Opinion
CLAIM NO. F312995
OPINION FILED DECEMBER 20, 2007
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHEILA F. CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE R. SCOTT MORGAN, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The Arkansas Court of Appeals has remanded the above-styled case to the Full Commission for more specific findings. Smith v. Jefferson Comprehensive Care System, Inc., CA07-92 (Sept. 12, 2007). After reviewing the entire record de novo, and pursuant to the provisions of Act 796 of 1993 as codified at Ark. Code Ann. § 11-9-102(4)(A)(i) and following, the Full Commission finds that the claimant did not prove she sustained a compensable cervical or neck injury. The Full Commission finds that the claimant did not prove she was entitled to additional benefits for her compensable low back injury.
I. HISTORY
The record indicates that DeLois Smith, age 51, began treating with Dr. James Rodney Feild in April 1989: "Patient injured her back in August 1988 pulling. . . . November 1988 CAT scan normal." Dr. Feild's impression was "Lumbar sprain." The claimant began a regular series of follow-up visits with Dr. Feild. Dr. Feild noted in June 1989 that a myelogram showed an "L4 disc on the left." Dr. Feild noted in February 1997 that he agreed with the following MRI report: "Early dehydration changes of the L4-L5 disc with broadbased protrusion of the left posterior paracentral disc margin impinging the left ventral thecal sac near the origin of the left L5 rootlet. This most likely represents a small confined herniated nucleus pulposa."
The claimant's testimony indicated that she became employed with Jefferson Comprehensive Care in 2001.
The claimant continued regular follow-up visits with Dr. Feild through December 2002.
Dr. Edward H. Saer, III saw the claimant in April 2003: "She is a 47-year-old woman who has a history of work-related injury to her back that occurred in 1988. She has had intermittent problems with her back since that time. . . . She reports that her pain has gotten worse over the last year. She is having pain now in the lower back primarily on the left side, with radiation down the left leg laterally and posteriorly down to the heel. . . . MRI films from Memphis dated February 21, 1997, were reviewed. These show some desiccation at L4-5 and L5-S1, with a small central herniation at L4-5 and an HIZ at L5-S1. Her symptoms certainly sound like some nerve root compression or perhaps irritation. In any event, I think it would be helpful to get an MRI to see what is going on."
The claimant followed up with Dr. Saer in April 2003: "She had her MRI at Chenal. I reviewed the films today. She does have a little bit of a left-sided disc bulge at L5-S1, but it really does not look like a herniation. It mildly displaces the L5 nerve root. . . . I do not think she is going to require any surgical treatment for this."
The parties stipulated that the claimant sustained a compensable low back injury on October 13, 2003. The claimant testified, "I was going to the desk to sit down to write something on the chart. When I sat down, the chair broke, and I hit my head on the table and fell down onto the floor." The claimant testified that she hit "the lower part of the neck" in the accident.
The claimant filled out an Occurrence Report on October 23, 2003. The claimant wrote that, on October 13, 2003, a chair had broken and she had fallen. The claimant wrote that she had jarred her back and "hit head elbow."
The claimant sought emergency treatment on November 11, 2003. According to the triage report, the claimant complained of back pain for about one week, that the claimant's back had "gone out" when she got out of the bathtub that morning, and that she had suffered back pain for 13 years after moving a patient in a hospital. The diagnosis included "Chronic back pain." The claimant was discharged to follow up with Dr. Saer as soon as possible.
A Nurse Healthcare Provider signed the following Return To Work Instructions: "Delois Smith was discharged on 11/11/03, Delois should be able to return to work in 2 days. Delois needs the following work limitations: None."
The record contains a Written Progress Note dated November 14, 2003: "Pt. presents to the clinic c/o neck back pain after having to catch herself from falling out of a broken chair to the floor. Pt alledgely (sic) fell." The claimant was assessed as having cervical and lumbar strain.
An x-ray of the claimant's cervical spine was taken on November 14, 2003:
Straightening of the cervical lordosis suggests muscular spasm. No definite evidence of acute fracture or subluxation is seen in the cervical spine. Intervertebral disc spaces are normal. Prevertebral soft tissue is normal.
IMPRESSION:
1. No acute bony injury in the cervical spine.
1. Straightening of the cervical lordosis, probably due to muscle spasm.
Dr. Harold B. Betton saw the claimant on December 10, 2003:
Ms. Smith presents to the office status post fall at Jefferson County Comprehensive Health Clinic. She was attempting to sit in a chair when the leg broke causing her to fall injuring her right elbow, jarring her back and sustaining pain in the cervical spine. She felt no effects until November 12, 2003 when she saw a physician in the emergency room. . . .
Dr. Betton assessed "Lumbar and Cervical spine pain (musculoligamentous sprain)." Dr. Betton planned additional diagnostic testing and stated, "I am perplexed that it took so long after the fall to experience symptoms. She carries a problem of chronic back pain and this may represent an exacerbation of a chronic underlying condition."
An MRI of the claimant's cervical spine was taken on December 12, 2003:
The vertebral bodies are normal in height, alignment, and signal intensity. No bony spinal stenosis or significant foraminal narrowing is seen. The apophyseal joints appear unremarkable. There is minimal annular disc bulging at C4-5 and
C6-7, and moderate annular disc bulging at C5-6. These annular disc bulges, however, produce only mild ventral sac compression with no visible cord or nerve root impingement. No focal or eccentric disc extrusion is seen. The spinal cord is normal in size and signal intensity. The craniocervical junction is unremarkable. No paraspinous lesions are seen.
IMPRESSION:
Minor disc bulges at C4-5, C5-6, and C6-7 levels, as described, without visible cord or nerve root impingement. Otherwise negative MRI of the cervical spine.
The claimant subsequently followed up with Dr. Saer in December 2003:
She is back because she is having more trouble with her back and left leg.
She describes a sharp, sticking pain in the back that is intermittent. Sometimes it goes up to her neck. She also reports pain in the left buttock that goes down the left leg down to the calf. This is generally worse with activity and better with rest. . . .
I reviewed her prior MRI films and report. She does have a little bulging on the left side at L4-5. This does not look like it is compressing the L4 nerve root at all. Her symptoms certainly could be related to some mild irritation. We will set her up for an ESI to see if that will help. I would like her to get back with me afterwards.
Dr. Betton saw the claimant on December 19, 2003 and recommended physical therapy, medication, and no work for three weeks.
Dr. Betton's assessment on January 12, 2004 was "Cervical spine musculoligamentous sprain with documented disk disease. . . . I have advised this patient to remain off work for 2 additional weeks. She can't do her job, clerical, with an unsupported neck. The pain at this time is too intense to support the job requirements."
The claimant followed up with Dr. Saer in March 2004:
I have seen her in the past, and her last visit was on 12/16/03. She has a long history of problems with her back and left leg. . . . When she was here last on December 16th, I recommended an epidural steroid injection.
Apparently workers' comp denied that. She is back today with complaints of neck and lower back pain. She still describes pain in her back and down her left leg.
She also reports pain in her neck. She had an injury at work in October 2003. She was sitting in a chair and the leg broke. She hit her head on the table that was next to the chair. She began to have trouble two or three weeks after that with
left-sided neck pain, shoulder pain and headaches. She also reports that she began to have more trouble with her back. This apparently was a separate workers' comp injury. . . .
Neck motion is relatively good. Axial compression of the head causes pain in the neck. She has no spasm. She has some restriction of active left shoulder motion but full passive motion. She says it hurts in the left shoulder and trapezial region with movement of the left shoulder. . . .
Lumbar motion is somewhat limited as well, but she has no spasm. . . .
I reviewed the MRI films that were done at BMC on 12/12/03. These are of the cervical and lumbar region. I reviewed the films as well as the reports today. She has some mild disc bulging at several levels in the cervical spine, but it really looks pretty normal for age. Lumbar MRI shows central disc bulge/annular tear with mild stenosis. She has some desiccation at L2-3. There is no focal disc herniation.
Dr. Saer gave the following impression: "Neck and back pain. . . . I am not sure why she did not mention this problem with her neck when she was here in December. At this point, though, I do not think that she needs any surgical treatment on either her neck or her back. Some physical therapy would be a good idea. I would recommend that we also get her to see someone who specializes in nonoperative management."
Dr. Saer indicated on March 9, 2004 that the claimant "Should not return to work until reevaluated."
Dr. Saer informed a case manager in April 2004, "I believe she has had a strain or a sprain, and that is the basis of my recommendation for treatment of the October 2003 injury. She has some preexisting degenerative changes as well, but I think the October 2003 injury just aggravated her preexisting condition. I have not placed additional restrictions on her. I would anticipate MMI after she has completed a course of therapy for this recent injury. She does not have a problem that is going to require any surgical treatment, and I plan to see her back only as needed in the future."
Dr. Betton assessed "Neck pain with muscle spasm" on May 7, 2004.
Dr. Brent Sprinkle evaluated the claimant on May 24, 2004:
Ms. Smith is a 48-year-old female who presents with complaints of increased cervical and shoulder pain. She has had some low back pain for many years related to a work injury in 1988. She was seen for an exacerbation of back and leg pain in April 2003 by Dr. Saer. She did have a new injury that occurred in October 2003, where she sat down in a chair, the leg broke, and she fell to the right side and hit her neck. It is my conclusion that the new injury would be cervical pain, so I will not be addressing her low back or leg pain today as that has been addressed in the past by Dr. Saer. . . .
She has not had any therapy or injections specifically for this neck pain. She did have an MRI of her C-spine in 12/03 that showed some mild disc bulges, but no specific stenosis, foraminal narrowing, or nerve root impingement was appreciated. . . .
She has been working as an LPN, but she has been off work since this injury in October 2003. . . .
Dr. Sprinkle's impression was "Cervical strain." Dr. Sprinkle planned conservative treatment and stated, "As far as return to work, I do not really have anything objective to justify her not working, but I think while we are trying to go through therapy to calm this down, initially, a return-to-work restriction of no lifting over 50 pounds may be reasonable."
Dr. Sprinkle noted on June 9, 2004, "There is some confusion about which problems to address, and, after speaking with the case manager, it is the conclusion that I am to address the low back. She does have low back pain today that is worse on the left side and occasionally radiates down the left leg and foot." Dr. Sprinkle's impression was "1. Left greater trochanteric bursitis. 2. Piriformis syndrome. 3. Left lateral bulge L5-S1." Dr. Sprinkle planned conservative treatment and stated, "She could return to work with modified duty consisting of no lifting over 50 pounds."
The claimant continued follow-up visits with Dr. Sprinkle.
On August 31, 2004, Dr. Betton noted that the claimant had "bilateral neck and shoulder pain that stems from Cervical Disc Disease."
An MR scan of the claimant's cervical spine was taken on January 21, 2005, with the impression, "Mild degenerative disk disease. The study is otherwise unremarkable."
Dr. Sprinkle's impression on January 27, 2005 was "1. Lumbar strain. 2. Lumbar disc degeneration. 3. Low back pain. 4. Lumbar myofascial pain." Dr. Sprinkle opined that the claimant was at maximum medical improvement and stated that the claimant could return to work with permanent restrictions. Dr. Sprinkle stated, "She does have some degenerative disc changes on her MRI scan which were most likely present prior to her work injury. She does not have any significant focal disc protrusion or extrusions, and was not felt by Dr. Saer to be a surgical candidate. She did have a small annular tear at L4-5 but these usually resolve with time." Dr. Saer assigned the claimant a 0% anatomical impairment rating.
An MRI of the lumbar spine was taken on June 29, 2005, with the following impression:
1. There is a mild central canal stenosis at L4-L5 that is caused by a combination of diffuse disc bulge along with severe bilateral degenerative facet joint hypertrophy and hypertrophy of the ligamentum flavum. The facet and ligamentous hypertrophy have progressed slightly since the previous study.
2. Moderate facet arthropathy is identified throughout the lumbar spine from L2-L3 down to L5-S1.
The respondents' attorney indicated at hearing that benefits were paid through July 28, 2005.
A pre-hearing order was filed on December 12, 2005. The claimant contended that she "sustained a compensable injury to her neck on 10/13/03, arising out of and in the course of her employment, and that as a result is entitled to TTD benefits from 10/13/03 through 5/29/04, associated medical benefits, travel expenses and attorney fees. Claimant further contends that she is entitled to additional TTD and medical benefits associated with her admittedly compensable low back injury of 10/13/03."
The respondents contended that the claimant "did not sustain a compensable injury to her neck, and that the claimant is not entitled to TTD or medical benefits. Respondents further contend the claimant has been paid all benefits to which she is entitled regarding her compensable low back injury."
The parties agreed to litigate the following issues:
1) Whether the claimant sustained a compensable cervical injury on 10/13/03.
2) If the cervical compensability is overcome, whether the claimant is entitled to associated medical benefits, TTD benefits from 10/13/03, to 5/29/04, attorney fees and travel expenses.
3) Whether the claimant is entitled to additional TTD and medical benefits associated with her compensable low back injury.
After a hearing, an administrative law judge filed an opinion on June 1, 2006. The ALJ found, in pertinent part:
3) The claimant has proven by a preponderance of the evidence that she remained in her healing period and totally incapacitated to work for the period of October 13, 2003 through May 24, 2004, due to her stipulated compensable back injury of October 13, 2003.
4) The claimant has therefore proven by a preponderance of the evidence that she is entitled to TTD benefits due to her admittedly compensable back injury of October 13, 2003 for the period of October 13, 2003 through May 29, 2004 at the stipulated rate. Said amount shall be reduced by the days the claimant worked for, or drew TTD from the respondents between October 13, 2003 through May 24, 2004.
5) The claimant has proven by a preponderance of the evidence that she sustained a compensable cervical injury on October 13, 2003.
6) The claimant has proven by a preponderance of the evidenced (sic) she is entitled to all reasonably necessary medical treatment related to her compensable neck and back injuries of October 13, 2003, and such is the responsibility of the respondents. Further, I find the treatment contained in the record herein to the claimant's neck and back to be reasonable, necessary and related to the compensable injuries.
7) The claimant has proven by a preponderance of the evidence she is entitled to TTD benefits related to her compensable cervical injury of October 13, 2003, for the period of October 13, 2003 through May 24, 2004. Said amount to be reduced by any TTD or work wages received during said period.
The respondents appealed to the Full Commission.
The Full Commission filed an opinion on December 6, 2006 and reversed the administrative law judge's decision. The Full Commission found that the claimant did not prove she sustained a compensable neck injury, and that the claimant did not prove she was entitled to additional benefits for her compensable low back injury. The Court of Appeals has remanded for more specific findings.
II. ADJUDICATION
A. Compensability
Ark. Code Ann. § 11-9-102(4)(A) defines "compensable injury":
(i) An accidental injury causing internal or external physical harm to the body . . .arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
The claimant's burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means the evidence having greater weight or convincing force. Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).
In the present matter, the parties stipulated that the claimant sustained a compensable low back injury on October 13, 2003. The preponderance of evidence does not demonstrate that the claimant also sustained a compensable neck or cervical injury on that date. The claimant testified that a chair in which she was attempting to sit broke, causing her to fall and to hit "the lower part of the neck." In an October 23, 2003 Occurrence Report, the claimant wrote that she had jarred her back and "hit head elbow." The claimant was assessed with cervical and lumbar strain on November 14, 2003.
The Arkansas General Assembly has mandated that the Commission shall strictly construe the provisions of Arkansas Workers' Compensation law. See, Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2002). In accordance with the governing law, that is, Act 796 of 1993 as codified at Ark. Code Ann. § 11-9-102(4)(A)(i) and following, the Full Commission finds that the claimant did not prove she sustained an accidental injury causing internal or external physical harm to the claimant's neck or cervical spine on October 13, 2003. The claimant did not prove that she sustained an injury to her neck or cervical spine arising out of and in the course of her employment with the respondents on October 13, 2003. Nor was there a specific incident identifiable by time and place of occurrence on October 13, 2003 which caused an injury to the claimant's neck or cervical spine.
The instant claimant also did not establish a compensable injury to her neck or cervical spine by medical evidence supported by objective findings, as required by Ark. Code Ann. § 11-9-102(4)(D). Citing Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003), the Court of Appeals notes that although a claimant must prove a causal relationship between the injury and her employment, she does not have to present medical evidence to prove the causal relationship. In Ferren, a majority of the Court affirmed the Commission's finding that the claimant had sustained a herniated cervical disc as the result of a specific incident. In the present matter, the record does not show that the claimant sustained a herniated disc, and the record does not show that the claimant established a compensable injury to her neck or cervical spine with objective medical findings.
The parties stipulated that the claimant sustained a compensable low back injury on October 13, 2003. The claimant testified that she also injured her neck on October 13, 2003. A November 14, 2003 x-ray of the claimant's cervical spine showed no acute bony injury. The x-ray also showed "Straightening of the cervical lordosis, probably due to muscle spasm." Stedman's Medical Dictionary, 26th Edition, defines "Lordosis" as "An abnormal extension deformity; antero-posterior curvature of the spine, generally lumbar with the convexity looking anteriorly." There is no probative evidence before the Commission which demonstrates that "Straightening of the cervical lordosis, probably due to muscle spasm" was an objective medical finding causally related to the October 13, 2003 accident. Stated another way, we find that the October 13, 2003 accident did not cause the radiological finding of "Straightening of the cervical lordosis, probably due to muscle spasm." There is no probative evidence connecting the November 14, 2003 x-ray report to the October 13, 2003 accident. See, Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998).
An MRI of the claimant's cervical spine on December 12, 2003 showed minor disc bulges at C4-5, C5-6, and C6-7, otherwise a negative MRI of the cervical spine. There is not even a scintilla of evidence demonstrating that these bulges constitute objective medical evidence establishing an October 13, 2003 compensable injury to the claimant's neck or cervical spine. Dr. Saer reported in March 2004, "She has some mild disc bulging at several levels in the cervical spine, but it really looks pretty normal for age." An MR scan of the claimant's cervical spine on January 21, 2005 showed "Mild degenerative disk disease. The study is otherwise remarkable." Any argument that the October 13, 2003 accident was the causal result of the bulging seen in the December 13, 2003 MRI is simply not supported by the evidence and is not credible.
Finally, the Full Commission is aware of Dr. Betton's May 2004 assessment, "Neck pain with muscle spasm." This report appeared to be based on the claimant's history rather than a physical examination by Dr. Betton. Yet even if Dr. Betton did personally observe muscle spasm, which the record does not clearly show, the evidence does not connect this report of spasm to the October 13, 2003 accident. See, Ford, supra. The Commission would need to rely on conjecture and speculation to find a causal connection between this lone unsubstantiated report of muscle spasm and the alleged neck or cervical injury on October 13, 2003. Conjecture and speculation cannot supply the place of proof. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979).
Pursuant to each element of Act 796 of 1993 as codified at Ark. Code Ann. § 11-9-102(4)(A)(i) and following, the Full Commission finds that the claimant did not prove she sustained a compensable injury to her neck or cervical spine on October 13, 2003.
B. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). The claimant must prove by a preponderance of the evidence that she is entitled to additional medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999).
In the present matter, there appears to be no dispute that the claimant had suffered from chronic back pain since 1988. An MRI in 1997 showed desiccation at L4-5 and L5-S1, a small central herniation at L4-5, and a "high intensity zone" at L5-S1. The parties stipulated that the claimant sustained a compensable low back injury on October 13, 2003. The claimant subsequently received medical treatment and was assessed with "lumbar strain." The claimant's compensable lumbar strain did not cause an acute disc injury which would require surgery. Dr. Saer reported in March 2004 that an MRI showed "no focal disc herniation." Dr. Saer agreed that the claimant had sustained "a strain or a sprain" and opined in April 2004, "She does not have a problem that is going to require any surgical treatment. . . ."
Dr. Sprinkle began treating the claimant in May 2004. Dr. Sprinkle pronounced maximum medical improvement on January 27, 2005. The respondents continued paying for benefits through July 28, 2005. We recognize that a claimant may be entitled to ongoing medical treatment after her healing period has ended, if treatment is geared toward management of the compensable injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.2d 31 (2004). In the present matter, however, the claimant did not prove she was entitled to additional medical treatment for her lumbar sprain after Dr. Sprinkle pronounced maximum medical improvement on January 27, 2005.
C. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). "Healing period" means "that period for healing of an injury resulting from an accident." Ark. Code Ann. § 11-9-102(12). Whether or not an employee's healing period has ended is a question of fact for the Commission. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).
In the present matter, the parties stipulated that the claimant sustained a compensable low back injury on October 13, 2003. The administrative law judge found that the claimant proved she was entitled to temporary total disability benefits from October 13, 2003 through May 29, 2004. The claimant did not contend that she was entitled to additional temporary total disability and in fact contends that the ALJ's award was correct. Dr. Sprinkle returned the claimant to work with restrictions on May 24, 2004. Although Dr. Sprinkle did not find maximum medical improvement until January 27, 2005, the evidence shows that the claimant was not incapacitated from earning wages after May 24, 2004. The record thus does not show that the claimant was entitled to temporary total disability beyond that period awarded by the administrative law judge.
Based on our de novo review of the entire record and pursuant to the provisions of Act 796 of 1993 as codified at Ark. Code Ann. § 11-9-102(4)(A)(i) and following, the Full Commission finds that the claimant did not prove she sustained a compensable cervical or neck injury. The claimant did not prove she was entitled to additional benefits for her compensable low back injury. This claim is denied and dismissed.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner
DISSENTING OPINION
The Arkansas Court of Appeals has remanded the present matter, noting that, "It is unclear whether the Commission denied Smith's claim after weighing the evidence and determining that she failed to prove her injury by medical evidence supported by objective medical findings or whether the claim was denied because Smith failed to prove the causal relationship between her neck injury and her employment."
I must respectfully dissent from the Majority opinion finding that the claimant did not prove that she sustained a compensable cervical or neck injury and denying her additional medical benefits for her admittedly compensable back injury and her alleged cervical injury. After a review of the evidence, I find that the medical records show that the claimant sustained a cervical strain as a result of her fall in October 2003. I further find that this injury was shown by medical records and Dr. Saer's opinion which directly related her associated problems with her fall at work in October 2003. I also find that the preponderance of the medical evidence shows the claimant should be entitled to ongoing medical benefits for her cervical and lumbar injuries. For these reasons, I respectfully dissent.
The Majority contends that the claimant did not sustain a compensable cervical injury. In making this argument, they find that the claimant did not initially report a neck injury. They also opine that the medical records fail to establish a causal connection between the claimant's work injury and her objective injuries to the neck. However, after a review of the record, I must disagree with these conclusions.
On October 23, 2003, the claimant completed an occurrence report describing how she sustained her injury. The claimant indicated that when she sat down, the leg on the chair broke. In response to the inquiry, "INJURY(IES) INVOLVED", the claimant wrote, "Jared (sic) back. hit (sic) head and elbow." In my opinion, this language reflects the claimant did report an injury that was consistent with obtaining a neck injury. Certainly, a fall severe enough to cause her to jar her back and hit multiple parts of her body, including her head, would be consistent with receiving a neck sprain. While the Majority is correct that the claimant did not specifically report a neck injury, in my opinion it is clear that she reported she hit her head, which is consistent with having a neck injury.
Furthermore, I note the claimant's testimony at the time of the hearing, which further corroborates her claim that she injured her neck as a direct result of falling out of the chair. The claimant described the occurrence of the injury as follows,
A Well, I was going to the desk to sit down to write something on the chart. When I sat down, the chair broke, and I hit my head on the table and I fell down onto the floor.
Q You indicated you hit your head.
A The lower part of my neck.
Q When the chair broke and you fell to the floor, what type of floor was this?
A This was concrete floor.
Q And what did you hit your head and neck against?
A On the table next to the desk. I have a table next to my desk with a fax machine on it.
In my opinion, when considering this testimony, in conjunction with the occurrence report, it is evident that the claimant hit her head/neck area, thereby causing her to sustain a cervical strain.
Additionally, I find that the medical reports support a finding that the claimant sustained a cervical injury. I note that prior to the work-related injury, there is no evidence that the claimant required treatment for neck pain or that she had been diagnosed with any neck condition. Yet, the claimant testified that after the accident, she suffered from neck pain, indicating that the fall was the cause of her symptoms.
The medical reports also provide objective medical findings of the claimant's injury and relate it to the claimant's fall at work. On November 14, 2003, the claimant was treated for neck and back pain which she attributed to the fall at work. An x-ray completed that day indicated that the claimant suffered from, "Straightening of the cervical lordosis probably due to muscle spasm." Lumbar lordosis has previously been held to be an objective finding. In my opinion, the Majority errs in failing to acknowledge such. Dorland's Illustrated Medical Dictionary, 28th Ed., defines "lordosis" as an "abnormally increased curvature" of the spine. Furthermore, the Arkansas Court of Appeals held that "a physical therapist's notation of `decreased lumbar lordosis' is an objective medical finding." King v. Peopleworks, ___ Ark. App. ___, ___ S.W.3d ___ (2006); citing Continental Express v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999).
Additionally, the claimant was prescribed Toradol and Flexeril which further provides evidence of the extent and nature of her neck injury. Accordingly, on December 12, 2003, an MRI revealed that the claimant suffered from disc bulges at C5-6 and C6-7. In my opinion, since the claimant reported the onset of her symptoms began in October, and since the diagnostic studies showed findings consistent with her fall at work, it is evident that the claimant's spasms and the straightening of her cervical lordosis were directly related to the work-related incident. Furthermore, I note that Dr. Edward H. Saer, the physician responsible for treating the claimant for her back problems prior to the October incident also opined that he believed that the claimant's work-related injury was the cause for her cervical symptoms. On April 27, 2004, Dr. Saer indicated that he did not believe the claimant was at MMI and that the injury he was treating the claimant for was directly related to the October 2003 incident. He further opined,
I believe she has had a strain or a sprain, and that is the basis of my recommendation for treatment of the October 2003 injury. She has some preexisting degenerative changes as well, but I think that the October 2003 injury just aggravated her preexisting condition.
As Dr. Saer treated the claimant prior to her fall at work, I find that he was well suited to evaluate the claimant and her change in condition. Accordingly, I find his opinion on causation should have been given great weight.
Finally, I find that the claimant has shown that she is entitled to ongoing medical treatment in relation to her cervical injury. While Dr. Sprinkle released the claimant for care from her lumbar back condition on January 27, 2005, there is no indication that the claimant was released from care for her cervical condition. In fact, Dr. Sprinkle specifically indicated that after speaking with the case manager, he reached the conclusion he was only to address the claimant's low back. Furthermore, there are no other medical reports indicating that the claimant's cervical symptoms have resolved. Accordingly, I find that she should have been awarded ongoing treatment for her cervical condition.
I further find that the claimant has shown she is entitled to ongoing treatment for her lumbar injury. Pursuant to Arkansas Workers' Compensation law, medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Tina Haskins v. TEC, Full Workers' Compensation Commission, July 14, 1993 ( E107391); Billy Chronister v. Lavaca Vault, Full Workers' Compensation Commission, June 20, 1991 ( D704562). Additionally, an employer may remain liable for medical treatment reasonably necessary to maintain a claimant's condition after the healing period ends. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
While Dr. Sprinkle released the claimant to return to work and indicated she was at MMI in January 2005, he did not indicate that the claimant would not need any maintenance medication nor did he indicate that she had been returned to a pre-injury status in her medical condition. Likewise, he did not indicate that the claimant's condition had returned to a state that was equal to the time period before her admittedly compensable injury. Instead he noted that the claimant had pre-existing degenerative disease, but indicated that the claimant's work injury had exacerbated her condition. He also instructed her to continue taking Flexeril and to continue using her "RS medical device", indicating her condition had not resolved. Furthermore, he continued to assess her with a lumbar strain, indicating that she had ongoing problems directly related to the admittedly compensable injury. As such, the Majority's opinion that the claimant is not entitled to ongoing treatment for her lumbar injury is erroneous.
Ultimately, I find that the claimant has shown proof of her cervical injury by a preponderance of the evidence. The claimant's testimony, the occurrence report completed after the accident, and the medical records all show that the claimant did not experience neck symptoms until after her fall at work. Likewise, the objective findings found in the medical records are consistent with the nature of the claimant's fall and the claimant's treating physician, Dr. Saer, related the claimant's condition and need for ongoing treatment directly to the injury from work, thereby establishing causation. Furthermore, I find that the claimant has shown she is entitled to ongoing medical benefits for her lumbar strain. The claimant's back strain was accepted by the respondents and the medical reports fail to indicate that the claimant's condition returned to pre-injury status. Accordingly, I would award her treatment in the form of maintenance medication (i.e. Flexeril) pursuant Dr. Sprinkle's recommendation.
For the aforementioned reasons, I respectfully dissent.
____________________________ PHILIP A. HOOD, Commissioner