BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G ASHLEY HAMILTON, EMPLOYEE ST. VINCENT HEALTH SYSTEM, EMPLOYER

Transcription

1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G ASHLEY HAMILTON, EMPLOYEE ST. VINCENT HEALTH SYSTEM, EMPLOYER SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED AUGUST 23, 2016 Hearing before Administrative Law Judge Elizabeth W. Hogan on July 29, 2016, in Little Rock, Pulaski County, Arkansas. Claimant represented by Mr. M. Keith Wren, Attorney at Law, Little Rock, Arkansas. Respondents represented by Mr. Michael E. Ryburn, Attorney at Law, Little Rock, Arkansas. ISSUES A hearing was conducted to determine the claimant s entitlement to payment of medical expenses, temporary total disability benefits and attorney s fees. At issue is whether or not the claimant sustained a compensable injury pursuant to Ark. Code Ann After reviewing the evidence impartially, without giving benefit of the doubt to either party, Ark. Code Ann , I find the evidence preponderates in favor of the claimant. STATEMENT OF THE CASE The parties stipulated to an employee-employer-carrier relationship on May 16, 2015, at which time the claimant sustained a compensable back injury at a compensation rate of $629.00/$ Some benefits were paid before the claim was controverted on February 18, 2016, and other benefits were paid by group carrier, QualChoice. The claimant has also received short-term disability benefits. The claimant contends she developed back pain in 2014 and was treated conservatively using her group insurance. She injured her back again on May 16, 2015, assisting a patient. This injury worsened her symptoms to include radiating

2 pain to her left lower extremity. -2- She seeks payment of medical expenses, temporary total disability benefits from March 21, 2016, to a date yet to be determined, and attorney s fees. The respondents contend there is insufficient evidence to show an aggravation of the claimant s symptomatic back condition. The following were submitted without objection and comprise the evidence of record: the parties prehearing questionnaires and the claimant s exhibit packet contained in the transcript. The following witnesses testified at the hearing: the claimant and co-worker Ronald Lee McGaughy, who corroborated the claimant s history of injury. The claimant wore a back brace to the hearing. Respondent s counsel called into question the claimant s credibility, however, I found her to be sincere in her testimony. The claimant, age 34 (D.O.B. March 11, 1982), has been a registered nurse since Her job description requires her to lift fifty (50) pounds, but she is required every day to exceed that amount because she has to transfer patients, lift them in bed and push or pull patients over a twelve (12) hour shift. The claimant developed back pain in 2014, radiating to her right flank. At first she thought it might be a kidney stone, but ultimately she sought treatment for radiating right hip pain. She said she woke up with the back pain and did not relate it to any specific injury although her job is physically demanding. The claimant reported this to her boss who encouraged her to look into worker s compensation, however, the employee health nurse told her she waited too late to apply. The health nurse was not called to refute this testimony. Employers routinely make the mistake of denying the employee the opportunity to report an injury based on some arbitrary time limit. The employee may report an injury at any

3 -3- time. Whether the claim is accepted or rejected is another matter. These numbered administrative forms cannot be used in evidence, Ark. Code Ann (c). The claimant found epidural steroid injections helpful and returned to work. On May 16, 2015, the claimant was working triage. Around 9:00 p.m. she pushed a patient in a wheelchair to his room. The patient lost his balance when he stood up to transfer to the bed and fell against the claimant. She called for help and was assisted by co-worker, Ronald McGaughy. The claimant experienced sharp back and left leg pain. She had to be driven home. The claimant was sent to Concentra by her employer. She was given restricted duty and used a wheelchair sometimes. Dr. Cathey released her to return to work with no restirictions but she continued on the triage duty and relied on coworkers for help. Her claim was controverted, so she returned to Dr. Saer and ultimately had surgery on March 21, She was still under the doctor s care at the time of the hearing. MEDICAL EVIDENCE Prior to any incident at work, the claimant experienced back symptoms in A September 3, 2014, MRI scan revealed a small disc protrusion at L5-S1 causing a mass effect on the thecal sac. Her symptoms continued and radiated into the right hip. A December 29, 2014, report mentions there was no specific injury. The report also indicates the claimant had an appointment with Dr. Saer in February On March 24, 2015, the claimant was seen by Dr. Saer for back and right hip pain after performing patient care, which rendered her unable to walk. She related the onset of the problem as August 29, 2014.

4 -4- Dr. Saer s report of March 24, 2015: Ms. Hamilton is a 33-year-old woman, who is a nurse at St. Vincent Little Rock, who had lower back pain since about August This started without any particular injury or accident. Her pain is a little bit difficult to pin down. It may be discogenic and perhaps is related to the abnormalities at L5-S1. She has not been able to work for the last 8 weeks because of this. Dr. Saer prescribed injections, therapy, and medication. The claimant was unable to pursue physical therapy because there was no network provider close to her home or work. The claimant reported that the injection helped the radiating pain but she still had some back pain. The claimant had, however, been able to return to work. Dr. Saer commented, She is trying to pursue this from a worker s comp (?) standpoint, which could take a long time. The claimant was seen at Concentra on May 21, 2015, reporting sharp low back pain radiating to the left thigh after an incident at work, causing her to limp. She was prescribed medication and work restrictions. A May 30, 2015, MRI scan showed a broad-based central disc protrusion at L5/S1 questionably producing some nerve root compression of the S1 nerve roots bilaterally, possible left greater than right. Dr. J. Matchett s May 30, 2015, MRI report: This (L5-S1) protrusion was noted on the prior study from September 3, 2014, but increased since the prior study...it is effacing the thecal sac and it abuts the SI nerve roots...this may be greater on the left. The respondents sent the claimant for a second opinion on June 18, 2015, to Dr. Steven Cathey. He opined that there was little change in the comparative 2014 and 2015 MRI scans and the claimant could return to work June 18, He characterized the 2015 incident as an aggravation of a preexisting condition and recommended physical therapy and injections. Dr. Cathey released the claimant

5 -5- on August 11, 2015, with no impairment based on a negative physical examination and her report that the left leg pain resolved after injections. The claimant returned to Dr. Saer on December 15, 2015, reporting continuing back pain and radiating left leg pain. He ordered a diskogram which was positive at L5-S1 with contrast extricating posteriorly into the central herniation. The level was concordantly positive on injection. Dr. Saer performed surgery (anterior diskectomy and fusion at L5-S1) on March 21, The claimant reported improvement with the leg pain, but lingering soreness and pain in her back. The Doctor planned to evaluate her again in August 2016, after physical therapy. FINDINGS OF FACT AND CONCLUSIONS OF LAW In 2014, the claimant, a registered nurse, woke up with back and right radiating pain for which she received conservative treatment. Her symptoms improved enought that she could return to work despite a small disc protrusion and degeneration at L5-S1. On May 16, 2015, a patient fell on her causing sharp back and left sided symptoms. A second MRI scan showed a broad-based disc protrusion at L5-S1. A discogram showed contrast dye exuding from a central herniation and that level was consistent with her symptoms. The surgery resolved the left leg pain but she was still under Dr. Saer s care at the time of the hearing. Dr. Cathey opined that the May 16, 2015, incident at work aggravated the claimant s preexisting condition. Act 796 of 1993, did not abolish compensation for a preexisting condition. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). The employer "takes the employee as he finds him" and employment circumstances that aggravate preexisting conditions are compensable. St. Vincent Infirmary v. Brown,

6 -6-53 Ark. App. 30, 917 S.W.2d 550 (1996). Public Employee Claims Division v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992). A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber & Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962); Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d (Ark. App. 1979); and Pearline 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, which must meet the definition of a compensable injury, pursuant to Ark. Code Ann , Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). As I interpret the evidence, the claimant, a registered nurse, routinely exceeds the weight limitation in her job description, working with patients. She developed back problems in 2014 with radiating right-sided pain. After conservative treatment, the claimant then returned to work. In 2015 a patient fell on her causing back and left-sided radiating pain. Comparative diagnostic testing confirmed a change in the 2014 disc protrusion at L5-S1 from a small to a larger broad-based herniation. The claimant s symptoms changed from the right to the left side. She developed a limp. Therefore, I find the 2015 incident at work produced objective medical findings consistent with an aggravation of a preexisting condition. Surgery was reasonable and necessary to address this injury. 1. The Workers Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed on May 16, 2015, at which time the claimant sustained a compensable back injury at a compensation rate of $629.00/$ Some benefits were paid before the claim was controverted on February 18, 2016, and other benefits were paid by group carrier, QualChoice. The claimant has also received short-term disability benefits. 2. The claimant has proven by a preponderance of the credible evidence that she sustained a compensable injury, caused by a specific incident, arising out of and in the course of her employment which produced physical bodily harm, supported

7 -7- by objective findings, requiring medical treatment or producing disability, pursuant to Ark. Code Ann The respondents are directed to pay medical expenses within thirty (30) days of receipt, pursuant to Rule The claimant is entitled to temporary total disability benefits from March 21, 2016 to a date yet to be determined as she was in her healing period and unable to work. 5. This claim has been controverted and the claimant's counsel is entitled to the maximum attorney's fees to be paid in accordance with Ark. Code Ann , , and WCC Rule 10. Pursuant to the Full Commission decisions of Coleman v. Holiday Inn, (November 21,1990) (D708577), and Chamness v. Superior Industries, (March 5, 1992) (E019760), the claimant's portion of the controverted attorney's fee is to be withheld from, and paid out of, indemnity benefits, and remitted by the respondent, directly to the claimant's attorney. 6. If they have not already done so, the respondents are directed to pay the court reporter, Celia Jamison s, fees and expenses within thirty (30) days of receipt of the bill. AWARD Respondents are directed to pay benefits in accordance with the Findings of Fact above. All accrued sums shall be paid in a lump sum without discount and this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann , and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (Ark. Ct. App. 1995); Burlington Industries, et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (1998), 336 S.W. 515, 988 S.W.2d 3 (1999); and Hartford Fire Insurance Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004). IT IS SO ORDERED. ELIZABETH W. HOGAN Administrative Law Judge