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Waste Management v. Cook

Court of Appeals of Arkansas, Division III

March 4, 2015

WASTE MANAGEMENT and GALLAGHER BASSETT SERVICES, INC. APPELLANTS
v.
EDDIE COOK APPELLEE

APPEAL FROM THE ARKANSAS WORKERS’ COMPENSATION COMMISSION [Nos. G205370 and G301083]

Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellants.

Laura Beth York, for appellee.

WAYMOND M. BROWN, Judge.

Appellants appeal from the August 6, 2014 opinion of the Arkansas Workers' Compensation Commission (Commission) reversing the opinion of the administrative law judge (ALJ) by finding that appellee proved that he sustained a compensable injury to his back on February 2, 2013, was entitled to temporary-total-disability benefits, and was entitled to reasonably necessary medical treatment. On appeal, appellants' sole argument is that substantial evidence does not support the Commission's decision that appellee proved he sustained a compensable lower back injury. We affirm.

The pertinent facts in this case are as follows, as ascertained from testimony and exhibits submitted below. Appellee sustained a compensable injury to his lumbar spine on June 19, 2012. Appellants accepted the injury as compensable and paid for medical treatment with Dr. Steven Cathey, which included a laminectomy and discectomy at L5-S1 on the left on November 21, 2012. Dr. Cathey released appellee to return to work without restrictions on January 21, 2013.[1] Dr. Cathey assigned appellee a ten percent permanent-partial-impairment rating, which appellants accepted. At a follow-up appointment on January 31, 2013, Dr. Cathey noted that appellee had returned to work, but "could only work a few days because of increasing pain in his lower back." Dr. Cathey signed a return to work slip on February 1, 2013, permitting appellee to return to work without restrictions on February 1, 2013. Appellee returned to work, but was not allowed to resume operating heavy machinery.

On February 2, 2013, appellee tripped on a wire, causing him to fall onto a bulldozer from which he rolled onto the ground onto his back. From that position, using his radio, appellee contacted his lead operator, Jermaine Thomas. Thomas found appellee lying on his back on the ground. Thomas helped appellee into the seat of the bulldozer. Appellee complained of an inability to breathe, but was able to catch his breath while sitting. Thomas offered to call an ambulance, but appellee declined, requesting more time to "see if [he was] okay or if something's wrong." Appellee went to work operating the bulldozer thereafter. Thomas returned to check on appellee periodically.

At some point, Thomas reported the incident to the operations manager, Daman Stanford, who had Thomas bring appellee to the office. Appellee made a written statement in which he noted that he "hit [his] chest" on the arms of the bulldozer's blade, which "[k]nocked the breath out of [him]-pain in chest." He made no mention of any back injury. The First Aid/Near Miss Report included a typed version of his written statement and listed the body part affected as the left chest; no secondary body part was listed. Additionally, Thomas also made a written statement advising that appellee had told Thomas that appellee "was walking and tripped over a piece of wire and fell against the arm of the dozer where he hit his chest." Thomas's statement made no mention of appellee stating that he had injured his back. The First Report of Injury or Illness Form, dated February 2, 2013, listed the type of injury as "contusion/strain" and noted that appellee "sustained a contusion to chest wall and [lumbar] strain."[2] At Stanford's request, appellee went to Concentra for medical care on the same date.

The transcription of appellee's February 2, 2013 visit to Concentra listed his chief complaint as being his chest; however, it noted that appellee "also stated that his low [sic] back is hurting." The transcription stated that there was "[n]o direct blow to [appellee's] back" and that appellee stated that he rolled off the bulldozer "onto his back."[3] Appellee's assessment was for a chest wall contusion, a thoracic strain, and a lumbar strain. He was diagnosed with a chest wall contusion and a lumbar strain. The record notes that appellee was limited to sixty degrees of motion with pain in any direction. He was placed on modified duty.

On February 5, 2013, appellee returned to Concentra where his assessment was the same and it was noted that his degree of motion with pain now varied depending on the direction, but the degree had decreased.[4] Accordingly, the number and nature of the modifications on appellee's modified duty were reduced.

Appellee returned to Concentra on February 12, 2013. The transcription thereof states that appellee had stated that he was "approximately 50% better." It noted that appellee's "[l]ow back is sore, but pain and radicular symptoms are unchanged" from his previous injury and that appellee was "at his baseline for back pain."[5] At a February 15, 2013 visit to Concentra, appellee reported that his chest was feeling much improved overall, but that his chest wall was still sore. Appellee's objective pain rating was seven on a scale of one to ten, and his overall progress was as expected. A physician work activity status report from Concentra, dated February 26, 2013, showed that appellee's diagnoses remained contusion of the chest wall and lumbar strain. Appellee was released to regular duty.[6] At a March 5, 2013 visit to Concentra, appellee reported "increased leg pain with prolonged sitting at work yesterday" and stated he was working regular activity. His objective pain scale was five on a scale of one to ten with his overall progress being slower than expected. Appellee was referred to Dr. Cathey for his lumbar strain diagnosis, but the referral was denied by appellants.

On March 8, 2013, appellants filed a Form AR-2 – Employer's Intent to Accept or Controvert Claim. In the "compensation" section, appellants listed "chest & lower back" as the body parts injured. However, in their statement of position, they stated that they had accepted a compensable injury to appellee's chest, but were "denying a lower back injury because of no new objective findings."

Following the denial of his referral to Dr. Cathey, appellee went to see his family doctor, Dr. Jack Fendley, on April 5, 2013. Dr. Fendley's subjective findings were that appellee was positive for back pain, noting that his discomfort was most prominent in the lower lumbar spine, radiating to the right buttock. Dr. Fendley's objective findings noted that appellee had pain with range of motion in his right upper lumbar, among other areas. Of pertinence was Dr. Fendley's assessment of appellee with right lumbar region pain. Dr. Fendley referred appellee to Dr. Cathey.

An MRI of appellee's lumbar spine on April 18, 2013, concluded the following:

1. Left laminectomy at L5-S1. A combination of left paracentral soft disc protrusion and enhancing granulation tissue exerts mass effect upon the left ...

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