Tanya L. Boyd v. Brookshire Grocery Company and Second Injury Fund

ca04-900

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-900

April 13, 2005

TANYA L. BOYD APPEAL FROM WORKERS' COMPENSATION COMMISSION

APPELLANT

NO. E902151

V.

BROOKSHIRE GROCERY COMPANY and

SECOND INJURY FUND

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

This is a workers' compensation case. The Commission found that Tanya Boyd had not proven that (1) she was entitled to the 16% anatomical impairment rating given by the administrative law judge and reduced her rating to 10%; (2) she was entitled to the 60% wage-loss disability rating given by the administrative law judge and reduced the wage-loss rating to 30%; (3) her treatment from Dr. Anthony Russell was reasonably necessary; and (4) she was entitled to total temporary disability benefits through October 22, 2002, and instead the Commission ordered appellees to pay benefits through September 25, 2000. Boyd argues that the Commission's decision is not supported by substantial evidence. We affirm.

At the time of the hearing, Boyd was thirty-eight years old. She has a high school education and completed two years of college. She sustained two admittedly compensable low-back injuries in 1991 and 1993, for which to was assigned 10% and 5% impairment ratings to the whole body. Although Boyd had undergone two surgeries for the 1991 and 1993 injuries,

she stated that the procedures had not corrected her problems. She admitted that she complained of low-back pain, pain to her left leg and thigh, and numbness in her right leg due to her 1991 and 1993 injuries throughout her treatment with Dr. Ted Saer from 1991 through 1998. Boyd was also diagnosed with disc degeneration in 1995.

Boyd alleged that she had sustained another low-back injury on February 9, 1999, after attempting to pick up a ten-pound meat tray from a rack near the floor. She stated that, following her attempt, she felt pain in her back and left leg. Brookshire accepted the injury and paid Boyd temporary compensation benefits and also paid her medical bills. Boyd underwent disc-fusion surgery for this injury on October 4, 1999. She was subsequently referred to Dr. Yeshwant Reddy for pain management in February 2000.

Throughout her treatment with Dr. Reddy, Boyd indicated that she was unable to bend forward or backward and that she could not bend to the side. She indicated that when she bent forward, she experienced "unbearable" pain and described this pain as a ten on a scale from one to ten. She also told Dr. Reddy that she was unable to perform any activities, and that, after Dr. Reddy suggested that she participate in aqua physical therapy-the easiest form of physical therapy-she underwent therapy but stated that it "hurt real bad." On one occasion, Boyd began crying at Dr. Reddy's office because she had to sit for fifteen minutes. Boyd had explained to Dr. Reddy that, because of her intense pain, she was only able to sit or stand for a maximum of twenty minutes, walk for ten minutes, and lift three pounds. Boyd indicated that she experienced pain with even the slightest movement, including shifting her hips in bed.

On September 26, 2000, Boyd reported to her fifth visit with Dr. Reddy, who discharged her from his care. During the visit, Dr. Reddy explained that he had been sent a surveillance video showing Boyd performing various tasks. Dr. Reddy opined that he had done all that he could do for Boyd, assigned her a 10% impairment rating, and discontinued his treatment of her.

During the hearing, Boyd acknowledged that she had been seen on video surveillance tapes bending, picking up, and lifting. The videotape showed Boyd driving a boat, reaching to the ground and picking up items from the ground, carrying an ice chest in one hand, which Boyd maintained was empty, walking, sitting on the ground, crossing her legs, bending over to pick up a dog, washing her SUV, and loading and unloading camping equipment from her SUV. She stated, however, that during that time, she was "push[ing]" herself, whereas now she limits her activities. Boyd also said that while she was performing these various tasks, she continued to experience maximum pain.

Dr. Reddy indicated that Boyd's conduct on the video was "surprising" and was inconsistent with what she had told him during her previous visits. Dr. Reddy stated that Boyd's activities on the video were consistent with those of a normal person, and were not consistent with her complaints of continuous pain. He said that Boyd had been overreacting, and that he had suspected that she had been malingering when she continued to complain of pain but would not take the prescribed medications. Dr. Reddy stated that pain is a subjective symptom, and that Boyd was the first patient he had treated who complained of pain but refused to take pain medications. He also stated that a person who cannot tolerate aqua physical therapy should not be able to "hop" of a boat, grab the front end of the boat, and pull it up onto the shore.

Regarding Boyd's October 1999 fusion surgery, Dr. Reddy stated, "Ms. Boyd has recovered from her fusion surgery quite nicely." He testified that he had no idea Boyd would require further surgery because her fusion surgery was "solid" according to his and Dr. Saer's evaluations. Dr. Saer's September 12 report indicates that Boyd's fusion was solid. Dr. Reddy's impression of Boyd, after watching the video, was that she could walk, bend, and lift weight without any problems. He also described her endurance as "good." In Dr. Reddy's opinion, Boyd had reached maximum medical improvement on September 26, 2000.

Boyd stated that, before she "got fixed" in 2000, she suffered every day due to her February 1999 injury. She stated that she currently takes Darvocet, Flexeril, and Bextra for pain and Skelaxin for depression. She admitted that she gained some relief from her 2000 surgery, but stated that she is unable to work due to her injury and did not think she would ever be able to go back to work. She also stated that she was "dumb as a doorknob" and could not be retrained to learn an alternate job skill. Boyd testified that she is illiterate, but admitted that she had prepared a notebook on her husband's computer, which she used during her testimony at the hearing; that she had memorized her medical reports; and that she had passed courses during her college studies. Boyd stated that she cannot read at a first grade level and that it took her four hours to complete her application for social security benefits. However, Boyd admitted that she read the meat charts while she was employed at Brookshire, could read a gas pump, and the labels on her pain medication, including the word "Flexeril." Also, during her testimony, opposing counsel requested that Boyd locate a letter written by Dr. Saer by giving her the date of the letter. Boyd was able to locate this letter and, when asked to read from it, Boyd appeared to read from the letter. Boyd did all of these things even though she maintained that she was unable to read.

On November 10, 2000, after viewing the surveillance tape of Boyd, Brookshire sent Boyd a letter indicating that it was terminating her temporary compensation benefits, and indicating that, if Boyd pursued a workers' compensation claim against it, it would initiate suit against Boyd for filing a fraudulent claim. Boyd was terminated and has received no further benefits from Brookshire for the alleged February 9, 1999 injury.

On November 16, 2000, Boyd contacted Dr. Anthony Russell regarding her February 1999 injury, and told him that she had begun experiencing increased pain. Dr. Russell performed an MRI on that day and did flexion extension lumbar spine films to determine if the fusion was successful. He stated that the purpose of the flexion extension lumbar spine films was to determine whether there was movement where there would not be after a successful fusion. According to Dr. Russell, the films showed movement across the disc space and evidence of a widening of the disc space with flexion and narrowing of extension. Boyd also had degenerative changes to her nerve root, which Dr. Russell attributed to her severe pain. Dr. Russell admitted though that another physician, Dr. Gettys, had reported that there was no evidence of motion of the flexion extension films. He also admitted that smoking, reinjury, and activity could cause the disc not to fuse.

On December 29, 2000, Dr. Russell performed a surgery on Boyd's lower back at her L5, S1. Following the surgery, Boyd continued treatment with Dr. Russell. She continued to experience pain, and Dr. Russell discovered spurring at the L4-5. Dr. Russell performed a second procedure on April 23, 2002, to determine whether Boyd was experiencing nerve root compression. Dr. Russell indicated that following the April 23, 2002 decompression procedure, Boyd continued to experience aching in her leg, but that otherwise both surgeries were successful. He indicated that both surgeries were necessary, but conceded that this assessment was based on Boyd's subjective complaints, and that the radiological reports did not indicate any clear nerve compression at L4-5 or L5-S1.

Dr. Russell opined that anyone who had undergone five lumbar procedures is disabled from most physical activities and most work. He also opined that seeing Boyd performing the types of activities depicted on the videotape would not change his opinion regarding the necessity of further treatments, and that he would want to know whether Boyd was experiencing pain during those activities. Dr. Russell ultimately assigned Boyd a 16% anatomical impairment rating.

The ALJ found that Boyd had sustained a compensable injury on February 9, 1999, and awarded Boyd total temporary disability benefits from February 10, 1999, through October 22, 2002; partial disability benefits corresponding with the 16% anatomical impairment rating; all reasonably related medical, hospital, nursing, and other apparatus expenses as a result of her February 9 injury, including Boyd's treatment while under Dr. Russell's care; and permanent partial disability benefits corresponding with a 60% wage-loss.

The Commission found that Boyd had not proven that (1) she was entitled to the 16% impairment rating and reduced her rating to 10%; (2) she was entitled to the 60% wage-loss disability rating and reduced the wage-loss rating to 30%; (3) her treatment from Dr. Russell was reasonably necessary; and (4) she was entitled to total temporary disability benefits through October 22, 2002, and instead ordered appellees to pay benefits through September 25, 2000. It is from this decision that Boyd appeals.

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 and affirm that decision if it is supported by substantial evidence. Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003). Substantial evidence is such relevant evidence which reasonable minds might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Id. The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Id. The Commission also has the duty of weighing the medical evidence as it does any other evidence. Id. On review, we recognize the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001).

On appeal, Boyd argues that the Commission's decision that she failed to prove that her treatment with Dr. Russell was reasonable and necessary is not supported by substantial evidence. In workers' compensation cases, employers are only responsible for medical treatment and benefits, which are reasonably necessary for the treatment of the employee's injuries. Ark. Code Ann. § 11-9-508 (Repl. 2002). Whether treatment is reasonable and necessary is a question of fact for the Commission. K II Const. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). When the primary injury is shown to have arisen during the course of employment, the employer is responsible for any natural consequence that flows from the injury. Id. at 225, 79 S.W.3d at 416. The claimant has the burden of proving that she is entitled to additional medical treatment. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999).

We affirm the Commission's decision that Boyd's treatment by Dr. Russell was not reasonably necessary. Both Drs. Saer and Reddy indicated that the October 1999 fusion procedure was "successful," and that Boyd had reached maximum medical improvement. The fusion was described as "solid" in Dr. Saer's September 12, 2000 report, and no movement was observed. There was evidence presented that, following the surgery, Boyd was able to walk, stand, sit, and participate in recreational activities, like a "normal" person, according to Dr. Reddy. Notwithstanding Drs. Reddy's and Saer's finding that Boyd had reached maximum medical improvement, Dr. Russell opined that additional medical treatment was needed because the spine films showed movement across the disc space. However, there was conflicting testimony presented during the hearing regarding whether or not the spine films showed movement across the disc space, which was repaired during the fusion procedure. According to Dr. Russell the films showed movement, which would indicate that the October fusion procedure was not successful. However, he conceded that two other physicians, Drs. Gettys and Moore, also observed the films and that their reports indicated that there was no movement. It was for the Commission to resolve this conflicting medical evidence, and this court will not disturb its findings regarding issues of credibility. Stotts, supra. Regarding the second surgery for nerve decompression, Dr. Russell admitted that the radiological reports showed no clear nerve compression and that the second surgery was based, in large part, on Boyd's subjective complaints of pain. We affirm the Commission's decision.

Next, Boyd argues that the Commission erred in reducing her anatomical impairment rating from 16% to 10% because the Commission "clearly adopted the view of Dr. Reddy and ignored the opinions and findings of Dr. Russell." As such, Boyd argues, the Commission's decision is not supported by substantial evidence.

At the hearing, the claimant and employer may present evidence in respect of the claim, including verified medical reports, which shall be accorded such weight as may be warranted from all of the evidence of the case. Ark. Code Ann. § 11-9-704(c)(1)(A)(ii) (Repl. 2002). Any determination of the existence or extent of physical impairment shall be supported by objective, and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 2002).

Again, issues of credibility are left to the Commission, and we do not reverse based on issues of credibility. Stotts, supra. Therefore, Boyd's argument that the Commission clearly adopted Dr. Reddy's opinion over that of Dr. Russell does not present a basis for reversal because reasonable minds could find that Boyd was entitled to the 10% impairment rating assigned by Dr. Reddy. Dr. Reddy's testimony indicated that Boyd was entitled to a 10% impairment rating based in part on her ability to perform multiple physical activities depicted on the videotape. He also indicated that, as of September 26, 2000, Boyd had reached maximum improvement after undergoing a successful and solid fusion procedure. The Commission was free to accord more weight to Dr. Reddy's reports, and we affirm the Commission's decision.

Third, Boyd argues that the Commission erred when it found that she failed to prove by a preponderance of the evidence that she was entitled to additional wage-loss disability benefits. It is well settled that a worker who sustains an injury to the body as a whole may be entitled to wage-loss disability in addition to his anatomical loss. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). In determining additional wage-loss disability the Commission may take into consideration the worker's age, education, work experience, medical evidence and other matters reasonably expected to affect the worker's future earning power. Id. Other factors include motivation to return to work, post-injury earnings, credibility, demeanor, and a multiplicity of factors. Curry v. Franklin Elect., 32 Ark. App. 168, 798 S.W.2d 130 (1990); Guess, supra. A worker may be entitled to additional wage loss disability even though his wages remain the same or increase after the injury. Guess, supra.

The Commission's decision to reduce Boyd's wage-loss disability impairment rating from 60% to 30% is clearly supported by substantial evidence. There was an abundance of evidence presented during the hearing demonstrating that Boyd had exaggerated her inability to earn a living. Boyd has a high school education and completed two years of college. Although she maintained that she could not be retrained because she cannot not read or write, Boyd brought with her to the hearing a notebook containing information about her case that she had produced on her husband's computer, and she used this notebook during the hearing. During the hearing, Boyd located documents by date when asked to do so by opposing counsel, and apparently read along with opposing counsel from Dr. Reddy's deposition. Boyd claimed that she could only read at a first grade level, but successfully passed college-level courses. She stated that she could read the labels on her prescriptions, and that she read scales and meat labels throughout her employment with Brookshire. Although she maintains that she cannot write, she admitted completing an application for social security benefits. Despite her testimony that she is unable to work due to her injury, Boyd was clearly depicted driving a motorboat and participating in various outdoor recreational activities on the surveillance video. Boyd also declined rehabilitation services. All of this evidence was considered by the Commission and goes to a number of factors that the Commission may weigh when determining wage-loss benefits. Guess, supra; Curry, supra. The Commission could have concluded that Boyd lacked motivation to return to work, and that, although she is capable of reading, writing, and word processing on a computer, she is unwilling to use these skills to find employment or to rehabilitate herself. Boyd's testimony that she is not able to perform any job duties was simply not credible to the Commission, and in fact, it appeared that Boyd purposely misrepresented her ability to read and write in an effort to obtain a higher wage-loss impairment rating. We affirm the Commission's decision to reduce her wage-loss benefits from 60% to 30%.

Finally, Boyd argues that the Commission erred in reducing the period of time she is entitled to total temporary disability benefits. We disagree.

Temporary total disability benefits are awarded when the claimant demonstrates by a preponderance of the evidence that she is within her healing period and is totally incapacitated from earning wages. Wentz v. Service Master, 75 Ark. App. 296, 57 S.W.3d 753 (2001). The healing period is that period of healing of an injury that continues until the claimant is as far restored as the permanent character of the injury will permit. Id. Whether a claimant's healing period has ended is a factual question that is resolved by the Commission. Id.

Here, the evidence shows that Boyd was not totally incapacitated after September 25, 2000. Dr. Reddy testified that Boyd's activities as depicted on the video showed that she was functioning as a normal person would. She appeared to be walking, sitting, crossing her legs, and standing without discomfort. Reddy also stated that Boyd's activities were inconsistent with her continuous complaints of pain. During previous visits, Boyd had cried because she was made to sit for fifteen minutes, but was surprisingly able to drive a boat for longer than that. Boyd also became teary-eyed when asked to bend slightly, but on the video Boyd was seen bending from the waist to pick up items from the ground without any difficulty. Based on her ability to perform, as she did on the video, Dr. Reddy opined that Boyd had reached maximum medical improvement as of September 25, 2000. The Commission's decision is supported by substantial evidence in this regard, and we affirm.

Affirmed.

Bird and Glover, JJ., agree.