Riggs v. B&S Contractors
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Cite as 2010 Ark. App. 554
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA10-24
Opinion Delivered
September 1, 2010
MICHAEL RIGGS
APPELLANT
V.
B & S CONTRACTORS, INC. and
CONTINENTAL WESTERN
INSURANCE CO.
APPELLEES
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[NO. F701170]
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Appellant Michael Riggs suffered a compensable injury while working for appellee B&S
Contractors. He previously sought temporary-total disability (TTD) benefits for a period of
time, but an administrative law judge (ALJ) denied his claim. After a change of physician and
additional treatment, he went before another ALJ, seeking additional medical benefits and
additional TTD; the ALJ denied his claims in their entirety, and the Commission affirmed and
adopted the ALJ’s opinion. Riggs now brings this appeal, challenging only the denial of TTD
benefits.1 He also appeals from the Commission’s dismissing his claim “in its entirety.” Because
the Commission’s decision displays a substantial basis for the denial of relief and the dismissal,
we affirm.
Although B&S addressed the matter in its brief, Riggs is not appealing from the denial
of additional medical treatment. As such, we do not consider the matter on appeal.
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Cite as 2010 Ark. App. 554
Riggs was a mason for B&S.2 He was injured in September 2006 when coworkers
dropped a heavy ladder on him. He presented to the Northwest Medical Center with shoulder
and back pain. He was diagnosed with a contusion, prescribed medication, and excused from
work for two days. A radiation report dated September 14, 2006, showed disc-space narrowing
at L3-4, L4-5, and L5-S1, and some degenerative changes, but no evidence of an acute injury.
On February 8, 2007, Riggs began seeing Dr. Kostantin Berestnev. He diagnosed Riggs
with low back pain “and some psychosocial circumstance with the way his injury was handled
which, in my opinion, also contributes to and exacerbates patient’s condition.” He released
Riggs to work on February 8, 2007, with a twenty-pound lifting restriction. An x-ray on that date
showed degenerative changes with anterior bone spurring throughout the lumbar spine and
anterior bone spurring throughout the thoracic spine. An MRI also revealed degenerative
changes throughout the lumbar spine. A week later, Dr. Berestnev noted that Riggs had positive
Waddell signs (indicating pain symptoms, which are usually psychological not organic). The
doctor recommended medication and physical therapy. On March 1, 2007, Dr. Berestnev wrote
that Riggs’s low-back pain was healing and released him to his regular duties as a mason.
Despite this, Riggs continued to complain of back and leg pain.
At a hearing held August 14, 2007, Riggs sought TTD from October 6, 2006, to
February 8, 2007, and from March 1, 2007, to a date to be determined. The parties reserved the
issue of additional medical treatment. An ALJ ultimately ruled that Riggs was not entitled to
additional TTD. In finding that he was not entitled to TTD from October 2006 to February
He had done masonry work for the twenty-five years preceding his workplace accident.
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2007, the ALJ noted that Riggs had been laid off by B&S, that he collected maximum
unemployment benefits, and that he was returned to work without restrictions two days after
his initial visit to the emergency room. Regarding the period after March 2007, the ALJ noted
that Riggs was released from Dr. Berestnev on March 1, 2007, and that Dr. Berestnev opined
that Riggs could return to his duties as a mason. Riggs did not appeal the ruling.
Riggs then sought and received a change of physician. He presented to Dr. Cyril Rabin
in November 2007. Dr. Rabin treated Riggs conservatively. Subsequent MRI and CT scans in
March 2008 revealed annular tears and disc derangement at four lumbar levels. Dr. Rabin wrote
that Riggs would not be released back to heavy construction again.
Riggs presented to Dr. Luke Knox for an independent medical evaluation on April 14,
2008. He opined that Riggs’s current problems were related to the workplace accident and that,
while Riggs had degenerative changes, his current complaints were secondary to his injury. Dr.
Knox thought that the current course of treatment was reasonable, but he opined that no
further treatment was required, that there would be some permanency to the claim, and that
Riggs had reached maximum medical improvement.
In a letter to counsel on May 8, 2008, Dr. Rabin wrote that Riggs would never return to
work in the heavy construction industry. Four days later, he wrote that Riggs was disabled from
the time he first saw Riggs until present. He did not believe that Riggs had reached maximum
medical improvement, because surgical intervention had been suggested for Riggs’s back.
A hearing was held before another ALJ on January 20, 2009, where the parties litigated
Riggs’s entitlement to surgical treatment and to TTD from August 14, 2007, to a date to be
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determined. Riggs testified that his condition had not changed since August 2007 and that he
was currently taking Percocet, Celebrex, Ultram, Oxycontin, Celexa, Soma, and Flexeril. Riggs
explained that the medications cause him to be intoxicated, and he was hoping to have surgery
so he could discontinue his medication regime. During the hearing, Riggs was shown two
videos. The videos showed him carrying ladders, handing sheet rock to his wife on a ladder, and
generally moving without distress. In response to the footage, Riggs testified that he was on
medication while doing that work, that he was confined to couch rest for a few days thereafter,
and that he had not tried anything so vigorous since.
The ALJ also considered deposition testimony from Dr. Rabin. His first
recommendation was conservative, non-operative care. His second recommendation was
surgery, including a 360-degree fusion of the lumbar spine and decompression discectomy. Since
seeing Riggs, he had not noted any Waddell signs. But Dr. Rabin was further concerned about
doing surgery in light of Dr. Berestnev’s exam, Dr. Knox’s exam, and the video surveillance.
In light of the video and the evidence of positive Waddell signs, the ALJ opined that
Riggs was overstating his difficulties to his doctors and found that Riggs was entitled to neither
surgical treatment nor additional TTD. Regarding TTD, the ALJ stated that Riggs failed to
prove either that he had reentered his healing period or that he was rendered totally disabled.
In so finding, the ALJ relied on Dr. Knox’s opinion that Riggs had reached maximum medical
improvement, evidence from the videos, and positive Waddell signs identified by two
physicians. The Commission affirmed and adopted the opinion of the ALJ, and this appeal
followed.
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Riggs brings two points on appeal. First, he argues that the Commission erred in not
finding that he was entitled to additional TTD benefits. He contends that he is still within his
healing period, and thus is entitled to TTD. While he goes over the medical records multiple
times in his argument, he mostly relies on Dr. Rabin’s assessment that he is disabled and will be
until he has surgery. He also relies on evidence that part of his disability will be permanent.
Second, he argues that the Commission erred in dismissing his claim in its entirety. He contends
that he has a right to file claims as long as they are filed within the statute of limitations and that
he should not be foreclosed from making claims for additional benefits in the future.
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 decision and
affirm if that decision is supported by substantial evidence. Smith v. City of Ft. Smith, 84 Ark.
App. 430, 143 S.W.3d 593 (2004). Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d
1 (1999). The issue is not whether the reviewing court might have reached a different result
from the Commission; if reasonable minds could reach the result found by the Commission, this
court must affirm the decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151
(1999). Where the Commission denies benefits because the claimant has failed to meet his
burden of proof, the substantial-evidence standard of review requires us to affirm if the
Commission’s decision displays a substantial basis for the denial of relief. Neal v. Sparks Reg’l
Med. Ctr., 104 Ark. App. 97, 289 S.W.3d 163 (2008).
The Commission has the duty of weighing medical evidence, and the resolution of
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conflicting evidence is a question of fact for the Commission. Stone v. Dollar General Stores, 91
Ark. App. 260, 209 S.W.3d 445 (2005). The interpretation of medical opinion is also for the
Commission, and its interpretation has the weight and force of a jury verdict. Oak Grove Lumber
Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). But the Commission may not arbitrarily
disregard medical evidence or the testimony of any witness. Hill v. Baptist Med. Ctr., 74 Ark. App.
250, 48 S.W.3d 544 (2001).
When an injured employee is totally incapacitated from earning wages and remains
within his healing period, he is entitled to temporary-total disability. Searcy Indus. Laundry, Inc.
v. Ferren, 92 Ark. App. 65, 211 S.W.3d 11 (2005). The healing period continues until the
employee is as far restored as the permanent character of his injury will permit, and it ends when
the underlying condition causing the disability has become stable and nothing in the way of
treatment will improve that condition. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d
878 (1996). 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. Id., 923
S.W.2d at 879.
The Commission’s decision displays a substantial basis for the denial of TTD benefits.
Because an ALJ had previously denied TTD benefits, Riggs was obligated to show that, since
the last hearing, he had reentered his healing period and become totally incapacitated from
earning wages. Riggs admitted that his condition had not changed since the previous hearing.
Therefore, at a minimum, his condition was the same as when he was previously denied TTD
benefits. Additionally, two doctors found positive Waddell findings and there was video
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evidence suggesting that Riggs was exaggerating his symptoms. Finally, there was evidence—a
medical opinion—that Riggs’s injury would not improve and that he had reached maximum
medical improvement.3
Riggs’s argument for reversal heavily relies on Dr. Rabin’s opinion that he is a candidate
for surgical intervention. This argument is unavailing. First, the Commission found that Riggs
was not entitled to the surgery, and Riggs has not appealed from that ruling. Second, Dr. Rabin’s
first recommendation was conservative treatment, not surgery. And in his deposition, he was
concerned about performing surgery on Riggs given the other medical evidence and video
surveillance. Third, the Commission did not have to accept Dr. Rabin’s opinion regarding
disability in light of other evidence in the record suggesting otherwise.
As for Riggs’s argument that the Commission erred by dismissing his claim in its entirety,
Riggs misinterprets the meaning of the order. Here, Riggs only made claims for additional
medical treatment in the form of surgical intervention, TTD, and attorney’s fees. The
Commission found that he was entitled to none of these, and Riggs presented no other issues
for the Commission to adjudicate. Thus, these claims were properly dismissed. Of course, this
dismissal does not preclude future claims, such as for permanent disability benefits or future
medical treatment.
In light of evidence showing that Riggs may have been exaggerating his symptoms and
in absence of evidence showing that Riggs reentered his healing period after previously being
denied TTD benefits, the Commission’s opinion displays a substantial basis for the denial of
Riggs argues that the evidence supports a finding that he is entitled to some type of
permanent disability, but his claim is not one for permanent disability.
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relief, and we affirm.
Affirmed.
GRUBER and BROWN, JJ., agree.
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