Shirley Wells v. Wal-Mart Stores, Inc. and Claims Management, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA05-388

November 9, 2005

SHIRLEY WELLS

APPELLANT AN APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

v. COMMISSION

[F106661]

WAL-MART STORES, INC., AND

CLAIMS MANAGEMENT, INC.

APPELLEES AFFIRMED

Olly Neal, Judge

Appellant Shirley Wells appeals from the decision of the Arkansas Workers' Compensation Commission (Commission) finding that she had reached the end of her healing period and was not entitled to further temporary-total-disability benefits or medical treatment. On appeal, appellant argues that the Commission's decision is not supported by substantial evidence. We affirm.

Appellant worked in the floral department at Wal-Mart Supercenter Number 128. On May 14, 2001, appellant fractured her right foot when she tripped on a box en route to her work station. Appellant was seen that day by the company doctor, Dr. Ken Carpenter. Dr. Carpenter referred appellant to Dr. John Woloszyn for further treatment. The following day, appellant returned to work in a cast. Five days later, appellant noticed swelling in her right knee and returned to Dr. Carpenter. Appellant worked the next month from a wheelchair.

Following the removal of her cast, appellant continued to have problems with her rightknee. She testified that she was unable to pick up her foot. Appellant complained to Debbie West, the personnel manager, and was referred back to Dr. Carpenter. On October 29, 2001, at the behest of Dr. Carpenter, appellant underwent a bone scan of her right knee. The bone scan revealed "severe degenerative joint disease right knee and patella femoral joint laterally on the patella."

In November 2001, appellant was treated by Dr. James Mulhollan at the Arkansas Knee Clinic, P.A. She continued to receive treatment from Dr. Mulhollan through July 1, 2002, when Dr. Mulhollan found that appellant had reached maximum medical improvement and released appellant to return to work. Following her release to work, appellant saw Dr. Mulhollan again on August 1, 2002. In a letter dated that same day, Dr. Mulhollan wrote "In my estimation, this patient is basically over the injury she sustained in May, when she fell."

After her release by Dr. Mulhollan, appellant worked through June 24, 2003, when, due to her knee pain, she informed Ms. West that she was unable to continue working. That same day, appellant received treatment from Dr. William Hurst. Dr. Hurst excused appellant from work through July 3, 2003. On July 3, 2003, appellant returned to Dr. Mulhollan for a cortisone injection. Thereafter, appellant was granted a change of physician from Dr. Mulhollan to Dr. Edward Cooper, Jr., of Advanced Orthopaedics. Appellant has since remained off work and filed a claim for additional benefits.

The administrative law judge (ALJ) found that appellant was entitled to additional medical benefits and temporary total disability benefits. The full Commission reversed the decision of the ALJ. The Commission found that appellant had reached maximum medical improvement on August 1, 2002, and that she was not entitled to additional temporary total disability benefits or medical treatment. From that decision comes this appeal.

In reviewing workers' compensation cases, this court only reviews the findings of theCommission, not those of the ALJ. Stone v. Dollar Gen. Stores, Ark. App. , S.W.3d (June 8, 2005). The standard of review in workers' compensation cases is well settled. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm the decision if it is supported by substantial evidence. Id. Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). If reasonable minds could reach the conclusion of the Commission, its decision must be affirmed. Id.

Arkansas Code Annotated section 11-9-508(a) (Supp. 2005) provides that an employer shall provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Stone, supra. What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. Wackenhut, supra. When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for any natural consequence that flows from that injury; the basic test is whether there is a causal connection between the two episodes. Id.

The Commission found that appellant's current problems were related to a degenerative condition. It specifically found that the medical records did not support finding that treatment incurred after July 2002 was reasonable and necessary in connection with appellant's May 2001 injury. The Commission noted that, after reaching maximum medical improvement, appellant went almost a full year between medical treatments.

A review of appellant's medical records indicates that, in his May 14, 2001 notes, Dr.Woloszyn wrote that appellant suffered from arthritis in her knees. In a letter dated October 17, 2003, Dr. Cooper wrote:

She injured her knee while working 2 ½ years ago. However, it appears that a majority of her symptoms have persisted relative to her degenerative condition of her knee and her obesity. Therefore, the propensity of her current symptoms are related to her degenerative process and not her work related injury.

And on February 11, 2004, Dr. Cooper wrote:

She related to me that she was asymptomatic prior to falling in Wal-Mart and has remained symptomatic since that time developing significant right knee pain and disability. She was evaluated thoroughly and found to have advanced osteoarthritis of the right knee. It is my opinion that she has longstanding degenerative arthritis of the knee which was indeed present two and a half years ago at the time of the index injury. The injury did aggravate her condition making this become symptomatic and she has continued to have symptoms since that time. She has not recovered as would be expected from the injury because of her degenerative condition. Currently we are working on weight reduction, non-steroidal anti-inflammatory medication, steroid injection and exercises to see if we can improve her symptoms and return her to some level of functioning.

In addition, in a letter dated September 16, 2003, Dr. Mulhollan wrote:

It is true that I rated her physical impairment as 5 percent. The basis of my calculation is as follows.

The patient has a very severe degenerative arthritic condition in her patello-femoral joint, due to patellar malalignment. It is congenital or at least a developmental abnormality that has been present throughout her adult life. Narrowing to the degree observed occurs only over a prolonged period of time and a very high level of favoring, usually brought on by the process of trying to avoid discomfort.

The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Stone, supra. Appellant's medical records indicate that she suffered from a degenerative condition and that the degenerative condition was the cause of her current problems. Appellant was unable to establish a causal connection between her current problems and her May 2001 injury. Therefore, the Commission's finding that further treatment was not reasonable or necessary is supported by substantial evidence.

Appellant also argues that the Commission erred when it failed to award her further temporary-total-disability benefits. Temporary-total-disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. K II Constr. Co., supra. When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary total disability. Id. The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id. The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). These are matters of weight and credibility, and thus lie within the exclusive province of the Commission. Id.

The Commission found that the medical records did not support a finding that appellant was in her healing period. Appellant's medical records reveal that in July 2002, Dr. Mulhollan found that she had reached maximum medical improvement. Following her release to work, appellant worked almost a year before deciding she could no longer work. As stated earlier, appellant's current problems are related to her degenerative condition and not her May 2001 injury. Thus, we agree with the Commission's finding that appellant was not in her healing period and, therefore, not entitled to further temporary-total-disability benefits.

Affirmed.

Pittman, C.J., and Bird, J., agree.