BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION, EMPLOYER

Transcription

1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G KATHY MOORE, EMPLOYEE ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION, EMPLOYER PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED AUGUST 18, 2016 Hearing before Administrative Law Judge Elizabeth W. Hogan on May 20, 2016, in Pine Bluff, Jefferson County, Arkansas. Claimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. Respondents represented by Mr. Robert Montgomery, Attorney at Law, Little Rock, Arkansas. ISSUES A hearing was conducted to determine the claimant s entitlement to payment of additional medical treatment, additional temporary total disability benefits and attorney s fees. At issue is the compensability (causal connection) of the claimant s injury and present condition pursuant to Ark. Code Ann After reviewing the evidence impartially, without giving benefit of the doubt to either party, Ark. Code Ann , I find the evidence does not preponderate in favor of the claimant. STATEMENT OF THE CASE The parties stipulated to an employee-employer-carrier relationship on March 4, 2015, at which time the claimant injured her back, right shoulder and neck at a compensation rate of $461.00/$ Medical expenses and temporary total disability benefits (until June 18, 2015), have been accepted. Some expenses have been paid by Medicaid.

2 -2- The claimant fell at work on March 4, 2015, and was treated conservatively by Dr. Lester Alexander, a general practitioner. He referred the claimant to Dr. James Adametz on May 26, 2015, who recommended surgery (fusion C3-C6). The claimant seeks payment of expenses associated with that medical treatment and temporary total disability benefits from June 19, 2015, to a date yet to be determine. The claimant relies on Dr. Adametz s opinion. The respondents contend the claimant has received appropriated treatment for a musculoskeletal strain. The neck surgery is meant to treat a preexisting degenerative condition and there is no objective medical evidence of trauma that could have aggravated that condition. Therefore, the surgery is not causally related to the compensable injury. The respondents rely on Dr. Cathey s report of June 18, The following were submitted without objection and comprise the evidence of record: the parties prehearing questionnaires and exhibits contained in the transcript along with Dr. Adametz s deposition. The claimant was the only witness to testify at the hearing. The claimant, age 49 (D.O.B. July 16, 1966), has a Masters degree in addiction studies, plus some hours toward a Ph.D. She has been a state employee for twenty-two (22) years and a substance abuse program leader for the last ten (10) years. Her health history includes back strains, a work-related ankle sprain, headaches, numbness in her arm and fingers, and dizziness. She has diabetic neuropathy. On March 4, 2015, the claimant injured her neck and back in a fall. She was leaving a building that had a concrete block as a step and fell on her right side. She developed low back pain, head, neck and shoulder pain, nerve damage to her right arm and dizziness.

3 -3- Initially, the claimant saw general practitioner, Dr. Alexander, who prescribed medication, physical therapy and x-rays. Dr. Adametz recommended neck surgery, but the carrier sent her to Dr. Cathey. Benefits were stopped on June 18, 2015, after Dr. Cathey released her. The claimant used her group health carrier to see Dr. Rubin. Surgery was performed on March 2, 2016, which the claimant found to be beneficial. The claimant returned to work, but quit after three (3) to four (4) hours due to headaches interfering with concentration, aggravated by glare from the computer screen, and difficulty walking and climbing stairs. MEDICAL EVIDENCE In the claimant was treated for complaints of constant headaches, numbness in her fingers and fatigue. She was checked for diabetes and high blood pressure. In 2003 the claimant injured her back. In 2004 and 2005 the claimant was treated for back pain and numbness to her right knee. An MRI was performed, showing a central disc herniation at L4-L5. A 2006 report shows the claimant was not compliant with her blood pressure medication. Another report mentions a problem with her eye but I cannot read the handwritten report. In 2010 the claimant requested a referral to Dr. Sprinkle. In 2011 the claimant complained of numbness in her arm and she was also prescribed diabetes testing equipment. A notation in 2012 indicates the claimant could not afford her blood pressure medication because her husband had lost his job. My review of the medical evidence shows the claimant s history of injury and symptoms changed over time. Dr. Alexander recorded left foot and right shoulder

4 -4- pain diagnosed as sprains and strains with spasms. This progressed to headaches, photophobia and contusions of the head. Then neck and back pain followed, along with numbness in her right fingers. At first she said she landed on her right side, then she reported that she struck her head, and then said she landed on her back. After the incident at work, the claimant saw Dr. Alexander with complaints of left foot and right shoulder pain. He diagnosed a contusion and sprain of the right shoulder with spasms and a sprain of the right foot. X-rays taken March 4, 2015, of the foot and shoulder were unremarkable. Robaxin was prescribed for muscle spasm, but the Doctor doesn t indicate that he observed any spasm or if the claimant reported spasm. The claimant then complained of headaches and photophobia but a March 10, 2015, CT scan of the head was unremarkable. The claimant also complained of injuries to the head and neck and radiating back pain. A March 10, 2015, x-ray of the spine showed slight narrowing at L3-4 and L5-S1 disc levels. X-rays of the cervical spine were unremarkable. Dr. Alexander diagnosed sprains, strains and contusions. changes: A May 1, 2015, MRI scan of the neck revealed multilevel degenerative C3-4, C4-5, C5-6, and C6-7 demonstrates mixed spondylotic disc protrusion with abutment of the thecal sac. Mild to moderate acquired central canal stenosis and neural foramina stenosis In a report dated May 26, 2015, Dr. Adametz encouraged the claimant to return to work. The claimant gave a history of injury as a fall with ankle injury and neck and back symptoms developing over time. Once he recommended surgery on May 29, 2015, the carrier arranged for a second opinion. The claimant saw Dr. Cathey on June 18, 2015, relating a fall, head injury and loss of consciousness. She also reported diabetic neuropathy of both feet. Dr.

5 -5- Cathey opined that diagnostic testing showed degenerative disc disease and spondylosis....i believe the patient most likely suffered a concussion and a musculoskeletal strain as a result of the March 4, 2015, work injury. This is based entirely on history since there are no objective findings. The changes on the MRI scan were clearly preexisting at the time of the study on May 1, In other words, there are no objective findings on the MRI scan that are in any way related to the March 4, 2015, work injury. At this point, I believe she is an acceptable candidate for the proposed surgical procedure outlined by Dr. Adametz. Again, the indication for the surgery is in no way related to the occupational injury of March 4, At this point, I do not recommend any additional treatment for the occupational injury. In other words, she is at maximal medical improvement at this point. There is no impairment rating referable to the March 4, 2015, occupational injury. On July 21, 2015, Dr. David Rubin opined that the claimant may have aggravated her pre-existing cervical condition at the time of the fall based on her symptomology. The claimant had neck surgery on March 2, 2016, which she found helpful. In his deposition, Dr. Adametz testified that the claimant s need for surgery was necessitated by the fall at work based on the MRI results and the claimant s history that she was asymptomatic prior to the fall. He opined the claimant suffered an aggravation of a pre-existing condition. Dr. Adametz explained his reasoning at page 7, of the deposition. He diagnosed preexisting cervical spondylosis with traumatic multilevel disc protrusions based on her history of falling on her neck and back. The claimant told him she was asymptomatic before the fall at work. He dismissed any discrepancies in her history of injury due to being stunned after the fall, but she did not tell him about loss of consciousness, deposition pages Dr. Adametz discussed objective medical findings at pages 17-18, to include the MRI scan, decreased reflexes, and decreased motion and tightness in the neck,

6 -6- however, he was unable to get a reliable strength test. He did say that some of the MRI results could easily be from a traumatic injury although it did encompass a 3-4 level disc problem, deposition pages FINDINGS OF FACT AND CONCLUSIONS OF LAW This case concerns an employer using concrete blocks instead of proper steps and an employee who fell and sustained injuries (contusions and spasms). The issue is whether her neck surgery was necessitated by the injury or aggravated a preexisting condition. Two neurosurgeons, Doctors Adametz and Rubin have opined the claimant suffered an aggravation of a preexisting condition. Dr. Cathey and the Radiologist have determined the claimant suffered from spondylosis and degenerative disc disease. The Commission has the duty of determining the credibility of the witnesses and the weight to be given to the lay testimony and expert medical evidence. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Resolution of conflicting medical evidence is a question of fact to be resolved by the Commission. Beeson v. Landcoast, 43 Ark. App. 132, 862 S.W.2d 846 (1993). The Commission has the authority to accept or reject medical opinion based on the probative force of the evidence and translate into findings of fact only those portions of the testimony deemed persuasive. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983). Act 796 of 1993, did not abolish compensation for a preexisting condition. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). The employer "takes the employee as he finds him" and employment circumstances that aggravate preexisting conditions are compensable. St. Vincent Infirmary v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). Public Employee Claims Division v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992).

7 -7- A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber & Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962); Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d (Ark. App. 1979); and Pearline Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). An aggravation is a new injury resulting from an independent incident, which must meet the definition of a compensable injury, pursuant to Ark. Code Ann , Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). As I interpret the medical evidence, the claimant s neck injury encompasses a larger area (3-4 disc level) than would be expected from this trauma. The radiologist refers to her condition as spondylotic disc protrusions, suggesting a chronic rather than acute condition. And finally, the claimant s history of injury and symptomology have changed over time. I find the claimant has not met her burden of proof. 1. The Workers Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed on March 4, 2015, at which time the claimant injured her back, right shoulder and neck at a compensation rate of $461.00/$ Medical expenses and temporary total disability benefits (until June 18, 2015), have been accepted. Some expenses have been paid by Medicaid. 2. The claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable injury, caused by a specific incident, arising out of and in the course of her employment which produced physical bodily harm, supported by objective findings, requiring medical treatment or producing disability, pursuant to Ark. Code Ann If they have not already done so, the respondents are directed to pay the court reporter, Celia Jamison s, fees and expenses within thirty (30) days of receipt of the bill. This claim is respectfully denied and dismissed. IT IS SO ORDERED. ELIZABETH W. HOGAN Administrative Law Judge