Opinion
CLAIM NO. E910121
OPINION FILED JANUARY 14, 2003
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE FREDERICK SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by HONORABLE WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal to the Full Commission an Administrative Law Judge's opinion filed December 18, 2001. The Administrative Law Judge found that the claimant had sustained a compensable back injury, that the respondents were liable for all reasonably necessary medical treatment, including medical services provided to evaluate the possibility of a urinary tract infection, and that the claimant was entitled to temporary total disability from the time that she first missed work through December 27, 1999.
After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge.
The claimant's husband testified that the claimant came home from work on August 9, 1999, and said that she had hurt herself turning a patient. He testified that he had to take her to the hospital that night because she couldn't get out of bed, and that the next morning he called the respondent's front desk to speak to the claimant's supervisor, Pam Laur. He testified that Pam wasn't there, so he told the receptionist about the claimant being in the hospital. He testified that the claimant's co-workers did not come to visit, did not call, and did not send flowers during the several days that she was hospitalized. Pam Laur testified that she never received a message that Mr. Martin had called to report that the claimant was in the hospital.
The claimant was 65 years old and had worked as a nursing aide for the respondent for 15 years. The claimant testified that on August 9, 1999, she was trying to turn a patient over in bed when she heard something pop in her back. The claimant testified that she developed shingles after being hospitalized for her back injury. She testified that after about a week the shingles went away, but that she continued to have pain between her shoulders, down through her rib cage, and into her stomach. She testified that her low back never bothered her but sometimes the pain went into her legs. During cross-examination the following exchange took place:
Q. Ms. Martin, when I took your deposition . . . you told me you reported your injury to Pam the day after that.
A. Yes.
Q. But today you're telling us that you didn't report it to her?
A. Yes, I did.
Q. The day after the injury?
A. Yes.
Q. When did you go to the hospital?
A. It was 8-24 of `99.
An emergency room intake record dated Tuesday, August 24, 1999, states that the claimant "c/o low back pain [left] side." In the margins the medical care provider wrote "hurting one week?" and "DOI 8-9?". An emergency room nursing record gives as a history provided by the claimant: "[lower] back pain on [left] side started hurting really bad on Monday. `I do a lot of heavy lifting.'"
A radiology report dated August 25, 1999, shows mild osteoarthritis and mild osteoporosis but no other abnormalities. A record from Dr. Collins of the same date states:
She has workman's comp injury on 8-9-99 where she was pulling a patient across the bed and injured her left lower back. She has been trying to work since that time, but having a lot of difficulty. She has left mid-back muscular spasm that she notes radiates around her left ribs.
An emergency room record dated August 27, 1999, provides a diagnosis of a urinary tract infection. A radiology report dated August 28, 1999, shows no acute abnormalities being identified. A discharge summary dictated by Dr. Langston dated September 1, 1999, states:
Her past history is significant for lumbar strain, moving a patient as she is employed by area connection. She had seen Dr. Ken Collins for this lumbar strain, and some of her back pain may be related to that, but that is not the reason for her admission.
The claimant's discharge diagnoses in this document were herpes zoster (shingles), pyuria (urinary tract infection), and constipation.
Dr. Collins' note for September 7, 1999, states:
She is back for recheck. She was hospitalized with severe back pain shingles that developed within a week after she was seen by us here with low back pain. At that time we thought this was due to muscular spasm. She was hospitalized by Dr. Langston and treated for shingles and a urinary tract infection. . . . I do feel that these problems [urinary tract infection and shingles] did give her all of her symptoms previously and that she did not have a low back spasm or workman's comp injury at the time of our last presentation given her delayed outbreak of shingles. . . . I have written her a note to be off work due to her shingles and urinary tract infection. (Emphasis added.)
Two health insurance claim forms, for office visits on August 25, 1999, and September 7, 1999, bear an "automated signature" of Dr. Collins and indicate that the claimant's condition was not related to her employment.
A letter dated November 24, 1999, from Dr. Ferguson, a urologist, states:
She was told she had urinary tract infection but she is certain that she injured her back in lifting a patient at the onset of this present illness. Later she had shingles and I think at present her back pain is persistent and as she describes the course of her pain it sounds to me that she could have a post-herpetic neuralgia . . . .
Dr. Ferguson testified in deposition that after his November 24, 1999, visit with the claimant he didn't think that her pain was caused by a urinary tract problem.
A radiology report of an MRI of the claimant's lumbar spine dated December 3, 1999, states that no HNP was identified. Dr. Ferguson reviewed the results of this MRI and acknowledged that it was a normal study. When asked whether he had seen any diagnostic test results for the claimant which provided any objective evidence of a back injury, Dr. Ferguson stated that he had not. Because he had eliminated the possibility of a urologic cause for the claimant's complaints, Dr. Ferguson testified that it was the claimant's relation of her work history that convinced him that the source of her pain was neuromuscular. He stated:
My supposition still is — now I don't know what caused her pain. . . . but I felt that she had a back problem related to lifting or straining, and that caused her complaints of pain, and so I'm just saying that I think that's my best speculation. . . . I'm not a back specialist, and I — one other things would just be to say that as a urologist I don't think her pain is related to urology and just stop right there.
When asked specifically, "Is it your testimony today that in order for you to say that this lady had a back injury that it would require supposition or speculation on your part? Dr. Ferguson answered, "Yes, I think . . . that is speculation. I don't have any documentation of any injury." Questioning was directed to a typed note signed by Dr. Ferguson on June 16, 2000, which stated:
To whom it may concern: Re: Mary Martin This woman is patient of mine. It is my opinion, stated within a reasonable degree of medical certainty and based on the history and physical I performed on her, that the back injury she sustained on August 9, 1999, is the major cause of this lady's need for treatment of her back since then. It is my opinion that she sustained a pinched nerve on that date, and my opinion is based on the following objective and/or diagnostic findings: Patient referred by Dr. Wallace seen on 11/24/99, 12/23/99.
Dr. Ferguson was asked: "You don't have any objective findings from any medical result or tests; is that correct?" He answered, "Yes, that's correct." Dr. Ferguson further conceded that he did not in fact see any objective findings which indicated a pinched nerve.
The claimant began treating with a chiropractor, Dr. Conner, in January 2000. Dr. Conner testified during his deposition that there was no way to know from his standpoint as a chiropractor whether the pain the claimant was experiencing came from a urinary tract condition, herpes zoster, or a musculoskeletal strain or sprain. He acknowledged that the claimant's MRI was essentially normal for her age. He testified that shingles (herpes zoster) is a viral infection of a nerve, and that anything that interferes with a nerve could cause a muscle spasm, because nerves activate muscles. He conceded that he could not state what the cause of the claimant's pain was because that was not his job — his job was to provide relief from pain.
Dr. Connor had signed a typed note on June 3, 2000, that was essentially identical to the once signed by Dr. Ferguson, which stated:
To whom it may concern: Re: Mary Martin This woman is a patient of mine. In my opinion, stated within a reasonable degree of medical certainty, that the back injury sustained on August 9, 1999 is the major cause of this lady's need for chiropractic treatment since then. It is my opinion that she sustained a pinched nerve on that date, and that the treatment I provided is reasonable, necessary and related to the back injury mentioned above. Objective findings consist of the following: tension spasm of muscles, swelling pain and tenderness.
When confronted with this note which contains statements contrary to his deposition testimony, Dr. Conner suggested that the last sentence in the document, which was written in longhand, was a qualifying phrase.
The claimant's injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. In order to establish the compensability of an injury, a claimant must satisfy all of 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). A claimant must prove by a preponderance of the evidence that she sustained an accidental injury as a result of a specific incident, identifiable by time and place of occurrence, which caused internal or external harm to the body, which arose out of and in the course of his employment, and 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). Ark. Code Ann. § 11-9-102(4)(D) further requires that a claimant establish a compensable injury by medical evidence supported by objective findings, as defined in § 11-9-102(16). Objective medical evidence is necessary to establish the existence and extent of an injury, but is not essential to establish the causal relationship between the injury and the work-related accident, where a preponderance of other non-medical evidence establishes the causal relationship. Horticare Landscape Management v. McDonald, ___ Ark. App. ___, ___ S.W.3d ___ (November 20, 2002), citing Wal-Mart Stores, Inc. v. VanWagner,337 Ark. 443, 990 S.W.2d 522 (1999). However, when a claimant chooses to rely on medical evidence to establish causation, that evidence must be stated within a reasonable degree of medical certainty. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, ___ S.W.3d ___ (2001). 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.
The claimant failed to establish a compensable injury because she failed to prove by a preponderance of the evidence that she sustained an accidental injury a result of a specific incident, identifiable by time and place of occurrence; failed to provide medical opinions addressing compensability that were stated within a reasonable degree of medical certainty; and failed to establish a compensable injury by medical evidence supported by objective findings.
The claimant's credibility with regard to the alleged August 9, 1999, specific incident is rendered suspect by the contradictions in the evidence. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Arkansas Dept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993).
The claimant's husband testified: that the claimant came home from work on August 9, 1999, and said that she had hurt herself turning a patient; that he had to take her to the hospital that night because she couldn't get out of bed; and that the next morning he called the respondent's front desk and told the receptionist to leave a message for Pam Laur about the claimant being in the hospital. Pam Laur testified that she never received a message that Mr. Martin had called to report that the claimant was in the hospital. Further, the evidence shows that it was not the night of August 9 (or even the early morning of August 10), but rather the night of August 24, 1999, that the claimant actually first went to the hospital.
The claimant's own testimony on this issue was contradictory. She stated that she herself reported her injury to Pam Laur the day after it occurred, which she testified was August 9, 1999. However, she agreed that she first went to the hospital August 24, 1999.
The hospital records do not help clear up this confusion. In the margin of an emergency room intake record dated Tuesday, August 24, 1999, a medical care provider wrote "hurting one week?" This would establish an onset date of August 17, 1999. Oddly, the same person also wrote in the margin "DOI 8-9?". However, an emergency room nursing record from that same date gives as a history provided by the claimant: "[lower] back pain on [left] side started hurting really bad on Monday." Since August 24, 1999, was a Tuesday, that would have been the day prior, August 23, 1999. While this last notation could conform to the testimony of the claimant and her husband, that the claimant went to the hospital the night after coming home from work hurt, it could conform only if the claimant was hurt at work on Monday and went to the hospital in the early morning hours of Tuesday, August 24, 1999. However, the records show that claimant was admitted to the hospital at 8:30 p.m. that Tuesday. Thus, none of these records can be reconciled with the claimant and her husband's recitation of the events.
A second issue of inconsistency arises regarding the location of the claimant's injury. During her testimony, the claimant denied ever having low back pain. However, the two emergency room records from August 24, 1999, both report the claimant complaining of low back pain, Dr. Collins August 25, 1999, report cites low back pain, and Dr. Langston's report of September 1, 1999, mentions lumbar back pain as well.
Because of these inconsistencies in the evidence, we find that the claimant failed to prove by a preponderance of the evidence that she sustained an accidental injury a result of a specific incident, identifiable by time and place of occurrence.
While the claimant did offer written medical opinions from Dr. Ferguson and Dr. Conner in support of compensability, these opinions cannot be deemed to have been stated within a reasonable degree of medical certainty, because both of these providers' typed "opinion letters" in support of the work-relatedness of the claimant's injury were discredited by their deposition testimony.
Dr. Ferguson stated that it was only the claimant's relation of her work history that convinced him that the source of her pain was neuromuscular. He stated: "I don't know what caused her pain. . . . but I felt that she had a back problem related to lifting or straining, and that caused her complaints of pain, and so I'm just saying that I think that's my best speculation." When asked specifically, "Is it your testimony today that in order for you to say that this lady had a back injury that it would require supposition or speculation on your part? Dr. Ferguson answered, "Yes, I think it . . . is speculation. I don't have any documentation of any injury." He specifically conceded that he did not in fact see any objective findings which indicated a pinched nerve, in direct contradiction to the text of the typed opinion letter.
Dr. Conner stated that there was no way to know from his standpoint as a chiropractor whether the pain the claimant was experiencing came from a urinary tract condition, herpes zoster, or a musculoskeletal strain or sprain. He conceded that he could not state the cause of the claimant's pain because that was not his job.
The only other opinion in the evidence is that of Dr. Collins; and his note of September 7, 1999, clearly discounted any work-related injury as being the case of the claimant's problems when it stated: "I do feel that these problems [urinary tract infection and shingles] did give her all of her symptoms previously and that she did not have a low back spasm or workman's comp injury at the time of our last presentation given her delayed outbreak of shingles."
As stated previously, when a claimant chooses to rely on medical evidence to establish causation, that evidence must be stated within a reasonable degree of medical certainty. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, ___ S.W.3d ___ (2001). For the foregoing reasons we find that the claimant failed to provide medical opinions addressing compensability that were stated within a reasonable degree of medical certainty.
Lastly, we find that the claimant failed to establish a compensable injury by medical evidence supported by objective findings. The only objective finding of injury presented was observed muscle spasms. The claimant's MRI was essentially normal. Dr. Connor testified that the claimant's severe shingles could cause muscle spasms. Thus the only objective finding of injury in this case is attributable to a documented condition from which the claimant suffered. It is far more reasonable to connect the spasms to the shingles, than to try to connect them to an un-reported, un-witnessed incident at work for which there is no consistent testimony on the date of occurrence.
Because the claimant failed to prove by a preponderance of the evidence that she sustained an accidental injury a result of a specific incident, identifiable by time and place of occurrence, failed to provide medical opinions addressing compensability that were stated within a reasonable degree of medical certainty, and failed to establish a compensable injury by medical evidence supported by objective findings, we find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable back injury. Therefore, based on our de novo review of the entire record, the Full Commission reverses the Administrative Law Judge's finding of compensability and award of temporary total disability and medical benefits, and denies and dismisses the claimant's claim.
IT IS SO ORDERED.
____________________________ JOE E. YATES, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion's conclusions. I write separately only to address the dissent's conclusion that Dr. Collins' medical opinion should be entitled to little or no weight.
As I understand the medical record, the claimant first presented to the North Arkansas Regional Medical Center emergency room on August 24, 1999 with severe low back pain, and was discharged with medication with a diagnosis of acute lumbar strain.
The claimant followed up with Dr. Ken Collins on August 25, 1999 for her diagnosed back injury. Dr. Collins noted the presence of left-mid back muscle spasm radiating around the claimant's left ribs. Dr. Collins released the claimant with medications, to remain off work and to begin physical therapy if she did not improve rapidly.
The claimant was back in the North Arkansas Regional Medical Center emergency room on August 27, 1999 with worse low back pain. The claimant was also released with medications for a possible bladder infection.
The claimant was back in the emergency room a third time on August 30, 1999 with vomiting, alternating chills and hot, and nausea. The claimant was apparently discharged on September 1, 1999, but prior to discharge, the claimant erupted with herpes zoster (shingles) extending around her left flank. Dr. Langston concluded in his discharge summary that undoubtedly the newly discovered herpes zoster caused much of the claimant's symptomatology. However, since the claimant also had a history of a reported lumbar strain, and since Dr. Langston indicated that some of the claimant's back discomfort might be musculoskeletal, Dr. Langston scheduled follow-up with Dr. Collins, the orthopedic specialist who followed the claimant for her diagnosed lumbar strain before the claimant's herpes zoster erupted. As noted by both the principal opinion and the dissenting opinion, Dr. Collins opined after a September 7, 1999 examination that the herpes zoster and a urinary tract infection accounted for the claimant's symptoms, and that the claimant did not have a work-related back injury when she presented previously on August 25, 1999.
Under these circumstances, I disagree with the dissent's suggestion that Dr. Collins engaged in speculation and hypothesis without a thorough medical investigation of the claimant's condition in rendering his September 7, 1999 diagnosis. In this regard, I point out that Dr. Collins was the orthopedic specialist who examined the claimant before her herpes zoster erupted and examined her again shortly after her herpes zoster erupted on her left flank and became apparent to the claimant's treating physicians. Dr. Collins is the orthopedic specialist who initially diagnosed left mid-back spasm and lumbar strain. I see no credible evidence to persuade me that Dr. Collins failed to adequately investigate the claimant's condition in rendering his final diagnosis. In fact, I note that nothing in the diagnostic testing that claimant underwent, either before or after September 7, 1999, and nothing in the diagnoses and opinions rendered by the other physicians in this case, appears to me to persuasively contradict Dr. Collins' conclusion that what he initially mis-diagnosed as a lumbar strain with spasm was actually a symptom of the herpes zoster that did not erupt until several days after his initial examination and lumbar strain mis-diagnosis. Clearly, no physician in this case was in a better position than Dr. Collins to ascertain whether or not what Dr. Collins initially diagnosed as lumbar strain was actually caused by herpes zoster that had not yet erupted at the time of his initial examination.
In short, the dissent has failed to identify any persuasive evidence indicating to me that Dr. Collins based his diagnosis and opinion at issue on any mistake of material fact or failure to adequately investigate whether the claimant's back pain was caused by the back strain he had initially diagnosed or was instead caused by the herpes zoster that did not erupt and become visibly apparent until several days after that first examination.
I believe a preponderance of the credible evidence establishes that the claimant's severe back pain and diagnosed muscle spasm at issue were caused by herpes zoster, not a lumbar strain.
___________________________ ELDON F. COFFMAN, Chairman
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the decision of the majority reversing the decision of the Administrative Law Judge.
The majority determines that the claimant failed to meet her burden of proof for three reasons. First, they find that the claimant failed to prove by a preponderance of the evidence that she sustained an accidental injury as the result of a specific incident, identifiable by time and place of occurrence. Second, they find that the claimant failed to provide medical opinions addressing compensability that were stated within a reasonable degree of medical certainty. Third, they find that the claimant failed to establish a compensable injury by medical evidence supported by objective findings.
In support of their first finding, the majority states that there is conflicting evidence as to whether claimant immediately reported her injury, and as to when the claimant first sought medical treatment for her injury. While I will acknowledge that the analysis of the record by the majority on this point is accurate, I would assert that none of these inconsistencies tend to indicate that claimant was being untruthful in alleging that she injured herself by lifting a patient on August 9, 1999. At the outset, it should be noted that Ms. Pam Laurr, the claimant's supervisor, testified that the claimant was an excellent employee and an honest person ( see Hearing Transcript, page 19). Furthermore, it should be noted that Ms. Laurr only testified that she never received a message that the claimant would not be "coming in" because she was in the hospital ( see Hearing Transcript, page 19). It is very important to realize that she never contradicted the claimant's testimony that she told Ms. Laurr about the lifting incident the next day; she stated only that she was not informed that the claimant was in the hospital. In short, I do not find the inconsistencies as to the timing of the claimant's hospitalization and the reporting of her injury to in any way indicate a lack of truthfulness on the part of claimant. I find the most likely explanation to be that the claimant's husband was simply mistaken as to when the claimant first went to the hospital. If this is the case, then it is quite possible that the claimant did indeed inform Ms. Laurr of the injury the next day. Her hospitalization would have occurred later, and it is quite possible that Ms. Laurr was not informed of the hospitalization. Finally, I find it to be significant that the respondents initially accepted this claim as compensable and paid for the claimant's medical treatment. It seems to me unlikely that they would have done so if they believed claimant was being untruthful and fabricating a work accident. I find the fact that the respondents initially accepted the claim as compensable to indicate that the claimant timely reported the accident.
As to the majority's finding that the claimant failed to provide medical opinions addressing compensability that were stated within a reasonable degree of medical certainty, I assume that the majority is asserting that the causation element of compensability was not proven by medical opinion evidence stated within a reasonable degree of medical certainty. If my assumption is correct, I will concede solely for purpose of argument that none of the doctors' opinions in this case meet the standard of "reasonable degree of medical certainty" in connecting the claimant's back problems to the August 9, 1999 lifting incident. However, case law is clear that the causation element of compensability need not be established by evidence of objective medical findings. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). So, the fact that the claimant failed to produce medical opinion evidence within a reasonable degree of medical certainty on the causation issue does not operate to defeat her claim; she still may prove the causation element with non-medical evidence.
In response to the majority's finding that the claimant failed to establish a compensable injury by medical evidence supported by objective findings, I note that the majority observes that claimant's physicians have reported observing muscle spasms in claimant's back. It is clear that observation and reporting of muscle spasms by a physician constitutes objective medical findings. See High Capacity Foods v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). The majority attempts to discredit this objective medical evidence by stating that other medical problems from which claimant suffered could have caused the muscle spasms. Even if this statement is true, it does not go to the issue of whether claimant met her burden to prove the existence of injury by objective medical findings. Rather, it goes to the issue of causation of injury, which as noted above, need not be proven by evidence of objective medical findings. Therefore, I find that claimant has met her burden of proving the existence of injury by objective medical findings.
As a result of these observations, this case essentially turns upon answering the question of whether the claimant's current back problems are causally related to the August 9, 1999 lifting incident. I find that indeed they are. Most convincingly, I find that the claimant's treatment pattern indicates that she had not previously had significant problems with her back prior to August 9, 1999.
As to the alternative possible causes of the claimant's lower back problems, namely shingles and/or a urinary tract infection, I find that there is a lack of competent evidence in the record upon which to base a finding that more likely than not, these problems rather than the August 9, 1999 lifting incident caused the claimant's current back problems. As to the claimant's alleged urinary tract infection, Dr. Noel Ferguson, a urologist, clearly indicated in his deposition testimony that as a result of his extensive examination of the claimant, it was his opinion that she did not suffer from a urinary tract infection ( see Deposition of Dr. Ferguson, page 11). As to the claimant's shingles, it is true that Dr. Collins noted in a clinic note as follows:
At that time we thought this was due to muscular spasm. She was hospitalized by Dr. Langston and treated for shingles and a urinary tract infection. I do feel that these problems [urinary tract infection and shingles] did give her all of her symptoms previously and that she did not have a low back spasm or workman's comp injury at the time of our last presentation given her delayed outbreak of shingles.
However, I am at a loss to understand Dr. Collins' reasoning as to why he believes that claimant's problems were caused by a urinary tract infection and shingles instead of a work injury. In fact, Dr. Collins fails to state the basis for his reasoning; he merely states that he believes the back problems were caused by shingles and a urinary tract infection. In this clinic note, Dr. Collins also states that the prior supposed etiology was "muscular spasm." To the extent that Dr. Collins now hypothesizes that the claimant's back problems were caused by shingles and a urinary tract infection instead of "muscular spasm," I would offer the following in rebuttal. First, Dr. Conner indicated that he observed muscle spasms along the claimant's spine upon his examination ( see Deposition of Dr. Conner, page 40). Second, as noted above, the expert opinion of Dr. Ferguson was that claimant did not even suffer from a urinary tract infection. For these reasons, I do not find the opinion of Dr. Collins to be credible. The Commission has the prerogative to reject a medical opinion it finds to lack credibility. See, e.g., Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). The respondents had the opportunity to depose Dr. Collins for the purpose of clarifying the basis for his reasoning, yet they failed to do so. I do not find that this brief and unexplained statement in the record supports a finding that more likely than not, the claimant's low back problems were due to shingles and/or a urinary tract infection.
For these reasons, I respectfully dissent.
_______________________________ SHELBY W. TURNER, Commissioner