Care Manor of Baxter County and Risk Management Resources v. Debra K. Wheeler

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

CARE MANOR OF BAXTER COUNTY; RISK MANAGEMENT RESOURCES

APPELLANTS

v.

DEBRA K. WHEELER

APPELLEE

CA02-414

APRIL 16, 2003

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. F002818]

AFFIRMED

Appellee Debra Wheeler, who had a history of degenerative disc disease of the neck, sustained two compensable workers' compensation injuries while working as a licensed practical nurse for Care Manor of Baxter County. The first occurred in May 1999 when Wheeler slipped in a puddle and fell outside a patient's room, injuring her shoulders, left hip, neck, upper thoracic spine, and lower back. The second incident occurred on March 5, 2000, when she ran and caught a woman who was falling out of her wheelchair.

On June 17, 2000, Wheeler underwent surgery for a torn right rotator cuff. Care Manor contended that the March 2000 incident was a recurrence of the 1999 compensable injury rather than an aggravation of it, and that temporary total disability benefits therefore

should be based on Wheeler's average weekly wage at the time of the first injury. The administrative law judge disagreed, finding that Wheeler had proven that the March 2000 injury was an aggravation of the 1999 compensable injury; that she had proven every element of compensability; that the 2000 incident was clearly the cause that precipitated the need for medication, treatment, and surgery for a torn right rotator cuff; and that temporary total disability benefits were to be based on the average weekly wage at the time of the March 2000 incident. The Commission affirmed the law judge's decision, finding that Wheeler had suffered an aggravation or new injury, and that she had satisfied all elements of compensability for a specific incident injury.

Care Manor now appeals the decision of the Commission, raising one point of appeal and an alternate point. Appellant contends that no substantial evidence supports the decision that Wheeler's rotator cuff tear resulted from an independent cause as opposed to a flare-up of her prior injury, or, alternatively, that no substantial evidence supports the finding that the aggravation was a compensable injury. We affirm.

When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable. Id. A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury; a recurrence exists when the second complication is a natural and probableconsequence of a prior injury. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). An aggravation is a new injury resulting from an independent incident; being a new injury with an independent cause, an aggravation must meet the requirements for a compensable injury. Id. Causation is a finding of fact to be decided by the Commission. Goodwin v. Phillips Petroleum Co., 72 Ark. App. 644 (2001).

Care Manor argues that there is no substantial evidence proving a second episode in this case, and that objective medical evidence shows that the 2000 shoulder injury was a recurrence rather than an aggravation. Care Manor notes that an MRI of June 1999 revealed abnormalities of the rotator cuff, that shoulder surgery was recommended as early as August 1999, and that Wheeler complained about her shoulder from then until the time of the compensable incident in March 2000. Care Manor argues that no medical evidence indicated that the severity of Wheeler's problem or the need for treatment was different before and after March 5, 2000, and that the only evidence of a second episode or change in her condition is her subjective testimony of different or worsened pain. Care Manor alleges that the Commission ignored medical records, basing its conclusion instead on Wheeler's complaints of pain and Dr. Foster's statement that her syptomatology was work related. These arguments fail.

Dr. William Landrum's reading of Wheeler's MRI in June 1999 states:

Abnormal signal seen in the substance of the rotator cuff, but fluid in the subacromial bursa is not seen. The scan appearance is most consistent with tendinosis. . . .

Abnormal signal in the substance of the rotator cuff, consistent with tendinosis. A complete tear with retraction is certainly not seen, and no fluid is identified in the subacromial bursa.

Wheeler testified that on March 5, 2000, when she caught the falling woman, "I fell to my knees and I caught her with both of my hands. And my shoulders, my muscles and everything pulled in my shoulders, both my shoulders, my back, and my neck." She further testified:

After the first injury, the doctor never found a rotator cuff tear. I had MRIs and x-rays done. It never showed up that I had a rotator cuff tear. The [rotator] cuff tear showed up after the second injury, when he did the surgery. He did not do any x-rays or MRIs when I injured myself the second time. After I injured myself the second time, he found the rotator cuff tear and when he operated on me.

. . . .

They did an MRI before I had the second injury. They did not find rotator cuff tear. It was not until after this injury that I had when trying to catch the lady falling out of the chair, that I actually had symptomology that the doctor knew I needed to have a rotator cuff tear fixed. The symptoms were different the second time. My arm was hurting worse. It was different in pain level and it was hurting more all over and swelling up. My shoulder was swelling up. It had never done that before.

The medical evidence includes Dr. Robert Foster's record of treating Wheeler for problems with her neck and shoulder from 1999 through 2001. In his office notes of June 18, 1999, he wrote that the MRI of her right shoulder showed some impingement and tendinosis, but that he was "not sure if there [was] clearly a rotator cuff tear." In July 1999 he recommended proceeding with an anterior cervical discectomy and fusion, "understanding, however, that she does have right shoulder pathology with evidence of rotator cuff tendinosis as well. This could improve with time and would not recommendintervention of this at the present time." In August 1999 he recommended arthroscopic decompression and wrote, "If she has a tear, I would recommend repairing that as well." On December 22, 1999, he wrote, "My advice is right shoulder arthroscopy and decompression. She probably will require rotator cuff repair as well." Dr. Foster's notes of April 19, 2000, include the following:

She states she re-injured herself when a patient fell on her. She complains of severe right shoulder pain and, to some extent, left shoulder pain as well as neck pain. She is also having right elbow complaints. She states this occurred while trying to hold a patient. . . . Examination of the right shoulder shows marked impingement and supraspinatus tenderness. . . . IMPRESSION at this time is lateral epicondylitis. Right shoulder rotator cuff pathology, possible tear. . . . PLAN at this time is . . . proceed with right shoulder arthroscopy and open rotator cuff repair, if indicated.

An emergency room report of April 26, 2000, lists Wheeler's chief complaint as "Torn rotary cup [sic], (3,4,5,6 herniated) I'm in great pain." On January 23, 2001, Dr. Foster wrote to Wheeler's attorney that she had undergone right shoulder arthroscopic surgery, an acromioplasty, and a rotator cuff repair eight months earlier. His letter continued:

I feel Ms. Wheeler's symptomatology and problems in her neck and in her shoulders are all pre-existing degenerative problems; however, they certainly can be exacerbated by an on-the job injury to the result that she might need to seek treatment and/or surgery for them. My feelings are still clearly the same. . . .

I clearly do believe that her injuries are work related; however, they also were pre-existing to some point in time, as well.

We do not agree with Care Manor's arguments that the evidence in this case shows no second "episode," but only a longstanding complaint of shoulder pain that was neither worsened nor exacerbated. Substantial evidence of the second episode is found in Wheeler'stestimony about catching the patient as she fell: "The symptoms were different the second time. My arm was hurting worse. It was different in pain level and it was hurting more all over and swelling up. My shoulder was swelling up. It had never done that before." Furthermore, while the medical records mention the possibility of a rotator cuff tear in the right shoulder before the second injury, that diagnosis was never confirmed. Dr. Foster's notes some six weeks after Wheeler caught the falling woman list his impression of right shoulder rotator cuff pathology and possible tear, and his plan to proceed with right shoulder arthroscopy and open rotator cuff repair, if indicated. Wheeler's testimony and Dr. Foster's letter state that the rotator cuff was repaired in the surgery that followed the second injury. It was the duty of the Commission to interpret all the testimony and medical evidence, including Dr. Foster's letter, and to draw inferences from it. See Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). We hold that Wheeler's testimony and the medical evidence generated by Dr. Foster constitute substantial evidence to support the Commission's finding that Wheeler's rotator cuff tear resulted from an independent cause as opposed to a flare-up of her prior injury.

Care Manor's alternative point of appeal is that substantial evidence does not support the Commission's finding that the aggravation was a compensable injury. An aggravation, being a new injury resulting from an independent cause, must meet the requirements for a compensable injury, Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998), and every compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2002). In Stephens TruckLines v. Millican, 54 Ark. App. 275, 950 S.W.2d 472 (1997), we refused to interpret Ark. Code Ann. § 11-9-102(4)(D) as requiring medical evidence to show the circumstances under which an injury was sustained and the precise time of the injury's occurrence. The statute requires objective medical findings only to prove the existence of the injury, and we know of no medical examination or test that would result in objective findings to show exactly where and when an injury was incurred. Id.

Care Manor argues that no medical or other objective evidence establishes a separate causal relationship between Wheeler's right shoulder injury and the wheelchair incident, and that no objective evidence supports her contention that her condition worsened after March 5, 2000. We disagree. Dr. Foster's statement that Wheeler underwent surgery for rotator cuff repair constituted objective medical findings regarding the existence of the injury, which is all that Ark. Code Ann. §11-9-102(4)(D) requires. Additionally, we hold that Wheeler's testimony that her condition worsened after the wheelchair incident, the emergency room report a month afterwards that her chief complaint was "torn rotary cup," Dr. Foster's subsequent plan to proceed with rotator cuff surgery if indicated, and Wheeler's testimony that surgery was indeed performed for a rotator cuff tear constitute substantial evidence to show a causal relationship between Wheeler's right shoulder injury and the wheelchair incident and to show that her condition worsened as a result of the incident.

Affirmed.

Hart and Crabtree, JJ., agree.