DARROUGH v. DOUGLAS

OPINION AND ORDER

An Administrative Law Judge entered an opinion and order in the above-captioned claim on January 10, 1997, finding that claimant's ongoing back difficulties, including his recurrent L5-S1 disk herniation, were a recurrence of his compensable injury of May 7, 1994, and remain the liability of respondent #1.

Respondent #1 now appeals from that opinion and order, essentially contending that claimant's continued back difficulties are the result of an aggravation or new injury which occurred while respondent #1 was not on the risk.

Following our de novo review of the entire record, we specifically find that claimant's ongoing back difficulties, including his recurrent L5-S1 disk herniation, are a recurrence of his original compensable injury of May 7, 1994, and remain the liability of respondent #1. The decision of the Administrative Law Judge is therefore affirmed.

There are no less than three different respondents involved in this claim, with each one providing coverage for respondent employer during the times set out below (as stipulated by the parties):

Respondent #1: July 31, 1993 — July 31, 1994.

Respondent #3: August 3, 1994 — April 7, 1995.

Respondent #2: August 12, 1995 — August 12 1996.

(No coverage from April 8, 1995 — August 11, 1995.)

Claimant sustained a compensable injury on May 7, 1994, during the period in which respondent #1 was on the risk. As a result of that injury, claimant incurred a right-side disk herniation at the L5-S1 level. He ultimately underwent a lumbar laminectomy and diskectomy on June 16, 1994, performed by Dr. Zachary Mason. Dr. Mason thereafter released claimant to return to work effective August 1, 1994, with the recommendation that he engage in no repetitive bending, stooping, or lifting over 50 pounds. In addition, Dr. Mason issued claimant a 10% whole body permanent anatomical impairment rating.

Although Dr. Mason's post-operative reports indicate that claimant initially did well after his surgery, he returned with renewed complaints on September 7, 1994. In a letter written the following day, Dr. Mason noted that claimant "has been working and has been driving a logging truck. He finds that the constant bouncing and jostling around has been aggravating his low back. He has pain that radiates down through the posterior aspect of his leg." Claimant returned to Dr. Mason with continued complaints in February, 1995, prompting the latter to order a follow-up MRI. This revealed no significant abnormalities, and Dr. Mason again released claimant from his care on June 28, 1995. At the same time, Dr. Mason noted that:

The patient tells me that he does fairly well when he is not working, but has found that driving the logging trucks which are quite rough does aggravate his back pain. This seems to be the main factor that worsens his discomfort at this point.

By May, 1996, claimant still experienced considerable difficulty relating to his lower back and, on September 4, 1996, Dr. Mason noted that a recent myelogram and postmyelogram CT scan had revealed a "large recurrent disc herniation at the L5-S1 level on the right." Dr. Mason went on to state that:

I do not have any history from Mr. Darrough of any new injury occurring other than the driving of his truck which bounced him about in the cab. Based on the information I have, his current symptoms and our recommendation for surgery are related to his original work injury that he suffered in May 1994.

Later, in a letter dated September 11, 1996, Dr. Mason once again attributed claimant's continuing symptoms to his original injury:

He now has a recurrent disc herniation. I do not have any information of any other injuries that have occurred to his back and, based on this, his recurrent disk herniation that is present is also due to the original work related injury that occurred in May 1994.

When a second complication is found to be the "natural and probable result" of a previous injury, it is deemed a "recurrence" of the previous injury. Because the two events are thus causally related, the carrier on the risk at the time of the first injury remains liable. However, should the second period of complication be the result of some independent intervening cause — such as a new injury — the original carrier's liability will end if it is no longer providing coverage. Accordingly, the critical question is whether there is a causal connection between the first injury and the second period of difficulty. See, in general, Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

Our de novo review of the entire record persuades us to find that claimant's testimony is entirely credible. McClain v. Texaco, 29 Ark. App. 218, 780 S.W.2d 34 (1989). We likewise find Dr. Mason's opinions, which are based largely on a history provided by claimant, to be equally valid.

Claimant himself answered in the negative when asked (at the hearing) whether he had suffered "another injury separate and apart from the injury of May the 7th of 1994 . . ." In fact, claimant's testimony establishes that he was never pain free after his first operation in June, 1994, and that his current low-back difficulties emanate from the same area as the initial surgery. Additionally, claimant's employer, Mr. Robert Douglas, testified as follows regarding the point at which claimant began to complain about his back after his return to work:

Q. He was doing his regular duties for about a month and then he started complaining to you?

A. No. He was complaining when he come (sic) back there, you know, about his back and things was hurting, but he did his job.

While it may be true that the "jostling and bouncing" of driving a logging truck added to the efficacy of claimant's persistent low-back complaints, we find from both his and Mr. Douglas' credible testimony that claimant remained symptomatic before and when he returned to work on August 1, 1994. Based on these same factors, as well as Dr. Mason's opinions set out above, and taking into account the absence of any other measurable evidence that would establish an independent intervening cause of claimant's continued complaints, we specifically find that his current difficulties, including the recurrent L5-S1 disk herniation, are the natural and probable result of his original compensable injury of May 7, 1994, and are a recurrence thereof. As a result, we further find that respondent #1 remains liable for claimant's ongoing back problems.

Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant's continued back difficulties, including his recurrent disk herniation at the L5-S1 level, are a recurrence of his original compensable injury of May 7, 1994, and are thus the responsibility of respondent #1. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.

As a final matter, we note that the parties have not addressed or questioned the propriety of the Administrative Law Judge's award of medical expenses or temporary total disability benefits on appeal. After conducting our de novo review of the entire record, we affirm and adopt the findings and reasoning of the Administrative Law Judge only as they relate to the extent of benefits to which claimant is entitled.

All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).

For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).

IT IS SO ORDERED.