Jack Nelson Jones Professional Association

January 14-20, 2019

Webb v. Wal-Mart Assocs., 2018 Ark. App. 627 (December 12, 2018)

This appeal comes from the Arkansas Workers’ Compensation Commission (“Commission”) and concerns the standard used in determining whether an injury is related to a pre-existing condition or to a work-related accident.

On November 9, 2015, Tina Webb, a Wal-Mart department manager, was working on a ladder when she fell six feet to the floor. She suffered a significant fracture injury to her left tibia that required four surgeries. Wal-Mart accepted her leg injury as compensable and paid all benefits related to the injury. However, it ultimately contested her claim that subsequent back pain was related to the same fall.

More than two months after the fall, while still receiving medical treatment for her left-leg injury, Webb first sought medical treatment for low-back complaints on January 21, 2016. After several treatments, she eventually requested a referral to neurosurgeon Dr. Robert Abraham, who had performed L4-5 back surgery on Webb in 2013. Dr. Abraham saw her on December 19, 2016, and his note of that date stated that she presented with low-back and left-leg pain caused by a fall off a six-foot ladder at work. He recommended an MRI, which was performed on January 20, 2017. Webb returned to Dr. Abraham on February 1, 2017, and in that report Dr. Abraham stated that the MRI showed interspace narrowing with minimal post-op changes on the left side at L4-5 with what appeared to be a recurrent disc herniation. He recommended an L4-5 decompressive lumbar laminectomy.

At Wal-Mart’s request, Dr. Carlos Roman of Southern Regional Anesthesiology Consultants, PLLC, performed an independent medical evaluation (IME) on Webb on February 3, 2017. Dr. Roman’s IME report concluded that Webb’s back “injury is not related to the fall in that she had a pre-existing condition of back pain and degenerative disc disease, thus, the back surgery in 2013.”

On February 16, 2017, Dr. Abraham performed an L4-5 decompressive lumbar laminectomy. The following day, Dr. Abraham opined that Webb’s November 9, 2015 fall had aggravated her preexisting back condition. When Webb sought additional medical treatment and temporary total-disability benefits for her low-back injury, Wal-Mart controverted her claim, contending that the low-back injury did not arise out of her November 9, 2015 fall.

A hearing was conducted before an administrative law judge (ALJ) where Webb, who was forty-eight years old at the time, testified that following her back surgery in 2013, she missed only six weeks of work and felt “wonderful.” She stated that before her 2015 fall at Wal-Mart, she did not have any back discomfort or pain; she did not take any medicine or prescriptions for her back; and she did not miss any time from work because of back pain. She stated that she first noted discomfort in her back while she was in the hospital receiving treatment for her leg, but, at that time, she believed her back discomfort was due to being bedbound. She said that on January 21, 2016, she turned over in bed at home and experienced “a huge pain” in her low back that made her scream and cry. She stated that she went to the emergency room that day and was eventually seen by Dr. Abraham. Webb said that Dr. Abraham performed L4-5 surgery in February 2017, and she has not been released from his care. Webb testified that the pain medication she took for her leg may have masked her back injury.

Dr. Abraham testified, via deposition, that when Webb first presented in 2016, she told him that she had been suffering low-back pain since her November 2015 fall. Based on that history, it was his opinion that the fall aggravated her preexisting low-back injury and caused a recurrent disc herniation. However, when advised that Webb’s low-back complaints did not arise until three months after her fall, Dr. Abraham testified that he could not state when the recurrent disc herniation occurred. However, he did state that it was his opinion that because Webb had very few low-back symptoms prior to November 2015 and the fall from the ladder involved significant force, the recurrent disc herniation at L4-5 was more likely than not caused by the fall rather than simply turning over in bed.

The ALJ issued an opinion finding that Webb suffered a compensable aggravation of a preexisting low-back injury as a result of the November 9, 2015 fall while working for Wal-Mart. Wal-Mart appealed, and the Commission reversed the ALJ’s decision, finding that Webb did not sustain a low-back injury when she fell from the ladder on November 9, 2015. The Commission found that Webb suffered from a preexisting low-back injury; there were no reports of a low-back injury immediately following her fall or for three months thereafter; when she initially reported her back complaints, she did not relate them to the November fall; she inaccurately reported to Dr. Abraham that she had been suffering from low-back pain since she fell, and thus, she lacked credibility; Dr. Abraham’s opinion was based on Webb’s inaccurate history and was entitled to no credit; and the IME finding that the back injury was not related to the November 2015 fall was credible. Webb then appealed to the Arkansas Court of Appeals seeking the reversal of the Commission’s decision.

As an initial matter, the Court of Appeals noted that it views the evidence in the light most favorable to the Commission’s decision and will affirm if it is supported by substantial evidence which occurs when reasonable minds could reach the Commission’s conclusion. The standard is not whether the Court might have reached a different decision but whether a reasonable person could reach the same decision as the Commission.

The Court concluded that there was substantial evidence supporting the Commission’s decision. First, there was the substantial passage of time between the fall and Webb’s first claim that her back pain was related to the fall. The Court noted that in previous cases it had held that such a lapse of time permitted reasonable persons to conclude that there was no causal connection between an accident and the disability alleged. It also noted that it was undisputed that Webb had a pre-existing back condition leading to surgery in 2013. Moreover, when Webb first complained of her back pain in 2017, she did not report that it was caused by her fall as shown by the January 21, 2016 medical report that there was “[n]o mechanism of injury. . . [g]radual onset of symptoms, 2 days.” Likewise, the January 26, 2016 medical report reflected that the the [p]atient denies any recent injury or trauma to back at L4-5.” The Court noted that the Commission was free to find she was not a credible witness in light of the inaccurate information she gave to Dr. Abrahams related to having suffered back pain since her fall. The Court also observed, that because Dr. Abraham’s causation opinion was based on Webb’s inaccurate history, the Commission afforded no weight to his opinion, and that the Commission had the authority to accept or reject medical opinions.

Finally, the Court noted that the Commission afforded more weight to the opinion in the IME report than to Dr. Abraham’s opinion. It acknowledged that the physician who authored the IME report was from an anesthesiology consultant company, that he devoted just one paragraph of his report to Webb’s back injury, and that he did not review Webb’s recent low-back medical records. Nonetheless, it observed that a finding of causation in a workers’ compensation case does not need to be expressed in terms of a reasonable medical certainty when there is supplemental evidence to support the lack of causal connection. Here there was such supportive non-medical evidence such as the passage of time between the accident and the complaint of back pain and the lack of credibility of Webb.

For these reasons, the Court affirmed the decision of the Commission in all respects.