{ "id": 6657366, "name": "Aubrey PITTMAN v. WYGAL TRUCKING PLANT and SOUTHWESTERN NATIONAL INSURANCE COMPANY", "name_abbreviation": "Pittman v. Wygal Trucking Plant", "decision_date": "1985-11-27", "docket_number": "CA 85-266", "first_page": "232", "last_page": "237", "citations": [ { "type": "official", "cite": "16 Ark. App. 232" }, { "type": "parallel", "cite": "700 S.W.2d 59" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "266 Ark. 946", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724062 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0946-01" ] }, { "cite": "253 Ark. 1111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627407 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/253/1111-01" ] }, { "cite": "12 Ark. App. 246", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141224 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/12/0246-01" ] }, { "cite": "243 Ark. 487", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721533 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/243/0487-01" ] }, { "cite": "253 Ark. 798", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627358 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/253/0798-01" ] }, { "cite": "235 S.W.2d 509", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10203718 ], "year": 1950, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/sw2d/235/0509-01" ] }, { "cite": "248 Ark. 1096", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597703 ], "weight": 4, "year": 1970, "opinion_index": 0, "case_paths": [ "/ark/248/1096-01" ] }, { "cite": "679 F.2d 341", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 552826 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/f2d/679/0341-01" ] }, { "cite": "461 F.2d 694", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1329913 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/f2d/461/0694-01" ] } ], "analysis": { "cardinality": 608, "char_count": 9651, "ocr_confidence": 0.921, "pagerank": { "raw": 1.838232133729798e-07, "percentile": 0.7217021146792728 }, "sha256": "4a53c7dae997d32892ac8c41d8538f7a25772efc3e9d6f36cc9110404c446964", "simhash": "1:6f668c9fd59552be", "word_count": 1544 }, "last_updated": "2023-07-14T21:17:43.530792+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cloninger and Mayfield, JJ., agree." ], "parties": [ "Aubrey PITTMAN v. WYGAL TRUCKING PLANT and SOUTHWESTERN NATIONAL INSURANCE COMPANY" ], "opinions": [ { "text": "Tom Glaze, Judge.\nAubrey Pittman appeals from a decision of the full Commission which reversed the administrative law judge\u2019s award of benefits. The Commission held that appellant failed to prove by a preponderance of the evidence that complaints he developed several weeks after the accident arose out of his employment. For reversal, appellant contends that (1) the Commission erroneously applied the legal standard of absolute certainty under the guise of \u201creasonable medical certainty,\u201d and (2) the Commission\u2019s denial of benefits is not supported by substantial evidence. We reverse and remand.\nAppellant, a fifty-nine-year-old truck driver, was injured on March 14,1984, while driving through Arizona. A strong gust of wind blew his rig over on its left side. Appellant was struck on his left side by the body of the cab, and on his right side by his second driver, who was sitting in the passenger seat. Appellant was unconscious from between three to ten minutes. Upon regaining consciousness, he experienced severe pain in his right arm and leg. He was admitted to Flagstaff Medical Center on the day of the accident, and discharged March 16, 1984, with a diagnosis of cervical strain, cerebral concussion, and arthritis of the cervical spine.\nAppellant returned to Arkansas and remained off work for three weeks. He had no problems during this period. Shortly after his return to work, he began having \u201cblank-out spells.\u201d After making three cross-country trips, he was laid off because, according to the employer, insurance would not cover him. Following this layoff, appellant worked at a cemetery for about eight weeks, but he left when he felt he could no longer perform the work. He has not worked since.\nAppellant did not consult a physician about his \u201cblank-out spells\u201d until September 1984. At that time, he complained of sudden confusion, disorientation, numbness of the right side of his face and right hand, and pain on the right side of his neck, radiating to his head. A CT scan detected that appellant\u2019s left ventricular system was larger than his right. An EEG showed mildly abnormal findings in the bifrontal and temporal regions, more prominent on the left. A cerebral arteriogram revealed an abnormal condition which resembled an aneurysm or a diverticu-lum of the right internal carotid artery at the point where the artery enters the skull.\nBefore the administrative law judge, appellant contended he was temporarily, totally disabled as a result of the March 14th accident. Appellee contended that the condition was either preexisting or not causally related to the accident.\nAs his first point for reversal, appellant contends that the Commission erroneously applied the legal standard of absolute certainly under the guise of \u201creasonable medical certainty.\u201d The only medical testimony presented in this case is that of Dr. Robert Dickins, a neurosurgeon, who first saw appellant on October 2, 1984, over six months after the March 14th accident. The following are pertinent excerpts from Dr. Dickins\u2019 testimony regarding the cause of appellant\u2019s post-accident complaints:\nSo it is possible that the things that he described to me were caused or related to the accident.\n* * *\nI would have to say that it is possible they were not related.\n* * *\nI am at somewhat of a disadvantage in making any absolute statement in that regard [i.e., the degree of medical certainty that appellant\u2019s symptoms are related to the accident] because I have been uncertain as to the origin of the symptoms he has had.\n* * *\nWell, it\u2019s certainly possible and probable that his symptoms are related to the injury. But if you ask me if there is any other possible explanation I would have to say yes. . . .\n* * *\nBased on the history that\u2019s given to me, I would say that there\u2019s a probability that a majority of the symptoms he\u2019s describing to me are related to the accident.\nThe Commission described Dr. Dickins\u2019 opinion, that appellant\u2019s symptoms may be related to the accident, as a \u201cbest guess\u201d and stated that guesswork was not an \u201cappropriate basis\u201d for decision making. In reaching this conclusion, the Commission relied heavily on two medical malpractice cases, Norland v. Washington General Hospital, 461 F.2d 694 (8th Cir. 1972) and Fitzgerald v. Manning, 679 F.2d 341 (4th Cir. 1982). In Norland, the court held that, while the words \u201cprobable\u201d and \u201cpossible\u201d should not be determinative of the competency of a doctor\u2019s testimony, the testimony should be \u201csuch in nature. . .as to judicially impress that the opinion expressed represents his professional judgment as to the most likely one among the possible causes.\u201d 461 F.2d at 697. In Fitzgerald, the court held that medical opinions \u201cmust be stated in terms of a \u2018reasonable degree of medical certainty.\u2019 \u201d 679 F.2d at 350.\nThe Norland and Fitzgerald holdings clearly differ from the long-established medical standard required in workers\u2019 compensation cases in Arkansas. Our decisions simply have not required physicians to express opinions in terms of either a \u201cmost likely possibility\u201d or \u201ca reasonable degree of medical certainty.\u201d\nIn Kearby v. Yarbrough Brothers Gin Co., 248 Ark. 1096, 455 S.W.2d 912 (1970), the supreme court upheld the Commission\u2019s award of benefits based upon a doctor\u2019s statement that there \u201ccould be\u201d a connection between Kearby\u2019s work and his fatal heart attack. In support of its decision, the supreme court favorably quoted the following language from Atkinson v. United States Fidelity & Guaranty Co., (Texas) 235 S.W.2d 509, 513 (1950):\nIt is urged that because Dr. Longoria at one point testified that, \u2018it is a possibility that the origin (of the disease) was incited through strain and stress and exposure,\u2019 this case comes within the rule that something more than a showing of mere \u2018possibility\u2019 is necessary to establish a finding of causal connection, [cite, omit.] In determining whether or not a showing of mere possibility and no more has been made, all of the pertinent evidence on the point must be considered. The fact that an expert medical witness, in speaking of cause and effect uses such expressions as \u2018might cause\u2019, \u2018could cause\u2019, \u2018could possibly cause\u2019, or phrases similar thereto does not preclude a jury finding of causal connection, provided there be other supplementary evidence supporting the conclusion. Causal connection is generally a matter of inference, and possibilities may often play a proper and important part in the argument which establishes the existence of such relationship. (Emphasis supplied.)\nIn Exxon Corporation v. Fleming, 253 Ark. 798, 489 S.W.2d 766 (1973), the supreme court affirmed the Commission\u2019s finding of a causal connection between Fleming\u2019s injury and his subsequent death. There the treating doctor, who testified Fleming\u2019s injury and death were work-related, admitted his opinion was based upon \u201cpossibilities\u201d rather than \u201cprobabilities.\u201d Citing Kearby, supra, the court held that the use of expressions or phrases similar to \u201ccould cause,\u201d \u201cmight cause\u201d or \u201ccould be\u201d would not bar a finding of causal connection, provided that there was other evidence supporting the conclusion. See also Bradley County v. Adams, 243 Ark. 487, 420 S.W.2d 900 (1967) and Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984).\nAppellees cite Ocoma Foods v. Grogan, 253 Ark. 1111, 491 S.W.2d 65 (1973) and Lybrand v. Arkansas Oak Flooring Co., 266 Ark. 946, 588 S.W.2d 449 (Ark. App. 1979) in support of their argument that the Commission\u2019s decision here should be affirmed. Our study of both cases reflects these decisions were based upon or are consistent with the supreme court\u2019s earlier holdings in Kearby and Exxon Corp. In Grogan, for instance, the court acknowledged it had approved some Commission awards when the supporting medical evidence included such terms as \u201cpossible\u201d, \u201cmight\u201d and \u201ccould cause.\u201d Nevertheless, citing both Kearby and Exxon Corp., it held Grogan was not entitled to benefits when her doctor said it was \u201cpossible\u201d her work aggravated her existing back condition because there was no evidence that her injury was job connected. The instant case is distinguishable from Lybrand because the court there concluded none of the medical evidence reflected that Lybrand\u2019s stroke was caused by his work.\nAppellee argues that even if the Commission\u2019s legal analysis was entirely incorrect, we should affirm the Commission\u2019s decision because the Commission was acting entirely within its discretion to rule that Dr. Dickins\u2019 testimony had no probative value on the issue of causation. We cannot agree. Again, the Commission used the wrong legal standard when deciding that Dr. Dickins\u2019 testimony must be given in terms of reasonable medical certainty before it could be said the appellant had met his burden of proof on the causation issue.\nWe would be violating the function of the Commission if we were to assume its findings and holding would have been the same if it had examined and weighed the evidence under the correct standard or rule set out in Kearby, supra, and the other cases discussed above. For that reason, we must reverse and remand this cause to permit the Commission to reconsider the evidence and to decide this cause consistent with the controlling legal principles established by Arkansas case law.\nReversed and remanded.\nCloninger and Mayfield, JJ., agree.", "type": "majority", "author": "Tom Glaze, Judge." } ], "attorneys": [ "Guy Jones, Jr., P.A., for appellant.", "Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellees." ], "corrections": "", "head_matter": "Aubrey PITTMAN v. WYGAL TRUCKING PLANT and SOUTHWESTERN NATIONAL INSURANCE COMPANY\nCA 85-266\n700 S.W.2d 59\nCourt of Appeals of Arkansas Division II\nOpinion delivered November 27, 1985\nGuy Jones, Jr., P.A., for appellant.\nBarber, McCaskill, Amsler, Jones & Hale, P.A., for appellees." }, "file_name": "0232-01", "first_page_order": 262, "last_page_order": 267 }