Advanced Plastics v. Cora Peel

ca01-579

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION IV

CA01-579

December 12, 2001

ADVANCED PLASTICS AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E802558]

V.

CORA PEEL

APPELLEE AFFIRMED

Advanced Plastics appeals from an order of the Workers' Compensation Commission in which the Commission found that appellee Cora Peel proved that she sustained a work-related compensable aggravation of her prior back injury. It argues that appellee failed to prove by objective medical findings that she sustained a compensable injury and failed to prove that her condition was work-related. We disagree and affirm.

Appellee was employed by appellant in October 1995. She operated a machine that produced plastic tool boxes. In August 1997, she was treated for left flank pain, which her doctor opined was related to lupus, fibromyalgia, or leukopenia. She also had a CT scanperformed at this time, but her physician at the time did not attribute her pain to any spinal injury.

In December 1997, appellant was seen by Dr. Fehr for lower back pain related to an unspecified lifting incident. His report indicated that she reported experiencing a similar episode one year earlier. Dr. Fehr treated appellant conservatively for pain at the L3 to S1 disc levels.

On February 19, 1998, when appellee was twenty-five, she allegedly sustained an injury to her back while attempting to remove a heavy "blob" of plastic that had become jammed in her machine. According to appellee, she asked her supervisor for help in removing the object, but was told that it was her responsibility to remove it. When she picked up the object, it slipped out of her hands. She stated that she felt a burning sensation in her stomach, that she was unable to breathe, and that pain went through to her back and shot down her right leg. She rested until the pain eased and she could breathe again, and she finished her shift.

Appellee reported to the emergency room that night after she left work. She complained of back pain radiating into her right hip. X-rays were performed, but revealed no abnormality of the lumbar spine. She was diagnosed with acute groin strain. She returned to the emergency room during the next several days complaining of the same symptoms and was admitted into the hospital for pain treatment on February 24, 1998. Appellee denied any prior history of back pain, hip pain or lower extremity pain. She also denied that she experienced any numbness, tingling or weakness. However, Dr. Hackbarth'sreport of February 27 indicated that she reported intermittent numbness in her lower right extremity.

Several diagnostic tests were performed to determine the source of her pain, including an MRI of her spine, a myelogram lumbar x-ray, and another CT scan. The MRI results, as interpreted by Dr. Gregory Ricca on February 24, revealed a very large disc rupture at L5-S1 with significant neural compromise. However, Dr. Ricca also stated in the same report that although the disc rupture touched the thecal sac in both S1 nerve roots, he was not sure whether the rupture significantly compressed the nerve roots. He further noted that appellee appeared to be magnifying her symptoms because she did not experience muscle spasms in her spine, but reported exquisite pain with gentle palpation and stroking of the skin over her lumbosacral area.

Dr. Kenneth Tidwell examined the same MRI report, and noted no disc herniations, significant posterior disc bulges, or stenosis. However, he noted that appellee had degenerative disc disease primarily at the L5-S1 level. He also opined that appellee suffered from mild disc bulging at that level, which demonstrated a moderate-sized posterior central herniated disc that caused slight compression of the anterior thecal sac and S1 nerve roots. His interpretation of the myelogram and CT results were consistent with the MRI findings.

Dr. Tonymon reviewed the lumbar CT scan that had been performed in 1997, which demonstrated a moderately large herniated disc at the L5-S1 level. Dr. Tonymon also reviewed her MRI, lumbar myelogram, and CT scan and felt there was no significant difference from the CT scan conducted in August 1997.

During appellee's hospital stay, a psychiatrist was consulted due to appellee's erratic behavior and because she stated that she wanted to die because her pain was so bad. However, she refused all psychiatric intervention. Appellee was treated conservatively with epidural steroid injections, but treatment with a TENS unit and physical therapy were unsuccessful. She was not viewed as a surgical candidate at that time, so she was discharged on March 3, 1998, and was returned to work with no restrictions as of March 9, 1998.

Appellant saw Dr. Kenneth Chan on March 9. He noted symptom magnification and an inconsistent neurological report. He interpreted an EMG nerve conduction study performed on March 12 as normal and concluded that there was no objective medical evidence to substantiate appellee's complaints of radiating leg pain.

Appellee thereafter reported improvement with medication and returned to work. She also reported that she participated on a softball team. Dr. Braden released her on April 30, 1998, with a 5% impairment rating to the body as a whole. Appellant initially accepted appellee's claim as compensable and paid medical benefits, temporary total disability and permanent partial disability benefits in accordance with appellee's 5% impairment rating. Her last medical benefit was paid on May 12, 1998.

Also, in May 1998, appellee was treated for a shoulder injury that was incurred during a seizure. Appellee experienced periodic seizures due to a head trauma suffered while she was in college. She continued to complain of pain in her back and lower right extremity and continued to receive steroid injections. Appellee continued to work for appellant until October 28, 1998. She drew unemployment for five months, then returned to work inAugust 1999 for Consolidated Youth Services on a part-time basis, working twenty four hours every other weekend.

Appellant came under the care of Dr. Valentine, a pain management specialist, no later than November 1999. Dr. Valentine recommended a discogram and another CT scan, which revealed a fissure at the L4-5 level that he found to be consistent with her complaints of pain in her right lower extremity. Appellee stopped working on December 15, 1999, because it was too painful. Upon Dr. Valentine's recommendation, appellee received two IDET procedures, in December 1999 and March, 2000. Dr Valentine cautioned appellee that the procedure might not produce benefits for six to ten months. Appellant controverted her entitlement to additional benefits.

At a hearing before an Administrative Law Judge (ALJ), the appellee's medical records were introduced into evidence. In addition, appellee testified. She denied she had any prior back injuries and stated that her left flank pain in 1997 was due to a kidney infection for which she received antibiotics. She testified that she was unaware that the CT scan conducted in August 1997 revealed a herniated disc. Appellee further testified that she did not seek any kind of treatment for back pain after August 1997 until she sought treatment for her work-related injury.

She stated that there had been no time since her injury in February 1998 that she has been pain-free. She also stated that she is unable to walk, sit, or stand for prolonged periods and that she is no longer able to drive because the numbness in her feet prevents her from operating the brake pedal. In fact, she bumped into another car in a parking lot in December1999 due to the numbness in her feet. Appellee also testified that she sustained head trauma in college when someone hit her eighteen times in the head with a brick. As a result, she suffers from periodic seizures, and her memory is affected by the seizures. She testified that she blacks out and loses control of her body during these seizures.

Appellee further testified that Dr. Valentine placed her on work restrictions in December 1999. According to appellee, she cannot lift anything over ten pounds, she cannot stand on her feet for more that fifteen to twenty minutes, and she has to lie down and prop up her feet with ice every thirty to forty-five minutes. She also stated that she wears two different back braces.

The ALJ found that appellee suffered an aggravation of a preexisting disc bulge. She found that after the February 18 injury, appellee developed a new symptom, radiating leg pain, which Dr. Valentine objectively linked to a fissure at the L4-L5 level. The ALJ found that appellee demonstrated by objective medical evidence that her condition worsened as a result of her compensable injury, combined with her preexisting condition to require medical treatment, and caused her temporary disability. Therefore, because there was objective medical evidence regarding the presence of the fissure, the ALJ found that continuing medical treatment was reasonable and necessary to alleviate appellee's pain.

The ALJ also noted the evidence of appellee's extensive medical history, including two prior head injuries, and her apparent psychological problems, the etiology of which is unclear. Without further medical evidence regarding how these problems have affected appellee's personality, the ALJ was not prepared to rule that her symptom magnificationautomatically equated to a lack of credibility. Because appellant retroactively controverted the claim, the ALJ found that appellee was entitled to receive attorney's fees on all benefits and expenses previously paid.

However, the ALJ found that appellee was not entitled to additional temporary total disability benefits because surgical intervention was ruled out and appellee had been treated conservatively for a considerable time. Appellee did not cross-appeal this finding.

Appellant appealed to the Commission, which affirmed the ALJ's findings. Specifically, the Commission addressed appellant's argument that appellee failed to prove her need for treatment was caused by her work-related injury due to the temporal gap between her injury and the November 1999 discogram revealing the fissure. However, the Commission was not persuaded by this argument. It found appellee's testimony that she had not been pain-free since her injury to be credible and noted that her complaint of radiating pain did not begin until after her work-related injury. It also noted that appellee had either been unemployed or only able to work part time during a substantial portion of the time in question. Therefore, the Commission affirmed the ALJ's findings. This appeal followed.

Standard of Review

In reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. See Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue on appeal is not whether we might have reached a different result or whether theevidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm the Commission's decision. See Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999).

Objective Findings

An aggravation is a new injury resulting from an independent incident. See Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). The aggravation of a pre-existing, non-compensable condition by a compensable injury is itself compensable. See Hubley v. Best Western-Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996). A claimant is required to prove her entitlement to compensation for aggravation by a preponderance of the evidence. See Ark. Code Ann. § 11-9-102 (4)(E(i). Moreover, a claimant must establish her compensable injury by medical evidence supported by objective findings. See Ark. Code Ann. § 11-9-102(4)(D)(Supp. 2001). Objective findings are "those findings which cannot come under the voluntary control of the patient." See Ark. Code Ann. § 11-9-102(16)(A)(i). Appellant first argues that the Commission erred in relying upon appellee's unsubstantiated subjective manifestations of pain and radiculpathy in finding that she sustained a compensable injury. Noting that some of appellee's doctors suspected her of symptom magnification, appellant asserts that the only evidence supporting appellee's contention that she sustained an injury is her own exaggerated complaints of pain. It maintains that her medical records do not corroborate her complaints. Appellant asserts that the medical records contain no objective findings indicating that appellee sustained a new injury in February 1998. It argues that the findings revealed in the MRI, myelogram, andCT scan performed in February 1998, reveal only appellee's preexisting injuries and do not constitute objective findings of a new injury sustained on February 19, 1998. Therefore, appellant argues, the medical evidence merely demonstrates that appellee sustained her back injury well before the February incident.

This argument is without merit. According to Dr. Tidwell's report of February 24, 1998, and Dr. Ricca's report of that same date, appellee's MRI revealed a very large disc rupture at L5-S1 with compression of the S1 nerve root. According to Dr. Tonyman, who also examined the CT scan conducted in August 1997, there were no significant differences between that finding and the findings from the tests conducted in February 1998. Thus, as appellant seems to concede, appellee had a preexisting herniated disc at the L5-S1 level.

The discogram conducted on November 9, 1999, revealed the aggravation of the injury. Dr. Valentine noted:

At L4-5, the level which had shown bulging of the disc on the previous MRI scan, there was a posterior midline disruption with a right concentric fissure visible on the discogram and the post-discogram CT scan. The pain, significantly, was reproduced in her right side and into the right lower extremity, compatible with the right postlateral fissure. This coincides well with a study just published in the Spine indicating that the L4-5 disc commonly does refer pain into the lower extremity. (emphasis added.)

A discogram is a procedure whereby a physician injects dye into the spaces between the discs and observes both the patient's pain response to the different injections as each level as well as the dispertion pattern of the dye on x-ray and CT films. See Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). A discogram is an objective test, even though it takes into account a patient's subjective pain response, becauseradiographic images of the dye are not subject to a claimant's manipulation. See id.

As appellee argues, the fact that the tests performed shortly after her injury did not reveal a fissure at the L4-5 level is not dispositive because those tests are different from a discogram. In other words, the mere fact that an injury revealed by subsequent use of a discogram was not revealed on the tests performed shortly after her injury does not preclude a finding that the injury was caused by her work-related incident. This would seem to be especially true here, where the MRI conducted on February 24, 1998, unlike the discogram, was conducted without contrast.

Thus, appellee's claim is supported by objective medical findings, and not merely by her subjective manifestations of pain. To the extent that any of the medical evidence was contradictory, that was a determination for the Commission to make, and the interpretation given to medical evidence by the Commission has the weight and force of a jury verdict. See Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Therefore, we hold that the Commission did not err in finding that appellant proved that she had sustained a compensable injury by objective medical evidence.

Appellant's argument that there is no objective medical evidence to show that appellee sustained a new injury on February 19 is merely another way of stating that appellee failed to show that her injury was caused by her work-related incident. This argument is addressed in the next section.

Causal Relationship

Appellant's second argument is that appellee failed to prove a causal relationship between her injury and her need for treatment. It argues that "given the amount of time which elapsed between the workplace incident and the first finding of a disc fissure, there is no obvious causal relationship," and that the Commission had to engage in speculation to find that the injury was work related. Appellant argues that appellee's injury was not noted on any of the diagnostic tests administered subsequent to February 19 or on any tests administered prior to leaving appellant's employ. It is not clear whether appellant asserts that no doctor expressly opined that the injury was caused by her work-related injury or simply that there is no reference to her injury being work related.

It is not sufficient that a claimant produces objective findings of injury; there mustalso be evidence connecting the objective findings of the injury to the work-related incident. See Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). The record shows that appellant reported to her various doctors that she injured herself at work while lifting. It is true that the medical records do not contain an express statement by any doctor that her need for treatment is work-related. However, objective medical evidence is not essential to establish the causal relationship between the injury where objective medical evidence establishes the injury's existence, and a preponderance of other nonmedical evidence establishes a causal relation to a work-related incident. See Wal-Mart Stores v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Wal-Mart Stores v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001).

Here, the objective medical evidence in the form of the discogram established the existence of the injury. The discogram clearly showed a fissure encompassing the same area of appellee's spine, at the L5-S1 level, that before had only showed a ruptured disc. Further, her testimony established, consistent with these objective medical findings, that she experienced symptoms after the injury she did not experience before the injury. We hold that reasonable minds could conclude that appellee's need for treatment was caused by her on-the-job injury, given her testimony relaying the incident, and given that her symptoms were consistent with objective medical findings. See Wal-Mart Stores v. VanWagner, supra (holding that reasonable minds could believe claimant's testimony that a fall at work caused her injury where, even though supervisor did not remember the incident, and her physicians were unwilling to state a causal connection between the alleged fall and her condition, therewas objective medical evidence of the existence of the injury). The discogram results, when considered with appellee's testimony that she was never pain-free and her consistent complaints of radiating pain that did not originate until after the injury, supports a finding of a causal connection between appellant's injury and her need for treatment.

In so holding, we reject appellant's argument that appellee failed to prove her condition was work related merely because twenty-one months passed between the time of her injury and the date the discogram was conducted. Simply because there is a delay in the diagnosis does not mean that the injury did not exist. Appellee should not be punished because her doctors did not order the discogram sooner, when she consistently complained of the same symptoms, sought medical treatment for those symptoms even after appellant's insurance company no longer paid benefits, and was eventually forced to stop working due to her pain. Her doctors' failure to order the discogram should not inure to appellant's benefit. Further, contrary to appellant's argument, simply because appellee experienced an improvement in her symptoms, returned to work, and participated on a softball team does not mean that she was pain free. While those factors may preclude a claimant from receiving temporary total disability benefits, those factors do not preclude a finding that a claimant needs further treatment for pain management. What constitutes reasonable and necessary treatment for an injured employee is a question of fact for the Commission. See Georgia Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997).

Similarly, we reject appellant's implication that appellee was not a credible witness, due to her reported symptom magnification. Appellee stated that she was unaware that shehad been diagnosed with herniated disc prior to her injury. She also testified, in direct contradiction to the evidence, that she had not received any treatment for lower back pain prior to her February 19, 1998 injury. However, appellee has been the victim of multiple head traumas and suffers from seizures, which affect her memory. Because appellee refused psychological treatment, there is no evidence as to what effect this injury has had on her psychological state. The ALJ heard appellee's conflicting testimony and the evidence of her behavior that led to a psychological consultation, but refused to find that her testimony was not credible in the absence of evidence to show what effect her prior head injuries have had on her emotional state. The Commission specifically affirmed the ALJ's finding that appellee was a credible witness, and this is supported by the fact that her symptoms were consistent with the discogram results. It is the exclusive function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. See Williams v. Prostaff Temporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998).

Finally, appellant argues that appellee's injury is just as likely to be caused by an independent intervening cause, specifically, a seizure. Appellee testified that she suffers from periodic seizures due to her head injury. On September 23, 1998, she seized and sustained an injury to her shoulder that required medical treatment. Shortly thereafter, on October 5, 1998, she returned to the emergency room complaining of low back pain. This was six months after she reported significant improvement with regard to her pain and returned to work and recreational activities. While it is certainly possible that appellee injured her back during a seizure, appellant offered no credible evidence to establish that thishappened. Further, for this court to hold that appellee's injury is the result of a seizure would require this court to disbelieve appellee's version of how she sustained her injury, in direct contravention of the Commission's finding that she was a credible witness. Therefore, appellant's argument in this regard is without merit.

Affirmed.

Robbins, J., agrees.

Roaf, J., concurs.