{
  "id": 6140324,
  "name": "Patricia KIMBRELL v. ARKANSAS DEPARTMENT of HEALTH",
  "name_abbreviation": "Kimbrell v. Arkansas Department of Health",
  "decision_date": "1999-05-12",
  "docket_number": "CA 98-1298",
  "first_page": "245",
  "last_page": "249",
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      "cite": "66 Ark. App. 245"
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      "cite": "989 S.W.2d 570"
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    "id": 13370,
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      "year": 1998,
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      "reporter": "Ark. App.",
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      "year": 1998,
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  "last_updated": "2023-07-14T22:49:30.040896+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Neal and Crabtree, JJ., agree."
    ],
    "parties": [
      "Patricia KIMBRELL v. ARKANSAS DEPARTMENT of HEALTH"
    ],
    "opinions": [
      {
        "text": "Sam Bird, Judge.\nPatricia Kimbrell appeals a decision of the Workers\u2019 Compensation Commission denying her benefits. An agreed upon record with an attached joint medical exhibit was submitted to the administrative law judge, without a hearing, on the sole issue of whether a compensable injury had been established by medical evidence supported by objective findings. The administrative law judge held that it had not. The Commission affirmed and adopted the decision of the law judge.\nIt was stipulated that appellant was an employee of the Arkansas Department of Health on July 17, 1997. Appellant contended that she had sustained a compensable injury to her back while sweeping and mopping under a bed in a patient\u2019s home, as she was performing her duties as an \u201cin-home service aid.\u201d The employer, represented by its insurance carrier, the Arkansas Insurance Department, Public Employment Claims Division, claimed that appellant\u2019s injury was not demonstrated by objective medical evidence.\nThe medical records indicate that appellant presented to her family physician, Dr. Victor S. Chu, at the Eagle Heights Clinic in Harrison, on July 17, 1997, complaining that she had hurt her back \u201cwhile bending over doing something underneath a bed at Boone County Home Health.\u201d An x-ray revealed \u201cno evidence of any obvious deformity.\u201d Appellant was diagnosed with \u201cmus-culoskeletal back pain,\u201d prescribed medication, and told to come back if necessary.\nOn July 24, appellant reported that her back was improving, and she began a course of physical therapy. An MRI performed on August 13, 1997, indicated \u201cminimal changes of degenerative disc disease at L4-5 and L5-S1 limited to disc desiccation. There is no evidence of significant disc bulge or focal herniation.\u201d An August 14 entry in the appellant\u2019s progress record at Eagle Heights Clinic states that the patient was notified of her normal MRI and told to resume physical therapy three times a week for two weeks.\nA September 15, 1997, letter from Dr. Carl M. Kendrick, an orthopedist in Fayetteville, concluded that appellant was having muscular back pain, that she had sustained a \u201clumbosacral strain,\u201d and he prescribed continued physical therapy and walking.\nReports of Dr. William L. Money, of the Center for Pain Management at Washington Regional Medical Center in Fayette-ville, indicate that appellant had mild lumbar degenerative disease, and lumbar facet syndrome. He treated her with medication and injections.\nThe administrative law judge\u2019s opinion reviewed the medical evidence, then stated:\n[T]he medical evidence, supported by objective findings, fails to show that these degenerative problems, or any physical harm, were caused by the incident at work. The record shows that the claimant\u2019s medical care is related to her subjective complaints and the existence of pre-existing pathology, but fails to demonstrate the existence of a compensable injury causing physical harm, as required by the Act.\nAs previously stated, the Commission affirmed and adopted the opinion of the law judge.\nArkansas Code Annotated section 11-9-102 (Repl. 1996) provides in pertinent part:\n(5) (A) \u201cCompensable injury\u201d means:\n(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is \u201caccidental\u201d only if it is caused by a specific incident and is identifiable by time and place of occurrence;\n(D) A compensable injury must be established by medical evidence, supported by \u201cobjective findings\u201d as defined in \u00a7 11 \u2014 9\u2014 102(16).\n(16)(A)(i) \u201cObjective findings\u201d are those findings which cannot come under the voluntary control of the patient.\n(ii) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers\u2019 Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.\nAppellant cites Dr. Chu\u2019s original observations that \u201cpalpation of back reveals palpable musculoskeletal tenderness, negative straight leg raise bilaterally,\u201d and argues that palpable muscle spasms are an \u201cobjective finding.\u201d Indeed, this court has held that muscle spasms constitute an objective finding, see Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998); High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998), and in University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997), we approved the following definition of a muscle spasm:\n1. An involuntary muscular contraction. ... 2. Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; [spasm] is due to pain stimuli to the lower motor neuron.\nStedman\u2019s Medical Dictionary 1304 (23d ed. 1976). Webster\u2019s New Complete Medical Dictionary (1995) defines the word \u201cspasm\u201d as \u201c1: an involuntary and abnormal contraction of muscle or muscle fibers or of a hollow organ (as the esophagus) that consists largely of involuntary muscle fibers 2: the state or condition of a muscle or organ affected with spasms.\u201d\nIn the case at bar, however, Dr. Chu\u2019s note does not state that he found muscle spasms. The language he used is muscle tenderness. The twenty-third edition of Stedman\u2019s Medical Dictionary defines \u201ctender\u201d as \u201c[s] ensitive, painful on pressure or contact,\u201d and \u201ctenderness\u201d as \u201c[t]he condition of being tender; painfulness to pressure or contact.\u201d The word \u201ctender\u201d is defined in Webster\u2019s New Complete Medical Dictionary (1995) as \u201csensitive to touch or palpation \u2014 tenderness.\u201d\nFrom these definitions it is obvious that a muscle spasm is not under the control of the patient, because involuntary muscle contractions are just that, involuntary. On the other hand, tender or tenderness is measured by the patient\u2019s subjective reaction to stimuli, and can be controlled by the patient.\nWe affirm the Commission\u2019s finding that appellant failed to demonstrate a compensable injury by objective medical evidence.\nAffirmed.\nNeal and Crabtree, JJ., agree.",
        "type": "majority",
        "author": "Sam Bird, Judge."
      }
    ],
    "attorneys": [
      "Tolley & Brooks, P.A., by: Jay N. Tolley, for appellant.",
      "Richard S. Smith, for appellees."
    ],
    "corrections": "",
    "head_matter": "Patricia KIMBRELL v. ARKANSAS DEPARTMENT of HEALTH\nCA 98-1298\n989 S.W.2d 570\nCourt of Appeals of Arkansas Division I\nOpinion delivered May 12, 1999\nTolley & Brooks, P.A., by: Jay N. Tolley, for appellant.\nRichard S. Smith, for appellees."
  },
  "file_name": "0245-01",
  "first_page_order": 273,
  "last_page_order": 277
}