Opinion
CLAIM NO. E404932
OPINION FILED JANUARY 2, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE OSCAR H. HIRBY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE HEATHER L. HENDRIX, Attorney at Law, No. Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on March 14, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury. Therefore, we find that the administrative law judge's decision must be affirmed.
The claimant, age 30, has been employed by the respondent employer for approximately 10 years and is currently a crew chief in the city's utilities department. On January 18, 1994, the claimant was carrying a transformer and box weighing approximately forty 40 to 50 pounds from his utility truck to a work site located across Interstate 40, a distance of approximately 60 to 70 yards when he experienced an onset of back pain. The claimant testified that he carried the transformer on to the work site and that he continued to work, but he did not help his co-workers carry equipment back to the truck after finishing the job later that day. The claimant's, supervisor, Foster Rash, appeared at the job site later that morning, and the claimant told Mr. Rash about the onset of pain while carrying the transformer, and a co-worker, Mike French, was present during the conversation. The claimant also discussed the incident with Mr. Rash again on January 19, 1994, with co-workers present.
On approximately January 20, 1994, the claimant telephoned the office of Dr. Joseph Miller, a neurosurgeon, and scheduled an appointment for February 1, 1994. The claimant continued to experience back pain prior his doctor's appointment on February 1, so he obtained the services of Dr. Roger Ellis, a chiropractor, on approximately four occasions which provided temporary relief. However, the claimant experienced an exacerbation of his problems during sexual intercourse on January 30, 1994.
Dr. Miller examined the claimant on February 1, 1994, at which time the claimant reported the pain experienced during sexual intercourse, but did not report the work related injury on January 18, 1994. Dr. Miller's examination indicated symptoms consistent with nerve root compression at the L4 level of the back. A MRI scan was performed which revealed a large right paracentral disc herniation at the L3-4 level of the back with an extended disc fragment. Although Dr. Miller initially believed that surgery would be necessary, he first prescribed three days bed rest on February 4, 1994, to determine the claimant's response to conservative treatment. Upon follow-up examination on February 7, 1994, Dr. Miller determined that the claimant's back condition was slightly better. He therefore returned the claimant to light-duty work and scheduled a return visit the following week for a final determination regarding disc surgery. However, due to a weather-related emergency, the claimant returned to full duty work, not light-duty work, on February 8, 1995. Nevertheless, by the time Dr. Miller examined him on February 15, 1995, he was completely symptom free. Dr. Miller therefore discharged the claimant from his care to return as needed, and the claimant has not returned for additional medical treatment subsequent to February 15, 1995.
The claimant has a prior history of back problems. In June of 1985, he sustained a work-related injury requiring surgery at the L4-5 level of the back. In January of 1987, he sustained a second work-related injury requiring surgery at the L5-S1 level. Dr. Miller performed each surgery. In October of 1991, the claimant returned with symptoms consistent with nerve root compression at the L3 level, and a MRI indicated a central ruptured disc at the L3-4 level of the back. However, according to Dr. Miller, the claimant recovered fully from the 1991 injury through conservative care and was discharged to return to regular duty work in December of 1991, approximately two months later. The claimant again returned to Dr. Miller after injurying his back in the shower on September 24, 1993. After an examination on October 1, 1993, Dr. Miller prescribed conservative treatment and placed the claimant on light-duty work status for one week. The claimant did not return to Dr. Miller prior to the work-related incident, although he did telephone in a request for a muscle relaxant and a request for muscle spasm medication on November 16, 1993, and November 26, 1993, respectively.
Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers' Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirement for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers' Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102 (5)(A)(i) (Cumm. Supp. 1993) are controlling, and the following requirements must be satisfied:
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5)(E)(i) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Cumm. Supp. 1993));
(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 (see, Ark. Code Ann. § 11-9-102 (5) (A)(i) (Cumm. Supp. 1993));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury (see, Ark. Code Ann. § 11-9-102 (5)(D) (Cumm. Supp. 1993));
(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 (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Cumm. Supp. 1993)).
In the present claim, we find that the claimant has proven by a preponderance of the evidence each of the requirements necessary to establish a compensable injury under the amended law. In this regard, objective medical findings clearly show the presence of internal physical harm to the body. In addition, the preponderance of the evidence establishes that the claimant sustained an injury as the result of a specific incident that occurred on January 18, 1994, and which arose out of and in the course of his employment. Although no one saw the incident, Bret Sims, a co-worker at the work site, testified that the claimant told him that same morning that he hurt his back carrying the equipment. In addition, Mr. Sims testified that the claimant appeared uninjured before carrying the equipment but that he walked hunched over later that morning. Michael French, another co-worker, testified that he overheard the claimant reporting the incident and injury to his supervisor that morning and again the following morning.
In reaching our decision, we note that the respondents contend that the January 18, 1994, injury is a recurrence of the injury which occurred four months earlier on September 24, 1993. However, we find that the preponderance of the evidence shows that the claimant was fully recovered from the prior L3-4 injury before the incident on January 18, 1994. In this regard, the evidence shows that the claimant was asymptomatic after approximately two months of conservative care following the September of 1993 injury, and the evidence shows that he remained asymptomatic from that time until he carried the transformer and box on January 18, 1994. Thus, we find that the claimant sustained either a new injury or an aggravation of a preexisting condition on January 18, 1994. We note that the claimant received additional medication in November of 1993 following the September injury. However, the mere fact that the claimant requested additional medication two months after the September injury does not indicate that the claimant continued to suffer from the effects of the injury in January of 1994, approximately four months after the prior accident.
The respondents also contend that the claimant's sexual intercourse on January 30, 1994 is an independent intervening cause which caused the need for the medical services subsequently provided. In this regard, under the law in existence prior to the effective date of Act 796 of 1993, an employer was responsible for every natural consequence that flows from an injury arising out of and in the course of employment. Liberty Mutual Insurance Co. v. Coleman, 313 Ark. 212, 852 S.W.2d 816 (1993); Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993); Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Consequently, under the law in effect at that time, the employer remained liable for subsequent complications that were the natural and probable result of the original injury. Id. On the other hand, if the subsequent complications result from an independent intervening cause, the employer is relieved of liability for compensation benefits. Id. In determining the existence of an intervening cause, the question was whether there was a causal connection between the primary injury and the subsequent disability and need for treatment. Id. However, the intervening incident had to independently contribute to the claimant's condition before the employer was relieved of liability. Id. Moreover, under the prior law, there was no intervening cause unless the subsequent disability or need for treatment was triggered by activity on the part of the claimant which was unreasonable or negligent under the circumstances Id.
With regard to independent intervening causes, Act 796 of 1993 amended the Arkansas Workers' Compensation Law to provide the following:
. . . [B]enefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.
Ark. Code Ann. § 11-9-102 (5)(F)(iii) (Cumm. Supp. 1993). Consequently, Act 796 changed the prior law only to the extent that the prior law required negligence or recklessness on the part of a claimant before an independent intervening cause could be found. Therefore, under the law as amended by Act 796, an employer remains responsible for every natural consequence that flows from an injury arising out of and in the course of employment, and the employer remains liable for subsequent complications that are the natural and probable result of the original injury. Furthermore, the employer continues to be relieved of liability if subsequent complications result from an independent intervening cause.
In the present claim, we find that the preponderance of the evidence establishes that the claimant's need for medical treatment was a result of the work-related injury sustained January 18, 1994. In that regard, the claimant contacted Dr. Miller's office to make the appointment on January 20, 1994, only 2 days after the injury and 10 days before the incident involving sexual intercourse with his wife. Furthermore, the claimant remained symptomatic and his condition remained essentially unchanged from the time of the accident until he was seen by Dr. Miller on January 31, 1994. Consequently, although the incident on January 30, 1994, may have temporarily exacerbated his condition to some extent, we find that the January 30, 1994, incident did not cause or prolong the need for medical treatment.
In reaching this decision, we are aware that Dr. Miller opined by letter dated September 27, 1994, that the claimant's need for medical treatment was caused by sexual intercourse on January 30, 1994, and was therefore not work-related. However, Dr. Miller's opinion was based on the absence of any mention of the work-related incident in the history reported by the claimant. However, as discussed, the evidence clearly establishes that the claimant sustained a work-related injury on January 18, 1994. Therefore, even though the claimant may have been a poor historian in relating the history of his injury to Dr. Miller, we find that Dr. Miller's opinion in this regard was based on a faulty history and that it is entitled to little weight.
Accordingly, based on a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant sustained a compensable injury on January 18, 1994. Therefore, we find that the decision of the administrative law judge must be, and hereby is, affirmed. The respondents are directed to comply with the award contained in the administrative law judge's opinion filed on March 14, 1995.
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 (1987). 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 (b) (1987).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's finding that claimant has proven by a preponderance of the credible evidence that he sustained a compensable injury on January 18, 1994.
Claimant relates a specific injury occurring on January 18, 1994. However, in my opinion, his version of the facts is not supported by a preponderance of the credible evidence.
It is significant that claimant failed to give a history of the January 18, 1994 incident on February 1, 1994, when he first was seen by Dr. Miller. Rather, claimant related an onset of pain while having sex with his wife on January 30, 1994. Additionally, he related an incident that occurred in September, 1993 when he dropped soap in the shower and hurt himself as he bent over to pick it up. Claimant failed to tell Dr. Miller that he had hurt his back on January 18, 1994. Testimony shows that Dr. Miller took a lengthy history from claimant in February 1994 regarding his back pain. Additionally, Dr. Miller had treated the claimant for previous back problems. I find it significant that not until March 30 was Dr. Miller informed that claimant claimed this was a work-related injury. The majority dismisses claimant's lapse by stating that claimant is a "poor historian." I am not convinced. Claimant has a history of back difficulties and is probably aware of the significance of precipitating incidents. His failure to relate the alleged January 18th incident is damaging to claimant's case. In my opinion, claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable injury.
As stated, I respectfully dissent from the majority's opinion.
ALICE L. HOLCOMB, Commissioner