Hernandez v. Wal-Mart Associates, Inc.

JOHN B. ROBBINS, Judge,

dissenting.

| nit is not disputed that appellant suffered a lumbar strain during the subject incident on August 11, 2005, but the issue is whether that lifting incident at woi’k also caused her herniated disc. Appellant’s herniated disc became symptomatic within five weeks after the incident. By September 19, Dr. Moffitt reported that appellant had been having “intermittent numbness of her entire right leg but was not having much in the way of symptoms on her left side.” His September 30, November 1, and January 13 reports all mention right-leg or foot numbness or pain.

The majority opinion states expressly what the Commission held by implication, i.e., that it was Dr. Moffitt’s opinion that appellant’s herniated disc was not related to her injury she suffered at work. I have scoured the medical reports made by Dr. Moffitt and do not find such an opinion. The nearest Dr. Moffitt comes to actually giving an opinion on the lack of a causal connection between the August 11 incident and appellant’s herniated disc is contained in his letter of October 21, 2005, where he states:

In regards to the injury reported on the 11th of August, it really appears to me that this is mostly an SI strain on the left side. She does have evidence of a disc protrusion on the right, but it does not correlate with her symptoms and physical findings.

Whatever is meant by recognizing that appellant has evidence of a disc protrusion (which an MRI performed following the August 11 incident documented), and then saying it does not correlate with her symptoms and physical findings is unclear, especially in light of Dr. Moffitt’s letters of September 19 and September 30 where he reported appellant’s complaints of numbness in her right leg.

1 iaTwo points should be noted with respect to Dr. Moffitt’s October 21 letter: first, he does not rule out the possibility that appellant suffered injury beyond a lumbar strain because he states that it appears to him that this was “mostly” an SI strain on the left. Secondly, Dr. Mof-fitt did not represent that what “appears” “mostly” to him was an opinion within a reasonable degree of medical certainty. Of course, the causal connection between employment and an injury does not ordinarily require expert medical testimony. However, the Commission did in fact rely on medical reports, and the only medical opinion that was given within a reasonable degree of medical certainty was given by Dr. Raben, who opined that appellant’s herniated disc was indeed caused by the incident at work.

Our supreme court has said that, if a doctor renders an opinion that goes beyond possibilities and establishes that a work-related accident was the reasonable cause of the injury, this will establish a reasonable degree of medical certainty. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Furthermore, if the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the Commission’s refusal to make an award. See Heptinstall v. Asplundh Tree Expert Co., 84 Ark.App. 215, 137 S.W.3d 421 (2003); Wal-Mart Stores, Inc. v. Stotts, 74 Ark.App. 428, 49 S.W.3d 667 (2001); Min-Ark Pallet Co. v. Lindsey, 58 Ark.App. 309, 950 S.W.2d 468 (1997).1 I submit that there is no substantial evidence to sustain the Commission’s finding that appellant’s herniated disc was not caused by the August 11 incident. To decide otherwise effectively nullifies appellate review. I would reverse the Commission’s decision.

BAKER, J., joins.

. The concurring opinion takes issue with my reliance on the precedent of these cases, •which have not been overruled. It hardly seems right that adherence to established precedent should be the object of criticism.