Weaver v. Arkansas Department of Correction

2015 Ark. App. 346, 464 S.W.3d 133, 2015 Ark. LEXIS 377, 2015 Ark. App. LEXIS 423
CourtCourt of Appeals of Arkansas
DecidedMay 27, 2015
DocketCV-14-941
StatusPublished

This text of 2015 Ark. App. 346 (Weaver v. Arkansas Department of Correction) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weaver v. Arkansas Department of Correction, 2015 Ark. App. 346, 464 S.W.3d 133, 2015 Ark. LEXIS 377, 2015 Ark. App. LEXIS 423 (Ark. Ct. App. 2015).

Opinion

M. MICHAEL KINARD, Judge

| íAppellant Mae Weaver appeals from the decision of the Arkansas Workers’ Compensation Commission that she failed to prove that her neck injury was a com-pensable injury. She argues that there was sufficient proof, including medical evidence that the Commission disregarded, that her condition was causally, related to her work activities. We affirm. .'

In March 2013, appellant alleged that she had suffered a compensable gradual-onset neck injury from her work at the Arkansas • Department of Correction (ADC). .Appellant had previously litigated a shoulder-injury claim against the same employer, but the Commission found that the injury was not compensable and this court affirmed. See Weaver v. Arkansas Department of Correction, 2013 Ark. App. 158, 2013 WL-841122. A hearing was held on her neck-injury claim on February- 26, 2014.

Appellant testified that she was fifty-four years old. She had worked for 'the ADC as |2a correctional officer, from January 2006 through March 2011. Appellant usually worked in the tower, where her duties involved raising and lowering a basket on a rope pulley system using her arms. Appellant described this as strenuous work, noting that the basket alone weighed fifteen to twenty pounds. When weapons were put in the basket,- the total weight was usually about -twenty-five pounds, but at times it-could weigh a maximum of thirty to forty pounds. Appellant said that she raised and lowered the basket ten to fifteen times per day and that it put pressure and strain on her neck and upper extremities.

Deputy Warden Richard Ball testified that the steel-mesh basket weighed- about fifteen pounds and that it would -be unusual for the basket and its contents to weigh thirty to forty pounds. He said that raising and lowering the basket was not strenuous because the pulley, assists and. bears most of the weight. Appellant said that she had discussed the heaviness of the basket with a supervisor but did not report any neck problems. Appellant testified that she had also used her arms to pat down inmates, climb a ladder to get into the tower, and fire weapons and. lift weights for her yearly physical. She claimed that she ■ had. not engaged in any strenuous activity outside of work while she was employed or thereafter. .

Appellant said that she first began having'- neck-relatdd symptoms in 2006, about six months after she started work at the ADC; however, her symptoms were not severe enough to seek treatment. In 2007, she sought -treatment with her primary-care physician, Dr. Sudhir Kumar. - She complained of pain and burning in her right arm, numbness in three fingers, and .pain in. her elbow and neck; the office note stated that there was no trauma and that her symptoms had been going on for a couple of weeks. Dr-. Kumar took an x-ray of | ¡¡her cervical spine, which showed “mild arthritic changes,, age appropriate.” Appellant testified that this was mild pain that she learned to live with and that she did not know it was work related at the time.

In May 2011, appellant had surgery on her right- shoulder;; performed by Dr. Jay Lipke. She followed up with Dr. Lipke in the months after her surgery. A clinic note dated December 19, 2011, stated that appellant was having continued problems with both shoulders, and she had “a new orthopedic complaint (right cervical, right shoulder and right upper extremity pain) to the.level of the hand.” ..Cervical x-rays were done, and Dr. Lipke diagnosed “cervical degenerative disc disease with, right upper extremity cervical nerve root irritation.” Appellant testified that this was when she found out her neck was causing her symptoms, but she still did not realize that her, problems were caused by her work. •

Appellant began seeing Dr. Robert Abraham- in June 2012 with complaint's of neck pain and right arm pain. He diagnosed her with cervical radiculopathy. On July 3, 2012, Dr. Abraham performed an anterior cervical discectomy with fusion at C4-5, C5-6, and C6-7. Appellant testified it was after her cervical surgery that 'she found out her-neck problems were work related. She said that Dr. Abraham informed her family during the Surgery that she had an extensive amount -of “wear and tear” in her neck and that it was more than he had anticipated. Appellant concluded that this “wear and. tear” was work ■related because she could not figure out anything else that would have caused extensive wear and tear.

Appellant continued seeing Dr. Abraham after her surgery. On August 31, 2012, Dr. 14Abraham signed what appellant describes as a preprinted form with two options, apparently prepared by appellant’s former attorney. Dr. Abraham placed a checkmark next to the following statement:

It is my opinion to a reasonable degree of medical certainty, or at least 51% probability based upon the information presented to me, including a history given by the patient, that the major cause of Mae Weaver’s neck injury and need for surgical treatment was her work for the Arkansas Department of Correction.

More than a year later, appellant’s attorney sent a letter to Dr. Abraham describing appellant’s work activities and asking several questions regarding the cause of appellant’s injury. In a letter dated September 27, 2013, Dr. Abraham responded in relevant part as follows:

The following statements will be with a reasonable degree of medical certainty. Ms. Weaver’s neck disease was extensive and is probably a combination of factors with work related activity being a definite causative element. One specific -incident would hot be the cause of cervical spine disease. The work activity that Ms. Weaver performed could affect both her neck and shoulder. The fact that she used her arms and hands for repetitive physical activities is a causative factor for cervical disk disease. When a person engages in strenuous physical activity with the arms it places stress on both the shoulder joint and neck. ■ The subsequent stress can damage the intervertebral disk and facet joints. Patients may not have a significant amount of pain with cervical disk abnormalities, - however neurologic dysfunction can be more serious due to the loss of function that may result. Ms. Weaver’s complaints were apparent to her and her loss of function was present on her physical exam.

The administrative law judge found that appellant’s claim was barred by the statute of limitations. Appellant appealed to the Commission, which concluded that her claim was not barred but .that she had failed to prove that her neck condition was causally related to her work-related activities.- The Commission noted that appellant failed to report a work-related cervical injury until March 18, 2013, some eight months after her cervical surgery. The Commission found that waiting until after her surgery to attribute her neck condition to her |fiwork was “convenient” and “unbelievable.” The Commission further stated as follows:

Likewise, Dr. Abraham’s opinion as to causation is vague and ambiguous, and appears to be based primarily on the claimant’s account to him of her injury.

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Bluebook (online)
2015 Ark. App. 346, 464 S.W.3d 133, 2015 Ark. LEXIS 377, 2015 Ark. App. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-arkansas-department-of-correction-arkctapp-2015.