BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G505008 RANDY GRANTHAM, EMPLOYEE CLAIMANT HORNBECK AGRICULTURAL GROUP LLC, EMPLOYER RESPONDENT #1 AG-COMP SIF CLAIMS, INSURANCE CARRIER RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED MAY 17, 2016 Hearing before Administrative Law Judge Elizabeth W. Hogan on February 26, 2016, in Stuttgart, Arkansas County, Arkansas. Claimant represented by Mr. Brent Baber, Attorney at Law, Little Rock, Arkansas. Respondent #1 represented by Mr. Guy A. Wade, Attorney at Law, Little Rock, Arkansas. Respondent #2 represented by Ms. Christy L. King, 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. 11-9-701, and gave timely notice, Ark. Code Ann. 11-9-701. After reviewing the evidence impartially, without giving benefit of the doubt to either party, Ark. Code Ann. 11-9-704, I find the evidence does not preponderate in favor of the claimant. STATEMENT OF THE CASE The parties stipulated to an employee-employer-carrier relationship on October 16, 2013, at which time the claimant was earning sufficient wages to entitle him to a compensation rate of $602.00/$452.00 in the event this claim is found to be compensable. The claimant receives Social Security Disability benefits. Medical
-2- expenses were paid by group insurance carriers Blue Cross Blue Shield and First Health Network. A Form AR-C was filed July 13, 2015. The claimant contends he injured his back lifting an auger on October 16, 2013. He continued to work light duty in his position as a manager and received full salary until the business closed on February 19, 2015. He seeks payment of medical expenses, temporary total disability benefits from February 19, 2015, to a date yet to be determined and attorney s fees. Respondent #1, AG-Comp SIF Claims, contends the claimant did not sustain a compensable injury and did not give notice of any work-related injury. Respondent #2, the Death & Permanent Total Disability Trust Fund, defers to the outcome of litigation. The following were submitted without objection and comprise the evidence of record: the parties prehearing questionnaires and exhibits contained in the two volume transcript. Documents received from the claimant after the hearing have been proffered. The following witnesses testified at the hearing: the claimant and his wife, Darla, owner John Hornbeck and adjustor Tammie Hester. The claimant, age 55 (D.O.B. August 24, 1960), has a high school education and one semester of college. His work experience includes farming (crops, quail, pheasant), and work for a tow boat company. His health history includes a motor vehicle accident in the 1970's with a neck injury treated by a chiropractor, a 1981 right wrist injury, a 1988 finger fracture, a 1987 left ankle sprain, a 2011 right wrist sprain, and a 2009 workers compensation injury to his left hand. He has worked for the respondent employer since July 2007, processing soybeans. In 2011 he became a manager, supervising three (3) employees. The claimant was also a volunteer firefighter prior to his injury.
-3- On October 16, 2013, the claimant bent over with his arms extended to hold an auger when he felt a pop in his back. He developed back and left leg pain and sat down for a while in the scale room. The claimant left work early, took some Tylenol, and went to bed. The claimant sent his employer an email stating he had hurt his back. He did not explain how he hurt his back and his employer did not ask him if he hurt himself on the job. The claimant used his group insurance to see his general practitioner, Dr. Burleson. His employer accommodated his work restrictions and allowed him to work from home using a laptop computer and cell phone to communicate. His employer also continued his salary but did not file any paperwork with his workers compensation insurance carrier. Subsequently, the claimant had three (3) spinal surgeries with Dr. Schlesinger (January 2014), Dr. Will (April 2014) and Dr. Dossett (August 2014), none of which provided any relief. He is presently using pain medication but is bothered by sleep disturbance. The respondent employer s business had been slowing down and ultimately the plant closed February 19, 2016. The claimant received two (2) weeks severance pay. The claimant explained he thought the back injury was minor and did not pursue workers compensation. Sometime after the first surgery, the claimant mentioned to his employer that they should have handled this as a workers compensation claim instead of using his group insurance. However, Mr. Hornbeck does not recall this conversation. Tammie Hester was notified of the claimant s 2009 hand injury, and after a drug test, the claim was accepted. When the claimant filed an AR-C Form on July
-4-13, 2015, for an October 16, 2013, back injury, she investigated the matter by speaking with Mr. Hornbeck and denied the claim. Mr. Hornbeck testified that the plant used to have a safety manager who handled reports of accidents before the business slowed down and there were cutbacks. Mr. Hornbeck knew the claimant had a back injury but he did not inquire how the claimant hurt his back. So the carrier was not notified and the paperwork for a back claim was never completed. There were, however, workers compensation posters displayed at the plant instructing employees how to pursue a claim. MEDICAL EVIDENCE The day after the injury, the claimant saw a general practitioner on October 17, 2013, complaining of back and left leg pain, but there is no mention of a workrelated injury. A November 27, 2013, MRI scan revealed multilevel pre-existing degenerative disc disease with stenosis, osteophytes and annular tears, but there was no evidence of disc extrusion. Bulging discs and annular tears were noted at L2-3, L3-4 and significant stenosis was found at L4-5. The claimant was referred to a specialist where he reported a long history of back pain. Dr. Schlesinger s report of December 19, 2013: He states he has had a mild pain in his lower back for several years but it worsened in November 2013, while he was lifting a heavy object at work. He was in a car accident in the 1970s which has caused some back pain on and off over the years. Dr. Schlesinger agreed with the radiologist and diagnosed the claimant with degenerative changes: 1. Moderately-severe degenerative changes at L3-4, L4-5, L5-S1. 2. Mild-moderate neural foramen stenosis L4-5, L5-S1 bilaterally.
-5-3. Mild-moderate lateral stenosis from the mid part of L4 to the mid part of L5 bilaterally left worse than right. 4. Moderately-severe lateral recess stenosis from the mid part of L5 to the mid part of L5 on the left. A decision was made to request the radiologist report, and I basically agree with their findings. Noticeably absent from this list is a diagnosis of annular tears. Dr. Schlesinger treated the claimant with epidural steroid injections which had no effect. A physical therapy note dated December 8, 2013, shows a one month history of pain and the sentence this injury is not workers comp. Dr. Schlesinger s report of January 17, 2014: The patient understands that additional surgery may be necessary in the future, including a multi-level decompression surgery and fusion. Although the accident/injury did not or may or may not have caused the actual radiological findings, I believe with a reasonable degree of medical certainty (greater than 50%), that based upon the patient s history the current complaints are a result of the injury. The injury seems to have caused the onset of symptoms even if the radiological findings were already present based upon the sequence of events and the historical information provided by the patient. (emphasis added) Dr. Schlesinger performed surgery (bilateral lateral recess and canal stenosis at L4, L5, and S1/sub-annular disc herniation L4-5 and L5-S1 left) on January 23, 2014. An MRI scan on February 25, 2014, revealed a lesion at L4-5 (representing either a recurrent disc or post surgical fluid collection) impinging the L5 nerve on the left. An MRI scan was also taken of the claimant s neck on February 25, 2014, revealing multilevel disc degeneration. In his report of February 25, 2014, Dr. Schlesinger again prescribed injections for the claimant s pain and discussed treatment options, including surgery, with the claimant.
-6- On March 6, 2014, the claimant saw his general practitioner, requesting a referral to another physician for a second opinion. The claimant saw Dr. Kelly Will in Texas on April 7, 2014. Surgery (discectomy and decompression at L5-S1, L4-5 on the left) was performed the next day for a recurrent disc herniation at L4-5 with fibrosis at L5-S1 on the left). A May 28, 2014 MRI scan revealed persistent mild canal and foraminal compromise of the L3-4 level with annular fissuring posteriorly as above...annular bulging (at L4-5) and small foraminal protrusion. The claimant saw Dr. Andrew Dossett in Texas on July 10, 2014. He was diagnosed with degenerative disc disease, spondylosis and left-sided scoliosis. On August 6, 2014, Dr. Dossett performed surgery (laminectomy L4-5, fusion L4-5) for a recurrent disc herniation at L4-5 on the left. In a follow-up visit on August 21, 2014, it was noted that the claimant was taking sixteen (16) pills a day and he was still symptomatic. The claimant returned to his general practitioner on December 22, 2014, and was diagnosed with Dupuytren s Contractures in his hand. The claimant saw Dr. Robert Bulger on March 23, 2015, for pain management. He prescribed medication and therapy for sympathetic nerve pain affecting his left foot. Dr. Bulger opined that a disc herniation at L5 had damaged the nerve. Dr. Stan Burleson, general practitioner authored the following letter on November 4, 2015: The patient has had previous failed back surgery, chronic pain in his back, etc. The patient has been totally disabled by his surgeon (sic). No further intervention is warranted and because of these ongoing problems, the patient is considered to be totally disabled.
-7- FINDINGS OF FACT AND CONCLUSIONS OF LAW The claimant used his group health insurance and obtained three (3) back surgeries before filing a workers compensation claim with the Commission. The claimant did, however, notify his employer of his injury and his employer accommodated his work restrictions. The claimant did not specify that he was hurt at work and his employer did not inquire further or notify the carrier. An employee is required to give notice to his employer of any work-related injury using a Form AR-N, Ark. Code Ann. 11-9-701. The employer s knowledge of the occurrence of an injury is ascribed to the carrier, Ark. Code Ann. 11-9-405. Failure to report an injury does not bar a finding of compensability if the employer had knowledge of the injury or the employee did not know his medical condition arose out of and in the course of his employment. The Commission also has the discretion to excuse the failure to give notice for some satisfactory reason. Disputes about whether or not the claimant gave notice go to the weight and credibility of the testimony. The statutory definition of a compensable injury does not require timely reporting of an injury, or receipt of medical treatment within a specified period, Ark. Code Ann. 11-9-102. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), Stephens Truck Lines v. Millican, 58 Ark. App.275, 950 S.W.2d 472 (1997). I find that the email sent to the employer on October 16, 2013, constituted notice and it was incumbent on the employer to inquire further if it was unclear the claimant was reporting a work-related injury. The employer was aware of the injury and accommodated the claimant s work restrictions. To prevail on a workers compensation claim, the claimant must prove that he sustained a compensable injury using medical evidence that is supported by objective findings.
-8- As this claim arose after July 1, 1993, this case is governed by Act 796 of 1993 which must be strictly construed, Ark. Code Ann. 11-9-704, 11-9-717. The claimant has the burden of proving the following requirements, as defined by Ark. Code Ann. 11-9-102, by a preponderance of the evidence of record, which means evidence of greater convincing force, Smith v. Magnet Cove Barium Corporation, 212 Ark 491, 206 S.W.2d 442 (1947): 1) proof that the injury arose out of and in the course of employment 2) proof that the injury caused internal or external physical harm to the body which required medical services or resulted in disability 3) proof establishing the injury by objective medical evidence 4)(a) proof that the injury was caused by a specific incident identifiable by time and place of occurrence or (b) proof that the injury was caused by rapid, repetitive motion and proof that the injury was the major cause of disability or need for medical treatment. Compensation must be denied if the claimant fails to prove any one of these requirements. Mikel v. Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). In this case, the claimant has a long standing history of back symptoms and chronic degenerative changes. In order for the claimant to establish an aggravation of a preexisting condition, a traumatic injury must first be identified. Pearline Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). Dr. Schlesinger s report of January 17, 2014, does not identify the traumatic injury that was aggravated or combined with the pre-existing condition. And the use of the
-9- wording did not or may or may not is insufficient to establish causation. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000), Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). Therefore it is unclear if the treatment prescribed was for a traumatic injury or pre-existing condition. Treatment for stenosis caused by degeneration would not be considered a traumatic injury. 1. The Workers Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed on October 16, 2013, at which time the claimant was earning sufficient wages to entitle him to a compensation rate of $602.00/$452.00 in the event this claim is found to be compensable. The claimant receives Social Security Disability benefits. Medical expenses were paid by group insurance carriers Blue Cross Blue Shield and First Health Network. A Form AR-C was filed July 13, 2015. 2. The claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable injury, caused by a specific incident, arising out of and in the course of his employment which produced physical bodily harm, supported by objective findings, requiring medical treatment or producing disability, pursuant to Ark. Code Ann. 11-9-102. The claimant has also failed to prove that an injury supported by objective findings aggravated or combined with a preexisting condition based on Dr. Schlesinger s report of January 17, 2014. 3. 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. This claim is respectfully denied and dismissed. IT IS SO ORDERED. ELIZABETH W. HOGAN Administrative Law Judge