Opinion
CLAIM NO. E509311
OPINION FILED JUNE 23, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ZAN DAVIS Attorney at Law, Little Rock, Arkansas.
Respondent No. 1 represented by the HONORABLE BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE DAVID PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on October 26, 1998. In that opinion and order, the administrative law judge found that the claimant sustained a compensable aggravation of a prior cervical fusion during an incident on June 21, 1995. Specifically, the administrative law judge found that the June 21, 1995 aggravation injury meets the requirements of objective findings as prescribed by Act 796 of 1993. After conducting a de novo review of the entire record, we find that the claimant failed to establish his alleged aggravation by medical evidence supported by objective findings as required by Ark. Code Ann. § 11-9-102(5)(D). Therefore, we find that the decision of the administrative law judge must be reversed.The claimant has alleged that he sustained a compensable injury on or about June 21, 1995. The claimant, who was employed as a truck driver, claims he was injured while attempting to adjust the axles on a trailer. The claimant contends that, as a result of injuries he sustained to his neck, he is entitled to receive temporary total disability benefits from the date of his injury to the end of his healing period, reasonable and necessary medical care, and permanent total disability benefits.
At the time of his alleged injury in June of 1995, the claimant had been employed at the same employer for a period of approximately 21 years. The claimant had also suffered a compensable injury to his neck in 1992. The 1992 injury eventually resulted in the claimant undergoing a discectomy and fusion at the C6, C7 disc space. It was stipulated by the parties that by the date of the claimant's alleged 1995 injury, the statute of limitations barred any claim based upon the 1992 injury.
The respondent initially accepted this claim as compensable and began paying the claimant temporary total disability benefits and medical benefits. However, the respondent later denied the claim in its entirety. When the claimant was no longer able to obtain medical treatment at the respondent's expense, he began seeing physicians at the Veterans Administration Hospital in Little Rock for medical care. In November 1997, the claimant underwent a cervical fusion and discectomy at the C4, C5 disc space at the Veterans Administration Hospital in Little Rock, Arkansas.
The claimant testified that after returning to Arkansas from Anniston, Alabama, the location of his alleged injury, he sought medical treatment. This event is supported by the fact that the record contains correspondence from Dr. Cathey, generated in July and August of 1995, which is directed to other physicians who apparently had recently seen the claimant, although the record does not contain any reports relating to those visits.
Clearly, some incident happened to the claimant while making a delivery in Anniston, Alabama on June 21, 1995. We reach that conclusion because the claimant apparently did document the occurrence of this incident in the log book he maintained while driving the employer's truck. Also, the claimant did advise the respondent of the occurrence of this event upon returning to Arkansas, and provided a consistent history of injury on this date to Dr. Cathey, who the claimant saw in early July of 1995.
There are certain discrepancies in the testimony of the claimant regarding this event. At the hearing, the claimant stated that an injury occurred when a spring mechanism on the trailer's axle pulled him underneath the trailer, catching his forehead on the trailer's edge, bending his neck back. In the Form N, prepared by the claimant on or about June 25, 1995, he stated that while operating the "slider" on the trailer he felt a "sting between shoulder blades."
However, the medical records also establish that the claimant had a serious medical condition in his neck prior to this June 21, 1995, incident. The record contains a report from a MRI which was taken on July 27, 1993. According to that report, in addition to the cervical fusion at C6, C7, the claimant had a small focal herniation on C5, C6 which was causing some nerve root and spinal cord compression. The MRI also indicated spondylosis at C4, C5 which was causing mild cord compression on the central and left side. The radiologist performing this test also noted that the condition had grown progressively worse since the claimant's last MRI scan.
The burden is on the claimant to establish that he either suffered a new injury as a result of his activities on June 21, 1995 or suffered an aggravation of his preexisting condition on that date. See Ark. Code Ann. § 11-9-102(5)(E). A compensable injury, whether an "aggravation" or a new injury, must be established by a preponderance of the evidence, including medical evidence supported by objective findings establishing the nature and the extent of the alleged injury. See, Ark. Code Ann. § 11-9-102(5)(D) and Ark. Code Ann. § 11-9-704(c)(2). See also , Ford v. Chemipulp Process, Inc. , 63 Ark. App. 260, 977 S.W.2d 5 (1998); Stephens Truck Lines v. Millican , 58 Ark. App. 275 950 S.W.2d 472(1997).
The administrative law judge stated in his decision that the claimant did suffer a compensable injury on June 21, 1995, the existence of which was supported by objective evidence. However, the administrative law judge did not set out what those objective findings might be.
After conducting a de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury in 1995 as he asserts. Specifically, there is simply no objective medical evidence to establish an aggravation or a new injury on the date in question. The nearest evidence that could be construed to meet the claimant's requirement is the statement of Dr. Cathey that the claimant had an abnormal lordotic curve. As noted by Dr. Cathey, this defect is usually caused by muscle spasms. While we have previously found that an abnormal lordotic curve caused by muscle spasm is an objective medical finding, in the present case, Dr. Cathey also indicated that the improper curvature could result from other factors such as degenerative changes.
In addition, Dr. Cathey was initially of the opinion that the claimant's increases in symptoms were not attributable to his June 21, 1995, injury but was occasioned by his preexisting condition. This opinion was set out in a letter from Dr. Cathey dated September 6, 1995. Significantly, as regards potential objective medical findings of an aggravation or new injury, Dr. Cathey stated in relevant part:
Although his imaging studies reveal severe degenerative disc disease, spondylosis and post surgical changes at the C6, C7 interspace related to a previous history of an interioral cervical decompression and fusion, there is no sign of any structural abnormalities that can be attributed to his most recent compensated injury. [Emphasis added].
As regards objective findings, Dr. Cathey made similar comments on the same topic in a letter to the claimant's attorney dated April 10, 1997. In that letter, Dr. Cathey stated the following opinion:
In my opinion, the aggravation of 6-21-95 is the "major cause" of Mr. King's apparent disability. It is, however, difficult to demonstrate this objectively in the absence of muscle spasm or new neurological deficits. I also would not agree with your statement suggesting that the aggravation is permanent. I typically use the term "aggravation" to imply a transient worsening of symptoms. [Emphasis added].
The claimant was also seen for a consultative examination by Dr. Jim Moore, a Little Rock neurosurgeon. Dr. Moore essentially agreed with Dr. Cathey and set out his findings in two reports. The first of those reports were dated May 13, 1996. In that report, Dr. Moore stated that the claimant's problems were "suspected to be related to his degenerative processes rather than one single hyper extensive type of injury as sustained in the July 1995 incident." In his subsequent report dated September 16, 1996, Dr. Moore noted that he had been provided additional information most notably the reports and other documents from the Veterans Administration Hospital. After reviewing that information, Dr. Moore stated as follows:
In general, however, all facts being considered, it would be my opinion that the original injury of September 1992 would primarily be the cause of the patient's problems, other than that which could be considered of a normal aging process.
The Veterans Administration determined that the claimant had a C4-5 disc herniation and an osteophyte for which surgery was performed in November of 1997. However, this was over two years after the claimant's alleged injury of June 21, 1995. In this regard, we note that shortly prior to the surgery, the claimant reported to the Veterans Administration Hospital in regard to a new onset of cervical pain and radicular symptoms which occurred after he rolled over in bed and felt a pop in his neck "like a 22 rifle."
However, as discussed, Dr. Cathey, who performed an MRI on July 25, 1995, indicated on September 6, 1995, that there was no sign of any new structural abnormalities attributable to the June 21, 1995 incident. In light of Dr. Cathey's September 1995 report, and in light of the evidence that the claimant experienced a pop in his neck after the 1995 imaging studies, but prior to the 1997 VA imaging studies, we find that the preponderance of the credible evidence fails to establish that a disk herniation indicated by VA imaging studies 1997 was present in 1995. To the contrary, this record indicates that the 1997 disk herniation is an objective finding of injury that occurred after the imaging studies reviewed by Dr. Cathey in 1995.
For the reasons set out above, we find that the claimant failed to establish the occurrence of a compensable new injury or aggravation by medical evidence supported by objective findings. Therefore, we find that the administrative law judge's decision must be reversed. This claim is respectfully denied and dismissed.
IT IS SO ORDERED.
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Commissioner Humphrey dissents.