Green v. City of Little Rock

Full title: TRAVIS M. GREEN, EMPLOYEE, CLAIMANT v. CITY OF LITTLE ROCK, A SELF INSURED…

Court: Before the Arkansas Workers' Compensation Commission

Date published: Jun 29, 2006

2006 AWCC 113 (Ark. Work Comp. 2006)

Opinion

CLAIM NO. F503061

OPINION FILED JUNE 29, 2006

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by Honorable Aaron L. Martin, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by Honorable Betty J. Demory, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

OPINION AND ORDER

The respondents appeal a decision of the Administrative Law Judge filed on August 24, 2005, finding that the claimant sustained a compensable injury to his knee on February 4, 2005, for which he is entitled to medical benefits. Based upon our de novo review of the entire file, and without giving the benefit of the doubt to either party, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury. Accordingly, we hereby reverse the decision of the Administrative Law Judge.

At the hearing held on July 28, 2005, the claimant contended that he was bitten by a spider during the course of his employment which resulted in a compensable injury to his left knee. Conversely, the respondents contended that the claimant cannot prove by a preponderance of the evidence that he sustained a spider bite within the course of his employment. Specifically, the respondents contended that it was speculation that the claimant was even bitten by a spider. We agree with the respondents.

The claimant is employed as a firefighter for the City of Little Rock. On February 4, 2005, the claimant reported for duty at 7:00 a.m. at the Central Fire Station. The claimant had just completed a 24 hour shift which began at 7:00 a.m. on February 3, 2005, at Station 15. After completing his shift at Station 15, the claimant drove immediately to the Central Fire Station where he changed into a clean uniform. The claimant testified that he did not notice any problems or anything wrong with his knee at that time. According to the claimant's testimony, he noticed pain in his left knee at approximately 4:00 p.m. on February 4^th, after being at the Central Fire Station since 7:00 that morning. The claimant inspected his knee and noticed a two inch red dot. Assuming it was no big deal the claimant did not do anything in regards to the pain or the redness at that time. At around 5:00 a.m. on February 5^th, when responding to a call, the claimant noticed unbearable pain in his knee when he stood up. After responding to the fire, the claimant reported his knee pain to his supervisor. A workers' compensation form was completed and the claimant was advised to seek medical attention.

The AR-N completed by the claimant indicated that he did not know the cause of his injury which he simply described in his own words as: "I noticed swelling and pain after looking at my knee. I also noted redness and tenderness just to the right of my left knee cap." The claimant never detected a bite of any kind on his knee and he never saw a spider about his person. In fact, the claimant never testified to actually seeing any spiders in or around his person or his uniform at any time. At best the claimant testified that while at Station 15 his turn out gear was kept on the floor in the engine bay or garage and that he has seen more than 10 or fifteen spiders at that station. The claimant described this amount as being numerous and he described the station as having a "spider problem." Nevertheless, the claimant never reported this so-called problem. The claimant did not offer any evidence as to the "spider problem" at the Central Fire Station.

Upon being treated at the emergency room of Baptist Hospital, the claimant was diagnosed with an insect bite "suspect spider bite" and was prescribed antibiotics. Dr. Frederick Levin treated the claimant in the emergency room. In his deposition, Dr. Levin unequivocally testified that he could not be certain that the claimant actually sustained a spider bite. At best, Dr. Levin merely testified that it was his impression that the claimant "probably got" bitten by a spider, or that it was "definitely possible" that the claimant's injury was caused from a spider bite. When asked if he could state within a reasonable degree of medical certainty whether the condition for which he treated the claimant was a spider bite or some other condition, Dr. Levin stated, "No, I sure can't with certainty."

The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. The Full Commission has held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that he sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, he must prove by a preponderance of the evidence (1) the injury arose out of and in the course of his employment; and (2) the injury caused internal or external harm to the body which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(4)(A)(i) and § 11-9-102(4)(E)(i) (Repl. 2002). He must also prove (3) 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(4)(A)(i). Moreover, the claimant must establish (4) that the compensable injury is supported by `objective findings' as defined in § 11-9-102(16)." Ark. Code Ann. § 11-9-102(4)(D);Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Crudup v. Regal Ware, Inc., 31 Ark. App. 804, 20 S.W.3d 900 (2000). If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, he fails to establish the compensability of the claim, and compensation must be denied.Jerry D. Reed, supra.

Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16)(B). Where a medical opinion is sufficiently clear to remove any reason for the trier of fact to have to guess at the cause of the injury, that opinion is stated within a reasonable degree of medical certainty. Huffy Service First v. Ledbetter, 76 Ark. App. 533, 69 S.W.3d 449 (2002), citing Howell v. Scroll Tech., 343 Ark. 297, 35 S.W.3d 300 (2001). The Commission has the authority to accept or reject medical opinions and the authority to determine their medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999). A medical opinion based solely upon a claimant's history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence. Brewer v. Paragould Housing Authority, FC Opinion filed Jan. 22, 1996 ( E417617). Likewise, medical opinions based upon "could", "may", "possibly", and "can" lack the definiteness required to satisfy Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999). Frances v. Gaylord Container Corporation, 341 Ark. 527, 20 S.W.3d 280 (2000). In Frances v. Gaylord, supra. the Arkansas Supreme Court expressly overruled a prior Court of Appeals decision to the extent that the Court of Appeals had held that such indefinite terms where sufficient to meet the requirements of Ark. Code Ann. § 11-9-102(16)(B). InFrances v. Gaylord, the Arkansas Supreme Court held that a doctor's opinion that an accident "could" produce a lumbar disc injury was insufficient to satisfy the standard of being "within a reasonable degree of medical certainty." Moreover, in Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000), the Arkansas Supreme Court held that a medical opinion based upon theoretical possibility of a causal connection did not meet the standard of proof. In Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001), the Arkansas Supreme Court held that in order for a medical opinion regarding causation to "pass muster" such opinion must be more than speculation, and go beyond possibilities. The holdings in Frances v. Gaylord, supra., and Crudup v. Regal Ware, Inc., supra., dictate that when a finding of compensability relies upon a medical opinion that fails to pass muster, reversal is mandated.

In Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001), the court was afforded the opportunity to revisit the holdings in Freeman v. Con-Agra, supra., Frances v. Gaylord, supra., and Crudup v. Regal Ware, Inc., supra. The Court inWackenhut Corp. v. Jones, addressed a medical opinion of the claimant's treating physician in which he "unequivocally stated that [the claimant's] compensable injury was the start of the rapid deterioration of [the claimant's] knee, that it was `probably predestined that this was going to occur, and that job injury just happened to be what triggered this one knee.'" Rather than address whether a finding of compensability which relies upon a medical opinion which fails to meet the statutory requirement "mandates reversal," the Court let this holding stand. Instead the court held that "the use of the word `probably' was sufficient to satisfy the requirement of Ark. Code Ann. § 11-9-102(16)(B) (Sup. 1999).

In the present claim, when Dr. Levin's causation opinion is considered together with all the remaining evidence, we find that the claimant has failed to prove by a preponderance of the credible evidence that he sustained a spider bite which arose out of and in the course of his employment. In Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990), our Supreme Court stated:

The Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant's injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as well as lay testimony and the testimony of the claimant himself. Further . . . while medical opinions are admissible and frequently helpful in workers' compensation cases, they are not conclusive.

A.G. Weldon v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179 (1996). Thus, the Commission need not base a decision on how the medical profession may characterize a given condition, but rather we must base our decisions primarily upon factors germane to the purposes of workers' compensation law.

Dr. Levin opined that it was possible that the claimant's injury was caused by a spider bite, however he could not offer an opinion as to the cause of the claimant's injury within a reasonable degree of medical certainty. Thus, when asked to quantify the certainty of his opinion, Dr. Levin stated in no uncertain terms that he could not offer any opinion as to causation within a reasonable degree of medical certainty. In his deposition, Dr. Levin admitted that his opinion was based upon the claimant's history of having been around spiders. Nevertheless, there is no evidence that the claimant actually saw any spiders at the station house while at work on February 4^th or 5th; or that the claimant saw or felt a spider bite him at any time while at work. Moreover, while the claimant testified that he saw 10 to fifteen spiders at Station 15, his testimony is unclear as to whether that is the amount of spiders he claims to have seen at one time, on one day, or over an extended period of time. Furthermore, there is no evidence as to whether the claimant contends that the Central Fire Station likewise had a "spider problem."

Unlike the recent claim of Reeves v. Actronix, Full Commission Opinion filed August 29, 2005, (claim no. F205463) where we found that an injury caused by a spider bite while at work is compensable, there is absolutely no evidence in this claim that the claimant was actually bitten by a spider. InReeves, the claimant testified that she felt a spider bite her on her thigh, she slapped her thigh, and commented to a co-worker that she thought she had just been bitten. In addition, the claimant's physician in Reeves, conclusively opined that the claimant's injury was the result of a brown recluse spider bite. Inasmuch as no such evidence exists in the present claim, we find that our decision in Reeves is not controlling. The claimant in the present claim did not feel a bite, did not see a spider about his person, and did not testify to seeing a spider in or around his gear on February 4^th. All this claimant knows is that he noticed swelling and redness around his knee at approximately 4:00 p.m. on February 4, 2005. The claimant offered evidence of a "spider problem" at Station 15 where he was assigned on February 3, 2005. After completing his shift at Station 15, the claimant reported to the Central Fire Station at approximately 7:00 a.m. where he changed clothes. The claimant testified on cross-examination that he did not observe any problems with his knee when he changed clothes that morning. If the claimant was bitten by a spider, it is just as possible that there was a spider in the claimant's truck which crawled up his leg while he was driving between stations, or that the spider came from the trunk of his car where he stored his change of clothes. On the record before us, it is simply too speculative to find that the claimant was bitten by a spider, or that if he was bitten by a spider, that such bite arose out of and in the course of his employment. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).

As noted by Dr. Levin, it is possible that the claimant's injury was caused by any number of things, a spider bite just happens to be one of them. In our opinion, the weight of the evidence simply fails to preponderate in favor of finding that the claimant sustained a spider bite which arose out of and in the course of his employment. Therefore, we find that the decision of the Administrative Law Judge must be reversed and this claim for benefits denied and dismissed.

IT IS SO ORDERED.

_______________________________ OLAN W. REEVES, Chairman

_______________________________ KAREN H. McKINNEY, Commissioner

Commissioner Turner dissents.

DISSENTING OPINION

SHELBY W. TURNER, Commissioner

I must respectfully dissent from the majority's opinion finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Based upon myde novo review of the record, it is my opinion that the claimant sustained a compensable injury to his knee on February 4, 2005, for which he would be entitled to medical benefits. In my opinion, the Administrative Law Judge's decision should be affirmed and adopted.

Claimant is a fireman for the city of Little Rock, Arkansas. For each fire alarm, claimant dressed in his full uniform. His turnout gear is stored in the engine bay area of Station 7, his coat and helmet on a hook, his boots and pants on the floor. The garage door to this area is kept open. There are holes in every part of the station, and trash and insects are present on a daily basis. At Station 15, claimant has seen spiders and spider webs on many occasions. Claimant could not recall seeing spiders inside his own home.

Claimant worked on February 3, 2005, and responded to three alarms, one of which required him to kneel on the ground for some time. Claimant testified that prior to this date, he had not cut, scraped, or injured his knee in any way. On February 3, 2005, claimant went to Station 7, picked up his uniform, and drove to Station 15. While at Station 15, claimant had on his uniform, but his turnout gear was in the bay area concrete floor. On February 4, 2005, claimant received a call for overtime and left Station 15 for Station 1. He took a clean set of uniforms and changed into them. He responded to five calls that day. For each alarm, he dressed in his full uniform.

Sometime around 4:00 p.m. on February 4, 2005, claimant began to experience pain in his knee as he was walking. The knee had become tender and swollen and had a red spot with a large red dot in the center.

At 5:00 a.m. on February 5, 2004, claimant was awakened by a fire alarm and found that putting pressure on his knee was very painful. He went on the call, but notified his captain that he was experiencing great knee pain. Claimant testified that after his return to the station, he showed his knee to his captain and then left for the emergency room.

Claimant was examined by Dr. Levin at Baptist Health Medical Center Emergency Room. He was x-rayed, given antibiotics, and a two-day release from work slip. Dr. Levin's report states that his diagnostic impression of the claimant's injury is that he "probably got a spider bite of the anterior aspect of his left knee. This occurred approximately 20 hours ago . . . I suspect he has a spider bite with just some early cellulitis versus tissue reaction." After his emergency room visit claimant went to FirstMed Urgent Care Clinic five different times for wound treatment. The progress notes from those visits describe the claimant's injury as a spider bite with cellulitis and abscess.

In order to prove a compensable injury as a result of a specific incident that is identifiable by time and place of occurrence, a 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 harm to the body that required medical services; (3) medical evidence supported by objective findings 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(4) (Repl. 2003). If the 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. Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).

In the present case, the claimant was diagnosed with an insect bite, suspected to be a spider bite. The first emergency room visit was on February 5, 2005. Respondents accepted the emergency room visit and paid for two MedFirst visits, but controverted the claim on February 9, 2005. The claimant saw the doctor for four more visits and was treated for an insect bite with a staph infection and took antibiotics and had his knee lanced and dressed. The claimant's knee condition resolved by February 22, 2005. The claimant has incurred outstanding medical expenses after the respondents denied the claim.

Dr. Frederick Levin, the emergency room doctor who treated the claimant, has summarized this case very succinctly with his assessment that while the claimant did not see a spider bite him, he had been around spiders in his work station, "so it was more circumstantial type evidence." Dr. Levin testified that he frequently sees spider bites in the emergency room and it is not unusual to see a large area of inflammation such as the claimant's. Dr. Levin testified that within 24 hours after being bitten, you would expect to see swelling.

In my opinion, the Administrative Law Judge was correct in determining that the claimant's employment put him at a greater risk that the general public for the spider bite and it was thus a compensable injury. An injury is deemed to arise out of the employment under the positional risk doctrine, if it is one that would not have occurred but for the fact that the conditions and obligations of the employment placed the employee in the position where the injury occurred. Kendrick v. Peel, Eddy Gibbons Law Firm, 32 Ark. App. 29, 795 S.W.2d 365 (1990). The positional risk doctrine is implicated in circumstances where an employee is injured by a neutral risk to which she is exposed due to the conditions and obligations of her employment. Id. A neutral risk means that the risk which caused the injury was neither personal to the appellant nor distinctly associated with the employment. Diffenbaugh Industries Travelers Ins. Co. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993).

In my opinion, the claimant has proven by a preponderance of the evidence that he sustained a compensable injury arising out of and in the course of his employment. The claimant was a credible witness who described his work station and responsibilities and that he first noticed pain in his knee on February 4, 2005, at approximately 4:00 p.m. The claimant had worked a 24-hour shift on February 3, 2005, from 7:00 a.m. until 7:00 a.m. on February 5, 2005. The claimant described a number of the calls he participated in while on duty on February 3, 2005, through February 5, 2005, where he was outfitted in his turnout protective gear that is stored in the open bays. The claimant did not see a spider bite him, but he displayed all the symptoms of such a bite and credibly testified that he had observed spiders in all of the fire stations where he had worked. The claimant also described a fire alarm on February 3, 2005, where he had to kneel on the ground and pull boards on a structure that was on fire. The claimant was treated for a spider bite and an infection developed which required a few extra visits to doctors.

After only one emergency room visit and six doctor's visits, the claimant's condition resolved and his knee is no longer problematic. According to the claimant's testimony, he missed only one day of work because of his knee. The controverted claim involves only four doctor's visits and no indemnity benefits. In my opinion, the claimant's credible testimony and the medical reports, including Dr. Levin's deposition testimony, are persuasive in proving that the claimant sustained a spider bite and that this occurred while the claimant was in the course and scope of his employment. I also find the claimant's testimony compelling that his turnout gear was stored in an open bay with spiders visible and that his injury arose out of his employment under the positional risk doctrine. For the foregoing reasons, I must respectfully dissent form the majority's decision reversing the Administrative Law Judge's August 24, 2005 opinion.

______________________________ SHELBY W. TURNER, Commissioner