive preexisting low back abnormalities, we find that Dr. Mahon's opinion that the claimant experienced a temporary aggravation is entitled to significant weight.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the respondents failed to prove by a preponderance of the evidence that the claimant's claim is barred by theShipper's defense. Therefore, we find that the administrative law judge's decision in this regard must be and hereby is, reversed. However, we also find that the greater weight of the evidence establishes that the claimant sustained a temporary aggravation of a preexisting condition which did not cause any permanent disability. Therefore, we find that the administrative law judge's denial of compensation for an alleged permanent disability must be, and hereby is, affirmed.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur with the opinion of the majority finding that this claim is not barred by the Shipper's defense and that claimant has proven by a preponderance of the evidence that on May 19, 1993, he sustained a compensable aggravation of a preexisting condition. However, I must respectfully dissent from the finding that the aggravation was only temporary in nature and therefore, claimant is not entitled to any additional benefits. The greater weight of the evidence indicates that as a result of the compensable injury, claimant's lumbar difficulties have worsened, especially at the L5-S1 level, and that his disability continues to be related to these increased difficulties.
PAT WEST HUMPHREY, Commissioner