Bittle v. Wal-Mart Assocs., Inc.

• Decision Date: 29 November 2017
• Docket Number: No. CV–17–175,CV–17–175
• Parties: Helen M. BITTLE, Appellant v. WAL–MART ASSOCIATES, INC., and Claims Management, Inc., Appellees
• Court: Arkansas Court of Appeals

537 S.W.3d 753

Helen M. BITTLE, Appellant

v.WAL–MART ASSOCIATES, INC., and Claims Management, Inc., Appellees

No. CV–17–175

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: November 29, 2017

Goldberg & Dohan, by: Andy L. Caldwell, for appellant.

Ledbetter, Cogbill, Arnold & Harrison, LLP, by: R. Scott Zuerker and Joseph Karl Luebke, Fort Smith, for appellees.

BART F. VIRDEN, Judge

Appellant Helen Bittle appeals from the decision of the Arkansas Workers' Compensation Commission (Commission), affirming and adopting the administrative law judge's (ALJ) opinion, finding that Bittle did not prove that she sustained compensable injuries to her upper and lower back, right hip, and coccyx on April 6 and 12, 2015, arising out of and in the course of her employment with appellee Wal–Mart Associates, Inc. (Wal–Mart). Bittle argues that there is no substantial evidence to support the Commission's decision.¹ We affirm.

I. Compensable Injury

"Compensable injury" means "an accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence." Ark. Code Ann. § 11–9–102(4)(A)(i) (Supp. 2015). A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11–9–102(4)(D). "Objective findings" are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11–9–102(16)(A)(i). Section 11–9–102(4)(E)(i) provides that the employee has the burden of proving a compensable injury by a preponderance of the evidence.

With regard to an aggravation, an employer takes an employee as it finds him or her, and employment circumstances that aggravate preexisting conditions are compensable. Vaughn v. Midland Sch. Dist. , 2012 Ark. App. 344, 2012 WL 1718826. A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which workers' compensation is sought. Id. An aggravation is a new injury resulting from an independent incident, and being a new injury with an independent cause, it must meet the definition of a compensable injury in order to establish compensability for the aggravation. Id.

II. Hearing Testimony

Bittle testified that on April 6 and 12, 2015, she was working in the receiving department at Wal–Mart as an inventory control specialist. She described her job duties as pulling merchandise off the shelves and putting it out for the departments to place on the floor. On April 6, 2015, she said that she was pulling a pallet down for an employee when her shoe hung on a pallet nail. She said that this caused her to release a button on the machine that she was using and that the rollback from the machine pushed her flat on her back. Bittle said that she felt pain in her chest, upper back, and right hip. She explained that her walkie talkie had been on her right hip and that she must have fallen on it. She said that a Coca–Cola representative had helped her up and that an assistant manager had helped her get to the human-resources (HR) office. Bittle testified that she filled out an incident report but did not ask to see a doctor because she "wasn't sure what was hurting. [She] just wanted to make sure that everything was okay." Bittle testified that she had a bruise on her right hip the next day. Although Bittle said that the pain from her injuries had gotten progressively worse, she worked her normal job duties until April 12, 2015.

Bittle testified that on April 12, 2015, she pulled a product off the shelf to take to a cart but dropped it. She said that when she bent over to pick up the product, the pain was so severe in her lower back that she had to call an assistant manager to help her get up. She stated that the manager and another employee put her in a wheelchair and took her to the HR office to fill out another incident report. Bittle said that, while there, she suffered a muscle spasm such that she had to lie down on the floor. Although she had asked to see a doctor that day, her employer persuaded her to wait until the following day.

To summarize Bittle's medical visits, the evidence shows that she first saw Dr. Michael Lack on April 13, 2015. Dr. Lack later recommended physical therapy. Bittle had six physical-therapy sessions, which she said had helped her until the therapist tried to manipulate her leg, which caused her to suffer an immediate onset of pain. Bittle did not return to physical therapy. Bittle's employer directed her to see Dr. Vestal Smith, and she saw him on three occasions. The employer hired a "nurse case manager," who recommended that Bittle have an independent medical examination (IME) by Dr. J. Justin Seale. Bittle also intermittently saw Amy Johnson, an advanced practice nurse, who treated her for osteoporosis

, which was discovered through x-rays taken after her second fall.

In her testimony at the hearing, Bittle denied having had any problems with her back, shoulders, and hips, but she acknowledged having had neck problems resulting from a motor-vehicle accident in 2002. Bittle explained that her husband had been driving when the driver's side door was struck by another vehicle and that she, a passenger in the car, had suffered whiplash

. On cross-examination, Bittle conceded that she had filed a lawsuit against the other driver, but she expressed surprise that the complaint had alleged injuries to her cervical spine, thoracic spine, lumbar spine, shoulders, right hip and leg, and head.

Bittle testified that she resigned from her job at Wal–Mart in November 2015. An exit interview shows that she did so for health reasons. Bittle stated that her back pain had not decreased but had not gotten worse. She said that she was unable to bend and pick up an item; that she could not walk very far; and that she could not even lift a gallon of milk. Just after this testimony, Bittle was shown a video from Wal–Mart, and she identified herself and her husband grocery shopping. She agreed that the video showed her pulling something down from an upper shelf, picking up a case of soda and moving it in the cart, placing a gallon of milk on the conveyor belt, and loading a bag containing two two-liter bottles of soda into her cart. Bittle explained, "Sometimes I can pick something up and sometimes I can't. That particular day, I could." Lisa Lawson, a protection manager at Wal–Mart, testified that the events depicted on the video occurred on November 9, 2015. She had seen Bittle in the store that day: "[S]he was checking out, she was bent over her cart lifting something[,] it appeared she was looking at me[,] and she stopped doing whatever she was doing."

Wendy Trozzi, a registered nurse who had been retained by Wal–Mart as a "nurse case manager" on Bittle's file, testified that she acted as a liaison, facilitated and coordinated treatment, appointments, and tests recommended by doctors, and gathered medical records. Trozzi stated that she had gotten the records from Bittle's physical therapist and had seen no notation of an incident involving her hip. Trozzi said that she then contacted Bittle's physical therapist and that he denied any such incident. According to Trozzi, the physical therapist said that Bittle had been doing "quite well" and that he had not thought she needed any more physical therapy.

III. Medical Records

Dr. Lack saw Bittle on April 13, 2015, for a "new work-related injury" described as lumbar sprain

/strain. He had released her to return to work but had restricted her from bending, twisting, and lifting or carrying more than five pounds. Bittle saw Dr. Lack again on April 20, 2015. He reported that an x-ray had revealed no acute findings; he noted that she had osteoporosis ; and he recommended physical therapy. A physical-therapy record dated April 28, 2015, indicates that Bittle reported that her overall condition had improved; she rated her pain as a one on a scale from one to ten; and she said that her low back was still sore. Bittle saw Dr. Lack on June 1, 2015, and he reported that Bittle had said that her pain level was "much worse" and that she told him she had been having difficulty working. He also noted that her physical examination revealed no spasm of the back. On June 3, 2015, a bone-density screening revealed that Bittle's results fell in the osteopenic range. On June 15, 2015, Bittle underwent a MAM/Bone Densitometry, which revealed that she had "mild lumbar lavoscoliosis" and that she was "osteoporotic and at high fracture risk."

In a report dated June 29, 2015, Dr. Smith noted that an MRI of Bittle's lumbar and sacral spine was "unremarkable" but that she did have a small central disc protrusion at L5–S1. Bittle had described some tingling and tenderness over her tailbone area, so Dr. Smith had x-rayed her right hip and had gotten a "cone down view of the coccyx." The radiologist reported "unremarkable two views of the right hip," and his impression was "45 degree angle of the coccyx with respect to the sacrum. This could be related to old trauma

. A discrete focal acute cortical disruption is not seen." Bittle saw Dr. Smith on August 3, 2015, and he reported, "We did have x-rays done of the coccyx after her last visit, and there is a 45 degree angle of the coccyx with respect to the sacrum. Essentially it was felt that this would displace, but there was no specific fracture noted otherwise."

Bittle saw Dr. Justin Seale on August 31, 2015, for an IME. Dr. Seale's assessment was low-back pain and right buttock pain with mild, preexisting L5–S1 degenerative disc disease

. He noted that an x-ray of Bittle's lumbar spine had revealed no abnormalities; that x-rays of her coccyx were "fairly poor quality" but had appeared normal; and that an MRI of the...