Revertis Gist v. Sanyo Manufacturing Corporation and Garmi Insurance

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-470

DIVISION I

REVERTIS GIST

APPELLANT

V.

SANYO MANUFACTURING

CORPORATION and GARMI

INSURANCE

APPELLEES

CA 05-470

NOVEMBER 16, 2005

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. F300720]

AFFIRMED

John B. Robbins, Judge

Appellant Revertis Gist sustained an electric-shock injury while working for appellee Sanyo Manufacturing Corporation on October 2, 2002. Sanyo accepted the injury as compensable and paid for treatment provided by Drs. Sudhir Kumar and Michael DeShazo. The Workers' Compensation Commission authorized a change of physician to Dr. Charles Schultz, and Sanyo initially covered the medical expenses associated with Dr. Schultz's diagnosis and treatment. However, Sanyo subsequently discontinued payment pursuant to its contention that the treatment being provided by Dr. Schultz was not reasonably necessary in connection with Ms. Gist's compensable injury. Ms. Gist brought a claim seeking entitlement to ongoing treatment prescribed by Dr. Schultz, but the Workers' Compensation Commission denied her claim. The Commission's decision was based in part on its conclusion that Dr. Schultz's opinion addressing compensability of the continuing treatment

was not stated within a reasonable degree of medical certainty as required by Ark. Code Ann. § 11-9-102(16)(B) (Repl. 2002). Ms. Gist now appeals.

For reversal of the Commission's decision, Ms. Gist argues that the Commission erred as a matter of law in requiring Dr. Schultz's opinion to be stated within a reasonable degree of medical certainty, citing the fact that Sanyo had previously stipulated that she sustained a compensable injury. Ms. Gist further asserts that, even if there were such a requirement, it was met because Dr. Schultz testified that her condition was probably related to the work injury. Finally, Ms. Gist contends that considering all of the evidence presented, substantial evidence does not support the Commission's decision that she is not entitled to additional treatment. We find no error and affirm.

Arkansas Code Annotated section 11-9-508(a) (Repl. 2002) provides:

The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.

What constitutes reasonable and necessary treatment under this section is a fact question for the Commission. Arkansas Dep't of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994).

When the Commission denies a claim because of the claimant's failure to meet her burden of proof, the substantial-evidence standard of review requires that we affirm the Commission's decision if its opinion displays a substantial basis for the denial of relief. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers' Compensation Commission should not be reversed unless it is clear that fair-minded person could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).

Ms. Gist testified on her own behalf at the hearing. She stated that she is fifty-nine years old and worked for Sanyo for twenty-nine years. She described the electric-shock injury as follows:

In October of 2002, when my accident happened, we had just gotten back from a break and I had put on my gloves and had put on about 10 backs of TVs when I put my hand on the cord to secure it to the back and that's when it just looked like it blew up. It popped real loud and [there was] a big old flash of light and I couldn't turn it loose. They was telling me to turn it loose. I remember dropping the back of the TV and I looked down at my hand and it looked like my hand was burning. After that I don't remember anything else until we were outside and they was putting me in the ambulance out on the parking lot.

Ms. Gist testified that she has been unable to work since the accident and continues to suffer from a multitude of problems. She stated that her problems include neck and lower back pain, as well as pain in her right arm and hand, and that she frequently experiences headaches, dizziness, and fatigue. Ms. Gist indicated that she did not have any of these problems before the compensable injury. She stated that neither Dr. Kumar nor Dr. DeShazo prescribed any medications for her, but that Dr. Schultz prescribed pain medication that included Neurontin. Ms. Gist testified that she would like to continue to receive the medications prescribed by Dr. Schultz.

Charlotte Gibson, a nurse employed by Sanyo, also testified at the hearing. She determined that twenty-five volts of electricity were involved in the accident. Ms. Gibson stated that she had dealt with Ms. Gist prior to October 2002, and agreed that, "The condition that she is in now, what with the shaking of her right foot and leg, I have not seen before." Ms. Gibson indicated that she was not aware of any prior complaints by thecompany regarding Ms. Gist's work capabilities, but also stated, "I have no idea what the condition of her back and neck was before this accident."

After being treated at the emergency room following the accident, Ms. Gist was returned to work without restrictions. Ms. Gist visited her family physician, Dr. David Webber, on October 7, 2002, and Dr. Webber signed a certificate returning her to work without restrictions beginning on October 14, 2002.

Ms. Gist came under the care of Dr. Kumar on October 8, 2002. On that date, Dr. Kumar noted that Ms. Gist was crying and complained of "aches and pains all over." Dr. Kumar found no external evidence of thermal injury on the skin, and his impression was, "Thermal injury with high voltage, post traumatic stress, a lot of anxiety." On October 23, 2002, Dr. Kumar reported that Ms. Gist's complaints were worse than before but that "most of her symptoms are possibly functional." Dr. Kumar wrote that, "EMG and nerve conduction studies primary reports are negative," and he referred Ms. Gist to a neurologist, Dr. DeShazo.

Dr. DeShazo examined Ms. Gist and reported on October 31, 2002:

She's had an EMG which was unremarkable. I think a lot of her findings are functional and more due to anxiety, but she is complaining of persistent headache and lumbar pain. She really doesn't describe much in the way of any radiculopathy, but does complain of back pain. When I did straight leg raising test today the back pain was present bilaterally. I would like to finish her work-up with MRI scan of the head and lumbar spine, and if these are unremarkable, I don't think any further test will be necessary. She may have suffered a concussion and a lumbar strain when she fell from the electrical shock. There is no evidence of any injury or exit for the electrical injury.

The MRIs ordered by Dr. DeShazo were conducted, and on November 19, 2002, he reported:

This patient returns today following complaints from an electrical injury. She had less tremor today and really had none when I saw her walk in. She claims theheadaches come and go and these only occur about every three days. This is a definite improvement. Her main complaint is low back pain.

. . . .

She has some occasional rapid tremor at times which is easily distracted and appears to be functional. There is no evidence of any true muscle weakness, and the sensory exam was unremarkable.

. . . .

I finished her work-up with MRI scan today of the head and lumbar spine. The MRI scan of the head was normal. There was some asymmetry of the ventricles, but this is a normal congenital variant. The lumbar spine showed only some mild degenerative changes, but no disc herniation or other abnormality. I could find no evidence of any significant neurologic deficit, and at most she may have some lumbosacral strain from when she had the electrical injury. I've recommended that she receive physical therapy for this, and I have really nothing else to offer her in the form of treatment. No follow-up appointment was given. She could probably return to her usual activities once she finishes her course of physical therapy.

After reviewing the test results and recommendations of Dr. DeShazo, Dr. Kumar wrote on December 2, 2002, "to give benefit of the doubt will set up physical therapy for her back pain for one month and then will release from care completely and return to work with no restrictions at that time."

After her petition for a change of physician was granted, Ms. Gist visited Dr. Schultz, a neurologist, on October 7, 2003, and again on December 2, 2003. In Dr. Schultz's medical reports, he noted that an MRI of Ms. Gist's spine showed no imaging explanation for her pain, and that an MRI of her brain showed no etiology for her headaches and dizziness. Dr. Schultz prescribed Neurontin for treatment of chronic pain and noted that due to the severity of the pain Ms. Gist is unable to work. Dr. Schultz ordered an Evoke Potentials study, and reported the following results on April 13, 2004:

Abnormal Upper Extremity Evoke Potentials Study. The patient demonstrated a delay in the right N13, P14, N18 and N20 latencies suggestive of an abnormality involving the central nervous system on the right side. This finding would be consistent with a patient having an electrical injury involving her right side.

In deposition testimony, Dr. Schultz acknowledged that he is not a specialist in electrical injuries and stated that he had "seen maybe three patients with electrical injuries." Dr. Schultz explained that Evoke Potentials is a form of a nerve conduction study that tests the peripheral nervous system and the central nervous system. He stated that the delay detected on the right side indicates that there was a swelling of the pathway. When asked about the cause for such a delay, Dr. Schultz responded:

It could be from, you know, any type of insult that's happened. I mean, if the person had had a stroke involving their brain stem, that could be a possible cause. It could also be from an electrical injury that's damaged those pathways on the right side. It could be from a large disc that was pushing in the spinal canal.... It could be a disease process[.]

Dr. Schultz also testified:

We see a delay in the right hand. That makes us believe that this could have occurred, I mean, with this injury. Now, I'm not saying that...that was the cause. I don't know[.]

After reviewing an MRI report, Dr. Schultz concluded that Ms. Gist has extensive degenerative changes as well as multilevel cervical spine disease. When asked whether the findings on the MRI report explained the positive findings on the Evoke Test, Dr. Schultz responded:

They may.... Basically, we know that there is some involvement of the cord, so we know that these findings could be that the pressure on the cord from the discs could be causing the findings on the Evoke Potential Study.... But also, you know, there's still the possibility that the injury could have caused an abnormality in the pathway, as well. I just don't know.

Ms. Gist's first contention on appeal is that the trial court erred in applying Ark. Code Ann. § 11-9-102(16)(B) (Repl. 2002), which provides, "Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty." Specifically, the Commission found that Dr. Schultz's opinion as to the compensability of Ms. Gist's current problems was not stated within a reasonable degree ofmedical certainty. The Commission cited Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000), for the proposition that expert opinions based on "could," "may," or "possibly" lack the definiteness required to prove a causal connection. Ms. Gist argues that because it was stipulated that she sustained a compensable injury, and the only issue to be decided was whether her continued treatment was reasonably necessary, the Commission erred as a matter of law in requiring Dr. Schultz's opinion to meet the "reasonable degree of medical certainty" standard.

We do not agree that the Commission erred in applying Ark. Code Ann. § 11-9-102(16)(B) (Repl. 2002) to this case. Sanyo's contention below was that, while Ms. Gist suffered an initially compensable injury, the additional services provided by Dr. Schultz were not reasonably necessary in connection with the injury received under Ark. Code Ann. § 11-9-508(a) (Repl. 2002). (emphasis added). This necessarily involves an inquiry into not only whether treatment of Ms. Gist's condition is reasonably necessary, but whether her condition is causally related to the work-related injury. Contrary to Ms. Gist's argument, it was her burden to prove that her medical condition was a compensable consequence of the job- related injury. The issue of compensability was contested, and the Commission properly noted that Dr. Schultz's opinions relating to compensability needed to be stated within a reasonable degree of medical certainty.

Ms. Gist next argues that even if Dr. Schultz was required to state his opinion within a reasonable degree of medical certainty, this was accomplished. She directs us to the following exchange during his deposition testimony:

Ms. Gist's Counsel: Okay. Is it probably the case that this lady had trauma significant enough to cause the kind of damage that you detected by virtue of your testing?

Dr. Shultz: Trauma could have caused the damage, yes.

Ms. Gist's Counsel: And if you combine history in there, the history being she wasn't having problems before, she started having problems after, that would probably be the case, would it not?

Dr. Shultz: Right.

Ms. Gist's Counsel: The opinions that you provided to us today are all within a reasonable degree of medical certainty?

Dr. Shultz: Yes.

Finally, Ms. Gist argues that substantial evidence does not support the Commission's decision to deny continuing treatment. She submits that the opinions of Drs. Kumar and DeShazo were based on less sophisticated testing than the Evoke Potential Test ordered by Dr. Schultz. Ms. Gist notes that the Evoke Potential Test revealed objectively positive results, and asserts that Dr. Shultz's opinion proved that the findings revealed by the test were related to the electric-shock injury suffered at work. Ms. Gist further notes that even Sanyo's witness, Ms. Gibson, acknowledged at the hearing that she thought Ms. Gist was in good health prior to the accident. Ms. Gibson acknowledged in her testimony that Ms. Gist now has a cane and exhibits shaking in her right foot and leg. Based on the evidence presented, Ms. Gist contends that fair-minded people could not have concluded that the continuing treatment by Dr. Shultz was not reasonably necessary to treat her compensable injury.

We hold that the Commission's opinion displays a substantial basis for denying the additional treatment sought by Ms. Gist. The Commission's decision relies on the medical opinions of Drs. Kumar and DeShazo, who both reported essentially normal diagnostic testing results, and indicated that Ms. Gist's symptoms were exaggerated. Dr. Kumar released Ms. Gist to work ten months before her first visit with Dr. Schultz. Ms. Gist submits that the diagnostic test relied on by Dr. Schultz was more sophisticated and shouldhave been given greater weight by the Commission. However, 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. Williams v. Brown's Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003).

Moreover, even the opinion of Dr. Shultz, which the Commission was not bound to credit, was not particularly supportive of Ms. Gist's claim. He gave multiple possibilities as to the causation of her problems and admitted that he was not an expert on electrical injuries and did not know whether there was a causal connection between the electric shock and his diagnostic findings. We acknowledge that at one point in his testimony Dr. Shultz agreed with Ms. Gist's counsel that, assuming there were no pre-existing problems, a traumatic event probably caused Ms. Gist's current condition. However, this comment was in conflict with numerous other statements made by Dr. Shultz, and we think the Commission could reasonably conclude from the record as a whole that Dr. Shultz's opinion on causation was that Ms. Gist's condition could have been caused by the work-related injury, but he was not certain beyond that. At any rate, there was an abundance of medical evidence to support the conclusion that any further treatment was not reasonably necessary in connection with the work injury. We affirm the Commission's finding that Ms. Gist failed to prove otherwise.

Affirmed.

Bird and Griffen, JJ., agree.