Karen S. Baskin v. Waldron Nursing Center and Royal & Sun Alliance Insurance Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-550

DIVISION III

KAREN S. BASKIN

APPELLANT

V.

WALDRON NURSING CENTER and ROYAL & SUN ALLIANCE

INSURANCE COMPANY

APPELLEES

CA 05-550

December 14, 2005

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [F213693]

AFFIRMED

David M. Glover, Judge

Appellant Karen Baskin sustained an admittedly compensable back injury on November 15, 2002, while employed by appellee Waldron Nursing Center. Appellees paid her temporary-total disability and medical benefits, and permanent-partial disability benefits based upon a five-percent permanent impairment to the body as a whole. However, appellees refused to pay for subsequent medical treatment and additional temporary-total disability. Following a hearing, the ALJ ruled that appellant was entitled to a change of physician to Dr. Isley and his partner, Dr. Ploetz; that appellant had proved entitlement to additional medical treatment; and that appellant did not prove entitlement to additional temporary-total disability benefits. Both parties appealed to the

Commission. In its February 9, 2005 decision, the Commission affirmed in part and reversed in part, resulting in the denial of all of appellant's claims. We affirm the Commission.

In a pre-hearing order, filed September 15, 2003, the ALJ set forth the following issues as those that the parties had agreed to litigate: 1) change of physician, 2) additional related medical expenses, 3) additional temporary-total disability from June 25, 2003, to a

date to be determined, 4) wage loss over the five-percent impairment, 5) attorney's fees. The pre-hearing order specifically provided that in regard to the foregoing issues, the claimant "contends that she is entitled to treatment by or at the direction of Dr. Art Isley and his associates." (Emphasis added.)

At the hearing before the ALJ, appellant testified that her injury occurred on November 15, 2002, as the result of a nursing-home resident falling on her when she and another nursing assistant were trying to put him to bed. She explained that she was sent to Dr. Olaimey, who put her on pain medication, and that she then saw Dr. Bennett, who put her on anti-inflammatory and pain medicine, and had her undergo physical therapy. She stated that she eventually had an MRI and was sent to Dr. Armstrong and to Dr. Holder. She said that Dr. Holder referred her back to her family doctor, Dr. Isley, and that she is still under Dr. Isley's care in regard to her job-related injury. She explained that Dr. Ploetz is in practice with Dr. Isley and that she sometimes sees Dr. Ploetz because Dr. Isley has had heart problems.

Appellant explained that she is still having problems with her back as a result of the November 2002 injury, that she has a knot in the lower part of her back that causes her to have severe headaches, that the pain radiates down her right leg to her foot and makes her foot draw upward, and that sometimes her leg goes numb.

Appellant stated that there has not been a time since June 25, 2003, that she has felt she could do her normal job on a regular basis. She said that there are times she cannot walk or get out of bed and that she has been under the care and treatment of Dr. Isley's office since June 25, 2003. She explained that she has not strictly complied with the restrictions that Dr. Ploetz placed on her because she is a single mother with two kids,ages 10 and 7, and that there was no way that she could lie in bed for an extended period of time.

On cross-examination, appellant stated that the results of the x-rays of her lumbar spine, which were taken at Mercy Hospital after her November 15, 2002 injury, were normal; that she was returned to work with restrictions; and that the nursing center accommodated her on those restrictions.

Appellant acknowledged having back injuries before November 2002. She stated that she recalled seeing Dr. Holder in January 2003; that in February 2003, an EMG was performed on her back; that she did not recall the results being normal; and that on her last visit with Dr. Holder he told her that "it was all in her head."

It was appellant's testimony that in March 2003, Dr. Holder stated that she had reached maximum medical improvement and issued her a five-percent impairment rating. She confirmed that she received payments on the five-percent rating from workers' compensation. She explained that after she sustained the back injury in November 2002, she never returned to her original duties as a CNA in the nursing department, and that she was placed in the laundry department, folding clothes. Appellant acknowledged that she did not renew her CNA license because she could not lift over twenty pounds; that she had not contacted the nursing center about returning to work with duties she felt she could perform; that she had not applied for any jobs since June 25, 2003; and that she had not complied with the doctor's order of strict bed rest.

On redirect examination, appellant explained that Fred Watts is the administrator of the nursing center; that a note from him provided, "Ms. Baskins may return to work when Dr. Ploetz releases to regular duty"; and that Dr. Ploetz had never released her toregular duty. However, on re-cross, she explained that she had Mr. Watts write that letter for the social-security office for the purpose of her little boy's SSI and that she had not contacted Mr. Watts or anyone else at the nursing center to see if they would allow her to return to work before she was released for regular duty.

Melissa Shrum, an administrative secretary at the nursing center, testified that she was familiar with appellant; that she worked at the nursing center when appellant was employed there; that she had spoken with appellant on multiple occasions regarding her back injury; that it was her understanding that appellant's current work restrictions are that she cannot do anything but have total bed rest; that prior to June 25, 2003, appellant could do minor things that did not involve pushing or pulling or lifting; that in order to accommodate her restrictions, the nursing center put her in the laundry department to fold washcloths; and that they also allowed her to read to residents. She stated that if appellant was at work and complained of pain that the nursing center let her go home and rest. She recalled observing appellant at work after her injury and that an example of what she saw was appellant sitting in a chair with her leg crossed and reading. She stated that she had seen appellant upset and crying, saying that she was hurting. She said that appellant's wages did not change when she was moved from nursing to laundry. She testified that appellant had not contacted her about returning to work at any time since June 25, 2003, but that she had seen appellant at Wal-Mart and the post office since that date.

Lea Stewart, the director of nurses, also testified that she was familiar with appellant; that she supervised appellant at the time of the November 2002 injury; that her supervision ended when appellant transferred to laundry; that she has observed appellantin the laundry, occasionally folding washcloths or towels; and that she had seen her sitting and reading to residents.

Bobbie Lewis testified that she supervises the housekeeping and laundry department; that she has supervised appellant; that the nursing center accommodated appellant in laundry following her injury; that she became aware in May that Dr. Holder had released appellant; that appellant told her she was not aware of that fact; that she told appellant she would like for appellant to do whatever she could do other than just sit and read books or magazines; that when appellant complained of pain and needed to go home, she would tell appellant to do whatever she needed to do; that she saw appellant in the smoke shop about three weeks prior to the hearing and asked her how she was doing; that appellant has not asked her about returning to work; and that if appellant contacted her today about returning to work, she could find something for appellant.

Following the hearing, the ALJ concluded in pertinent part:

1) "The claimant is entitled to her change of physician to Dr. Isley and Dr. Ploetz, his partner. The claimant was referred to her family physician by Dr. Holder and the respondents have refused to pay for this treatment, therefore, I find that Dr. Isley and his partner are authorized to treat the claimant for her compensable injury."

2) "The claimant has proven by a preponderance of the evidence that she is entitled to additional medical treatment as recommended by Dr. Holder as well as her authorized treating physicians for the treatment of her compensable injury."

3) "The claimant is entitled to one day of temporary-total disability. Dr. Ploetz took the claimant off work on June 25, 2003, and released her to return to light-duty work on July 2, 2003. In accordance with Arkansas law the claimant would be entitled to one day of temporary-total disability as a result of her compensable injury."

4) "I find that the claimant has failed to prove her entitlement to temporary-total disability subsequent to July 2, 2003, since her authorized treating [physician] has released her to light-duty work and the respondents have indicated in their testimony that light-duty work within her restrictions would be provided for her if she would present herself for work."

Appellees appealed the ALJ's finding that Baskin was entitled to a change of physician, and they also appealed the ALJ's finding that the claimant was entitled to additional medical treatment. Baskin cross-appealed the ALJ's finding with regard to temporary-total disability.

After reviewing the entire record de novo, the Commission found "that the claimant has received her one-time change of physician pursuant to Ark. Code Ann. Section 11-9-514. The Full Commission finds that the claimant did not prove she was entitled to additional medical treatment after her visit with Dr. Ploetz on June 25, 2003. The Full Commission finds that the claimant did not prove she was entitled to temporary-total disability compensation after March 21, 2003."

Standard of Review

Our standard of review in workers' compensation cases is well settled:

In reviewing decisions from the Workers' Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirms if supported by substantial evidence. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Byars Constr. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000). A decision by the Workers' Compensation Commission will not be reversed unless it is determined that fair-minded persons could not have reached the same conclusions if presented with the same facts. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000). Where 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 if itsdecision displays a substantial basis for the denial of relief. Rice v. Georgia-Pacific Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000).

Carman v. Haworth, Inc., 74 Ark. App. 55, 59, 45 S.W.3d 408, 411 (2001). In reviewing workers' compensation cases, this court only reviews the findings of the Commission, not those of the ALJ. Logan County v. McDonald, ___ Ark. App. ___, ___ S.W.3d ___ (Apr. 6, 2005).

Stone v. Dollar Gen. Stores, ____ Ark. App. ____, ____, ____ S.W.3d ____, ____ (June 8, 2005).

Change of physician

For her first point of appeal, appellant contends that the Commission erred in determining that she had exercised her one-time right to a change of physician when she was seen by Dr. Isley on June 25, 2003, "because Dr. Isley was within her chain of authorized treating physicians since Dr. Holder had referred her to her family physician for follow-up care." We find no error.

The ALJ set out the agreed-upon issues in its September 15, 2003 pre-hearing order. With respect to the change-of-physician issue, the ALJ specifically noted that the claimant "contends that she is entitled to treatment by or at the direction of Dr. Art Isley and his associates." (Emphasis added.) A July 9, 2003 letter from the Commission's Medical Cost Containment Division to appellant's attorney provided in pertinent part: "You requested on Ms. Baskin's behalf that she be granted a change of physician to Dr. William Arthur Isley, Jr." (Emphasis added.) In its order following the hearing, the ALJ found in favor of appellant on the change-of-physician issue, ordering that the "claimant is entitled to her requested change of physician to Dr. Isley and his partner Dr. Ploetz as her one time change of physician." Understandably, appellant did not appeal from that decision. Appellees, however, did, and the Commission determined:

We recognize that the change of physician statute does not apply if an authorized treating physician refers the claimant to another doctor for examination or treatment.

In the present matter, however, Dr. Holder did not explicitly refer the claimant to any particular physician. The claimant contends that she is entitled to a change of physician to Dr. Isley. As we have noted, the claimant has an absolute, statutory right to a one-time change of physician. Nevertheless, the Full Commission finds from the record that the claimant has exercised her one-time right to see Dr. Isley. The claimant testified that she had seen Dr. Isley following her release from Dr. Holder. Upon the facts of this case, the claimant's treatment with Dr. Isley constituted the claimant's one-time visit pursuant to the change of physician statute. We therefore affirm as modified the administrative law judge's finding that the claimant was entitled to a change of physician to Dr. Isley.

It is clear that appellant got what she asked for from the ALJ, i.e., "treatment by or at the direction of Dr. Art Isley and his associates"; that she did not appeal that portion of the ALJ's decision; that the Commission essentially affirmed that portion of the decision; and that to the extent appellant is claiming error in the instant appeal in order to argue that she is entitled to change to a physician other than Dr. Isley, she is raising the argument for the first time in this appeal. In short, she cannot prevail on this point because either 1) she got what she asked for, a change of physician to Dr. Isley, or 2) she did not ask for a change to another physician other than Dr. Isley, and therefore she did not preserve the argument for appeal.

Additional medical benefits

Under her second point of appeal, appellant contends that the Commission erred in determining that she was not entitled to additional medical benefits. We disagree.

Appellant's argument is not easy to understand, but it focuses on the fact that Dr. Isley had determined that she needed additional care; that the Commission concluded that her continuing problems were related to a degenerative condition rather than the work-related injury; that such a conclusion was not supported by substantial evidence "becauseDr. Holder, the claimant's authorized treating physician, opined that the claimant has a 5% impairment to the whole person...."; that Dr. Holder's referral to her personal physician for continued maintenance was related to the work injury; and that additional medical treatment concerning that injury was anticipated by Dr. Holder to be reasonable.

Viewing the evidence in the light most favorable to the Commission's findings, there was evidence presented that the first x-rays of appellant's spine on November 15, 2002, were those of a "normal spine." Dr. Bennett's examination of November 18, 2002, revealed muscle tenderness and tightness and resulted in his assessment of "contusion and sprain of low back." The November 27, 2002 MRI impression provided:

1. Small right parasagittal protrusion at L3-4.

2. Mild broad based disc bulge which again is predominantly right sided at the L5-S1 level which has an associated annular tear.

Following a January 27, 2003 examination, Dr. Larry Armstrong reported muscle spasm tenderness over the paraspinal muscles in the low back and tissue texture changes associated with spasm. He also noted that there was some flattening of the lumbar spine; that lumbar spine x-rays revealed no subluxation, instability or spondylolisthesis; and that there were some very mild degenerative changes. He reported that the lumbar spine MRI scan from St. Edward Mercy Medical Center revealed a very small disc herniation at L3-4, slightly accentuated to the right without any frank nerve-root impingement; that there was a very mild indentation on the thecal sac; that there was disc degeneration present at L3-4 and at L5-S1; that there was no other disc herniation; that there was no neuroforaminal stenosis and no other nerve root compression noted; and that no spinal stenosis was seen. Dr. Armstrong's impression was: 1. Lumbosacral myofascial neuralgia and 2. Lumbar strain/sprain. He recommended conservative care with no surgical intervention.

On January 28, 2003, Dr. Keith Holder recounted his impression of a lumbar strain with report of disc protrusions. He noted that appellant could return to work with no lifting over twenty pounds and that she was to limit repetitive back motions. An EMG nerve-conduction study was conducted on February 7, 2003, and it reported normal results. On February 11, 2003, Dr. Holder reported his review of the MRI report and Dr. Armstrong's note. Dr. Holder's impression, following his review of the records, was: 1. Lumbar strain, 2. Annular tear at L5-S1 to the right, and 3. "Illness behavior with her subjective complaints outweighing the objective findings to date." (Emphasis added.)

On February 21, 2003, Dr. Holder again noted that appellant's "subjective complaints currently outweigh objective findings." In a March 4, 2003 work-evaluation performed by an occupational therapist, the summarized findings included: "Overall test findings, in combination with clinical observation, suggest the presence of sub-maximal effort on Mrs. Baskin's behalf." The evaluator noted that he was "by no means implying intent. Rather, it is simply stated that Mrs. Baskin can do more physically at times than was demonstrated during this testing day. Any final vocational or rehabilitation decisions for Mrs. Baskin should be made with this in mind."

On March 21, 2003, Dr. Holder reported that he had discussed with the patient and her case-manager nurse that he "could not explain her level of symptoms based on the objective evidence at this time." He went on to state that the MRI showed a mild right-sided disc protrusion in L3-4 with no mention of indentation upon the nerve root and an annular tear at L5-S1; that her nerve study was totally normal; that her lifting profile showed ability to lift up to twenty pounds, but that her Jamar grip strength done on her testing was above only coefficient variation testing, showing submaximal effort; and thather Waddel pain questionnaire also was positive for symptom magnification. He concluded that she had reached maximum medical improvement and rated her "at 5%

whole person." He then referred her "to her personal physician in the Waldron area for continued maintenance of her needs" and stated that "she may follow up here as needed."

The Commission stated the following in its opinion:

Based on the preponderance of the evidence, however, the Full Commission finds that the claimant did not prove she was entitled to additional medical treatment after her initial visit with Dr. Isley. The claimant sustained a compensable injury on November 15, 2002, initially diagnosed as a "sprain" of the low back. Diagnostic testing revealed a degenerative condition of the lumbar spine, including an annular tear associated with the claimant's degenerative condition at L5-S1. Dr. Armstrong, a physician with the Cooper Clinic Department of Neurosurgery, recommended conservative management without neurosurgical intervention. Dr. Holder began treating the claimant for her lumbar strain in January 2003. Dr. Armstrong also treated the claimant conservatively. Dr. Holder wrote on March 21, 2003, "I could not explain her level of symptoms based on the objective evidence at this time." Dr. Holder therefore pronounced maximum medical improvement. The Commission recognizes that the claimant does not have to prove a need for continuing medical treatment with objective findings. Nevertheless, we determine from Dr. Holder's March 21, 2003 report that the claimant's lumbar strain resulting from her compensable injury had resolved. We also recognize that Dr. Holder referred the claimant "to her personal physician in the Waldron area for continued maintenance of her needs." Dr. Holder did not indicate, however, that "continued maintenance" was causally related to the claimant's compensable injury. Nor does the record otherwise indicate that additional medical treatment after March 21, 2003, other than the claimant's one-time visit with Dr. Isley, would be reasonably necessary in connection with the claimant's compensable injury.

(Emphasis added and citations omitted.) What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).

Applying the standard of review set forth, we find that the Commission's decision displayed a substantial basis for the denial of this relief. We, therefore, affirm on this point. Additional temporary-total disability benefits

For her final point of appeal, appellant contends that the Commission erred in determining that she was not entitled to additional temporary-total disability benefits. We again disagree.

In addition to proving that one is totally incapacitated, a claimant must also prove that he/she remains in the healing period in order to be awarded temporary-total disability benefits. Here, Dr. Holder's opinion was that appellant reached maximum medical improvement on March 21, 2003. The Commission accepted his opinion as its finding. The determination of when the healing period ends is a factual determination to be made by the Commission. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The Commission also has the duty of weighing the medical evidence as it does any other evidence, and resolving any conflict is a question of fact for the Commission. Id. When reviewing findings of fact made by the Commission, we must affirm if the Commission's decision is supported by substantial evidence. Woodall v. Hunnicutt Constr., 340 Ark. 377, 12 S.W.3d 630 (2000). When, as here, the Commission denies coverage because the claimant failed to meet his 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. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

We have concluded that the Commission's decision displayed a substantial basis for the denial of this relief. We therefore affirm on this point.

Affirmed.

Neal and Vaught, JJ., agree.