Opinion
CLAIM NO. F008070
OPINION FILED AUGUST 22, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JIM BURTON, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by HONORABLE RICHARD SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an Administrative Law Judge's award of benefits for a specific incident injury claimant sustained while working. Upon our de novo review of the record, we affirm this opinion.
Claimant contends that he sustained a specific incident back injury on July 12, 2000. Respondents offer a variety of theories to prove that claimant's injury is nonwork-related and contend that claimant failed to provide objective medical evidence of a work-related injury. Respondents argue that claimant's current problems are related to a previous disc herniation and back surgery he had in 1994. As a second alternative, respondents argue that claimant's problems arose from a motorcycle accident he had approximately one month prior to beginning work for respondent-employer. Respondents next amend these contentions and allege in their post-hearing brief that claimant actually injured himself while lifting a suitcase a few days prior to April 12, 2000. Respondents bolster their arguments with the contention that claimant continued to engage in active, physical work following his injury. Upon review of respondents' theories, the Administrative Law Judge concluded that, "each is without merit and that claimant has satisfied each and every requirement to establish compensability." We agree.
To prove a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, claimant must establish: (1) proof by a preponderance of the evidence of an injury arising out of and 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 in 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 identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1999). If claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
Claimant began work for respondent-employer in March of 1996 as a temporary employee. He worked up to 40 hours per week, not exceeding 1,500 hours per year, during this one-year contract. Claimant later became a full-time employee, but chose to return to his previous part-time contract on July 1, 2000. He injured his back on July 12, 2000 when he fell from a ladder while repairing a phone line for respondent-employer's guest home. Claimant testified that he fell on his "butt bone and it popped." He stated that he immediately notified Donna Bollinger, the office manager, of his accident because his supervisor was at the lake and Keith Nichols, the acting supervisor, was also out of the office.
Claimant stated that he felt numb and that he left work and went directly home. He notified his employer the next morning when he could not move and was instructed to go to Dr. Murry, the company physician. Dr. Murry performed a CT scan and referred claimant to neurosurgeon, Dr. Ricca. Claimant also treated with Dr. Kevin Savu, a pain specialist. Dr. Ricca performed surgery on claimant on January 16, 2001.
Dr. Ricca noted on November 13, 2000:
Mr. Stricklin returns for followup and continues to have significant low back pain and posterior left lower extremity pain. His symptoms began after he fell off a ladder landing on his buttock trying to avoid a wasp's nest on 07/12/00. The pain is mechanical in nature.
Since his last visit, he had a CT scan of the L spine done at St. Bernards Regional Medical Center on 10/19/00. I reviewed this CT scan with my partner Dr. Eubanks. I also reviewed Mr. Stricklin's case with him. It appears that Mr. Stricklin has significant degenerative changes at L5-S1 with lateral recent stenosis ay L5-S1 left. He also appears to have a small HNP superimposed upon this. Together these are causing compression of the left S1 root. This may be artifact but it also appears that there may be a large HNP just above the level of the disc space. I cannot be absolutely certain of this.
Based on the history provided to me by the patient, I believe his fall of the ladder landing on his buttock is the primary cause of his present problems. I do not believe that his injury and surgery of 1994 are the primary cause of the present problems. I also do not believe the motorcycle accident he suffered a week prior to following (sic) off the ladder is the primary cause of his symptoms.
I talked with the patient at length and reviewed the various options, indication, limitations, expected and possible outcomes, and risks of surgical versus non-surgical therapy which included but was not limited to death, infection, bleeding with the need for transfusion, nerve injury with permanent weakness and/or numbness, failure to relieve symptoms, etc. All of their questions were answered and they seemed to understand.
I believe a microdisectomy is this patient's best option. I recommended against a fusion but if he should need a third operation at this level, then I would recommend a fusion.
With regards to the patient's work activities, he needs to stay off strenuous work presently. In the future, I also recommend that he not engage in any job activities for the remainder of his life that would require repetitive bending, twisting, or straining of the low back.
Mr. Stricklin also informs me that a spot was found on his chest x-ray and it was felt that it was benign but has not been evaluated in detail. He will discuss this further with Dr. Grubbs and consider a pulmonology evaluation.
I will leave the follow up open for now, as there is nothing further for me to offer him other than the surgery. He will contact us when he has decided what he would like to do. I spent approximately forty-five minutes total on this patient's case today including meeting with him and his wife, reviewing his films and discussing the case with Dr. Eubanks, etc. (emphasis added).
Respondents originally paid claimant benefits for his injury, but controverted the claim when surgery was recommended. They initially contended that claimant's condition resulted from a previous disc herniation and back surgery claimant received in 1994 and/or the motorcycle accident in June of 2000. Respondents later, in their post-hearing brief, attributed claimant's condition to lifting a suitcase in April of 2000. On May 15, 2001, respondent deposed Dr. Ricca regarding their latest theory and Dr. Ricca then stated that the lifting incident could have ruptured claimant's disc. The Administrative Law Judge did not find this opinion to be plausible and neither do we.
While medical evidence is not required to show a causal connection, claimant must show proof by a preponderance of the evidence. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Hope v. Livestock Auction Co. v. Knighton, 67 Ark. App. 165, 992 S.W.2d 826 (1999); Sapp v. Phelps Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998). However, it also is well settled that once an injury is identified by specific incident and time, it is not necessary that the claimant prove that the work, rather than the injury, was the major cause of the disability and need for treatment. See Williford v. City of North Little Rock, 62 Ark. App. 198, 969 S.W.2d (1998); Second Injury Fund v. Stevens, 62 Ark. App. 255, 970 S.W.2d 331 (1998); Medlin v. Wal-Mart Stores, 64 Ark. App. 17, 977 S.W.2d 239 (1998); Farmland v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996).
Based on the medical evidence and claimant's credible testimony, we find that claimant proved by a preponderance of the evidence that he sustained a compensable specific incident back injury identifiable by time and place of occurrence. We do not find that claimant's current medical condition to be related to a surgery claimant received six years earlier, nor do we find claimant's current condition attributable to his minor motorcycle accident or suitcase lifting incident. We find that the evidence preponderates in favor of the claimant, and that claimant sustained a specific incident injury when he fell from a rooftop while repairing one of respondent employer's guest homes. Accordingly, we affirm the Administrative Law Judge's ruling.
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.
______________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion's findings. I write separately to point out that the Administrative Law Judge, who heard the live testimony and observed the demeanor of the witnesses at the hearing, was not persuaded by Dr. Ricca's deposition opinion referred to by the dissent. Dr. Ricca's opinion notwithstanding, the Administrative Law Judge concluded that the ladder incident in July, not the earlier suitcase lifting incident in approximately April, caused the herniated disc at issue based on the following evidence and conclusions:
Despite Dr. Ricca's opinion, I find that a preponderance of the credible evidence of record supports compensability of the July 12, 2000, injury rather than any of the alternative causes raised by the respondent. Specifically, claimant's course of conduct and work history on and before July 12, 2000 are clear indicators that claimant's need for medical treatment and disability after July 12, 2000 was the result of falling off a ladder and landing on his tail bone. There is no evidence whatsoever that the claimant was required to miss any work as a result of the alleged April 12, 2000, injury. Further, the record reflects that following the minor motorcycle accident, the claimant continued working without significant complaints until the undisputed work-related incident on June 12, 2000. It must be noted that respondent's own wage records confirm that during the weeks immediately preceding the claimant's July 12, 2000, injury, he worked twenty-eight (28), sixteen (16), and twenty-four (24) hours, respectfully, in his temporary position with the respondent, as well as working his personal business. The claimant's work history supports the claim and indicates that the physical problems after July 12, 2000, were unrelated to the prior surgery or prior events. In addition, I feel compelled to point out that David Holt, a witness called by the respondent, and the claimant's immediate supervisor, testified that he personally observed the claimant during the month preceding July 12, 2000, and that he did not observe the claimant exhibiting any physical limitations, and the claimant performed whatever work was required.
For my part, I agree with the Administrative Law Judge that the evidence of the claimant's activities between April and July do not seem to me to be particularly consistent with the activities of an individual who is experiencing any degree of significant symptoms from a low-back herniated disc, prior to the ladder fall when the claimant landed on his tailbone. While I have significant respect for Dr. Ricca's skills and medical opinions, in this particular case, I accord greater weight to the evidence cited above over the weight I accord Dr. Ricca's deposition testimony on the issue of whether the claimant's medical problems at issue were caused by the ladder incident or instead preceded that incident.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury on July 12, 2000. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
The evidence shows that the claimant had back surgery in 1994 performed by Dr. Gregory Ricca. The claimant made a successful recovery from that surgery and returned to work. On July 12, 2000, the claimant was repairing a cable box on one of the respondent's guest houses when he came in contact with a nest of wasps. In order to avoid the wasps, the claimant stepped backwards off of a latter and fell to the ground, landing on his tailbone. The claimant reported the incident to Donna Bolinger, the respondent-employer office manager. The claimant sought treatment from the company doctor, Dr. James F. Murray, who treated the claimant conservatively. Ultimately, Dr. Murray referred the claimant to Dr. Gregory Ricca. Dr. Ricca performed surgery on the claimant on January 16, 2001.
Approximately one month prior to this alleged work-related incident on June 12, 2000, the claimant was riding a motorcycle and was forced to stop quickly. The claimant testified that his chest hit the mirror of the motorcycle and he had to set the motorcycle down. After the accident, the claimant sought medical treatment at the emergency room. The claimant's time sheets indicate that the claimant only worked one eight-hour day in the week of June 19 through June 23. In addition, a few days prior to April 12, 2000, the claimant picked up a heavy suitcase, causing several days of back and leg pain.
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(4)(A)(i) (Repl. 2002), must be established: (1) proof by a preponderance of the evidence of an injury arising out of and 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 in 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 evidence shows, without a doubt, that the claimant had a fall from a ladder on July 12, 2000. However, at the heart of this dispute is whether or not the claimant's fall on Jule 12, 2000, was ultimately the cause of the claimant's need for surgery in January of 2001. A review of the medical records indicate that the claimant had a history of back pain prior to the incident on July 12. Specifically, the claimant had a suitcase-lifting incident in April of 2000, as well as a motorcycle accident in June of 2000, that more than likely was the cause of his problems. Dr. Ricca, the claimant's treating physician, in a deposition had the following exchange:
Q. Given the sequence of events here, he has degenerative disease in the spine, he has prior surgery at L5-S1, he has the related incident with lifting the suitcase, the related incident with the motorcycle, the related incident with falling of a ladder, isn't it pretty difficult to say which of those events might have been the instigator of this current rupture and need for surgery?
A. Yes, it is. But based on that information, if all that information is accurate, I would lean more towards the suitcase.
It is apparent that Dr. Ricca was of the opinion that the most likely cause of the claimant's disc rupture was the suitcase incident. Although Dr. Ricca noted on November 13, 2000, that he believed the claimant's fall from the ladder was the primary cause of his present problems, it is apparent that at that point Dr. Ricca did not know about the suitcase-lifting incident. It was not until the suitcase-lifting incident was brought to his attention, along with the other incidents, that Dr. Ricca noted that the probable cause of the disc rupture was the suitcase-lifting incident. Dr. Ricca noted that the suitcase-lifting incident was a form of axial loading. Specifically, Dr. Ricca noted in his deposition taken on May 15, 2001:
A. It is a form of axial loading, yes. And it's actually axial loading in the stooped posture, which can put significant stresses on the spine, because he's bent over, so you have the leverage factor. So then it would fit that if he ruptures his disk during the event lifting the suitcase, you get into a minor accident with a motorcycle, that could exacerbate the ruptured disk that occurred from the suitcase. You fall off a ladder, land on your buttocks, that could exacerbate a ruptured disk caused by lifting a suitcase.
In Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), The Court of Appeals stated:
[E]xpert opinions based upon "could," "may," or "possibly" lack the definiteness required to meet the claimant's burden to prove causation. [Emphasis added.] Accordingly, we modify and overrule the Court of Appeals' decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), to the extent that it may be read to permit expert opinion evidence under § 11-9-102(16)(B) to be satisfied by the use of terms such as "can," "could," "may," or "possibly."
We also note that although Atwood seemingly rejects an expert's use of the word "could" when stating an opinion within a reasonable medical certainty, it validates an expert's use of the word "can." Given this inherent contradiction, . . . we apply our limited overruling of Atwood retroactively.
The Supreme Court in Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000) reversed the Court of Appeals in Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.3d 567 (2000), wherein the Court held that the following physician's opinion on causal connection had been stated within a reasonable degree of medical certainty:
I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however . . . it is likely this activity could precipitate, or aggravate, his symptoms.
In reversing the Court of Appeals, the Supreme Court stated that this physician's opinion was nothing more than a statement of theoretical possibility and therefore lacked the requisite definiteness. (Emphasis added.)
Although medical evidence is not a statutory requirement to prove causation, the medical evidence in this case indicates that the claimant's contention that his disc injury was the result of a fall from a ladder is not supported by the medical evidence. The claimant's treating physician stated under oath that he believed the most likely cause of the claimant's injury was the suitcase incident, which Dr. Ricca had not been aware of until his deposition. The majority does not find this opinion to be plausible. However, I find that it is completely plausible that the claimant's injury was sustained by the suitcase-lifting incident. The extensive office notes of Dr. Ricca opining that the fall was the cause of his problems and cited by the majority as support for their finding of compensability was rendered on November 13, 2000. Dr. Ricca's deposition was taken on May 15, 2000, after he became aware of the suitcase-lifting incident.
It is also of note that Dr. Ricca had a loss of confidence in the claimant's credibility. He testified that the claimant's clinical findings did not support the history he was given. He described a particular clinical test that indicated that the claimant was feigning or faking symptoms. Specifically, Dr. Ricca testified:
Q. I want to ask you about Mr. Stricklin, Anthony Stricklin, who has been and I believe still is a patient of yours.
A. He has been. He is no longer a patient.
Q. He is no longer a patient. Before I ask you anything else, how come he's no longer a patient?
A. I released him from my care the last time I saw him for two reasons. One is there was nothing further I could do for him in that suggestions of further diagnostic tests were rejected. Which is fine. He preferred not to pursue any further testing.
Q. Rejected by him?
A. Yes. And the second is I didn't have very much confidence at that point in his validity and did not feel there was anything more I could do for him.
Q. When you say his validity, what do you mean?
A. I did not feel that the information he was providing me was accurate.
Q. Could you be more specific? What information are you referring to?
A. Information on his history and information on his exam. Information on his history was about his complaints of pain. Information on his exam was that his exam was inconsistent. He had what we call give-way to motor testing, which indicates functional behavior. Functional behavior meaning the patient is not straightforward and is feigning or faking symptoms.
Q. What about the history? What were the discrepancies there that you felt were — what was it you felt were discrepancies?
A. Well, the main discrepancy in the history was that I couldn't put it together with his exam. I think the biggest problem was his exam did not support his history. The radiographic findings did not support his history. So I couldn't find any cause for his complaints. And because of that I actually told him about this, and I told him about the give-way on his exam and what functional findings on exam meant. And I recommended that if he wants to pursue it, we've got two more tests. At that point he told me he's had enough and he didn't want to do anything further.
Q. What were the tests you recommended?
A. I recommended a test called an EMG/NCV, which is an electrical test that checks nerve function. And I recommended a lumbar myelogram and post myelogram CT, which is a test that looks at the nerves in the low back to see if they're pinched.
Q. And his stated reason for not wanting to do those was just that he had had enough?
A. Yes. The quote I wrote down is that he said, "I've gone as far as I want to go."
It is my opinion that we should give Dr. Ricca's medical opinion that the claimant's suitcase-lifting incident was the cause of his back injury and not the fall from the ladder significant weight. Therefore, after I consider all the evidence, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on July 12, 2000. Accordingly, I respectfully dissent from the majority opinion awarding benefits.
_______________________________ JOE E. YATES, Commissioner