William Brent Graham v. Jenkins Engineering, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-702

March 2, 2005

WILLIAM BRENT GRAHAM

APPELLANT AN APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

v. COMMISSION

[F112391]

JENKINS ENGINEERING, INC.

APPELLEE AFFIRMED

Olly Neal, Judge

Appellant William Graham appeals from a decision of the Arkansas Workers' Compensation Commission that denied his claim for additional medical benefits. On appeal, appellant argues that (1) "the admittedly compensable injury to the claimant's C6-7 disc on March 1, 1998 was a factor in claimant's need for surgery to the C6-7 disc in 2001_ and (2) the Commission erred when it denied his claim for temporary total disability benefits and permanent partial disability benefits. We affirm.

Appellant worked as a pumper for appellee Jenkins Engineering. His job involved servicing gas wells. On March 1, 1998, appellant sustained a compensable injury to his C6-7 disc. An MRI revealed "moderate disk [sic] protrusion at C6-7." Appellant was referred to Dr. Joseph Queeney, who suggested that appellant undergo surgery. Appellant elected not to have the suggested surgery and instead received treatment from Dr. Phillip Ulmschneider,a chiropractor. On October 23, 1998, Dr. Ulmschneider wrote that appellant had reached maximum medical improvement and released appellant from active care.

On November 21, 2000, appellant sought treatment from Dr. Michael Westbrook. He complained of pain in his upper back and numbness in his hands and arms. Because he continued to have pain, appellant returned to Dr. Westbrook on May 7, 2001. Dr. Westbrook subsequently scheduled appellant for a second MRI procedure on October 3, 2001. The MRI revealed a "large extruded disc posterolaterally on the left at C6-7." Appellant sought treatment from Dr. Wilbur Giles on October 9, 2001, and on December 7, 2001, Dr. Giles removed appellant's C6-7 disc and replaced it with a bone graft.

Appellee controverted the treatment provided by Dr. Giles. A hearing before the Administrative Law Judge (ALJ) was held on April 29, 2003. The parties stipulated that on March 1, 1998, appellant sustained a compensable injury to his neck or cervical spine. The parties agreed to litigate the following issues: (1) appellant's entitlement to additional medical services, particulary those by and at the direction of Dr. Giles on and after October 9, 2001; (2) whether Dr. Giles' services were unauthorized medical services within the meaning of Ark. Code Ann. § 11-9-514; (3) appellant's entitlement to temporary total disability benefits from December 7, 2001 through December 17, 2001, and permanent disability benefits for permanent physical impairment; (4) controversion and appropriate attorney's fees.1

During the hearing, appellant testified that he first had neck problems in 1996. He said that he was getting out of his company truck when he experienced a twinge in his neck. Appellant thought that, at the time, he might have seen Dr. Westbrook and that Dr. Westbrook diagnosed it as being a crick in his neck. Appellant testified that, following that event, he had no other problems until he sustained his compensable injury on March 1, 1998. Appellant said that, following his injury, he began to feel a sharp pain between his shoulder blades on his left side and a shooting pain to his left elbow. He said that he sought treatment from Dr. Westbrook, who arranged the March 1998 MRI. He said that Dr. Westbrook referred him to Dr. Queeney. Appellant admitted that he elected not to undergo the surgery suggested by Dr. Queeney. He said that he choose to undergo treatment with Dr. Ulmschneider. Appellant testified that he stopped treatment with Dr. Ulmschneider when the workers' compensation carrier indicated that it would no longer pay for treatment. He said that he treated his symptoms with pain pills. Appellant testified that from the time he discontinued treatment with Dr. Ulmschneider until the time he sought treatment with Dr. Westbrook in May 2001, he "wasn't really having pain in [his] neck" but still had pain between his shoulder blades to his elbow. He said that he had also begun experiencing a tingling in the ring and pinky fingers on his left hand. Appellant stated that, on some days, his wife would have to help him get dressed. He testified that Dr. Westbrook did not refer him to Dr. Giles. Appellant said that the surgery performed by Dr. Giles had alleviated his symptoms. He described himself as being pain-free. Appellant testified that following his surgery he missed ten days of work.

During cross-examination, appellant acknowledged that Dr. Queeney's records indicated that his problems began on October 24, 1996. Appellant said he did not understand "what it means for Dr. Queeney to have found maximum medical improvement on October 22, 1998." Appellant testified that, following his compensable injury, he continued to work and did not miss any time off. He said that in March 2000, he became self-employed. He explained that he performs the same work that he performed while working for appellee. He said that he now works ten to thirteen hours a day, seven days a week. Appellant testified that, following his injury, he continued to bow and gun hunt. However, appellant maintained that, prior to his 2001 surgery, his pain was severe. He said that he learned of Dr. Giles from one of Dr. Giles' patients. Appellant testified that Dr. Giles had released him with no restrictions.

Debra Graham, appellant's wife, testified that from March 1, 1998 up until his 2001 surgery, appellant experienced pain. She said he complained of neck pain. Mrs. Graham testified that some mornings appellant was unable to dress himself and that sometimes she had to help get appellant out of bed. She testified that in 2001, she sought Dr. Westbrook's approval so that appellant could receive treatment from Dr. Giles. She said that Dr. Giles would not see appellant without approval.

In his deposition, Dr. Giles testified that he first saw appellant on October 9, 2001, and that, at that time, he did not know what type of prior treatment appellant had received for his lower back. He said he was not provided any information concerning appellant's lower back. Dr. Giles also said he did not know that Dr. Queeney had treated appellant. He said that nothing in his records indicated that appellant had a prior recommendation of surgery. Dr. Giles testified that appellant told him he had sustained an injury to his neck in 1998. He said that, when he reviewed the March 1998 MRI, he noted that appellant had a "fairly large" disc that was visible but that he did not consider the disc to be an extruded fragment. He said it showed a large disc protrusion at the 6-7 level. He explained that over time a disc in that condition, if untreated, would continue to deteriorate. However, he did not see anything wrong with appellant electing not to undergo surgery, at that time. Dr. Giles said that he also reviewed the October 2001 MRI. He said that it showed a "large extruded disc posterolateral on the left." He stated that this was at the C6-7 level and was consistent with appellant's complaints of neck, shoulder, and arm pain. Dr. Giles testified that the 2001 MRI was "significantly" more severe than the 1998 MRI. Dr. Giles could not explain what caused the increased findings.

During his testimony, Dr. Giles stated the following:

I recall authoring a report dated January 10, 2003. In that report, I indicated that [appellant's] need for the anterior cervical discectomy and fusion, which I performed on December 7, 2001, was associated with the findings of March 27, 1998. I made that association because according to the history [appellant] provided to me, he had continued complaints of neck and shoulder discomfort intermittently since a scan in August of 1998. This scan followed an injury and it showed a fairly large disc protruding of the C6-C7 level. According to the history that [appellant] gave, this progressed over a period of time with his continued activity level until he was no long [sic] able to function. This necessitated a second scan. That scan showed that the disc was markedly herniated, causing significant motor weakness in his left arm.

Based on [appellant's] complaints, I have no reason to believe that his complaints are not related to the initial injury he described and it is the same disc that he showed on the scan in 1998.

. . .

Within a reasonable degree of medical certainty based on the history [appellant] gave me about his continued neck and intermittent shoulder and arm pain from 1998, I think the problems are related to the injury that occurred in March 1998. It is possible that the cause of disc extrusion may be associated with work-related activities or other activities as opposed to the original incident. However, I think that is unlikely because the disc became symptomatic as a result of what happened in March of 1998. The disc had been damaged and anything that happened thereafter was related to the March 1998 incident. The slinging of a sledgehammer or other activities could increase the risk of fragmenting the disc. However, anything he did, even brushing his teeth, could increase the risk.

Dr. Giles further testified that he reviewed an index of the medical documentation relative to appellant's treatment. He said that the index showed continued complaints of pain. Dr. Giles testified that, in forming his opinion, he relied on the index and appellant's statement that he continued to have pain. He said that the only medical records he reviewed were the ones in his file. Dr. Giles stated that he last saw appellant on March 13, 2002, and that he did not believe appellant was having any problems. He said that, when he released appellant, he did not give appellant any limitations or restrictions on his activities. He said that he did give appellant a ten percent impairment rating to the body as a whole.

The ALJ found that appellant was entitled to the additional services provided by Dr. Giles on and after October 9, 2001. The ALJ also awarded appellant temporary-total disability benefits and permanent disability benefits for permanent physical impairment. The full Commission reversed the decision of the ALJ. The Commission found that the 2001 surgery was not caused by the 1998 compensable injury; therefore, appellant was not entitled to temporar-total disability nor permanent-partial disability benefits. From that decision comes this appeal.

When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Linton v. Arkansas Dep't of Corr., Ark. App. , S.W.3d (Sept. 1, 2004). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence exists if reasonable minds could reach the same conclusions as the Commission. See Daniels v. Arkansas Waffles, Inc., 83 Ark. App. 106, 117 S.W.3d 653 (2003). The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Thompson v. Washington Reg'l Med. Ctr., 71 Ark. App. 126, 27 S.W.3d 459 (2000).

Appellant first argues that the Commission erred when it denied his claim for additional benefits. Arkansas Code Annotated section 11-9-508 (Supp. 2003) provides that an employer must provide medical services that are reasonably necessary in treatment of the compensable injury. What constitutes reasonably necessary medical treatment is a question to be determined by the Commission. White Consol. Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001).

Appellant is essentially arguing that he suffered a recurrence. A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). The test for whether a subsequent complication is a recurrence is whether there is a causal connection between the compensable injury and the second complication. See Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

The Commission found that appellant failed to establish a causal connection between his 1998 compensable injury and his 2001 surgery. In denying appellant's claim for benefits the Commission wrote:

It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994); See also, Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. Upon weighing the claimant's testimony in this case, it is found lacking for the following stated reasons. First, when questioned during his hearing about prior neck/back injuries, it appears that the claimant attempted to minimize the significance of this issue in order to offset any potentially negative impact it may have on the issue of his compensable injury and subsequent treatment. Supra. The claimant denied altogether having had neck or back problems prior to his compensable injury of 1998, except for a "twinge" in his neck in 1996. When pressed with medical documentation which contradicted his testimony, the claimant reluctantly admitted to having made complaints to his doctors of on-going problems of at least two years prior to his compensable injury. Supra. Evidence shows that the claimant even told Dr. Queeney of a specific date on which a prior injury had allegedly occurred. Supra. Such inconsistency casts dispersions [sic] on the claimant's testimony as a whole.

Turning our attention now to Dr. Giles' testimony, the Commission has previously found that a claimant's belief, no matter how sincere, is not a substitute for credible evidence. Brewer v. Paragould Housing Authority, Full Commission Opinion filed Jan. 22, 1996 (Claim No. E417617). More specifically, a medical opinion based solely upon the claimant's history and subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence. Brewer, Id. Furthermore, the findings of the Administrative Law Judge on the issue of credibility are not binding on the Commission. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983); Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). Moreover, and importantly, the Commission is not bound by a doctor's opinion which is based largely on facts related to him by the claimant where there is no sufficient independent knowledge upon which to corroborate the claimant's claim. Roberts v. Leo Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983). Clearly, the testimony of Dr. Giles in this case reflects that his opinion was based almost entirely upon information provided to him by the claimant. Supra. No conclusive evidence was ever presented to explain how the claimant went from "mild," "minimal" bulging in 1998, to full-blown disk extrusion in 2001. Dr. Giles admitted that he attributed this phenomena to the claimant's compensable injury based entirely upon facts and history provided to him by the claimant. Supra. Doctor Giles opinion was, at best, speculative, in that it was based upon information provided by the claimant, who in my opinion, is not a credible source of information.

Finally, in contradiction of the theory that the second complication was a "recurrence" of the claimants' compensable injury, it is well established that the claimant's conservative treatment following his compensable injury was successful and that his prognosis was optimistic. It is well established that the claimant's recovery remained steady and on track. And, it is also well established that the claimant reached MMI some seven months post-injury, and aside from occasional flare-ups, his life returned to normal. The claimant's testimony regarding his extended work hours proves that, if anything, his activities increased over what he had done before his injury. For it to be found that the claimant suffered a reoccurrence of his compensable injury of March 1998, would require us to resort to conjecture and speculation. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). The medical opinion of Dr. Giles was not supported by objective medical evidence, but was based upon information provided to him by a claimant whose testimony was less than credible. Accordingly, a preponderance of the credible evidence does not support the Administrative Law Judge's finding.

The Commission is correct in its assertion that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. See Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002). A review of the evidence reveals that in a note dated March 2, 1998, Dr. Westbrook indicated that appellant said he had been experiencing pain for two years and that it was getting worse. This contradicts appellant's testimony that he had not experienced any prior neck pain. Furthermore, on March 27, 1998, Dr. Queeney wrote that appellant indicated that his neck pain "began initially on 10/24/96 while at work" and that "[t]his apparently occurred while he was getting out of a truck. He has had several episodes of this since that time which have all occurred while at work approximately two to three times per year. The most recent injury was on 3/1/98." This evidence indeed calls into question appellant's credibility.

As to the Commission's dismissal of Dr. Giles' testimony, Dr. Giles testified that his opinion was based on information relayed to him by appellant. He was not aware of the fact that appellant had been treated by Dr. Queeny nor did he know that appellant had a prior recommendation for surgery. The Commission is not bound by a doctor's opinion that is based largely on facts related by a claimant where the claimant's own testimony is less than determinative. Williams v. Brown's Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). Moreover, there was evidence that appellant had reached MMI prior to his receiving treatment from Dr. Giles.

Viewing the evidence in a light most favorable to the Commission, we cannot say that reasonable minds would find that appellant was entitled to additional benefits. Therefore, we affirm the denial of benefits. Because we are affirming the denial of benefits, we do not address appellant's argument that the Commission also erred in denying his claim for temporary-total disability benefits and permanent-partial disability benefits.

Affirmed.

Hart and Glover, JJ., agree.

1 This point is not relevant to the present appeal and will not be discussed further.