by Steve Jones
An Arkansas employee recently filed for workers’ compensation, citing a gradual-onset injury from lifting and stacking wood during her 12-hour shifts over a 5-year period. Was she entitled to workers’ comp benefits?
Background
In 2012, “Rebecca” claimed she suffered a gradual-onset back injury while working for AERT, Inc. An administrative law judge (ALJ) decided that Rebecca had failed to prove that she suffered a gradual-onset low-back injury because she had “failed to provide medical evidence in the form of objective medical findings to support her claim.” The ALJ reasoned that no medical records indicated that Rebecca’s issues were work-related and that no objective medical findings connected her low-back pain and the need for surgery to her work.
The WCC reversed the ALJ’s decision and held that Rebecca had established a compensable injury supported by objective findings, namely, the spasm shown in a December 2011 MRI and the disk bulge shown in an August 2012 computerized tomography (CT) scan. The commission found that these objective findings were causally related to the compensable injury and not caused by a prior injury or preexisting condition. It made AERT responsible for benefits from September 28, 2012, forward. AERT appealed the commission’s decision. Rebecca cross-appealed.
AERT’s Appeal
On appeal, AERT argued that the WCC viewed the evidence in favor of Rebecca instead of weighing the documentary and testimonial evidence impartially. As AERT correctly noted, “The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence.” However, the court disagreed that there was an error regarding the burden of proof.
The WCC found that Rebecca “proved by a preponderance of the evidence that she sustained a compensable injury.” She began employment with AERT in 2005, and her work was labor-intensive; her duties included lifting and stacking wood, 12 hours per shift.
According to the commission, she began seeking medical treatment for back pain in December 2009. “Dr. Barry” noted in March 2010 that she was suffering from pain as a result of “standing all day.” The WCC found no indication in the record that her back pain resulted from any condition other than her work for AERT. She began treatment with “Dr. Lancaster” for back pain in 2011. Lancaster returned her to work, but told her “no twisting or stacking.” The commission thus determined that the record indicated that Lancaster connected Rebecca’s back pain to her work for AERT.
The court pointed out that the WCC specifically recited that Rebecca had met her burden of proof, and it correctly identified the burden. The commission’s statement that “the record does not indicate that [Rebecca’s] back pain resulted from any condition other than [her] work for [AERT]” was a causation-related conclusion that it made based on all the evidence before it.
AERT claimed that the WCC “manufactured a medical opinion concerning causation” and relied on two statements in Rebecca’s medical records that “simply do not exist.” AERT rightly observed that the WCC wrongly cited a 2009 report from Barry. But, according to the court, the oversight was immaterial on the whole.
The WCC’s opinion stated, “[Rebecca] began seeking medical treatment for back pain in December 2009. The treating physician noted at that time that [she] was suffering from pain as a result of ‘standing all day.'” The quote “standing all day” came from Barry’s medical record dated March 1, 2010.
There, the doctor noted that Rebecca had “some leg pain when [she] is standing all day,” and he recommended that she use support stockings for her legs when working. A separate December 2009 report from Barry stated that Rebecca had some low-back pain, it was bothering her nearly every day, and she had been taking ibuprofen for it.
Given those two statements, the court disagreed that the commission “manufactured” medical evidence. True, Barry did not technically state his observation about Rebecca’s pain and her standing all day “at the time” Rebecca first started treatment, but the substance of his statements overall was not misrepresented by the commission. Though more precision is preferred, the court determined that the mistaken reference was not legally significant in this case.
AERT also challenged the WCC’s statement that Lancaster returned Rebecca to work with restrictions on “bending, twisting, or stacking,” which the commission used to indicate that Lancaster connected her back pain to her work. AERT believed the commission made this information up, too. The court analyzed the commission’s words.
The work release signed by Lancaster, dated June 11, 2012, included the words “twisting or stacking.” He did not, however, give any express medical opinion on whether Rebecca’s back pain was work-related. In fact, AERT was correct that the record contained no medical opinions specifically stating that her back injury was caused by her work.
AERT also claimed that Rebecca never made a causal link between her employment and her back condition to any of her doctors until she filed a claim several months after her back surgery. It pointed to medical records where she could have, but did not, indicate to her doctors that her back problems were work-related.
For example, on an injury form she filled out on February 2, 2012, she marked “no” when asked if her condition related to an injury. A record from a June 2012 visit to Lancaster indicated that she had not stated the “setting in which [her symptoms] first occurred.” AERT believed this silence spoke against her.
However, as the court noted previously, the WCC found Rebecca proved her claim by a preponderance of the evidence and that the record did not indicate that her back pain was the result of anything other than her work for AERT. The WCC recognized that she failed to indicate to her doctors that her back problems were related to her work despite the opportunity to do so.
Nevertheless, she testified before the commission that her condition arose gradually and was not the result of a specific incident or accidental injury. The commission stated that her back injury was clearly related to her work duties for AERT.
A CT scan of Rebecca’s lumbar spine in August 2012 showed findings including a broad-based disk bulge at L4-L5. “Dr. Windsor” performed surgery on August 30, 2012. Rebecca reported in September 2012, “I injured my low back while working.” Windsor reported in October 2012 that her physical condition had improved following surgery.
The court observed that a legal hurdle here for AERT was that an employee such as Rebecca was not necessarily required to have a treating doctor state to a reasonable degree of medical certainty that stacking large volumes of wood planks for 12-hour shifts over 5 years caused her injury in order to meet her burden of proof.
Although AERT may be correct that medical instructions for an employee to avoid some of the more physically demanding parts of her job does not equal a causation opinion, an expert medical-causation opinion was not required in this case. According to the court, reasonable minds could conclude, as the WCC did, that Rebecca’s gradual-onset back injury was caused by her lifting and stacking wood at work.
In support of its assertion, the court pointed to a previous opinion, Wal-Mart Stores, Inc. v. Leach, in which it affirmed the WCC’s award for a gradual-onset back injury when the evidence showed that the employee’s job required her to lift heavy boxes and there was no indication that she had suffered a herniated disk before working for the employer.
As in Leach, the WCC had sufficient evidence that Rebecca’s job required her to perform voluminous lifting. The commission was entitled to credit her testimony that she worked 12-hour shifts for more than five years, lifting and stacking wood. It could also credit her testimony that her back pain was first manageable with ibuprofen but escalated for years until it became unbearable from a herniated disk. Accordingly, the court affirmed the commission’s award.
Rebecca’s Cross-Appeal
Rebecca appealed the WCC’s finding that the start date of her benefits should be in September 2012, not February 2012. She argued that the eligibility date should be in February because that was when AERT had actual notice of her back injury. The commission ruled that Rebecca provided notice to her employer on September 28, 2012, the day when she filed the AR-C form.
The court first noted that Arkansas Code Annotated § 11-9-701 provides, in part, that “unless an injury either renders the employee physically or mentally unable to do so . . . the employee shall report the injury to the employer on a form prescribed or approved by the [WCC] and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to receipt of the employee’s report of injury.”
Rebecca argued that her employer learned that she had suffered a work-related injury because she “continually told her supervisor that her back was hurting, and that she was receiving treatment,” and her supervisor moved her to a lighter-duty position. She also said that she did not understand the company policy about reporting injuries and was afraid of being fired, and no supervisor or HR manager ever asked her how she had been injured.
The court pointed out that Rebecca did not give formal notice, as required by Arkansas law. The WCC found that she did not prove by a preponderance of the evidence that AERT knew that her injury was work-related before the AR-C form was filed. The only evidence before the commission supporting Rebecca’s view on the notice issue was her own.
But, as the court pointed out, the WCC was not required to believe her testimony and may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Accordingly, the court affirmed the WCC’s decision that the start date of Rebecca’s benefits was September 2012, when she filed her AR-C form, not February 2012, when she informally told her supervisor that her back was hurting.
Bottom Line
An employee seeking compensation for a gradual-onset back injury does not have to provide a medical opinion stating that her injuries were caused by her work. In such an instance, she may be compensated when she simply presents facts that would allow a reasonable conclusion that the injury was work-related.
Steve Jones is an attorney Jack Nelson Jones & Bryant, P.A and an editor of the Arkansas Employment Law Letter. He can be reached at sjones@jacknelsonjones.com.