Allen Williams v. Saline Crushing and Excavating

ca05-039

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-39

September 21, 2005

ALLEN WILLIAMS AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E907288]

V.

SALINE CRUSHING AND EXCAVATING

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Allen Williams appeals from the denial of workers' compensation benefits, arguing that the Arkansas Workers' Compensation Commission (Commission) erred in finding that he failed to prove a causal relationship between his compensable back injury and surgeries performed on his L5-S1 lumbar disc in January 2003. We affirm the Commission's order.

Appellant sustained a compensable injury on February 8, 1999, in the course of his employment with appellee, Saline Crushing and Excavation. While digging with a shovel, appellant pushed the shovel with his right foot and struck a root, which caused him to spin around and fall to the ground. He complained of back pain and numbness in his right leg. Appellant's initial treating physician, Dr. James Cooper, a neurologist, ordered an MRI, which revealed mild bulging in the L4-5 and L5-S1 lumbar discs. The MRI indicated that the bulge in the L4-5 disc was affecting the the cal sac and that there was narrowing of the neural foramina bilaterally. The MRI revealed a contrary finding that the herniation at theL5-S1 level was not impinging on the nerve root.

Dr. Cooper referred appellant to Dr. Robert Dickins, a neurosurgeon. After examining appellant and reviewing his MRI scan, Dr. Dickins concluded that appellant had herniation at the L4-5 and L5-S1 levels. Dr. Dickins further concluded that the herniation at the L4-5 level corresponded with appellant's symptoms, but did not warrant surgery. After medication and physical therapy failed to produce relief, Dr. Dickins ordered a lumbar myelogram and post-myelogram CT scan, which were performed on May 14, 1999. The myelogram revealed a herniation with an extruded disc fragment at L4-5 on the left, for which surgery was recommended. With regard to the L5-S1 disc, the myelogram revealed that, "[t]he thecal sac terminates just below the L5-S1 disc interspace and there are conjoined nerve roots at L5 and S1 bilaterally." However, the post-myelogram CT scan showed no significant abnormality at the L5-S1 level.

Appellee admitted the compensability of appellant's February 1999 injury. On June 29, 1999, Dr. Dickins performed a left lumbar laminectomy on appellant's L4-5 disc.1 Following this surgery, due to appellant's continued complaints of persistent right leg pain and numbness, Dr. Dickins ordered an MRI, conducted on November 9, 1999, which revealed mild scarring at the L4-5 area, but showed no abnormalities in the remainder of appellant's lumbar discs. Dr. Dickins concluded that the MRI revealed no evidence of disc herniation that would correlate with appellant's right leg pain.

Appellant was next examined by another neurosurgeon, Dr. Jim Moore, who recommended a nerve conduction study and a TENS unit. Dr. Dickins subsequently opined that appellant's right leg pain was due to thrombophlebitis. He further stated: "I cannot exclude nerve root compression as contributing to this. However . . . 3 imaging studies over the period of time since I have seen him have failed to show a significant nerve compression on the right side." The presence of a visible thrombus in appellant's right leg was confirmed by a subsequent ultrasound.

On March 9, 2000, Dr. Dickins ordered another myelogram, stating that he suspected appellant's right leg pain was primarily due to thrombophlebitis. This myelogram revealed the L3-4 disc was "diffusely prominent and effaces the right anterior surface of the thecal sac" and was "crowding of the nerve roots" at that level. Despite these findings, Dr. Dickins opined that surgery at the L3-4 level would provide a limited benefit for appellant in terms of pain reduction; he again opined that the "predominant" cause of appellant's pain was his "post-phlebitic pain." The post-myelogram revealed that, at the L5-S1 level: "The thecal sac is short and attenuated just below the disc. The disc is symmetric posteriorly and no evidence of entrapment of the nerve roots in the lateral recesses is identified."

Appellant was next examined on May 2, 2000, by Dr. Earl Peeples, an orthopedic surgeon. Dr. Peeples reviewed appellant's records and test results and noted the presence of a conjoined nerve root at L5-S1, but found no other abnormalities at that level. He concluded that surgery would be "imprudent" based on "the less than definitive radiographic lesion" although he was unable to determine whether the leg pain originated from the back or due to a vascular compromise.

Because appellant's complaints continued, on July 21, 2000, Dr. Dickins performed a lumbar laminectomy on appellant's L3-4 disc. Although appellant initially reported improvement following the surgery, he thereafter continued to report to Dr. Dickins that his back pain and right leg pain were the same. In a report dated January 4, 2001, Dr. Dickins stated that "the origin of this pain has never been identified."

Dr. Dickins later ordered another MRI, which was performed on March 11, 2001. This study revealed small recurrent disc herniation at the L4-5 level and "a mild concentric disc bulge with no significant canal stenosis evident." The doctor determined that this scan did not show a discreet disc herniation at any level, and referred appellant to Dr. Wayne Bruffett, a spinal surgeon, to determine whether appellant was a candidate for spinal fusion.

After examining appellant and studying his radiographic results, Dr. Bruffett found that appellant had experienced some postoperative changes, a possible small recurrent herniation at L4-5, and multilevel degenerative changes. However, Dr. Bruffett opined that "further surgery would have a high likelihood of making his condition actually worse."

Appellant next saw Dr. Bruce Safman, an orthopedic doctor. In his report dated May 10, 2001, Dr. Safman noted:

At this point, the patient has chronic subjective pain. He has had 2 surgical procedures without success. I have no explanation as to what is causing his recurrent pain. He may have a small recurrent disc herniation at L4-5 but it is very small. This, I do not think, would explain the profound weakness of both lower extremities and the virtual absence of sensation in both lower extremities.

Dr. Safman recommended a nerve conduction test and assessed appellant with a 12% impairment rating to the body as a whole.

Appellant refused to undergo the nerve conduction test and returned to his primary care physician, Dr. Absalom Tilley, complaining of back pain and right leg pain. On November 6, 2002, appellant reported to Dr. Tilley that he had been involved in an automobile accident the previous evening. He complained of headache and pain from his lower back to the top part of his body. After appellant complained that his symptoms were worsening, Dr. Tilley ordered an MRI, which was performed on December 3, 2002. This test revealed "degenerative disc desiccation from L2/3 through L5/S1 level," a minimally enhanced central disc herniation at L4-5, and at the L5/S1 level, "broad-based disc bulge with small central disc herniation.... and ligamentous hypertrophy causing moderate bilateral neural foraminal narrowing." Additionally, the radiologist concluded that there was a"diffuse posterior disc bulge" "assymmetric to the left" at the L5-S1 level.

Based on these results, and due to appellant's complaints of pain in both legs, in January 2003, Dr. Anthony Russell, a neurosurgeon, performed two surgeries on appellant's L5-S1 disc. The compensability of these surgeries is at issue in this appeal. Dr. Russell first performed a left laminectomy and diskectomy on appellant's L5-S1 disc. A post-surgical MRI revealed a recurrent disc herniation at L5-S1, for which additional surgery was performed on January 29, 2003. The medical records containing Dr. Russell's examination of appellant prior to surgery were not introduced into evidence. However, in Dr. Russell's January 16 operative report, he described the MRI as demonstrating "the presence of a large disk herniation at L5-S1 on the left" that appeared to be causing direct nerve-root compression. In a letter dated March 19, 2003, Dr. Russell opined that:

It is apparent from the patient's history and from follow-up radiological studies that the most recent two operative procedures are directly related to the initial injury that occurred some time ago. It is my opinion, stated with a reasonable degree of medical certainty, that the automobile accident served only to aggravate a preexisting condition and merely brought the findings to my attention. At the time I evaluated Mr. Williams, his major complaint was right lower extremity pain. This was the pain he had suffered since the initial work-related injury, and it was this pain that actually saw the biggest improvement following the initial surgery performed here.

At appellee's request, Dr. Scott Schlesinger, a neurosurgeon, reviewed appellant's MRIs, myelograms, and CT scan from November 1999, March 2000, March 2001, and December 2002.2 The doctor noted the presence of degenerative disc disease in all of the studies, with the most significant degeneration at the L4-5 and L5-S1 levels. However, Dr. Schlesinger stated that he did not see any significant changes between the December 2002 MRI and the previous studies and that he did not observe a herniated disc on any of the films. Thus, he concluded that the studies revealed only degenerative changes, not the presence ofa surgically significant lesion.

Appellee challenged the compensability of the January 2003 surgeries. An Administrative Law Judge (ALJ) determined that the surgeries performed by Dr. Russell were reasonably necessary in connection with appellant's compensable injury. He further found that the automobile accident was not an independent intervening cause of appellant's need for surgery.

The Commission reversed the decision of the ALJ, finding that appellant failed to prove the causal relation between his need for back surgery at the L5-S1 level and his February 1999 injury. In its opinion, the Commission exhaustively reviewed the medical evidence and succinctly summarized the basis for its findings as follows:

An MRI performed in February of 1999 revealed a mild disc protrusion at L5-S1. However, there is no evidence in the record that Dr. Dickins related this finding to the claimant's complaints, or that it was even a significant finding. Moreover, the myelogram and post myelogram CT performed in May of 1999 only revealed a conjoined root at L5-S1, and was specifically interpreted as revealing "no significant abnormality" at L5-S1. Even after the claimant's first and second surgeries performed by Dr. Dickins, the diagnostic studies continued to only reveal degenerative changes at L5/S1. It was not until after the claimant was involved in a motor vehicle accident in November of 2002, that a diagnostic study revealed a disc herniation at the L5-S1 level. While Dr. Schlesinger did not observe a disc herniation at the L5-S1 level in the December 2002 MRI, Dr. Russell described the MRI finding as revealing a "large herniated disc" which appeared to be causing nerve-root impairment. Moreover, the operative report, which states that after the diskectomy was performed, the exploration of the nerve root proximally and distally did not reveal any "further external impingement," clearly implies that the disc material removed by Dr. Russell was herniated and impinging upon the nerve root. Based upon all the diagnostic studies, we cannot find that the large herniated disc detected in December of 2002 and operated on in January of 2003 is the natural and probable result of the claimant's compensable injury. In our opinion, the diagnostic evidence reveals the findings in December of 2002, to be new findings, evidencing a new injury or aggravation for which the respondents are not liable.

In addition, the Commission discounted Dr. Russell's opinion that the surgical procedures were "directly related" to appellant's compensable injury, noting that he based his opinion on appellant's claim that his right leg pain resolved following surgery. The Commission further noted that there was no evidence that Dr. Russell examined the February and March 1999 diagnostic studies and that Dr. Russell offered no opinion as to whether appellant's herniated L5-S1 disc was present in the previous studies. Moreover, the Commission relied on the fact that Dr. Russell, who did not treat appellant until nearly four years after his compensable injury, was the sole physician who described a large herniated disc at that level and recommended surgery to correct it.

Additionally, the Commission disagreed that the evidence showed that appellant's right-leg symptoms had resolved. At the hearing, appellant testified that he still suffered "little electric shocks" down his right side, and that he still experiences pain shooting into his right leg. Finally, the Commission noted that Dr. Russell stated in his January 29, 2003 clinic notes that the alleviation of the right-sided pain was not the intended result of appellant's left-sided laminectomy at the L5-S1 level. Accordingly, the Commission determined that the two surgeries performed by Dr. Russell were not compensable, and appellant appeals from that decision.

Appellant's main argument is that the Commission erred in finding that there is no causal connection between his February 1999 injury and his 2003 surgeries because the medical evidence proves that he suffered L5-S1 disc abnormalities after his compensable injury, but prior to his automobile accident.3 In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Id. The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission may accept or reject medical opinions and determine their medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

The issue in this case is whether appellant's need for the January 2003 surgeries was a new injury or an aggravation of his prior compensable injury. An aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996).

In arguing that his need for surgeries on his L5-S1 disc was an aggravation of a compensable injury, appellant relies heavily on the fact that the medical records showed abnormalities at the L5-S1 level prior to the automobile accident. He concedes that there was no evidence of a large herniated disc at L5-S1 at any time prior to the automobile accident - indeed, he argues that this herniation was caused by the automobile accident. Accordingly, he asserts that the accident caused the non-operable abnormalities predating the accident at the L5-S1 level to "become operable abnormalities requiring Dr. Russell's surgical intervention."

We disagree and hold that the Commission did not err in finding that appellant failed to prove that his need for surgeries on his L5-S1 disc was causally related to his February1999 compensable injury. Appellant's reliance on the pre-accident abnormality at the L5-S1 level is misplaced because it begs the question of whether the pre-accident abnormality or the post-accident herniated disc was related to his compensable injury. Appellant's apparent theory is, "once compensable, always compensable." However, simply because the subsequent automobile accident caused an injury to the same disc that had been shown on pre-accident diagnostic studies to be "abnormal" does not mean that the post-accident herniation was related to the compensable injury in the first instance.

The sole evidence that the abnormality at the L5-S1 found in the February 1999 MRI was caused by appellant's compensable injury is Dr. Russell's opinion to that effect.4 However, the Commission amply indicated its basis for discounting Dr. Russell's opinion in this regard. None of the physicians treating appellant prior to January 2003 opined that his L5-S1 disc was injured in the February 1999 fall. Further, two diagnostic tests performed after appellant's injury, but before his automobile accident - the May 14, 1999 post-myelogram CT scan and the November 9, 1999 MRI - showed no abnormality at the L5-S1 level. Additionally, there are no records of Dr. Russell's pre-surgery treatment of appellant, and it is not clear which diagnostic studies upon which Dr. Russell relied in reaching his conclusion. Finally, as noted by the Commission, appellant's complaints were not remedied by the surgery on his L5-S1 disc. In short, appellant's claim that the Commission improperly substituted its own judgment for that of Dr. Russell without evidentiary support is baseless.

Nonetheless, appellant maintains that appellee should be precluded from arguing that the L5-S1 abnormality is not related to his compensable injury because appellee paid medical benefits based on the findings of the February 1999 MRI, which included abnormalities at the L5-S1 level. Appellant's argument fails for at least two reasons: first, the medical records do not indicate that, prior to the automobile accident, the mild bulge in the L5-S1 disc required medical treatment. Rather, the medical evidence shows that, prior to the accident, the only medically significant findings related to appellant's L4-5 and L3-4 discs. No specific treatment at the L5-S1 level was recommended until nearly four years after appellant's compensable injury.

Second, as previously stated, even if appellee accepted compensability for the mild disc bulge in the L5-S1 disc, that did not obligate it to thereafter pay for all medical treatment of that same disc. It remains appellant's burden to prove that the particular need for surgery at the L5-S1 level was related to his February 1999 injury. For the reasons noted by the Commission, he failed to do so. Accordingly, we affirm the Commission's order.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 Appellant thereafter developed a pulmonary embolus and deep vein thrombosis in his right leg, which was treated by another physician. Appellee admitted the compensability of this condition as a consequence of the compensable surgery.

2 Dr. Schlesinger also stated that he reviewed an MRI performed in March 2002. We found no such report in the record.

3 The Commission made no specific findings with regard to whether the automobile accident was an independent intervening cause of appellant's symptoms.

4 Appellant also argues that the "most telling evidence" that he suffered a compensable "abnormality" at the L5-S1 level prior to the automobile accident is seen in a cryptic notation in the report from a whole body scan, dated January 31, 2001, as follows: "Vague abnormality activity at L5-S1 is post surgical in nature." Therefore, he asserts that because the condition of his disc at the L5-S1 level was caused by the compensable surgery on his L3-4 disc, it is compensable. However, no other medical evidence supports this assertion - none of appellant's treating physicians, not even Dr. Russell, opined that appellant's need for surgery on his L5-S1 disc was related to the surgery performed on appellant's L3-4 disc.