Frances v. Gaylord Container Corp.

John F. STROUD, Jr., Judge,

dissenting. Under Ark. Code Ann. § ll-9-102(4)(A)(i) (Supp. 1999), it was appellant’s burden to prove that his work-related accident in September 1996 caused his herniated lumbar disk and the resulting need for surgery. In support of its finding that this burden had not been met, the Commission relied in part upon testimony that two to three days after the incident claimant attributed being “kind of laid up” to getting older; that it was more than two months before appellant presented any back problems to a doctor; that when appellant first sought medical treatment, he told healthcare providers that his condition was not related to work; that he denied work-relatedness when applying for group health benefits; that he refused to sign papers for a workers’ compensation claim in January 1997; and that he did not undergo surgery until almost a year after the incident. The substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Hooks v. Gaylord Container Corp., 67 Ark. App. 159, 992 S.W.2d 844 (1999). I would hold that the above evidence constitutes a substantial basis for the denial of the claim.

Further, I disagree with the majority’s finding that because back pain caused appellant to miss work around November 16, 1996, Dr. Robert Dickins’s report with reference to an incident at work on that date is not fatal to appellant’s claim. Dr. Dickins’s report states that appellant initially twisted his back when he was struck by the machine but afterwards got better, that three to four weeks later he started having back pain, and then, “when he was at work on November 16, 1996, he twisted and had severe pain strike him in his back and he developed some radicular symptoms in his right leg described as soreness and numbness. His pain was much worse the following morning . . . .” The Commission discussed the report and appellant’s burden of proof as follows:

With regard to the mention of an incident at work on November 16, 1996, claimant did not present any evidence corroborating this history .... Conceivably, in fight of the history provided to Dr. Dickens, an incident did occur at work in November of 1996, which brought on claimant’s lower back pain, however, claimant has failed to present sufficient evidence to rise to a preponderance of the evidence to confirm that anything actually happened to the claimant while at work on November 16, 1996. In our opinion, the history as recorded by Dr. Dickens operates to discredit claimant’s testimony that all of his current low-back problems which necessitated surgery in September of 1997, stem from the September 1996 incident, but it fails to confirm by a preponderance of the evidence that an incident, in fact, occurred in November of 1996 resulting in claimant’s need for surgery. (Emphasis added.)

I do not agree with the majority’s view that appellant’s absence from work in November resolves his dilemma of proving that a work-related incident caused the back problems that necessitated surgery.

Last, I note the majority’s citation to Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), regarding our statutory requirement in workers’ compensation cases that medical opinions addressing causation be stated within a reasonable degree of medical certainty. That case held that the requirement was met by an ophthalmologist’s statement, “[Cjertainly, an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like that present.” The Atwood court was guided in part by Paulsen v. State, 541 N.W.2d 636 (Neb. 1996), and its holding that “an expert opinion is to be judged in view of the entirety of the expert’s opinion and is not validated or invalidated solely on the basis of the presence or lack of the magic words ’reasonable medical certainty.’ ” 61 Ark. App. at 196, 966 S.W.2d at 913. The majority opinion ignores the following portion of Atwood, which recites the Nebraska Supreme Court’s interpretation of medical statements such as those made by Dr. Dickins:

We have held that expert medical testimony based on “could, ” “may, ” or “possibly" lacks the definiteness required to meet the claimant’s burden to prove causation. Our well-known preference for the use of the phrases “reasonable degree of medical certainty” or “reasonable degree of probability” is an indication to courts and parties of the necessity that the medical expert opinion must be stated in terms that the trier of fact is not required to guess at the cause of the injury.

Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996) (citations omitted). 61 Ark. App. at 196, 966 S.W.2d at 913 (emphasis added).

Here, Dr. Dickins’s stated medical opinion was that the mechanisms of the injury described by appellant “could produce a lumbar injury” and that appellant’s history of initial back pain with recurrent back and leg pain “could be consistent with an injury to the disc initially, subsequently followed by the development of a herniation of that disc.” It is my view that under Service Chevrolet v. Atwood, the Commission correcdy found that Dr. Dickins’s statements did not meet our statutory requirement that an opinion as to causation be stated within a reasonable degree of medical certainty.

In workers’ compensation cases, the question for the appellate court is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Hooks v. Gaylord Container Corp., 67 Ark. App. 159, 992 S.W.2d 844 (1999). Under this and the aforementioned standards of review, I would affirm the Commission’s denial of appellant’s claim.