The respondents appeal an opinion and order filed by the administrative law judge on August 2, 1996. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that his 1995 low back problems were a recurrence of a compensable low back injury sustained on June 4, 1993. After conducting a de novo review of the entire record, we find that the preponderance of the evidence establishes that the claimant's 1993 compensable injury only temporarily aggravated a preexisting degenerative low back condition and that the claimant's 1993 compensable injury did not accelerate or combine with the preexisting condition to produce the claimant's current disability or need for treatment. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a new compensable injury in April of 1995. Therefore, we find that the administrative law judge's decision must be reversed.
The claimant sustained an admittedly compensable low back injury on June 4, 1993, while lifting a copy machine at work. The claimant was 37 years old at the time of the injury.
The claimant's symptoms intensified over the next several days, and the claimant presented to Dr. Thomas Cain on June 8, 1993. After performing x-rays and a neurovascular evaluation, Dr. Cain diagnosed a lumbar strain and prescribed bed rest and medication. When the claimant's symptoms did not resolve through rest and medication, the respondents referred the claimant to Dr. Reginald Rutherford in early August. The claimant received trigger point injections in the lumbosacral spine and reported on follow up that his low back pain had resolved by August 16, 1993, although the claimant reported new problems with pain developing in his neck and left shoulder. The claimant returned to part-time duty during the week of August 13, 1993, and the claimant returned to regular duty work during the week of September 17, 1993, after advising Dr. Rutherford that his symptoms had completely resolved.
On October 27, 1993, the claimant returned to Dr. Rutherford reporting right hip problems with pain and "popping" when performing exercises prescribed for his back. However, no abnormalities were detected on a whole body bone scan. X-rays of the lumbosacral spine indicated osteophyte formation in the L3-4, L4-5, and L5-S1 levels of the lower spine, and Dr. Rutherford advised the claimant to stop performing those exercises which produced right hip pain.
On November 29, 1993, the claimant returned for follow up reporting recurrent right hip pain, as well as an onset of right foot numbness and an unrelated right scapular pain of unknown origin. Dr. Rutherford ordered MRI scans of the cervical and lumbar spine as well as electrodiagnostic testing of the right arm and leg. A MRI of the claimant's lumbar spine performed on November 29, 1993, indicated degenerative changes in the L4-5 and the L5-S1 levels of the spine with disc bulging to the right at each level. Electrodiagnostic studies were within normal limits with no evidence of cervical or lumbar radiculopathy.
Dr. Rutherford advised the claimant that his degenerative disc disease was non-surgical, and Dr. Rutherford prescribed a one-week course of lumbar stabilization and a half-day course in the St. Vincent's back school. The claimant was placed off work between November 25, 1993, and January 10, 1994, and underwent additional physical therapy prior to returning to work. During a follow up on February 3, 1994, the claimant indicated that he was completely pain free. Dr. Rutherford encouraged the claimant to engage in a home-based exercise program, and Dr. Rutherford released the claimant without scheduled follow up on that date.
Following his release by Dr. Rutherford on February 3, 1994, the claimant continued to work for the respondent until April 7, 1994. The claimant was off work and received temporary disability compensation, apparently for a relapse of lower back symptoms, from April 7, 1994, to April 14, 1994, although the claimant has not submitted any medical records relating to that period and he apparently did not return to Dr. Rutherford during that period of temporary disability.
After the claimant returned to work on April 15, 1994, he next returned to Dr. Rutherford for follow up on August 15, 1994. At that time, the claimant again indicated that he was pain free and that, by virtue of his absence of symptoms, he at times forgot to take his prescribed medication. Dr. Rutherford stopped the claimant's prescription medication and encouraged the claimant to continue his low back exercise program.
The claimant's unrelated cervical problems caused the claimant to be off work from the week of December 16, 1994, through the week of January 13, 1995. However, after returning to work on April 15, 1994, the claimant did not miss additional time from work or require any additional medical treatment for his low back until April 21, 1995, when he returned to Dr. Rutherford with low back problems. Dr. Rutherford took the claimant off work at that time, and the claimant has not returned to work.
The claimant apparently indicated to Dr. Rutherford that he developed low back pain approximately three weeks earlier while working in cramped quarters repairing a copier. However, in a hand written note left on his supervisor's desk, the claimant indicated as follows with regard to the April 21, 1995, symptom onset:
The doctor said to fill out one of these forms from when I started to get any back pain but I'm not real sure what happened. It may be from driving so much. It just gets a little worse with each passing day. Maybe he can change my medicine and I'll be fine in a day or two.
Dr. Rutherford caused additional diagnostic testing to be performed including a lumbar MRI, a lumbar myelogram and post-myelogram CT, and electrodiagnostic studies. Dr. Robert Laakman's comparison of the claimant's 1993 and 1995 MRI's states:
As compared to the previous study there is little significant interval change. Again seen is degenerative disc disease at the L4/L5 and L5/S1 levels. At the L4/L5 level there is evidence for a small central disc herniation and mild narrowing of the central spinal canal. At the L5/S1 level there is evidence for a combination of diffuse bulge of the disc, bony osteophyte formation, and a right paracentral disc herniation. This does cause impingement on the right S1 root.
The lumbar myelogram and post-myelogram CT confirmed a nerve root impingement at the S1 level, and electrodiagnostic studies indicated denervation on the right consistent with lumbar radiculopathy.
The respondents have denied additional benefits for the problems that the claimant has experienced since April 21, 1995, and the claimant filed a claim for benefits. The claimant asserts that he has sustained a single injury on June 4, 1993, and that the difficulties that he has experienced since April 21, 1995, are a consequence of that injury. The respondents assert that the claimant's June 4, 1993, injury resolved, and that the claimant's current problems are not related to his employment.
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 462 (Ark.App. 1979). As is commonly stated, the employer takes the employee as he finds him. Murphree, supra. In such cases, the test is not whether the injury causes the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition. Little, supra. However, although a disabling symptom of a preexisting condition may be compensable if it is brought on by an incident arising out of and in the course of employment, the employee's entitlement to compensation ends when his condition is restored to the condition that existed before the injury unless the injury contributes to the condition by accelerating or combining with the preexisting condition.See, Arkansas Power and Light Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959); Herman Stephens v. B.J.'s Family Restaurant, Full Workers' Compensation Commission, Feb. 22, 1994 (Claim No. E209414).
In the present claim, the medical evidence indicates that the claimant has a prior history of low back problems and degenerative disc disease of the lumbar spine. In that regard, the medical evidence indicates that the claimant experienced severe and debilitating low back pain in December of 1987 after getting out of a recliner chair at a store. The claimant was 31 years old at the time. The claimant was briefly hospitalized for acute low back pain and right side sciatica. Dr. Charles Schock performed a clinical examination, including the straight leg raising maneuver, and found straight leg, raising on the right limited to 20 degrees by right buttock pain and straight leg raising on the left limited to 60 degrees limited by back pain. Dr. Schock caused a lumbar MRI to be performed. This study indicated mild degenerative disc disease at the L5-S1 level with diffuse bulging of the posterior margin of the L5 disc, but without a well defined focal herniation or compression of the thecal sac. The claimant testified that following the 1987 incident, his back problems rapidly subsided within a few days.
With regard to resolution of the claimant's 1993 problems, Dr. Rutherford's office notes indicate that the claimant was completely pain free when the claimant presented for follow-up on February 3, 1994, and again on August 15, 1994. Moreover, the record indicates that for the one year period between April 13, 1994, and April 21, 1995, the claimant did not indicate or report any continuing low back difficulties, before developing a gradual onset of low back pain in April of 1995.
When requested by the claimant's attorney for a written opinion, Dr. Rutherford responded as follows regarding the relationship between the claimant's 1993 injury and his 1995 problems:
Mr. Wilson was considered to have achieved complete clinical recovery referable to his industrial back injury of June of 1993 on August 15, 1994, Mr. Wilson being released from care without residual symptoms on August 15, 1994. . . . Mr. Wilson was most recently seen by myself on April 21st, 1995 for complaints of low back and right leg pain, which was felt consistent with a diagnosis of lumbar radiculopathy. In my opinion, this represents a new injury, both Mr. Wilson and his insurance company being advised of this opinion. [Emphasis added].
In short, the evidence indicates that the claimant has a history of degenerative low back problems dating back to at least 1987 when the claimant required hospitalization for at least two days for treatment and testing. The claimant insists that he did not experience any additional back problems between 1987 and 1993. However, in assessing the weight to be accorded the claimant's testimony in this regard, we note that the claimant failed to identify any prior history of low back pain at his deposition, and only acknowledged the 1987 hospitalization after the respondents' attorney produced medical records of that hospitalization.
In assessing the weight to be accorded Dr. Rutherford's opinion that the claimant's June, 1993 work-related injury had resolved prior to August 15, 1994, we note that Dr. Rutherford was the claimant's primary treating physician for his low back from August of 1993 until May of 1995. During that time, Dr. Rutherford performed multiple lumbar MRI's, multiple electrodiagnostic studies and a lumbar myelogram and post-myelogram CT, in addition to clinical testing and treatment. In addition, we note that the claimant advised Dr. Rutherford on August 15, 1994, that his back condition at that time was such that he routinely forgot to take his prescribed back medication. Likewise, the claimant's employment and medical records indicate that the claimant did not miss any time from work for low back complaints after April of 1994 until April of 1995. In short, the greater weight of the evidence indicates that the claimant's work-related injury sustained on June 4, 1993, only temporarily aggravated a preexisting condition and did not accelerate or combine with the preexisting condition to produce the claimant's current disability. Therefore, we find that the preponderance of the evidence establishes that the claimant's 1995 low back problems are not a recurrence of the claimant's 1993 compensable injury.
In reaching our decision, we note that Dr. Rutherford's February 3, 1993, office note indicated that the claimant was currently pain free, but was "advised this represents a life-long problem, in which he must not lower his guard pertaining to symptom management." Dr. Rutherford's February 3, 1995, note regarding a "life-long problem" is somewhat ambiguous. Apparently, the administrative law judge interpreted Dr. Rutherford's note to mean that the claimant's June 4, 1993, injury represents a life-long problem. However, we understand Dr. Rutherford's note to mean that the claimant's degenerative back problems represent a life-long problem, and that the claimant will require a daily home exercise program for maintenance of symptoms related to the underlying condition, and not for the 1993 work-related problems. In this regard, we note that Dr. Rutherford was also the physician who informed the claimant's attorney that the claimant's 1993 injury had in fact resolved before the April, 1995 onset occurred.
Since the claimant failed to prove by a preponderance of the evidence that his 1995 low back problems were a recurrence of his 1993 injury, this claim for the claimant's 1995 back difficulties is controlled by the Arkansas Workers' Compensation Law as amended by Act 796 of 1993.See, Atkins Nursing Home v. Gray, 54 Ark. App. 125, ___ S.W.2d ___ (1996). When considering the compensability of a claim arising under Act 796 of 1993, the claimant must prove by a preponderance of the evidence that he has sustained an injury arising out of and in the course of his employment and that the injury satisfies the requirements for establishing the compensability of one of the five categories of injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers' Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). In the present claim, the claimant does not contend that his 1995 back difficulties were caused by a specific incident and identifiable by time and place of occurrence. Consequently, the requirements of Ark. Code Ann. § 11-9-102 (5)(A)(ii)(b) (Repl. 1996) are controlling, and the following must be satisfied:
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment ( see, Ark. Code Ann. § 11-9-102 (5)(A)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body ( see, Ark. Code Ann. § 11-9-102 (5)(A)(ii) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury ( see, Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996);
(4) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment ( see, Ark. Code Ann. § 11-9-102 (5)(E)(ii) (Repl. 1996)).
If the employee fails to establish by a preponderance of the evidence any of these requirements, he fails to establish the compensability of the claim, and compensation must be denied.
In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that an employment-related injury was the major cause of the disability or need for treatment that he received in 1995. In this regard, at various times the claimant has speculated that the onset of pain which required medical attention on April 21, 1995, was caused by excessive driving, or perhaps by a five hour repair effort in early April in cramped quarters. At the hearing, however, the claimant testified that he experienced a gradual onset of low back pain in April of 1995 which he did not attribute to any work-related activity performed in 1995. In addition, the medical evidence shows that the claimant suffers from a significant degree of degenerative disc disease in both the lumbar spine and in the cervical spine, and the preponderance of the evidence therefore fails to show that a work-related injury is more than 50% of the cause of the claimant's need for treatment or his disability which began in April of 1995. Therefore, we find that the claimant failed to show that a work-related injury is the major cause of the disability or need for treatment, and we find that the claimant failed to establish the requirements necessary to establish a compensable injury under Ark. Code Ann. § 11-9-102 (5)(E)(ii)(4) (Repl. 1996).
Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that his 1995 low back problems are a recurrence of his 1993 compensable injury. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable new injury in April of 1995. Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed.
IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
Commissioner Humphrey dissents.
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