Gansky v. Hi-Tech Engineering

Rick GANSKY v. HI-TECH ENGINEERING; ITT
Hartford

96-335                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 24, 1996


1.   Workers' compensation -- supreme court review. -- The Arkansas
     Supreme Court reviews a workers' compensation case under Ark.
     Sup. Ct. R. 1-2(f) as though it had originally been filed in
     the supreme court.

2.   Workers' compensation -- reasonable and necessary treatment --
     question of fact for Commission. -- What constitutes
     reasonable and necessary treatment under Ark. Code Ann.  11-
     9-508 (a) (1987) is a question of fact for the Arkansas
     Workers' Compensation Commission.

3.   Workers' compensation -- standard of review. -- In reviewing
     a workers' compensation case, the appellate court views the
     evidence and all reasonable inferences therefrom in the light
     most favorable to the Commission's decision and affirms that
     decision when it is supported by substantial evidence; the
     Commission's decision will be affirmed unless fair-minded
     persons with the same facts before them could not have arrived
     at the conclusion reached by the Commission.

4.   Workers' compensation -- credibility of witnesses within
     province of Commission. -- The credibility of witnesses is a
     matter exclusively within the province of the Workers'
     Compensation Commission.

5.   Workers' compensation -- temporary aggravation of pre-existing
     condition is compensable injury. -- The temporary aggravation
     of a pre-existing condition is a compensable injury.

6.   Workers' compensation -- fair-minded persons could not decide
     that additional medical treatment was not reasonably necessary
     or that appellant's healing period had ended. -- Where the
     treating neurosurgeon prescribed a functional-capacity
     assessment for appellant employee that was not performed
     because appellee employer would not pay for it, the supreme
     court could not agree with the Commission that additional
     medical treatment was not reasonably necessary or that the
     healing period had ended; the court concluded that fair-minded
     persons, viewing the same evidence, could not decide
     otherwise.

7.   Workers' compensation -- decision of court of appeals reversed
     -- matter remanded to Commission. -- The supreme court
     reversed the decision of the court of appeals and remanded the
     matter to the Commission with directions (1) to order payment
     of continued reasonable and necessary medical treatment,
     including a functional-capacity assessment, and (2) to
     determine whether to order payment of additional benefits.


     On Petition for Review from the Arkansas Court of Appeals;
Arkansas Court of Appeals reversed; remanded to Arkansas Workers'
Compensation Commission.
     Lane, Muse, Arman & Pullen, by: Donald C. Pullen, for
appellant.
     Anderson & Kilpatrick, by: Randy P. Murphy, for appellees.

     Robert L. Brown, Justice.Associate Justice Robert L. Brown
June 24, 1996   *ADVREP*SC9*






RICK GANSKY,
                    APPELLANT,

V.

HI-TECH ENGINEERING; ITT
HARTFORD,
                    APPELLEES,

96-335



ON PETITION FOR REVIEW FROM THE
ARKANSAS COURT OF APPEALS





ARKANSAS COURT OF APPEALS
REVERSED AND REMANDED.








     This matter comes to us on review of a decision by the Court
of Appeals in which that court was divided by a vote of three to
three.  Gansky v. Hi-Tech Eng'g, 52 Ark. App. 147, 916 S.W.2d 124
(1996).  Because the vote in the Court of Appeals was evenly split,
the decision by the Workers' Compensation Commission to deny
additional benefits to appellant Rick Gansky was affirmed.  We
granted review of the decision of the Court of Appeals pursuant to
Ark. Sup. Ct. R. 1-2(f).  Gansky now raises two issues to this
court on review: (1) the Commission erred in refusing to find a
need for continued medical treatment, and (2) the Commission was in
error when it decided the issue of temporary total disability
before a functional capacity assessment was completed and Gansky
was released from a physician's care.  We agree that the Commission
erred in its decision, and we reverse that decision and remand.
     On October 31, 1992, Rick Gansky suffered a work-related
injury while working as a machinist for Hi-Tech Engineering (Hi-
Tech).  It was stipulated by the parties that Hi-Tech accepted the
claim and paid medical and disability benefits from the date of the
injury until February 22, 1993, after which time Hi-Tech disputed
Gansky's need for continued medical treatment.
     On December 13, 1993, a hearing was held before the
Administrative Law Judge on the issue of additional medical
treatment for Gansky.  At the time of the hearing, Gansky was
thirty-four years old.  He testified that he began working for Hi-
Tech in June of 1991.  He admitted that he had sustained a previous
work-related injury to his lower back in February of 1990 while
working for another company.  As a result of that injury, he
received a 5% permanent partial disability rating, and the claim
was settled through a joint petition for approximately $4,000. 
Gansky stated that he did not have any physical problems when he
started working for Hi-Tech.  According to Hi-Tech's Industrial
Injury Reports, Gansky injured his back on March 10, 1992, and
missed time from work.  Over seven and one-half months later, he
experienced the injury that is the subject matter of this claim.
     Gansky described the October 31, 1992 injury at Hi-Tech in
testimony before the Administrative Law Judge:
          I was lifting parts that weighed about--I'd say
     anywhere from 150 pounds, maybe 200.  They were 15 inch
     in diameter, solid steel, and I was lifting them and
     putting them in the lathe.  I was doing the same parts
     all day, and finally my back just gave out, and I ended
     up with pains going from my shoulders into my neck and
     down my back and into my legs.  At that time I had to
     quit and Joe had to put my shoes--change my shoes for me
     so I could go to the hospital.
     Gansky stated that a subsequent MRI procedure revealed bulging
discs in his lower back.  He was referred by Dr. Jeffrey Reinhart
to Dr. Allan Gocio, a neurosurgeon, and to Cleveland Smith, a
physical therapist.  Gansky stated that after his injury, he had
been feeling better and that he had tried to go back to work at Hi-
Tech several times.  In fact, he did return to work on January 12
and 13, 1993, but began to feel pain in his neck and upper back and
a tingling sensation in both arms.  After a week or two, the pain
worsened and, according to Gansky, he had returned to Dr. Gocio. 
Gansky testified that on Friday, February 19, 1993, before he was
to see Dr. Gocio on Monday, February 22, 1993, Hi-Tech told him
that he could consider himself laid off.  He expected Dr. Gocio to
release him on February 22, 1993, but Dr. Gocio recommended the
functional capacity assessment instead.  Hi-Tech, however,
contested the need for continued medical treatment and refused to
pay for this evaluation.  Gansky testified that he has not seen a
physician since that time and that he has not gone back to work. 
He stated that he has been "[a]t home sitting in a chair watching
TV."  He testified that since February 22, 1993, he has had
headaches that are caused by his neck pain.  He also reported
continued lower back pain that is less severe.  He added that his
neck pain and lower back problems prevented him from either
standing or driving an automobile for long periods of time.  For
example, he stated that he could not raise his arms over his head
without pain to his neck.  The reason, he testified, that he did
not seek further medical treatment was because "workmen's comp quit
paying the bills and [he] just [couldn't] afford it.  They won't
see [him] until the bills are paid."  He has taken prescription
muscle relaxers, pain medication, and Advil since he last saw Dr.
Gocio.
     On cross-examination, Gansky admitted that he had been off
work "about a year" after his first back injury in 1990.  He also
admitted that he initially complained of low back problems before
complaining of neck problems and headaches.  Although he testified
that he could not pay for his medical bills, he admitted that he
spent a weekend at the theme park, Six Flags, with his girlfriend
and children but claimed that his girlfriend paid for the trip.  He
also admitted that he owns his home, a boat, and a riding lawn
mower, and that he is able to do housework and to mow his yard
while riding the mower.  He stated that he had not been back to
work at Hi-Tech because his doctor had not released him.
     Under examination by the Administrative Law Judge, Gansky
admitted that Dr. Gocio had not refused to treat him.  He also
advised the judge that he was told that he was being laid off due
to a lack of work.  It was stipulated that Gansky had an above
average work performance record at Hi-Tech.
     Also presented at the hearing before the Administrative Law
Judge was a letter to the company physician, Dr. Jeffrey Reinhart,
from Cleveland Smith, the physical therapist, which was dated
January 25, 1993.  That letter related that as of January 11, 1993,
Gansky's "symptoms have been all but alleviated, except for a
minimal amount of soreness in the lumbar region" and that Gansky
had gone back to work but returned two days later complaining of
cervical spine pain and paresthesia in both upper extremities.  The
letter concluded:  "Symptomatology has reduced during this period
of treatments, but continues at a minimal level.  Symptoms will
increase with activities."  On February 25, 1993, Smith wrote Dr.
Reinhart that Gansky's symptomatology consisted only of a minimal
headache, and after concluding that all physical therapy goals had
been achieved, Gansky was released from further therapy sessions.
     At the hearing, it was revealed that Dr. Gocio concluded on
January 27, 1993, that Gansky had "cervical and lumbar herniated
disc with nerve root compression."  A cervical and lumbar myelogram
was performed on that same date.  The test revealed a normal lumbar
myelogram, but Dr. Gocio concluded that a CT scan procedure was
needed to better evaluate the cervical spine.  That examination
showed no evidence of herniation but did show some stenosis.  On
January 29, 1993, Dr. Gocio ordered continued physical therapy.
     According to Dr. Gocio's handwritten progress notes dated
February 22, 1993, Gansky was doing better with less pain. 
However, on that date he wrote to the Levi Work Capacity Center and
directed an appointment for Gansky to be evaluated in the
functional capacity assessment program.  Eight months later, Dr.
Gocio wrote to the attorney for Hi-Tech on October 21, 1993, as
follows:
          Mr. Rick Gansky was last seen by me on 02-22-93, and
     at this time the patient was improving significantly from
     a suspected cervical strain syndrome.  Work up did not
     reveal a significant disc herniation either on MRI scan
     or myelography and my diagnosis at the time of the
     patient's last visit was that of a cervical strain which
     was resolving satisfactorily with medical treatment.  The
     patient was referred to the Levi Work Capacity Center for
     a functional capacity assessment and return to work if
     feasible after the functional assessment.  This is the
     last contact that I had with the patient.  I must assume
     that he has resolved his symptomatology or sought care
     from another physician.
          I did not feel that the patient's injury was
     permanent in nature or that he is likely to have any
     impairment.  I believe that his diagnosis of cervical
     strain would resolve without significant impairment or
     long term symptomatology.
     In his opinion filed on February 28, 1994, the Administrative
Law Judge ordered Hi-Tech to pay Gansky's medical expenses
including the cost of the functional capacity assessment and any
warranted treatment thereafter.  The judge specifically reserved
ruling on Gansky's entitlement to temporary total disability
benefits, pending further development of the medical evidence.
     The Administrative Law Judge's decision was appealed to the
Workers' Compensation Commission.  In an opinion filed October 17,
1994, the Commission by a vote of two to one, reversed the
Administrative Law Judge and determined that Gansky had failed to
prove that further medical treatment was reasonable and necessary
and that as a result, he was not entitled to temporary total
disability benefits.  Focusing on the report by the physical
therapist, Cleveland Smith, the Commission concluded that Gansky's
healing period for the temporary aggravation to his lower back had
ended by at least February 22, 1993.  The Commission stated:
     Furthermore, we also find that a preponderance of the
     evidence establishes that the October 31, 1992, injury
     only temporally aggravated the claimant's preexisting
     back condition.  The physical therapy reports establish
     that the claimant was essentially symptom free by January
     11, 1993.  Although he did experience another recurrence
     of symptoms, the physical therapy reports establish that
     he was again essentially symptom free by at least
     February 25, 1993. Also, Dr. Gocio has opined that the
     claimant's injury was not permanent in nature.  While the
     claimant may continue to need periodic medical treatment
     due to episodes of back pain related to the degenerative
     condition, the need for that treatment is not causally
     related to the compensable injury.  Therefore, we find
     that the claimant failed to prove by preponderance of the
     evidence that additional medical care is reasonably
     necessary for treatment of the compensable injury, and we
     find that the administrative law judge's decision in this
     regard must be reversed.
     The issue now before us is whether the Commission erroneously
denied Gansky benefits in the wake of the decision by the
Administrative Law Judge to continue medical treatment.  This court
reviews a workers' compensation case as though it had originally
been filed here.  Ark. Sup. Ct. R. 1-2 (f); Kuhn v. Majestic Hotel,
324 Ark. 21, 918 S.W.2d 158 (1996); Plante v. Tyson Foods, Inc.,
319 Ark. 126, 890 S.W.2d 253 (1994).  The issue then is whether
medical treatment after February 22, 1993, was reasonable and
necessary.  Ark. Code Ann.  11-9-508 (a) (1987).  What constitutes
reasonable and necessary treatment under this section is a question
of fact for the Commission.  Arkansas Dep't of Correction v.
Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994);  see also Morgan
v. Desha County Tax Assessor's Office, 45 Ark. App. 95, 871 S.W.2d 429 (1994).  The answer to this issue naturally turns on the
sufficiency of the evidence.  
     This court views the evidence and all reasonable inferences
therefrom in the light most favorable to the Commission's decision
and affirms that decision when it is supported by substantial
evidence.  Kuhn v. Majestic Hotel, supra; Plante v. Tyson Foods,
Inc., supra; Morgan v. Desha County Tax Assessor's Office, supra. 
The Commission's decision will be affirmed unless fair-minded
persons with the same facts before them could not have arrived at
the conclusion reached by the commission.  Kuhn v. Majestic Hotel,
supra; Plante v. Tyson Foods, Inc., supra; Morgan v. Desha County
Tax Assessor's Office, supra; Tracor/MBA v. Baptist Medical Center,
29 Ark. App. 198, 780 S.W.2d 26 (1989).  Credibility of the
witnesses is a matter exclusively within the province of the
Commission.  See Kuhn v. Majestic Hotel, supra.
     The Commission found that Gansky had temporarily aggravated a
pre-existing condition.  That is a compensable injury.  See, e.g.,
Curry v. Franklin Elec., 32 Ark. App. 168, 798 S.W.2d 130 (1990). 
The Commission admitted this in its opinion and order.  But then
the Commission concludes that the aggravation was over by February
25, 1993, and that Gansky was essentially symptom-free.  In doing
so, the Commission discounted the fact that Dr. Gocio had ordered
a functional capacity assessment for Gansky and had refrained from
releasing him from his care until that examination was completed
and he could decide whether Gansky could return to work.  At that
juncture, Hi-Tech intervened and refused to pay for additional
medical care, including the functional capacity assessment.  Hence,
that essential examination ordered by Dr. Gocio was never
performed, and a final evaluation by the neurosurgeon was never
made.  The Commission appears to have concentrated on the reports
of the physical therapist as opposed to those of Dr. Gocio.  Under
these circumstances when the treating neurosurgeon has prescribed
a functional capacity assessment and that was not done because Hi-
Tech would not pay for it, we cannot agree with the Commission that
additional medical treatment was not reasonably necessary or that
the healing period had ended.  We conclude that fair minded
persons, viewing the same evidence, could not decide otherwise.
     Moreover, the record, as the Commission states, does not
reflect that Dr. Gocio opined that Gansky was rid of all
symptomatology or ready to return to work.  What Dr. Gocio wrote to
Hi-Tech's attorneys some eight months after he directed the
functional capacity assessment was that he "assumed" the
symptomatology had resolved itself because he had had no further
contact with Gansky.  The neurosurgeon added that he "believed"
Gansky's "diagnosis of cervical strain would resolve without
significant impairment or long term symptomatology."  It is clear
from reading Dr. Gocio's letter that his opinion hinged on the
results of the functional capacity assessment, which was not
performed.
     Having resolved the first issue in this manner, resolution of
the second issue falls into place.  The Administrative Law Judge
appropriately delayed deciding whether Gansky had a temporary total
disability until all the medical treatment, that is, the functional
capacity assessment, was completed.  This did not transpire.  We do
not view the reservation of a decision on this point as running
afoul of the Court of Appeals's decision in Gencorp Polymer Prods.
v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991).  In Landers,
that court observed that a claimant should not be permitted a
second opportunity to offer proof to meet her burden on the issue
of her period of temporary total disability.  The Court of Appeals
further held that the Workers' Compensation Commission had exceeded
its authority in permitting her to do so.  Here, Dr. Gocio ordered
an additional assessment of Ganksy, and Hi-Tech contested the need
for this additional treatment.  The result is that Gansky's initial
medical treatment and evaluation were never completed.  Those
circumstances are fundamentally different from the facts which
resulted in the Gencorp decision.
     We, therefore, reverse the Court of Appeals and the Arkansas
Workers' Compensation Commission and remand this matter to the
Commission with directions (1) to order payment of continued
reasonable and necessary medical treatment, including the
functional capacity assessment, and (2) to determine whether
payment of additional benefits is warranted.
     Reversed and remanded.
     Dudley, J., not participating.
     Glaze and Roaf, JJ., dissent.June 24, 1996   *ADVREP*SC9-A*








RICK GANSKY,
                    APPELLANT,

V.

HI-TECH ENGINEERING; ITT
HARTFORD,
                    APPELLEE,






96-335










DISSENTING OPINION.


                   Justice Andree Layton Roaf





     The majority correctly states that the standard of review for
a decision of the Workers' Compensation Commission is whether the
decision is supported by substantial evidence, and a decision of
the Commission will be affirmed unless fair-minded persons with the
same facts before them could not have reached the conclusion
arrived at by the Commission.  Kuhn v. Majestic Hotel, 324 Ark. 21,
918 S.W.2d 158 (1996).  The standard of review further provides
that this Court will view the evidence in the light most favorable
to the Commission's decision.  Plante v. Tyson Foods, Inc., 319
Ark. 126, 890 S.W.2d 253 (1994).  On appeal, the issue is not
whether this Court 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, the decision must be
affirmed.  St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App.
30, 917 S.W.2d 550 (1996).  The Commission is not bound by medical
opinion, although it may not arbitrarily disregard the testimony of
any witness.  Crow v. Weyerhauser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994).  The Commission may also examine the basis for a
doctor's opinion in deciding the weight to which that opinion is
entitled.  Id.
     With this standard in mind, I do not agree that the decision
of the Commission should be reversed in this case.  The abstract
and record reflect that, in addition to the evidence outlined by
the majority, at the time Gansky went to work for Hi-Tech in June
of 1991, he completed and signed under oath a pre-employment
medical history, in which he denied ever having had trouble with
his back and further denied that he had ever received Workers'
Compensation benefits.  However, the record before the Commission
reflects that Gansky suffered a back injury on February 14, 1990,
while employed, under the name of Rick George, by Advanced Machine
Corporation.  He was off work about one year and filed a Workers'
Compensation claim as a result of this injury; this claim was
settled by joint petition on May 17, 1991, less than one month
prior to his employment with Hi-Tech.  At the hearing on the joint
petition, Gansky testified that he continued to experience
recurrent episodes of back pain.  He received a settlement in the
sum of $3,815.78 for a 5% permanent impairment at the time of the
joint petition.  At Gansky's last visit to the physician who
treated him for this injury on March 20, 1991, he related that he
experienced weekly episodes of back pain, which he claimed to be
due to the physical demands of his employment as a machinist, and
that this back pain caused him to sometimes miss work.  Although
Hi-Tech ultimately abandoned its Shippers defense based on Gansky's
misrepresentations at the time of his employment, this evidence
certainly had bearing on his credibility in the proceedings before
the Commission.  
     More importantly, it is clear from the evidence that Gansky
was advised by Hi-Tech on Friday, February 19, 1993, that he was
being laid off due to lack of work.  Gansky signed the termination
report which contained this information.  He testified that when he
visited Dr. Gocio three days later on Monday, February 22, 1993, he
"thought Dr. Gocio would release him to return to work on that
day," but the doctor "decided to do a functional capacity
evaluation because Hi-Tech told me prior to seeing the doctor, I
could consider myself laid off."  This testimony, coupled with the
report of Gansky's physical therapist, is substantial evidence that
Gansky had completed his period of temporary disability and was
ready to return to work.  The record further reflects that Gansky
made no attempt to either return to employment or seek follow-up
medical care after his last visit to Dr. Gocio on February 22,
1993.  Although he testified that his neck and back continued to
hurt, these were essentially the same complaints that he voiced
following his injury of February 1990.
     I conclude that this Court has chosen to disregard the
standard for review of Commission decisions in reversing the
Commission in this instance.  Here, reasonable minds could clearly
have reached the same conclusion as reached by the Commission; I
would affirm its decision.
     Glaze, J., joins in this dissent.