Carol Schilling v. Excel Corporation

ca05-807

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CAROL SCHILLING

APPELLANT

V.

EXCEL CORPORATION

APPELLEE

CA 05-807

February 1, 2006

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [F303957]

AFFIRMED

David M. Glover, Judge

Carol Schilling appeals the Workers' Compensation Commission's denial of her motion to supplement the record or, in the alternative, to remand to the administrative law judge. She also appeals the Commission's decision to affirm and adopt the ALJ's denial of her claim for additional medical services as not reasonably necessary medical services for her compensable injury. We affirm.

In workers' compensation cases, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirms the decision if it is supported by substantial evidence. Geo Specialty Chem. v.

Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The issue 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. Geo Specialty, supra. It is the Commission's

province to determine witness credibility and the weight to be given to each witness's testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). It is also the Commission's function to weigh the medical evidence. White Consol. Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001). Any contradictions in the evidence are for the Commission to reconcile. Ark. Dep't of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993).

An employer is only required to provide medical services that are reasonably necessary in treatment of the compensable injury. White Consol. Indus. v. Galloway, supra. It is the employee's burden to prove by a preponderance of the evidence that medical treatment is reasonable and necessary, Patchell v. Wal-Mart Stores, Inc., ___ Ark. App. ___, ___ S.W.3d ___ (May 19, 2004), and what constitutes reasonably necessary medical treatment is a question to be determined by the Commission. White Consol. Indus. v. Galloway, supra.

In the present case, appellant suffered a compensable injury to her right elbow on April 8, 2003. Her physician, Dr. Von Phomakay, diagnosed her with right lateral epicondylitis (tendinitis) and took her off work for seven days. Appellee refused to recognize appellant's off-work slip because she had not reported an injury to them, and referred her to the company doctor, Dr. Terry Clark, for an examination. Dr. Clark agreed with Dr. Phomakay's diagnosis, but he returned appellant to work with limited use of her right elbow.

Appellant requested and received a change of physician to Dr. Claude Martimbeau, an orthopaedic specialist, who also diagnosed appellant with right epicondylitis, or tendinitis in her right elbow. Dr. Martimbeau treated appellant conservatively, using injections, oral anti-inflammatories, oral pain medication, electro-stimulation, and immobilization and rest of the joint. On August 26, 2003, Dr. Martimbeau's progress note indicated that although there was a lot of pain over the lateral epicondyle, there was no redness or swelling; he recommended a stimulator for pain control, and he noted that if those modalities were not helping, appellant might require surgery for tendon release. On October 21, 2003, Dr. Martimbeau noted that appellant was still having elbow pain, but he stated that there was no warmth, redness or swelling in the area, and that appellant had "good range of motion with no contracture." Dr. Martimbeau discharged appellant on that date with a final diagnosis of chronic tendinitis, stating that he had no other treatment suggestions to offer her and that she had no permanent disability related to her condition. Appellee stopped paying medical expenses as of October 21, 2003, when Dr. Martimbeau discharged appellant.

Appellant quit work at the end of July 2003. She did so during the course of her treatment with Dr. Martimbeau, after he had taken her off work for one month but reversed that decision after speaking with the company nurse, who advised him that there were jobs appellant could perform. Appellant testified that she felt that Dr. Martimbeau was letting the nurse be the doctor instead of him.

Appellant testified that she went to see Dr. William Daniel on December 17, 2003, because she was having sensitivity in her right hand. Dr. Daniel wanted to have a nerve-conduction study performed on appellant's right hand, but appellee denied this request. In a progress note dated February 26, 2004, Dr. Daniel wrote, "I think another orthopaedist needs to see the patient in consultation and we need another opinion regarding the chronic tenosynovitis that she has in the elbow and possibly an early right sided carpal-tunnel syndrome in her right hand."

In an opinion filed October 29, 2004, ALJ Michael Ellig denied appellant's claims for additional medical services in the form of another orthopaedic opinion and for the nerve-conduction study for carpal-tunnel syndrome for her right wrist, finding that neither was a reasonably necessary medical service for appellant's compensable right elbow injury. Appellant appealed that decision to the Commission.

While the ALJ's decision was on appeal to the Commission, appellant had the nerve-conduction study performed at her own expense, and the study indicated abnormal results. Based upon this report, appellant filed a motion with the Commission to supplement the record or, in the alternative, to remand the case to the ALJ for further consideration of that new evidence. This motion was denied by the Commission by order filed February 3, 2005. The Commission subsequently affirmed and adopted the ALJ's opinion, denying appellant's request for additional medical treatment in an order filed June 1, 2005. Appellant now appeals to this court, arguing that the Commission erred (1) in denying her motion to supplement the record or remanding the case to the ALJ, and (2) in finding that the treatment recommended by Dr. Daniel was not reasonable and necessary medical treatment related to her compensable injury.

Arkansas Code Annotated section 11-9-705 (c)(1)(A)-(C)(i) (Repl. 1996) provides:

(1)(A) All oral evidence or documentary evidence shall be presented to the designated representative of the commission at the initial hearing on a controverted claim, which evidence shall be stenographically reported.

(B) Each party shall present all evidence at the initial hearing.

(C)(i) Further hearings for the purpose of introducing additional evidence will be granted only at the discretion of the hearing officer or commission.

In denying appellant's motion, the Commission found that she did not act diligently in obtaining the nerve-conduction study as evidence in her case, as she did not have the test performed until after the case had been decided by the ALJ and was on appeal to the Commission. We hold that the Commission committed no reversible error in denying appellant's request to supplement the record.

Likewise, we hold that the Commission did not err in denying appellant's alternative request to remand her case so that additional evidence could be taken. In Quinn v. Webb Wheel, 52 Ark. App. 208, 915 S.W.2d 740 (1996), this court set forth prerequisites for remand by the Commission for the purpose of presenting newly discovered evidence: (1) the newly discovered evidence must be relevant; (2) it must not be cumulative; (3) it must change the result; (4) the party seeking to introduce the evidence must be diligent. In the present case, the new evidence was not relevant and would not change the ALJ's decision because, as noted by the ALJ, the new evidence dealt with appellant's wrist, not her compensable elbow injury. Furthermore, the Commission also found that appellant was not diligent in securing the nerve-conduction study as evidence. The Commission correctly determined that appellant failed to meet the prerequisites for remanding a case for the taking of newly discovered evidence.

Appellant also contends that the Commission erred in finding that the treatment recommended by Dr. Daniel was not reasonable and necessary medical treatment related to her compensable injury. As discussed by the ALJ in his opinion, appellant had been

evaluated and treated for her compensable elbow injury by Dr. Martimbeau, who diagnosed appellant with tendinitis of the right elbow. This diagnosis was the same as the diagnoses made by Dr. Phomakay and Dr. Clark, and it also coincided with Dr. Daniel's diagnosis with regard to appellant's problems with her right elbow. The ALJ found that there was no evidence that Dr. Martimbeau had not "adequately evaluated or accurately diagnosed the etiology of [appellant's] compensable right elbow or arm difficulties" or that there was "any other available treatment modality [not provided by Dr. Martimbeau] which would offer a reasonable expectation of success in resolving [appellant's] complaints." The ALJ determined, and we agree, that appellant failed to prove by a preponderance of the evidence that evaluation and treatment by another orthopaedist was a reasonably necessary medical expense.

With regard to the nerve-conduction study Dr. Daniel ordered for appellant's right wrist, the ALJ found that such a study "would not be necessitated by or connected with [appellant's] compensable right-elbow injury" and therefore could not be a reasonably necessary medical expense with regard to her compensable injury. We agree. Appellant's right-wrist problems simply are not related by any medical evidence to her compensable elbow injury.

We hold that there is substantial evidence to support the Commission's denial of appellant's claims.

Affirmed.

Pittman, C.J., and Roaf, J., agree.