Pulaski County Special School District and Risk Management Resources v. Becky Stalnaker

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

PULASKI COUNTY SPECIAL SCHOOL DISTRICT and RISK MANAGEMENT RESOURCES

APPELLANTS

V.

BECKY STALNAKER

APPELLEE

CA05-270

October 12, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F109331]

AFFIRMED

Robert J. Gladwin, Judge

The Arkansas Workers' Compensation Commission (Commission), affirming and adopting the decision of the Administrative Law Judge (ALJ), found that appellee Becky Stalnaker was entitled to additional temporary partial disability benefits and all reasonably related medical, hospital, nursing, and other apparatus expenses as a result of her admittedly compensable injury suffered in February 2001. The Pulaski County Special School District, which employed appellee as a bus driver and secretary at the time of her injury, and Risk Management Resources contend on appeal that appellee had received all benefits to which she was entitled and that the Commission committed reversible error in finding that she was entitled to further benefits and medical treatment at their expense. We disagree and affirm.

On January 11, 2001, appellee was examined by her family physician, Dr. Chuck Cardona, regarding complaints of upper extremity pain and numbness. He referred her to neurologist Dr. Charles Schultz, who diagnosed appellee's hand complaints as bilateral

carpal tunnel syndrome. Appellee subsequently filed a claim for bilateral carpal tunnel syndrome. The injury was accepted by the appellants as compensable, and appellee was paid weekly compensation benefit rates of $253 and $190 for temporary total and permanent disability benefits.1 Appellee was examined on July 31, 2001, by Dr. Earl Peeples, who performed surgery on her right wrist on August 10, 2001, and her left wrist on September 26, 2001. Her right wrist responded more favorably to the procedure than did her left. She continued to receive follow-up care from Dr. Peeples, and as of January 17, 2002, he commented that appellee's right wrist was well but that she had some weakness and irritation in her left wrist. As of April 2, 2002, Dr. Peeples reported that appellee still complained of left-upper extremity pain of unclear etiology. He ordered an MRI, bone scan, and MMPI, all of which came back negative. Dr. Peeples subsequently released appellee to light duty as of April 18, 2002.

Appellee then requested, and was granted, a change of physician to Dr. Michael Moore, an upper extremity specialist, who evaluated her on a single occasion on May 22, 2002. Dr. Moore referred appellee to Dr. Reginald Rutherford for an EMG/NCV. Dr. Rutherford stated in his report dated May 21, 2002, that appellee had a normal clinical examination and nonspecific change in sensory examination that was not significant. Appellee continued treatment with Dr. Rutherford and underwent a triphasic bone scan on August 30, 2002. The scan showed mild arthritis in both hands and no reflex sympathetic dystrophy (RSD). Appellee saw Dr. Rutherford again in the following months, and in hisreport dated November 14, 2002, he reported normal strength and reflexes in both of appellee's upper extremities. Dr. Rutherford utilized various medications in his course of treatment and subsequently had additional diagnostic tests run on appellant, which were reported normal. Despite continued complaints of left-wrist pain from appellee, Dr. Rutherford reported that, as of his April 2, 2003 examination of appellee, the bone scan was unchanged, the EMG was normal, and appellee had reached full recovery from the carpal tunnel surgery. He found her to be at maximum medical improvement and released her with no impairment. Dr. Rutherford advised that she could resume usual activities without restrictions, including employment activities such as driving a bus. As a result of the release, appellants ceased payment on appellee's temporary partial disability benefits.

Appellee continued to complain of problems with her left wrist, and appellants' claims adjuster, Ms. Shannon Moore, informed appellee that she was tired of "entertaining" appellee and refused her request to return to Dr. Moore's care. Appellee then sought treatment on April 19, 2003, on her own, from Dr. Schultz, the neurologist who initially diagnosed her carpal tunnel syndrome. He performed a nerve conduction study that showed an abnormality in appellee's upper-left extremity, specifically, evidence of moderate left-median neuropathy at the wrist. Dr. Schultz then referred appellee to Dr. Ethan Schock, who evaluated appellee on June 16, 2003, and stated that the carpal tunnel release surgery might need to be repeated on her left wrist.

Subsequent to that recommendation, appellants had appellee evaluated by Dr. David Rhodes on July 31, 2003. Based upon his evaluation, Dr. Rhodes assessed her complaints as chronic left carpal tunnel syndrome caused by flexor tenosynovitis. He reported that he would recommend scheduling left volar wrist flexor tenosynovectomy, but he temporarily released appellee to full, unrestricted secretarial duty until the surgery could be performed. Additionally, appellants had appellee reevaluated by Drs. Moore and Rutherford in the fall of that year. Appellee had repeat EMG/NCV tests performed that were normal on the right and borderline abnormal on the left median nerve. Dr. Rutherford opined that revision surgery was not recommended, and assessed appellee as having a ten-percent impairment on the left upper extremity and a zero-percent impairment on the right upper extremity. He released her from treatment and stated that she could resume full work duties. Appellants initiated the payments of indemnity benefits to correspond with the assessment made by Dr. Rutherford in October 2003. As a result of the latest tests and impairment ratings, Dr. Moore stated in his December 4, 2003 and January 6, 2004 reports that nothing further was recommended for appellee's left wrist. He subsequently stated in his January 22, 2004 report that appellee could resume regular activities. Appellee wanted to proceed with the surgery on her left wrist that was recommended by Drs. Rhodes and Schock; however, appellants maintained that she had reached maximum medical improvement and denied liability for the cost of treatment subsequent to Dr. Rutherford's release of her on April 2, 2003.

The ALJ, and ultimately the Commission, considered appellee's testimony to be credible and found that she was denied access to her authorized treating physician, Dr. Moore. Further, it was determined that the appellants' claims adjuster, Ms. Shannon Moore, was dismissive in her attitude toward appellee's request for additional medical treatment. The ALJ determined that the preponderance of the evidence showed that appellee continued to "experience symptoms and complaints attributable to her compensable injury and continued to require medical treatment relative to [the] same." Appellee was found to have sought statutorily sanctioned medical care after April 2, 2003, and the independent physicians that evaluated her condition consistently recommended follow-up surgery.

It was only after those independent evaluations came to light that appellants' doctor, Dr. Rutherford, concluded that there were objective findings to warrant a ten-percent permanent impairment relative to appellee's left wrist. There was medical treatment that had been recommended and was available to help the continued residual pain in appellee's left wrist, and accordingly, the ALJ and the Commission found that her healing period had not ended. Appellee was granted temporary partial disability benefits from April 2, 2003, continuing through the end of her healing period, a date yet to be determined, as well as attorney's fees, and payment for additional medical expenses for treatment under Dr. Schultz after April 2, 2003, and the related referrals therefrom. The surgery recommended by Drs. Rhodes and Schock was not specifically authorized by the Commission, but the ALJ did state that it might become necessary in the future.

Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods S. W., 70 Ark. App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ's opinion as its own, which it is permitted to do under Arkansas law. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003). In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. See Branum, supra. Therefore, for purposes of our review, we consider both the ALJ's order and the Commission's majority order.

In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). If reasonable minds could reach the conclusion of the Commission, its decision must be affirmed. K II Constr. Co. v. Crabtree, 78 Ark. App.222, 79 S.W.3d 414 (2002). We cannot undertake a de novo review of the evidence and are limited by the standard of review in these cases. Id. The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or not; and when it does so, its findings have the force and effect of a jury verdict. Id. The Commission is not required to believe the testimony of any witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief; once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Logan County v. McDonald, __ Ark. App. __, __ S.W.3d __ (Apr. 6, 2005). Speculation and conjecture cannot substitute for credible evidence. Smith-Blair, Inc. v. Jones, supra.

Appellants recognize that objective medical findings are not required to find that a claimant's healing period continues. See Chamber Door Indus., Inc., v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). They contend, however, that they provided the reasonable necessary medical treatment relative to the compensable injury as required by Ark. Code Ann. § 11-9-508. Here, appellee's testimony and her medical records provided substantial evidence to support the Commission's conclusion that she has suffered ongoing left-upper extremity symptoms as a result of her compensable injury in February 2001 and that she is entitled to additional benefits and recommended medical treatment. While it is true that she did seek additional treatment on her own, without petitioning for an additional change ofphysician, there is evidence in the record that the appellants' claims adjuster frustrated her attempts to see her authorized physician and that more than one independent physician did recommend additional treatment, including revision surgery, related to her admittedly compensable carpal tunnel syndrome. The Commission properly reviewed the record and testimony of appellee's various physicians and came to a conclusion that her healing period had not ended and that continuing medical treatment was medically necessary. Because this conclusion is supported by substantial evidence, as outlined above, the Commission's order awarding appellee temporary partial disability benefits and all reasonably related medical, hospital, nursing, and other apparatus expenses as a result of her admittedly compensable injury sustained on February 2, 2001, is affirmed.

Affirmed.

Robbins and Baker, JJ., agree.

1 Appellee ceased her bus driving duties after the first surgery, at which time appellants initiated the payment of temporary partial disability payments. She then performed full-time secretarial duties, which reduced her earnings by $7,000 per year. Since August 2003, she has been working as a bookkeeper/secretary/registrar at a salary of between $18,000 - $19,000 per year, still less than the $20,000 per year salary she earned prior to the injury.