Cite as 2011 Ark. App. 172
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA10-1030
Opinion Delivered
March 2, 2011
V.
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION [F510706]
FAMILY DOLLAR STORES, INC., and
RISK ENTERPRISE MANAGEMENT
APPELLEES
AFFIRMED
MARY ROBINSON
APPELLANT
DAVID M. GLOVER, Judge
On October 4, 2005, appellant, Mary Robinson, suffered a compensable injury
when a forklift ran over the top of her right foot. At the time of the injury, Robinson lost
her balance and landed on her left side. She was treated at Crittenden Memorial Hospital,
where the laceration on the top of her foot was surgically repaired, and she was diagnosed
with fractures at the base of her second, third, and fourth metatarsals.
Robinson was
treated by Dr. Riley Jones and was off work for a period of time after the accident; she
was released to light duty on November 28, 2005, and appellee Family Dollar
accommodated her light-duty restrictions. She was released to regular duty on February 2,
2006, and returned to the position she held prior to her accident for two to three years;
however, it was her testimony that when she returned to regular duty, she could only
work for about fifteen minutes and then she had to go to the restroom and sit down for an
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hour because her feet would swell and she would lose her balance. Robinson said that she
relied on her co-workers to assist her, and that her employer was aware of that fact, which
was disputed by the Family Dollar human-resource manager.
Robinson continued to seek medical treatment from various medical professionals
for her right-foot pain, and she also began to experience pain in her knees, especially in
her right knee. Although Robinson admitted that she had a non-work-related injury to
her knee in December 2007, she said that she began missing work in December 2007 not
because of her knee problem, but because of her hip problem, which she believed to be
work related. Dr. Grady Collum released Robinson to light-duty work on January 8,
2008, based upon her complaints of knee pain and the x-ray of her knee showing exostosis
from the medial femoral condyle, but Family Dollar refused to accommodate that
restriction because it did not consider it to be work related. Eventually, Robinson ceased
working for Family Dollar; Robinson contended that she was fired, but Family Dollar
contended that she quit.
Robinson continued to seek medical treatment for her foot, knees, left hip, and
back. At the hearing, she stated that she was still having soreness and pain in her left hip
and could not sleep on that side. She said that her left-hip problems began about two
years after her accident, and that she had done nothing to injure herself other than her
compensable injury.
Robinson was seen by Dr. Tewfik Rizk at the Pain Management Clinic, who was
of the opinion that Robinson might be suffering from avascular necrosis in her left hip and
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possibly reflex sympathetic dystrophy (RSD) in her right foot.1 After x-rays and other
diagnostic testing, Dr. Rizk was of the opinion that Robinson was suffering from avascular
necrosis, but he recommended an MRI of her left hip to be certain. Dr. Rizk explained
in his deposition that avascular necrosis is a phenomenon that occurs if the circulation is
disturbed around the hip joint; when the circulation slows down gradually, the head of the
femur becomes soft because there is no nutrition going to it. He stated that the hipbone is
the most common place for avascular necrosis, and that it can occur from things such as
direct or indirect trauma; large doses of steroids; cortisone treatment; and sudden changes
in pressure, such as deep diving for a long time. He said that avascular necrosis might take
a year to present because it progresses slowly and it is easily misdiagnosed until later stages,
and many times people are not diagnosed with it until years later due to the slowly
progressing pathology. He said that based on the history given to him by Robinson, there
was indirect trauma to her left hip when she attempted to get out from under the forklift
and fell on her left side; however, he admitted that that was speculation on his part and he
was basing his opinion on the history given to him by Robinson. Dr. Rizk’s clinical
impression was that Robinson most probably had avascular necrosis in her left hip; that he
recommended an MRI because it would show avascular necrosis; that there was nothing
unusual about Robinson being asymptomatic for a time; that Robinson should not be up
1
Dr. Rizk stated in his deposition that he was unaware when he first saw Robinson
that a triple-phase bone scan had been performed and the results were negative for RSD, but
that he learned of those results on Robinson’s next visit.
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and down on her feet; that if she had avascular necrosis, he would refer her to an
orthopedic surgeon; and that Robinson had not yet reached maximum medical
improvement due to the condition of her left hip.
Appellees denied the MRI.
The ALJ found that the MRI was reasonable and
necessary medical treatment, but the Commission reversed that determination. Robinson
now appeals to this court, arguing that the Commission erred in determining that Dr.
Rizk’s testimony was not credible and that the MRI was not reasonable and necessary
medical treatment.
Given our standard of review, we are constrained to affirm the
Commission’s decision.
In Nabholz Construction Corp. v. Gates, 2010 Ark. App. 182, at 1, this court set forth
our standard of review in workers’ compensation cases:
In reviewing decisions from the Workers’ Compensation Commission, we view
the evidence and all reasonable inferences deducible therefrom in the light most
favorable to the Commission’s findings, and we affirm if the decision is supported
by substantial evidence. Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141
S.W.3d 916 (2004). 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 (2004). 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 Chem., Inc. v. Clingan, 69
Ark. App. 369, 13 S.W.3d 218 (2000).
Arkansas Code Annotated section 11-9-508(a) (Supp. 2009) requires an employer
to provide an injured employee such medical services “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 v. Dollar Gen. Stores, 91 Ark. App. 260,
209 S.W.3d 445 (2005). What constitutes reasonable and necessary medical
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treatment is a question of fact to be determined by the Commission. Bohannon v.
Wal-Mart Stores, Inc., 102 Ark. App. 37, 279 S.W.3d 502 (2008).
“[When] the Commission denies a claim because of the claimant’s failure 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.”
Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 255, 284 S.W.3d 91, 93 (2008).
Questions concerning the credibility of witnesses and the weight to be given to
their testimony are within the exclusive province of the Commission. Cedar Chemical Co.
v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008). When the evidence is contradictory, it
is within the Commission’s province to reconcile conflicting evidence and to determine
the true facts.
Id.
The Commission is not required to believe the testimony of the
claimant or any other witness, but may accept and translate into findings of fact only those
portions of the testimony that it deems worthy of belief; this court is foreclosed from
determining the credibility and weight to be accorded to each witness’s testimony. Id.
The Commission has the authority to accept or reject a medical opinion and the authority
to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84
S.W.3d 878 (2002).
When the primary injury is shown to have arisen out of and in the course of
employment, the employer is responsible for every natural consequence that flows from
that injury. McDonald Equip. Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989).
The basic test is whether there is a causal connection between the two episodes. Jeter v.
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B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). The determination of
whether the causal connection exists is a question of fact for the Commission to
determine. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).
In reversing the ALJ’s award of benefits, the Commission found that Robinson did
not prove that any medical treatment for her left hip was reasonably necessary in
connection with her compensable right-foot injury.
The Commission found that
Robinson had failed to prove that there was a causal connection between her compensable
2005 right-foot injury and Dr. Rizk’s 2009 diagnosis of avascular necrosis in her left hip.
The Commission specifically found that Dr. Rizk’s opinion that Robinson’s left hip
problem was due to indirect trauma she suffered at the time of her 2005 compensable
injury was entitled to no weight. The Commission found that there was no evidence that
there was direct or indirect trauma to Robinson’s left hip at the time of her right-foot
injury, and it notes that no other doctor who treated Robinson had expressed an opinion
that Robinson had sustained direct or indirect trauma to her left hip at the time of her
compensable right-foot injury. The Commission found that there is “no evidence in the
present matter demonstrating that the claimant’s left-hip condition was related to her
right-foot injury.”
Robinson argues that she presented undisputed evidence of indirect trauma to her
left hip at the time she sustained her right-foot injury through her testimony that when
the forklift ran over her right foot, she attempted to pull her foot out from under the tire
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and lost her balance, falling to the floor on her left side. While she testified that when she
“slid down” she landed on her left side, there was no testimony that she struck her hip or
landed on her hip.
Furthermore, Dr. Rizk’s opinion that Robinson suffered from
avascular necrosis was based on what she told him, but a review of his notes does not
indicate that Robinson ever told him that she had fallen on her left hip or suffered trauma
to her left hip at the time of her compensable right-foot injury.
Robinson also argues that the Commission erred in disregarding Dr. Rizk’s medical
testimony.
However, the Commission can accept or reject medical opinions, and it
specifically found that Dr. Rizk’s opinion was entitled to no weight. While we might
have found differently sitting as the finder of fact, it is the Commission’s province to
accept or reject medical evidence, and it rejected Dr. Rizk’s opinion in this case. No
other doctor other than Dr. Rizk ever correlated Robinson’s hip ailment with her
compensable right-foot injury. Based upon our standard of review, we cannot say that,
after rejecting Dr. Rizk’s opinion, the Commission’s finding that there was no causal
connection between Robinson’s left-hip problems and her compensable injury was not
supported by substantial evidence.
Affirmed.
A BRAMSON and H OOFMAN, JJ., agree.
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