Ray McIntosh v. Alliant Food Service and Sentry Insurance

ca04-546

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA04-546

January 12, 2005

RAY McINTOSH AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [F200244/F200932]

V.

ALLIANT FOOD SERVICE and AFFIRMED

SENTRY INSURANCE

APPELLEES

Wendell L. Griffen, Judge

Ray McIntosh appeals the denial of his claim for workers' compensation benefits for an alleged job-related back injury suffered in December 2001. The Arkansas Workers' Compensation Commission (Commission) denied benefits, finding that appellant failed to prove that his back condition arose out of and in the course of his employment and that he failed to prove the existence of his injury by objective findings. We hold that the Commission's decision is supported by substantial evidence and affirm.

Appellant worked for appellee Alliant Food Service as an order-selector, a position that required him to lift and stack heavy loads of food products. He previously received benefits from appellee for a 1995 compensable injury to his back. In early 1996, Dr. Anthony Russell performed a laminectomy on appellant at the L5-S1 lumbar level to relieve a herniated disc. Dr. Russell released appellant to return to work in May 1996, with a 10% impairment rating and certain lifting restrictions. Dr. Russell eventually released him to return to work in August 2000 with no restrictions.

In May 1996, Dr. Russell indicated that appellant should return to him on an as-needed basis. Medical records demonstrate that appellant continued to seek treatment for lower back pain after his 1996 surgery. Appellant complained of lower back pain when he saw Dr. Russell in April 1997, twice in September 1997, and in December 1998. The 1997 and 1998 visits resulted in postoperative MRIs which revealed only minor postoperative changes. Dr. Russell indicated in his September 1997 notes that he was at a loss to explain appellant's symptoms. Dr. Russell noted in December 1998 that no further intervention was warranted.

Appellant returned to Dr. Russell in January 1999 for what Dr. Russell termed "some unknown reason." Dr. Russell indicated that appellant's complaints "have not changed over the last six months" but that "we have nothing to offer based on the multiple MRI scans, nerve studies, and evaluations performed." In August 2000, Dr. Russell released appellant to return to work with no restrictions.

In February 2001, appellant underwent an MRI which revealed disc space narrowing, disc degeneration, and end-plate marrow changes, all degenerative conditions. Appellant visited Dr. Scott Schlesinger in March 2001, complaining of back pain and pain and numbness in his right leg, which Dr. Schlesinger indicated appellant had experienced for seven months. Dr. Schlesinger reviewed the February 2001 MRI and concluded that it revealed postoperative changes to the L5-S1 disc, but not any neurological problems. As late as April 2001, appellant reported low back pain to his primary care physician, Dr. Gary Nunn. Appellant testified that this treatment was due to a back sprain suffered when he moved the warehouse operation at his workplace.

It is not clear when appellant left appellee's employment, but he was rehired in August 2000. The injury that is the subject of this appeal allegedly occurred on December 3 or 4,2001. Appellee's shift began at 6:00 p.m. on December 3. He testified that he felt a pull in his back "probably midway through the night," when he lifted a 100-pound case of Accent (a food seasoning product). Appellant did not report the injury at that time, but worked the remainder of his shift and went home.

Appellant testified that the next day (December 4), as the time for him to report to work approached, he could not move, so he called his supervisor, Richard Johnson, and told Johnson that his back was hurting, and he would not be able to work that evening. Appellant insists that he reported a back injury at this time, but Johnson testified that appellant never reported a back injury to him and that he only received a telephone message from appellant indicating that his back was sore. Appellant also testified that he is familiar with the process of reporting a work-related injury to his direct supervisor because he had done so on prior occasions.

On December 5, 2001, appellant returned to Dr. Nunn, who gave him some medicine for back sprain and advised him not to work that evening. Appellant testified that Dr. Nunn told him he was experiencing muscle spasms. Appellant reported to St. Vincent's Hospital on December 8, 2001, complaining of back pain. The medical report from that date states that appellant denied receiving any injury.

Appellant sought follow-up treatment by Dr. Nunn, who ordered an MRI of his spine, that was performed December 12, 2001. This scan, interpreted by Dr. Andrew Getzoff, revealed evidence of a diffuse L5-S1 bulge with smaller central protrusion, as well as stenosis or narrowing of the disc space at the same level. Dr. Schlesinger saw appellant again on December 27, 2001. He examined the December 12 MRI and concluded the changes in appellant's disc at the L5-S1 level were merely postoperative. His report stated, "I see no evidence of disc herniation or spinal stenosis. I don't see anything surgical I can do for him." He referred appellant to Dr. Wayne Bruffett for pain management.

Dr. Bruffett eventually recommended a spinal fusion to alleviate appellant's pain. Dr. Bruffett originally concluded that appellant's injury was the major cause of his need for medical treatment. However, in his deposition testimony, Dr. Bruffett admitted that his conclusion was based on his assumption that appellant was not having "significant problems" with his back before the alleged December 2001 injury. Dr. Bruffett agreed that if appellant was seeking treatment for back pain after his 1996 surgery, then Bruffett would not be able to opine within a reasonable degree of medical certainly that the December 2001 incident was the major cause of appellant's condition or need for treatment. Dr. Bruffet also testified in his deposition that there was no way to conclude that the MRI findings were caused by the December 2001 incident, and that given appellant's continuous complaints of low back pain since his 1996 surgery, it is less likely that his condition is related to work-related activity, rather than worsening of a degenerative condition.

Further, Dr. Bruffett concurred with Dr. Schlesinger's assessment of appellant's December 2001 MRI results. In fact, in his deposition testimony, Dr. Bruffett flatly stated that appellant "doesn't have evidence of nerve progression or disc herniation." Dr. Bruffett also explained that disc narrowing and end-plate marrow changes are degenerative conditions that may occur even after surgery on a herniated disc without further injury. When asked whether appellant needed disc-fusion surgery, Dr. Bruffett responded, "I'll leave that more up to him. It's not a requirement that he have it done. It's something that can be done to help him with his pain that's a surgical treatment."

Appellant testified that after he was asked to pay a co-payment at Dr. Nunn's office, he "realized" that the claim was not being handled as a workers' compensation claim. He later contacted appellee to file paperwork for alleging a claim. On January 7, 2002, after what appellant alleges was nearly two weeks of attempting to speak to Alida Kellybrum (appellee's human resource manager), appellant met with her. Kellybrum gave appellant the initial paperwork to complete and informed him that the back injury would be reported as a late claim. Appellant refused to allow the claim to be filed as a late claim, became belligerent, slammed the paperwork onto Kellybrum's desk, and refused to leave her office. Kellybrum telephoned the police; appellant was arrested for disorderly conduct and was subsequently terminated for misconduct.

Appellee controverted appellant's claim for workers' compensation benefits and a hearing was held before an Administrative Law Judge (ALJ).1 The ALJ found that appellant failed to prove that he sustained a work-related injury. First, she concluded that appellant's testimony that his treatment arose out of an employment injury was not credible, observing that appellant never mentioned that his back problem was work-related until he "realized" that his treatment would be paid in full if it was processed as a workers' compensation claim. Moreover, appellant denied on December 8 that he had suffered an injury. The ALJ also noted that appellant had suffered from pain in his lower back since his 1996 surgery and that the MRI performed in February 2001 revealed the same degeneration of the disc and end-plate changes to the bone that were seen in the December 2001 (post-injury) MRI.

The ALJ also found that appellant failed to establish his injury by objective medical findings. Referring to Dr. Bruffett's deposition testimony and the fact that Dr. Schlesinger personally observed MRIs of appellant before and after the alleged 2001 injury, the ALJ concluded that the post-injury MRI revealed only postoperative changes, with no evidenceof disc herniation or spinal stenosis.

Therefore, the ALJ denied appellant's entitlement to receive workers' compensation benefits. The Commission affirmed and adopted the ALJ's findings. This appeal followed.

I. Occurrence of the Injury

Appellant first argues that the Commission erred in finding that he failed to prove that he sustained a compensable injury. On appeal, we will view the evidence in the light most favorable to the Commission's decision and will affirm when that decision is supported by substantial evidence.

Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Where the Commission denies benefits, the substantial evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). A substantial basis for denying relief exists if fair-minded persons could reach the same conclusion when considering the same facts. Crudup v. Regal Ware, Inc., supra. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, then we must affirm. Hill v. Baptist Med. Ctr., supra.

In order to prove a specific incident injury is compensable, a claimant must prove by a preponderance of the evidence that: 1) the injury arose out of and in the course of employment; 2) the injury caused internal or external physical harm to the body resulting in the need for treatment; 3) the injury was caused by a specific incident identifiable by a time and place of occurrence. In addition, any medical evidence used to establish the existence of the injury must be supported by objective findings. Ark. Code Ann. § 11-9-102(4)(A)(I) & (D) (Supp. 2003).

Because there were no witnesses to the December 2001 incident, whether appellant injured himself on the job was a credibility issue. 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 adopted the ALJ's findings that appellant did not credibly establish that his need for treatment was caused by a work-related incident, and these credibility findings are supported in the record.

First, appellant's supervisor testified that appellant never reported a back injury to him. Second, accepting the supervisor's testimony as true, as the Commission apparently did, by appellant's own admission, he did not report the injury until he contacted appellee's human resources manager in early January, which was after he "realized" that workers' compensation would pay for his treatment. Third, when appellant sought treatment from St. Vincent's on December 8, 2001, he denied that he had suffered an injury. In addition, as noted below, appellant did not prove the existence of his injury by objective medical findings. These factors support the Commission's decision to deny relief.

II. Objective Medical Findings

Appellant's second argument is that the Commission erred in holding that he did not prove by objective medical findings that the December 2001 incident aggravated his pre-existing degenerative condition. An aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware, Inc., supra. An aggravation, being a new injury with an independent cause, must meet the requirements for a compensable injury. Id. A temporary aggravation of a preexisting condition is a compensable injury. Gansksy v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996).

Appellant is correct in arguing that he was not required to prove by objective medical evidence that the injury was caused by the December 2001 incident if objective medical evidence established the existence of an injury and a preponderance of the other nonmedical evidence established a causal relation to a work-related incident. Wal-Mart Stores, Inc. v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999). However, medical evidence used to establish the existence of an injury must be supported by objective findings. See Ark. Code Ann. § 11-9-102(4)(A)(I) & (D). Appellant's argument fails because, as noted above, the nonmedical evidence, appellant's testimony, does not establish a causal relationship to a work-related incident, and because there is no medical evidence supported by objective findings establishing the existence of a new injury in December 2001. Although Dr. Nunn's December 6, 2001 notes indicate that appellant complained that his back pain and stiffness had worsened over the preceding forty-eight hour period, and although Dr. Bruffett originally opined that appellant's need for treatment was caused by an aggravation of his pre-existing degenerative condition, it is settled law that a complaint of pain, being subjective, is not an objective finding. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998).

Appellant testified that Dr. Nunn told him on December 6, 2001, that he was having muscle spasms. Muscle spasms may be considered objective findings. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). However, Dr. Nunn's notes from December 6 do not containing any findings of muscle spasms, only "thoracic spinal pain."

It is true that Dr. Getzoff, who read only the December 2001 MRI, opined that the test revealed "a diffuse disc bulge with a small central obtrusion at the L5-S1 level," which would seem to indicate a spinal herniation. However, Dr. Schlesinger examined appellant's post 1996 surgery/pre-December 2001 MRI and appellant's post-injury/December 2001 MRI. He concluded that the December 2001 MRI showed only post-operative and degenerative changes to appellant's spine that were not related to an injury. The Commission may accept or reject medical opinion and determine its medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

Appellant relies heavily on Dr. Bruffett's medical records because Dr. Bruffett originally opined that appellant's need for treatment was related to an aggravation of his degenerative condition. However, Dr. Bruffett ultimately agreed with Dr. Schlesinger after he learned that appellant had been complaining of lower back pain since his 1996 surgery. In fact, Dr. Bruffett testified that appellant "doesn't have evidence of nerve progression or disc herniation," and Dr. Bruffett would not opine within a reasonable degree of medical certainty that appellant needed disc-fusion surgery.

The Commission's opinion amply provides a basis for its decision.

Affirmed.

Hart and Bird, JJ., agree.

1 Appellant also argued below that he received a compensable elbow injury. The ALJ denied benefits for this claim, and the Commission affirmed the ALJ's findings. However, appellant offers no argument on appeal regarding this issue. Therefore, we do not address it.