Fort Smith Heating & Air Conditioning Company, Inc. and Federated Mutual Insurance Company v. Reggie Merriman

ca05-066

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-66

August 31, 2005

FORT SMITH HEATING & AIR AN APPEAL FROM ARKANSAS

CONDITIONING CO., INC. and WORKERS' COMPENSATION

FEDERATED MUTUAL INSURANCE COMMISSION [F306062]

COMPANY

APPELLANTS

V.

REGGIE MERRIMAN

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Fort Smith Heating and Air Conditioning Company, Incorporated, appeals from an award ordering workers' compensation benefits to its employee, appellee Reggie Merriman. Appellant argues that no substantial evidence supports that appellee sustained a compensable injury. We disagree and affirm the Commission's order.

Appellee was forty-two years old at the time of the hearing held before the Administrative Law Judge (ALJ). The testimony of appellee, James Seaton, the owner of Fort Smith Heating, and Jerry Stockton, appellee's co-worker, established the following events. Appellee had intermittently worked for appellant, under Seaton's supervision, for seventeen years. He has worked continuously under Seaton since July 1999. Appellee alleged that he injured himself at approximately 10:00 a.m. on April 11, 2003, while hanging return air grills in the ceiling of a commercial duplex. He said that he stepped down from his ladder, turned, twisted his knee, and fell onto the floor, landing on his back. He then called for help and was assisted by Stockton, the only other employee who was working atthe site at the time of the injury. Stockton could not remember the exact date on which the incident occurred, but he remembered that it occurred in mid-April, because he remembered the particular duplex at which they were working when appellee injured himself.

According to appellee, his knee began to swell immediately, and he experienced "real hard pains" in his groin and lower back. Stockton helped appellee to the truck. Stockton finished the job at the duplex and they went back to the shop. Appellee testified that he reported the injury to Seaton, who saw his swollen knee and sent him home. Appellee also testified that he attempted to work the next day, but could not, and that he took off the rest of the week. Appellee thought that he was injured on Thursday and returned to work the following Monday; however, April 11, 2003, was a Friday.

Appellee purchased a knee brace, which he wore when he returned to work. He was placed on light-duty, building plenums and handing other equipment to other employees. After approximately one month, he was able to carry items and climb ladders. During this time, he experienced pain in his lower hip and back. He said that as his knee healed and he began working "more," the pain in his lower hip worsened, so much so that he could hardly walk in the mornings and that it would take him an hour or so after he got up to walk around and get the pain out of his back.

Although there were no medical records submitted to that effect, appellee testified that he was seen at the Fort Smith Wellness Center on May 16, 2003, for chiropractic treatment of his back, leg, and hip, which he said did not help. He testified that prior to this injury, he had never injured his back or his leg.

Appellee testified that he currently experiences problems with his back and that it takes him approximately one-and-one-half hours each day to work the soreness out of his hips and joints so that he can walk. When he comes home from work, he attempts to obtain relief through a hot bath. He testified that he cannot do "anything," including playing with his daughter. He further stated that he still experiences problems with his knees and that surgery has been recommended both for his back and his knees.

Appellee has continued working, but maintained that he has missed approximately five to six months from work due to his injury. His pay records reflect that his hours dropped from full time to twenty-one hours per week in June 2003; that he did not work in July, August, and part of September 2003; and that he returned to part-time hours, twenty-one hours per week or fewer, beginning September 11, 2003.

Seaton corroborated that he knew appellee had been injured, but could not state whether appellee or another worker reported the injury to him. Seaton remembered that appellee was injured in "mid-April," but explained that he did not report the injury to the insurance carrier until June 9, 2003, because he "didn't see any blood and there was no emergency." According to Seaton, it is common practice in his trade not to report injuries unless it is apparent they are very serious. He also corroborated that appellee had visited a chiropractor and was placed on light duty. Seaton said that appellee began to have more problems walking as time passed. Seaton also said that appellee has been able to work "less and less" and that he was able to work only 5.5 hours the week before the hearing.

The medical records in this case show that appellee was first seen by Dr. James Bell at the Sparks Medical Clinic on May 19, 2003, with complaints of back and leg pain. Appellee explained that he waited to seek medical treatment because he thought that he had only sprained his knee and groin. Although the written records from Sparks Medical Clinic do not indicate that appellee ever reported any history of an injury, appellee testified that he reported the injury to the doctors at the clinic. He admitted that he told them that he had begun experiencing back pain, leg pain, and groin pain one week earlier; he also stated that the told them that the pain had gotten progressively worse since his injury. Dr. Bell diagnosed appellee with lumbar strain with muscle spasm and left-groin tendinitis.

Appellee's next treatment was on June 4, 2003, at Sparks Regional Medical Center. Again, the medical records reflect no history of injury, but appellee said he reported the injury to them, reported that the pain was present when he awoke, and reported that the pain became more severe when he started lifting things and climbing ladders. Because appellee complained of low back problems, Dr. Bell ordered a lumbar-spine MRI. This test revealed an anterior extramural defect at L4-5 consistent with transverse disc protrusion and degenerative changes of appellee's lower lumbar spine at the L4-L5 level with no acute osseous (bone) abnormality identified.

On June 6, 2003, appellee reported to Sparks Regional Medical Center that he had been experiencing pain in his left leg for the past three weeks; he admitted that he probably told the doctor that the pain had been coming on for several weeks. Dr. Bell ordered a second MRI, which revealed transverse posterior disc protrusion, facet hypertrophy, and disc degeneration at L4-5. This MRI also showed the possibility of air within the protruding disc fragment.

There is no indication in appellee's medical records that he reported an injury to his medical providers until July 3, 2003, when he saw Dr. Joseph Queeney, a neurologist. Dr. Queeney noted that appellee was referred by Dr. Bell for:

surgical evaluation of low back pain and left lower extremity pain. He states that he started having problems with this on 5/6/03. He does not really give a history of chronic low back pain. He does give somewhat of a convoluted history as far as the onset of these symptoms. He apparently had an injury on 4/11/03 while at work where he stepped backwards off of a ladder and injured his knee as well as his left hip and groin. He describes the pain as being primarily in the left gluteal region as well as the left inguinal region. He will have pain which radiates down into the left medial thigh.... His symptoms have gotten a little better since he has been off work. He describes both pains as being constant and exacerbated by all activities....

He does have a rather odd finding with decreased sensation to pinprick in theentire left lower leg as well as the entire left posterior torso up to the shoulders. Clearly this is a nonphysiologic finding and I am concerned that this represents symptom magnification....

After reviewing the May 19 MRI, Dr. Queeney did not see any evidence of dislocation in appellee's L4-5 region. After reviewing the June 6 MRI, Dr. Queeney found "modic end plate changes at L4-5" and "broad based disc bulging." However, Dr. Queeney further indicated that he was "not 100 percent sure that [appellee] has a herniated disc. I informed him that I am awfully suspicious that this does represent a nitrogen pocket. Certainly, if this is the case, he will not benefit from lumbar disc surgery." Dr. Queeney recommended a myelogram and post-myelographic CT scan to determine whether appellee had any nerve compression, and whether the bulging disc was caused by a nitrogen pocket or an extruded fragment. He further found that:

The patient's complaints outweigh his physical findings. He does not really have anything that looks like radiculopathy and I am concerned about symptom magnification. He does state that he is trying to investigate whether or not this is a Workman's [sic] Comp claim from his initial injury back in April. I informed him that I have no opinion about that.

Dr. Queeney referred appellee to Dr. William Sherrill, an orthopedic surgeon. Dr. Sherrill ordered x-rays, which revealed no fractures, dislocations, or bony abnormalities of the hips. He noted that appellee complained of left-hip pain arising from an episode that occurred on April 11 when he fell off a ladder. Dr. Sherrill further noted that the swelling in appellee's left knee had resolved and that his major complaint was of pain across the posterior buttock area, down the posterior hips, with some medial groin pain and pain and numbness in his left leg. Dr. Sherrill stated that appellee's myelogram showed an extramural defect at L4-5 consistent with transverse disc protrusion. He concluded that appellee's symptoms were back and sciatic nerve-related, not due to hip-joint problems. In the only statement in the record by a physician addressing causation, Dr. Sherrill stated that appellee's condition "appears to be due to" his on-the-job injury; he also stated that appellee's condition "is felt to be, at least, clinically due to his fall at work."

After examining all of the evidence, and relying on the testimony of appellee, Seaton, and Stockton regarding the occurrence of the injury, the ALJ concluded that appellee sustained a compensable injury on April 11, 2003, when he stepped off of the ladder, twisted his knee, and fell. She noted that although appellee did not immediately seek medical treatment, he attempted to "self-medicate" by using a knee-brace and by taking time off from work and then "began to receive medical treatment as his symptoms required." She cited to the medical records indicating that appellee had degenerative changes at the L4-5 level, and concluded that appellee was entitled to receive medical treatment at appellant's expense.1 Appellant appealed to the Workers' Compensation Commission (Commission), which affirmed and adopted the ALJ's findings in full. This appeal followed.

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. 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).

In order to prove that 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 the internal or external physical harm to the body resulting in the need for treatment; 3) the injury was caused by a specific incident and is 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).

Appellant's short argument is that fair-minded persons could not have reached the Commission's conclusion when faced with the same inconsistencies in the testimony and the record. Specifically, it asserts that no substantial evidence supports the Commission's decision because: 1) appellee failed to prove the specific date of his injury; 2) his testimony regarding the amount of time he missed work due to his injury conflicts with his wage records; 3) Seaton was not a credible witness; 4) appellee's medical evidence does not corroborate his testimony regarding when or how the injury occurred and failed to indicate objective findings of a work-related injury. We disagree and affirm the Commission's order.

Appellant's first three arguments may be quickly dismissed. First, appellant alleges that appellee failed to prove the specific date of his injury. Appellant makes much of the fact that appellee thought that he was injured on a Thursday, when April 11, 2003, was, in fact, a Friday; that Seaton and Stockton could only remember that the injury occurred in mid-April; and that Seaton could not remember if appellee or someone else reported the incident to him. However, as appellee argues, a claimant is not required to prove that an accident occurred on a specific date in order to prove he sustained a compensable injury. Edens v.Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). The Edens court held that a claimant need not identify the precise time and numerical date upon which an accidental injury occurred but must prove that the occurrence of the injury is capable of being identified. However, the inability of the claimant to specify the date might be considered by the Commission in weighing the credibility of the evidence. Id.

In Edens, the claimant's evidence that pinpointed the occurrence of the incident to a specific four-day period was sufficient to prove that he sustained a specific-incident injury. Here, where appellee testified that he was injured on April 11, 2003, and his supervisor and co-worker consistently testified that he was injured in "mid-April," appellee met his burden of proof to show that he suffered an injury while in the course of his employment, even though he did not correctly identify the precise date on which the injury occurred. Further, it is of no moment whether appellee or a coworker informed Seaton of appellee's injury, because a claimant may prove his entitlement to workers' compensation benefits even where he fails to timely report an injury. See Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998)(overruled on other grounds). Similarly, Seaton's failure to report the incident to the insurance company until June 9, 2003, does not preclude a finding that appellee received a specific-incident injury, but only goes to the credibility of the evidence.

Appellant also argues that appellee's testimony regarding the amount of time he missed work due to his injury conflicts with his wage records and indicates that he did not miss any time due to his alleged injury. However, this argument gives us little pause. While the evidence regarding appellee's wages was certainly critical to the ALJ's denial of appellee's request for temporary total benefits, it is not critical, much less dispositive, of appellee's claim that he sustained a work-related injury on April 11, 2003.

Further, appellant's credibility argument regarding Seaton is not persuasive. The argument is basically that Seaton is not a credible witness because he was appellee's step-father for many years and because appellee listed Seaton as his step-father on one of the medical records in this case.2 Appellant also attempts to make much of the fact that Seaton failed to report appellee's injury to the insurance company until June 9, 2003. Finally, appellant argues that Seaton's testimony that appellee's injury did not initially appear to be serious contradicts his testimony and appellee's claim that he grew less able to work as time went by. In short, we reject these arguments because the Commission was aware of these facts and there is nothing in the record to support that the Commission erred in its credibility determinations.

Appellant's remaining arguments regarding the medical evidence carry more weight, but still do not warrant reversal. It initially argues that the medical records do not corroborate appellee's testimony as to when or how his medical injury occurred. In particular, appellant points to inconsistencies between the medical records and appellee's testimony regarding when he first sought medical treatment. Appellee stated that he first sought medical attention two or three weeks after his injury when he went to Sparks Clinic; however, he also testified that he did not seek medical attention for five weeks, and agreed that the first time he went to a "doctor" was on May 19, 2003.

Clearly, appellee offered no medical records to indicate that he received treatment prior to May 19, even though he and Seaton testified that he received treatment prior to that date. However, appellee's inconsistent testimony in this regard does not require us to reverse in this case. The date that appellee first sought medical attention is not seriously disputed on appeal; the medical records show that appellee first sought treatment for his condition onMay 19, 2003. To the extent that there may have been an issue regarding the actual onset of appellee's symptoms, that was a matter for the Commission to resolve.

The weightiest issues with regard to the medical evidence, which are related, are 1) the fact that no medical record indicates a history of an injury until Dr. Queeney's July 3, 2003 report, over two months after the event, and 2) whether appellee proved the causal relationship between his injury and his need for treatment.

Appellee testified that he told the doctors at Sparks Clinic during his initial visit, and during his visits to Sparks Regional Medical Center thereafter, that he was injured when he stepped down from a ladder. This testimony contradicts each of the medical reports dated May 19, June 4, June 6, and June 7, indicating that appellee did not report any injury. It is undisputed that only Dr. Queeney and Dr. Sherrill note a history of injury in their records, and that the first notation in this regard was in Dr. Queeney's July 3, 2002 clinic notes. At the hearing, appellee could not explain why the records from Sparks Clinic indicated a history of no injury. However, it is the Commission's duty to weigh the medical evidence and to determine the weight to be accorded to the testimony. Holloway v. Ray White Lumber Co., supra; Green Bay Packing v. Bartlett, supra. Accordingly, whether appellee verbally reported his injury to his doctors was a credibility matter for the Commission to decide.

Similarly, it was within the Commission's province to resolve any alleged inconsistencies regarding the medical records and appellee's testimony regarding his symptoms. Appellant notes that appellee testified that when he visited Sparks Clinic on May 19, that his knee was still inflamed and still hurt; yet, there is no mention of knee complaints in Dr. Bell's notes from that day. Further, although appellee alleges that he was injured on April 11 and testified that he had hurt throughout that period of time, he reported suffering with pain just one week prior to the May 19 visit.

Whatever the inconsistencies between the medical records and appellee's testimony, it is clear that appellee did not seek medical treatment for his condition until after the incident on April 11, 2003. The medical records show that he thereafter consistently complained of back, leg, and hip pain. He testified that as his knee condition resolved, his back pain worsened because he was walking more. His failure to seek immediate treatment does not preclude him from receiving workers' compensation benefits, as long as he proves the remaining elements of his claim. Service Chevrolet v. Atwood, supra. We do not agree that these inconsistencies are of such a nature that we can say reasonable minds could not have accepted appellee's testimony, as the Commission apparently did.

The real issue in this case is whether appellee proved the causal relationship between his injury and his need for treatment. Objective medical evidence is necessary to establish the existence and extent of an injury but is not essential to establish the causal relationship between the injury and a work-related accident. Wal-Mart Stores v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999). It is sufficient proof to sustain a workers' compensation claim if objective medical evidence establishes the existence of an injury and a preponderance of the other nonmedical evidence establishes a causal relation to a work-related incident. Id.

Appellant maintains that the only condition shown by any objective medical evidence is appellee's degenerative spinal condition.3 However, this is not true. The June 6 MRI in this case provided objective evidence of appellee's bulging discs at the L4-5 level. Dr. Queeney did not believe that appellee's bulging disc indicated a herniated disc but rather, was caused by a nitrogen pocket. However, Dr. Sherrill concluded that the MRI showed "left posterolateral disc herniation and protrusions L4-5." He concluded that appellee's problems were "back and sciatic nerve related," and that his symptoms "appeared to be due" to his injury. He further stated that, "I feel confident that this is back related and not to his joint and is felt to be, at least, clinically due to his fall at work." It appears that the Commission gave Dr. Sherrill's opinion more weight than Dr. Queeney's, which it was entitled to do, especially considering that there is no other medical opinion controverting the causal connection.

The remaining issue is whether Dr. Sherrill's findings that appellee's symptoms "appeared to be due" and were "felt to be" due to his injury were stated within the reasonable degree of medical certainty required by Ark. Code Ann. § 11-9-102(4)(A)(I) & (D). It is clear that use of the words "could," "may," or "possibly" lack the definiteness required to meet a claimant's burden to prove causation. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). That is, a doctor must render an opinion about causation with language that goes beyond possibilities and establishes that work was the reasonable cause of the injury. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). We have held that use of the word "probably" meets this burden. Tyson Foods, Inc. v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998). Given this standard, we hold that Dr. Sherrill's medical opinion was stated within a reasonable degree of medical certainty. Tyson Foods, Inc. v. Griffin, supra (holding the medical expert's testimony that his "feeling" was that claimant's osteoarthritis was aggravated by the conditions of his employment was stated within reasonable degree of medical certainty). Accordingly, we affirm the Commission's order awarding appellee medical benefits for his work-related injury.

Affirmed.

Glover and Roaf, JJ., agree.

1 Appellee also requested temporary total disability benefits. However, the ALJ found that, although appellee's pay records indicate that he missed some work during the summer of 2003, and that the records indicated that when he came back he worked "much shorter" hours, there is nothing in the medical records to indicate that appellee did not work as the result of his injury. Accordingly, she denied temporary total disability benefits. Appellee does not cross-appeal from this finding.

2 Seaton was married to appellee's mother for approximately twenty-seven years, but the parties divorced five or six years ago.

3 The only objective finding mentioned by the ALJ was the finding of appellee's degenerative spinal condition.