Larry Jones v. BAE Systems, Inc., Zurich American Insurance and Pacific Employer Insurance

Annotate this Case
ca04-906

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA04-906

April 6, 2005

LARRY JONES AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [F01696 and F212243]

V.

BAE SYSTEMS, INC.

ZURICH AMERICAN INSURANCE

PACIFIC EMPLOYER INSURANCE

APPELLEES AFFIRMED

Wendell L. Griffen, Judge

Larry Jones appeals from a decision by the Workers' Compensation Commission (Commission) that he failed to prove he sustained a compensable injury to his right hip. His sole argument is that the Commission's decision was not supported by substantial evidence. We disagree and affirm the Commission's order.

Jones was employed by appellee BAE Systems (BAE) on September 5, 2000, when he received the hip injury that he alleges in this case. However, he received prior treatment for groin and hip pain related to an injury received on December 23, 1993. On that date, while working for a different employer, Jones felt a "pop" in his right groin while bending down to fasten a pipe to a corer. The treating doctor's initial impression was, "Right thigh pain, etiology undetermined."

A subsequent MRI showed no abnormalities, although a radiology report from December 1993 indicated "minimal osteoarthritic changes" in Jones's right hip. A medical record from January 1994 shows that Jones complained of his pain during the examination. In hospital admission notes dated July 7, 1994, the admitting doctor stated that Jones had been referred to a rheumatologist for "effusion in his knee and the continuing pain of his right hip." Jones's rheumatologist, Dr. Laura Trigg, stated in a letter dated August 5, 1994, that an MRI revealed that Jones had a "focal lesion [change] of the right anterior superior acetabulum with slight extension into adjacent inferior ilium [pelvic bone]."1 Medical records from 1994 indicate that Jones experienced pain with hip rotation and experienced limited right-hip rotation. Jones continued to receive treatment for this injury through 1995; the claim was settled in 1997. However, he still complained of right groin pain in May 1999.

Despite this prior history, Jones denied that he experienced a prior hip injury and testified that he had not been treated for hip pain prior to September 5, 2000. In the instant case, Jones suffered a compensable right-knee injury on February 4, 2000, while in BAE's employ.2 This injury required two arthroscopic surgeries, which were performed by Dr. Jay Lipke. After the surgeries, but before Jones returned to work, he reported to Dr. Lipke that his right knee would "give" on him, meaning it would not support his weight. Jones said that Dr. Lipke assured him that the problem would improve as he rebuilt strength in his leg.

Jones returned to light duty on September 5, 2000, and the incident that he claims led to the instant appeal occurred on that day. Jones described the occurrence of the injury as follows:

I was pushing a cart of composition up a hill, incline, a steep incline, and when you get to the top of the hill there was a post sitting in the doorway, you had to go around the post and then you had another little incline up to go in the heat house, and when I went to push it up in the heat house, my knee gave out and the cart came back and jammed me in the hip area against the post.

Jones further stated that the steel metal handle of the cart was the part of the cart that jammed into his hip. Although Jones was under doctor's orders to return to light-weight duty, the cart he was pushing weighed approximately 216 pounds.

Jones completed the remainder of his shift but called his supervisor, John Allen, the next day to report that he was unable to work. Jones stated that he told Allen that his "knee and everything was swole up [sic]." Jones's wife testified that his "whole right side was swollen."

According to Allen, Jones reported that he could not get out of bed and that his knee was swollen. Allen said that Jones told him that he hurt his knee while he was pushing a buggy, and that his knee gave out and the buggy pushed him against a pole.

Jones first reported to Dr. John Wilson, a orthopedist, on September 12, 2000. Dr. Wilson's report stated:

Larry Jones returns today for follow up of his work-related knee injury . . . . He relates pushing a heavy cart up an incline and began experiencing pain in the right hip, groin, and anterior thigh . . . . He has tenderness to palpation in the anterior groin, which is aggravated by range of motion. . . . X-rays of his lumbar spine and pelvis do not show any abnormalities. I feel Mr. Jones sustained a muscle strain . . . .

Jones was subsequently seen by Dr. Lipke, Dr. Wilson's associate. Dr. Lipke ultimately performed hip-replacement surgery on Jones. Dr. Lipke's first report, dated September 26, 2000, stated:

Larry Jones returns today for follow up of his work-related knee problem. The knee is essentially status quo . . . . His primary problem is that of low back and right groin pain as described in last clinic visit. Again, this occurred at work while pushing a cart up an incline . . . . I feel that he has strained a hip flexor muscle or the iliopsoas muscle and this muscle strain should resolve in the next one to two weeks.

In Dr. Lipke's next report, dated October 3, 2000, he again opined that Jones strained his hip flexor muscle, and additionally opined that Jones would not have any permanent impairment due to the hip strain. He returned Jones to work at regular duty on October 9, 2000. However, Jones continued to seek treatment from Dr. Lipke for groin and hip pain.

Jones returned to Dr. Lipke on March 13, 2001. The doctor's report from that date indicated that Jones was "still having problems with his right groin as he did last fall" and the doctor related the pain to the September 5 incident. Dr. Lipke reviewed Jones's previous x-rays and performed repeat x-rays of his hips, but noted "again [I] see no intra-articular pathology in the right hip." His diagnosis was "[u]nexplained right hip pain."

Jones continued to work until January 29, 2002. He saw Dr. Lipke again on that date, following a visit to the emergency room due to increased pain. This time, Dr. Lipke found that Jones's x-rays showed "previously noted sclerosis [hardening] of the acetabular roof" which the doctor indicated was "secondary to post-traumatic osteoarthritis." He recommended elective total hip replacement.

Before this surgery was performed, an independent medical examination was performed by Dr. C. Lowry Barnes. He reported on May 2, 2002, that he saw the change in the acetabulum but could not explain its etiology. He specifically stated, "I can't really explain this as being a significantly arthritic lesion and I am not sure if it is post-traumatic in origin . . . ." Dr. Barnes recommended an MRI and injections, which Jones underwent. The MRI results were normal; the injection did provide Jones relief.

On July 8, 2002, Dr. Lipke opined that Jones's hip symptoms were related to "post-traumatic arthritis" and indicated that they would proceed with the total hip replacement. However, he first arranged another MRI, which was performed on September 16, 2002. This MRI showed sclerosis in the weight-bearing surface of the right superior acetabulum.

BAE's workers' compensation carrier approved the hip surgery and Dr. Lipke performed the procedure on October 10, 2002. His admission notes indicated:

Larry Jones . . . sustained blunt trauma to his right hip several years ago and has had persistent pain since that time. Physical examination reveals an antalgic gait, as well as pain with active and passive motion of his hip. X-rays reveal sclerosis in the acetabular roof, but no other abnormalities. Bone scan shows increased uptake in this area. An MRI also revealed abnormalities in the acetabular roof with apparent cyst formation . . . .

BAE's carrier paid benefits for Jones's knee injury and for the hip surgery. Jones also received temporary total disability benefits from July 9, 2002 through December 31, 2002. However, BAE and its carrier controverted Jones's entitlement to additional temporary total disability benefits related to the hip surgery. The Administrative Law Judge (ALJ) found that Jones proved he sustained an injury to his right hip that was a compensable consequence of his February 2, 2000 right knee injury. The Commission reversed.

After reviewing the medical evidence, the Commission concluded that there was no medical evidence corroborating Jones's testimony that he experienced swelling after the February 2 incident. It also noted that Jones did not report a hip injury to his supervisor, only a knee injury. The Commission further found that Jones failed to establish the existence of his hip injury by objective medical findings. In particular, the Commission cited the fact that Dr. Wilson did not report any objective medical findings in his initial assessment of Jones and that the only objective findings to which he did refer, x-rays of the spine and pelvis, were normal. These normal findings were corroborated by Dr. Lipke in his September 26 report.

In addition, the Commission did not view the finding of "sclerosis" in the January 2002 report as an objective medical finding. It noted Jones's preexisting history of right-hip problems dating back to October 1993. It also noted that even though Dr. Barnes found "a significantly arthritic lesion," he could not indicate whether it was post-traumatic in origin. Thus, the Commission stated that it would require speculation and conjecture to causally link the elective total-hip replacement to the September 5, 2000 incident. Accordingly, the Commission determined that Jones failed to prove his entitlement to workers' compensation benefits.

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 same 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 opinion and determine their medical soundness and probative force. Green Bay Packing v. Barlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). We affirm because the Commission's denial of benefits is supported by substantial evidence.

Jones maintains that his hip injury is compensable as a natural consequence of the recurrence of his compensable knee injury. He asserts that his knee "weakness" that occurred on September 5 was a recurrence of his prior compensable knee injury and that the result of that weakness, the cart jamming against him, caused compensable damage to his hip. Jones specifically denies that his hip condition is not an aggravation of a pre-existing condition because he never experienced a problem in his hip joint, but only experienced prior problems with his groin and lower leg. He admits that the word "hip" was used "a few times" in his medical records prior to September 2000, but maintains that the notes "primarily" refer to the problem as a pain in the groin region.

Jones does not cite any objective medical evidence linking his hip condition to the September 12 incident, but cites the general rule that an employee may recover where there is no intervening independent cause to break the chain of causation between the new injury and the original injury. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2002). According to Jones, because he was asymptomatic from 1995 to September 5, 2000, there was nothing except the September 5 incident that could have caused his injury.

BAE, Zurich, and Pacific counter that the Commission did not err because Jones's condition is a pre-existing condition and because he failed to prove the compensability of his hip condition by objective medical findings. They maintain that Jones's testimony is inconsistent with the evidence because he testified that he had no problems with his hip prior to the September 12, 2000 incident and because he denied that he was treated for hip pain prior to that incident.

To prove entitlement to worker's compensation benefits based on a compensable injury, a claimant must prove that he sustained an accidental injury causing internal or external harm to the body that arose out of and in the course of his employment. Ark. Code Ann. § 11-9-102(4)(A)(I) (Supp. 2003). Further, a claimant must prove the existence of the injury by medical evidence based on objective findings. Ark. Code Ann. § 11-9-102(4)(D). An objective finding is one that cannot come within the control of the claimant. Ark. Code Ann. § 11-9-102(16)(A)(I). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Id. The test for determining whether a subsequent injury is the natural and probable cause of a prior connection is whether there is causal connection between the two injuries. Air Compressor Equip. v. Sword, supra.

The Commission impliedly found that Jones's hip condition was due to his preexisting injury. It cited three medical records relating to Jones's December 1993 injury and noted Jones's preexisting history of right-hip problems dating back to 1993. Further the Commission expressly determined that Jones failed to prove that he sustained an injury that arose out of and in the course of his employment, and failed to establish the existence of his injury by objective findings. We agree.

First, the reports of Dr. Lipke or Dr. Barnes do not indicate that Jones provided the doctors with his history of hip/groin pain. Jones admitted that he did not report this history to Dr. Barnes. Jones's assertion that he was never treated for hip problems prior to the September 5 incident is belied by the record which clearly shows that from 1993-1995 he was treated for both hip and right groin pain. It is not true that he was asymptomatic after 1995, because he complained to Dr. Trigg of groin pain in 1999.

Second, Jones does not point to any objective findings to indicate that he sustained an injury to his hip on September 5, 2000. He did not initially report a hip injury to his supervisor or to his doctors. In fact, he did not report a hip injury until October 13, 2000, and the only medical evidence of any objective finding indicating an injury does not appear in the record until January 29, 2002. That report provides two potential findings that might support Jones's claim of a hip injury: the findings of osteoarthritis and sclerosis in his hip. However, neither of these findings demonstrates a causal connection between the September 5 incident and appellant's hip condition.

While there is evidence of arthritic changes to Jones's hip that Dr. Lipke finally labeled as "post-traumatic," there was also evidence that Jones was developing arthritis in his hip in 1993. Further, Dr. Lipke's finding of a post-traumatic injury in 2002 also conflicts with his earlier finding that Jones suffered merely from a hip strain that would resolve in one to two weeks following September 26, 2000, and which would result in no permanent impairment. Therefore, despite Jones's insistence that his hip condition is not related to apreexisting condition, and giving due deference to the Commission's function to weigh conflicting medical evidence, we believe reasonable minds could have concluded, as the Commission did, that the arthritis was not due to the September 5 incident.

Nor did the Commission err in determining that the finding of sclerosis in the roof of the right acetabulum is not an objective finding. Sclerosis is defined as "an induration, or hardening; especially hardening of a part from inflammation and in diseases of the interstitial substance." The Sloane-Dorland Annotated Medical Legal Dictionary (West 1992). Thus, its origin is either pathological - meaning it results from a disease - or it results from inflammation. If the sclerosis in this case is pathological, there is no explanation in the record as to its cause (Jones insists it is not preexisting). Further, while the testimony of Jones and his wife regarding his swelling immediately after the injury is acceptable nonmedical evidence of the causal connection, it is not objective evidence of the existence of an injury and it does not preponderate in Jones's favor in the absence of the same. Wal-Mart Stores, Inc. v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999). Thus, as the Commission found, there is no objective evidence of swelling in the record, so the sclerosis cannot be said to have resulted from inflammation.

Moreover, Dr. Barnes reported that he could not explain the reason for the change in the acetabulum, stating, "I can't really explain this as being a significantly arthritic lesion and I am not sure if it is post-traumatic in origin." Finally, with regard to the findings of increased uptake in the right superior acetubular region, there was no objective finding that this was causally related to a trauma. In fact, the October 12, 2001 radiology report stated: "Any active osteoblastic [bone-forming] process can produce this appearance." Again, we defer to the Commission's duty to weigh the medical evidence regarding the finding of sclerosis.

As the Commission found, in the absence of objective evidence of the existence of any injury to Jones's hip or the cause of his condition, it would require speculation or conjecture to conclude that Jones's hip condition was caused by the September 5 incident, especially in light of his preexisting condition. Speculation and conjecture cannot substitute for credible evidence. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Accordingly, we affirm the Commission's order in this case.

Affirmed.

Gladwin and Baker, JJ., agree.

1 The acetabulum is the cup-shaped socket in the hipbone in which the thighbone rotates. The Sloane-Dorland Annotated Medical Legal Dictionary (West 1992).

2 The appellees in this case are BAE, Zurich American Insurance (Zurich), and Pacific Employers Insurance Company (Pacific). Zurich was BAE's workers' compensation carrier at the time of Jones's February 2, 2000 injury. However, at the time of the September 5, 2000 incident, Pacific had become BAE's carrier. Zurch and Pacific each argued below that the other was liable for any additional workers' compensation benefits to which Jones may be entitled. Because the Commission determined that Jones failed to prove entitlement to benefits for his hip condition, it did not address these issues in its opinion. Similarly, because we affirm, we do not address these issues.