Ronald Burns v. Gary Pierce Construction

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA00-525

DECEMBER 6, 2000

RONALD BURNS

AN APPEAL FROM THE APPELLANT ARKANSAS WORKERS' COMPENSATION COMMISSION v. [E-709722]

GARY PIERCE CONSTRUCTION

APPELLEE

AFFIRMED

Appellant, Ronald Burns, appeals from a decision of the Arkansas Workers' Compensation Commission finding that he failed to prove by a preponderance of the evidence that surgical treatment performed by Dr. Joel Patterson was reasonable or necessary in relation to his compensable back injury. Appellant also appeals the Commission's decision concluding that he is not entitled to temporary total disability benefits.

Appellant sustained a compensable injury on April 22, 1997, while employed with appellee Gary Pierce Construction. Appellant injured his neck while placing steel on a roller to be cut by a saw. Appellee accepted Burns's injury as compensable and referred him to the Stamps Medical Clinic where he was treated by Dr. Gary Poole. Dr. Poole noted thatappellant could not turn his head to the left and suffered from muscle spasms. Dr. Poole referred appellant to Dr. David Collins. Dr. Collins saw appellant on June 9, 1997. Appellant reported similar complaints to Dr. Collins, but did state that his condition had improved since the date of the injury and that he had not missed work. Dr. Collins arranged for appellant to undergo a cervical MRI and a nerve conduction study. The MRI was normal, and the nerve conduction study revealed a brachial plexopathy of the upper left extremity and mild carpal tunnel syndrome. Based on these results and appellant's continued complaints, Dr. Collins referred appellant to Dr. Scott Schlesinger, a neurosurgeon.

Dr. Schlesinger saw appellant on August 25, 1997, and reviewed the tests performed by Dr. Collins. Dr. Schlesinger believed appellant might have suffered from a stretch injury but did not think he could do anything for appellant neurosurgically. Dr. Schlesinger recommended appellant undergo physical therapy of the cervical spine and provided a prescription for medrol dosepak and motrin. While being treated by Dr. Schlesinger, appellant underwent a second cervical MRI, which was also read negative. Dr. Schlesinger last saw appellant in September 1997.

After appellant last saw Dr. Schlesinger in September 1997, he continued to experience pain in his neck and was ultimately seen by Dr. Joel T. Patterson, a second neurosurgeon, on November 2, 1998. Dr. Patterson's report indicates that appellant presented complaining of pain in the neck and left shoulder area as well as pain radiating down his left arm and numbness in his left hand. Based on appellant's complaints, Dr.Patterson believed appellant suffered from a brachial plexopathy or cervical nerve root compression. Dr. Patterson recommended a cervical myleogram, which indicated an attenuation of the left nerve root sleeve at the C3-C4 level. Appellant also underwent a CT scan of the cervical spine, which revealed a mild left paracentral osteophyte formation of the C3-C4 level on the left with compression of the adjacent thecal sac and emerging nerve roots. On November 24, 1998, Dr. Patterson opined that appellant suffered from left C3-C4 nerve root impingement. Dr. Patterson recommended cervical intervention, and on February 15, 1999, appellant underwent an anterior cervical diskectomy and fusion at C3-C4.

In May 27, 1999, Dr. Schlesinger prepared another report on appellant's condition and subsequent treatment by Dr. Patterson. Dr. Schlesinger admitted that the 1997 MRI did not look at the left C3-C4 level to any high-resolution degree, but stated that appellant's complaints of pain radiating down the arm were not consistent with a C3-C4 disk herniation. Dr. Schlesinger's report went on to state, however, that if appellant's neck and shoulder pain was caused by a C3-C4 disk herniation, that pain could be traced to appellant's compensable injury. Moreover, Dr. Schlesinger stated that if appellant's symptoms were treated by the surgery, perhaps the surgery also treated the neck and shoulder pain.

At the hearing before the ALJ, appellant testified that since he last saw Dr. Schlesinger in September 1997 his condition has remained the same, getting no better nor any worse, including the period after the surgery performed by Dr. Patterson. Appellant also stated that he continued to work for appellee performing his normal job duties from the date of his injury until he was laid off in July 1997 due to the seasonal nature of his employment. Appellant also testified that he drew unemployment from July 1997 until July 14, 1998. During the period that he drew unemployment appellant testified that held himself out as able to work and actively sought employment.

Based on this evidence the Commission determined that appellant had failed to prove by a preponderance of the evidence that the treatment provided by Dr. Patterson was reasonable or necessary in relation to appellant's compensable injury. Specifically, in concluding that the treatment was not reasonable or necessary, the Commission noted appellant testified that his condition had not improved since the surgery.

On appellate review of workers' compensation cases, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and will affirm the Commission's ruling if there is any substantial evidence to support the findings made. Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). The determination of the credibility and weight to be afforded a witness's testimony is within the sole province of the Workers' Compensation Commission. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). The Commission's authority to resolve conflicting evidence also extends to medical testimony. Maverick Transportation v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). If reasonable minds could reach the Commission's conclusion, its decision must be affirmed. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).

Arkansas Code Annotated § 11-9-508(a) (Repl. 1996), requires employers to provide such medical services as may be reasonably necessary in connection with the employee's injury. American Greetings Corp., supra. Whether a medical procedure is reasonable and necessary is a question of fact to be decided by the Commission. Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).

For reversal, appellant contends that the Commission's decision is not supported by substantial evidence. Specifically, he argues that the evidence was insufficient to find that his treatment under Dr. Patterson was not reasonable and necessary with respect to his compensable injury. We do not agree.

In Winslow v. D & B Mechanical Contractors, 69 Ark. App. 285, ___ S.W.3d ___ (2000), this court ruled that postsurgical improvement is a proper consideration in determining whether the surgery was reasonable and necessary. In the instant action, the appellant admitted that he has experienced no improvement in his symptoms since he last saw Dr. Schlesinger in 1997, including the period following the surgery performed by Dr. Patterson. In addition to appellant's admission that the surgery did not alleviate his condition, prior to the surgery being performed, Dr. Schlesinger had stated that there was nothing neurologically that could be done for appellant and recommended continued physical therapy. Moreover, Dr. Schlesinger stated that appellant's complaints of pain radiating down the arm are not consistent with a C3-C4 disk herniation. Based on this record and appellant's admission that no postsurgical improvement took place, we cannot say thatthe Commission erred in finding that appellant's surgical treatment by Dr. Patterson was not reasonable and necessary in relation to his compensable injury.

Appellant also contends that the Commission erred in adopting the ALJ's finding that appellant is not entitled to temporary total disability benefits from August 1, 1998. We disagree and affirm.

Temporary total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Stafford v. Arkmo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996). The healing period is that period for healing of an injury which continues until the claimant is as far restored as the permanent character of the injury will permit. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998).

The record in this case presents substantial evidence to support the Commission's conclusion that appellant failed to establish by a preponderance of the evidence that he is entitled to temporary total disability benefits. Specifically, the record does not support a claim that appellant suffered a total incapacity to earn wages. The record reveals that after appellant initially suffered his injury, he continued to perform his job with appellee, albeit with difficulty, for at least two months before he was laid off in July 1997. Furthermore, from July 1997 until August 1998 appellant received unemployment benefits holding himself out as able to work. This record provides substantial evidence to support the Commission's conclusion that appellant failed to establish that he is incapable of earning wages.

Affirmed.

Robbins, C.J., and Hart, J., agreee.