Steven Baker v. Dana Corporation and Hartford Insurance Company

ca05-809

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CA05-809

February 8, 2006

STEVEN BAKER

APPELLANT AN APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

v. COMMISSION

[F214259]

DANA CORPORATION AND

HARTFORD INSURANCE COMPANY

APPELLEES AFFIRMED

Olly Neal, Judge

This is the second time that this appeal has been before us. In a February 23, 2005, unpublished opinion, we reversed and remanded the Arkansas Workers' Compensation Commission's (Commission) award of benefits. See Dana Corp. v. Baker, CA04-669, slip op. at (Ark. App. Feb. 23, 2005). Appellant now argues that he sustained an aggravation of a preexisting condition. We affirm.

The facts of this case are as follows. Appellant worked as a product technician for appellee DANA Corp. This position involved running bearing-grinding machines and sorting through old cores. On October 9, 2001, while sorting cores, appellant experienced a paralyzing pain in his lower back when he went to set a core in a rack. The pain caused appellant to drop to his knees for about two or three minutes. Afterwards, appellant informed his team leader that he needed to see a doctor. Appellant filled out an accident report and went to Dr. Ken Turner at the Russellville Family Clinic. Appellant underwent a MRI on November 21, 2001. Dr. Turner diagnosed appellee as having a lumbar strain and released him to light duty.

Appellant was subsequently referred by Dr. Turner to Dr. Scott Schlesinger, a neurosurgeon. Dr. Schlesinger diagnosed appellant as having low-back pain secondary to spondylolisthesis and referred him to Dr. Marc Valley, a pain-management physician. Dr. Valley found that appellant was experiencing pain in his low back and right buttocks. Dr. Valley recommended that appellant undergo a series of three injections. Appellant completed the injections, and upon appellant's request, Dr. Valley released him to full duty on April 12, 2002. Following his release, appellant continued to experience pain. On August 2, 2002, appellant saw a chiropractor, who referred him to Dr. Wayne Bruffett, an orthopedic spine surgeon. Dr. Bruffett diagnosed appellant with having isthmic spondylolisthesis at L5-S1. On October 1, 2002, Dr. Bruffett performed surgery on appellant.

Appellees controverted all treatment after November 26, 2001, and a hearing was held before an administrative law judge (ALJ). They specifically argued that appellant's problems were not causally related to the incident that occurred on October 9, 2001.

At the hearing, appellant testified that he was still under Dr. Bruffett's care and had not been released to return to work. He said that he was also attending therapy. Appellant denied having sharp pains prior to October 9 and said that, prior to October 9, he was never told he needed back surgery. Appellant also said that, prior to October 9, he had experienced "back soreness." He explained that his back soreness was not the result of any type of back injury. However, during redirect and re-cross examination, appellant acknowledged that in his deposition he testified that, prior to October 9, he had seen a doctor due to back soreness. Appellant also testified that during his deposition he failed to testify about the fact that he had been written off from work on more than one occasion by his doctors due to lumbar problems.

In his deposition, Dr. Scott Schlesinger testified that appellant suffered from low back pain secondary to spondylolisthesis. He explained that the condition usually developed over time. Dr. Schlesinger opined that, on October 9, appellee sustained an aggravation of a pre-existing condition.

Dr. Marc Valley testified that he initially diagnosed appellant as having low back pain. He said that he concurs in the diagnosis of spondylolisthesis. He also agreed that appellant's spondylolisthesis pre-dates appellant's work-related injury. During his testimony, Dr. Valley stated:

On January 18th, in my letter to Dr. Scott Schlesinger, I mentioned that I was unclear whether this was an exacerbation of an existing complaint or continuation of a long-term problem. I did not have his medical records prior to his injury. However, [appellant] stated categorically that he never had a hospital or physician visit for low back pain prior to this injury. He gave the same report to Dr. Bruffett. My diagnosis was based on the history that [appellant] gave regarding having been injured at work.

Dr. Valley also stated the following:

Either this could have been a long term painful history regardless of his injury in October, or he could have been asymptomatic. After lifting or twisting, he did not have enough leeway, like a normal person would, and it pushed him over the edge to be painful.

Assuming that he had been asymptomatic before this reported injury, theoretically it is possible that he could have been injured at home or at work or any place to produce the recurrence of symptoms. Even normal wear and tear with someone predisposed, like [appellant], could produce pain such as that which [appellant] reported to Dr. Bruffett, theoretically. ... [Appellant's] history is that he reported an incident, was treated conservatively, underwent an MRI, went to Dr. Schlesinger, came to see me, he was treated successfully with pain management to the point where he was released to full duty to return to work, then several months later he was back for more treatment. It sounds like he has had another aggravation or exacerbation of his symptoms.

Dr. Valley said that he recommended that appellant undergo a series of injections to treat his condition. He said that, when appellant completed the injections, appellant said that he felt seventy-five percent improved and asked to be released so he could return to work. Dr.Valley said that he agreed that appellant could return to work but advised him that any type of activity could cause more inflammatory change and require further treatment.

Dr. Wayne Bruffett also testified that appellant suffered from spondylolisthesis. He explained that isthmic spondylolisthesis was a condition where there was a defect in one of the vertebrae in the lumbar spine causing instability between a vertebrae and the one below it. He said that appellant's was at L5-S1. Dr. Bruffett said that the purpose of the October 1 surgery was to "eradicate the disc to help with the back pain." He testified that his diagnosis was based upon a review of appellant's MRIs, x-rays, and the history that appellant provided. Dr. Bruffett said that, in his history, appellant indicated that his pain was "fairly recent." He said that, at the time of appellant's visit, appellant was complaining of pain. Dr. Bruffett said that he stated that in a letter to appellant's attorney that, based on the history provided by appellant, he related the need for surgery to the work-related injury. He said that, when he wrote the letter, he had not seen Dr. Valley's report indicating that appellant's problems had resolved to the point where he could return to work. Dr. Bruffett opined that the condition pre-existed the October 9 injury. As to causation, Dr. Bruffett stated:

It is difficult for me to determine causation given all the information. In most cases, if the patient does not have any problems, per se, and then has an episode that occurs at work that is specific that causes pain, then typically, that pain is related to the work injury and the subsequent need for treatment is related to the work injury. If they have had rather chronic problems and this is just kind of an insidious onset, just repetitive sort of thing, but no acute injury or no acute manifestation of pain, then it is not particularly work related. When you have something where the patient recovers in a sense and then has a recurrence months down the road, I do not know. I guess it would depend on what his activities were during that period of time and that sort of thing.

It is certainly conceivable that he could have aggravated the condition or had another incident to cause his problems to recur. There is nothing on the diagnostic study which would confirm the date that the complaint of pain began. The only information regarding dating the problem comes from the patient. I did not see the patient until almost one year after the injury. It certainly can happen that a patient with this type of degenerative condition gets better and then as a result of activities, his condition can worsen.

The ALJ found that appellant's problems were causally related to his October 9 compensable injury. The full Commission affirmed the decision of the ALJ. Appellees appealed the Commission's decision to our court. In our February 23, 2005 unpublished opinion, viewing the evidence in a light most favorable to the Commission's findings, we concluded that reasonable minds, when confronted with the same evidence that the Commission had before it, could not find that appellant's problems were casually related to his October 9 injury without resorting to speculation and conjecture. We reversed and remanded the appeal to the Commission for an order consistent with our opinion. Upon remand, the Commission did as we ordered, and appellant now brings this current appeal.

Appellant now argues that he sustained an aggravation of a preexisting condition. In workers' compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Parker v. Atlantic Research Corp., Ark. App. , S.W.3d (June 30, 2004). An aggravation of a preexisting noncompensable condition by a compensable injury is, itself, compensable. Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). An aggravation is a new injury resulting from an independent incident. Id. An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Id.

Arkansas Code Annotated section 11-9-102(4)(A) (Supp. 2005) defines a compensable injury as an accidental injury causing internal or external physical harm to the body arising out of and in the course of employment and which requires medical services. See also Daniels v. Arkansas Waffles, Inc., 83 Ark. App. 106, 117 S.W.3d 653 (2003). A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D); Crawford v. Single Source Transp. Fidelity & Cas. Ins.Co., Ark. App. , S.W.3d (June 30, 2004). Objective findings are those findings which cannot come under the voluntary control of the patient. Crawford, supra. In order to prove a compensable injury the claimant must prove, among other things, a causal relationship between his employment and the injury. Id. The determination of whether a causal relationship exists is a question of fact for the Commission to determine. See Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998).

In our earlier opinion we wrote:

In its order awarding benefits, the Commission wrote:

We recognize that the claimant reported some previous soreness in his back, but the claimant credibly denied that he had sustained a prior accidental injury. The respondents agreed that the claimant sustained a compensable injury on October 9, 2001. We attach significant weight to the opinion of the medical experts that the compensable injury caused the "slippage" at L5-S1. Dr. Bruffett opined that the compensable injury had aggravated the claimant's spinal condition. During surgery, moreover, Dr. Bruffett explicitly noted "loose elements" around the spine. The determination of whether a causal connection exists is a question of fact for the Commission. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). The Full Commission finds in the present matter that the objectively-documented "slippage" and "loose elements" around the claimant's spine were the causal result of the claimant's compensable injury.

As a general rule, the appellate courts defer to the Commission on issues involving the weight of the evidence and the credibility of witnesses. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Furthermore, it is well-settled that the Commission has the authority to determine its medical soundness and probative force. Williams v. Brown Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). The Commission has a duty to use its experience and expertise in translating the tesimony of medical experts into findings of fact. Id. However, these standards must not totally insulate the Commission from judicial review because this would render this court's function meaningless in workers' compensation cases. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001).

That being said, when we view the evidence in a light most favorable to the Commission, we cannot say that, when confronted with the same evidence, reasonable minds could reach the same conclusion as the Commission without resorting to speculation and conjecture. Here, appellee admitted that he received treatment for his back prior to sustaining his compensable injury and that he had missed work due to back problems. However, appellee failed to convey this fact to Drs. Bruffett and Valley. Both doctors relied upon appellee's inaccurate medical history in rendering their diagnosis. Thus, the medical evidence relied upon by the Commission was based upon a falsehood. Based on these facts, we hold that appellee failed to establish causation. Therefore, we reverse the award of benefits and remand to the Commission for an order consistent with this opinion.

Dana Corp. v. Baker, supra.

As in the earlier appeal, the problem with appellant's claim is that he is unable to prove causation. Without proof of causation his claim for benefits still fails. Therefore, we affirm the Commission's decision denying benefits.

Affirmed.

Bird, J., agrees.

Hart, J., concurs.