Stafford v. Arkmo Lumber Co.
Annotate this Case
Tommy STAFFORD v. ARKMO LUMBER COMPANY
CA 94-1373 ___ S.W.2d ___
Court of Appeals of Arkansas
En Banc
Opinion delivered July 3, 1996
1. Workers' compensation -- review of Commission's decision --
factors on review. -- When reviewing the sufficiency of the
evidence to support a decision of 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 will affirm if the
Commission's decision is supported by substantial evidence;
substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion; the
issue is not whether the 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, its decision must be affirmed; moreover, the
Commission has the authority to accept or reject medical
opinions, and its resolution of the medical evidence has the
force and effect of a jury verdict.
2. Workers' compensation -- interpretation of medical opinion for
the Commission -- Commission's findings supported by
substantial evidence. -- The interpretation of medical opinion
was for the Workers' Compensation Commission; the appellate
court determined that the Commission's finding that a causal
connection between appellant's medical treatment and the
compensable injuries was not established was supported by
substantial evidence.
3. Workers' compensation -- temporary total disability defined --
Commission's determination to deny temporary total disability
benefits supported by substantial evidence. -- Temporary total
disability is that period within the healing period in which
an employee suffers a total incapacity to earn wages; where
appellant testified that, after his physician's release to
return to work with restrictions on January 8, 1990, he
returned to his employer who did not have any work available
within the restrictions; and where appellant stated that he
had not sought employment anywhere since his second injury in
December 1988, but the record showed that from at least 1990
to 1992, he operated a lawn-care business, the Workers'
Compensation Commission's findings and decision to deny
temporary total disability benefits was supported by
substantial evidence.
Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
William F. Sherman, for appellant.
Walter A. Murray, for appellee.
Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Robert L.
Henry, III and Christopher Gomlicker, for appellee Diamond Constr.
Co.
John Mauzy Pittman, Judge. *ADVREP*CA3*
EN BANC
CA 94-1373
July 3, 1996
TOMMY STAFFORD AN APPEAL FROM THE ARKANSAS
APPELLANT WORKERS' COMPENSATION
COMMISSION
[NO. D611480]
VS.
ARKMO LUMBER COMPANY AFFIRMED
APPELLEE
John Mauzy Pittman, Judge.
Tommy Stafford appeals from an order of the Arkansas Workers'
Compensation Commission denying additional temporary total
disability benefits and medical benefits arguing lack of support by
substantial evidence.
Appellant sustained a compensable injury to his left shoulder
on August 2, 1986, while working for Arkmo Lumber Company. He was
treated by Dr. Joe W. Crow, an orthopedic surgeon, who performed an
acromioplasty on appellant's left shoulder and assigned a 20
percent impairment rating when he released appellant on September
9, 1987, to return to work with lifting restrictions. On December
16, 1988, while working for Diamond Constructing Company,
appellant sustained a compensable injury to his neck and back.
Appellant stated that before the 1988 injury, his shoulder was
"stiff" but he was able to work without problems. However, after
the 1988 injury, he began having pain in his left shoulder.
Appellant returned to Dr. Crow for treatment, who opined that the
1988 injury was a new injury rather than a recurrence. Appellant
became dissatisfied with Dr. Crow's treatment. The administrative
law judge appointed Dr. William F. Blankenship to be appellant's
treating physician. Dr. Blankenship provided conservative
treatment, physical therapy and injections, and conducted numerous
diagnostic tests, such as an EMG and nerve conduction studies. On
January 8, 1990, Dr. Blankenship released appellant to return to
work with restrictions of no sweeping, mopping, lifting in excess
of twenty pounds or overhead lifting. Dr. Blankenship thought that
appellant could perform some limited work and that no further
medical treatment was needed.
Subsequent to being released by Dr. Blankenship, appellant
continued to have complaints and in 1990 sought treatment at UAMS.
There, appellant was treated by several physicians. Dr. Samuel
Agnew performed a second acromioplasty on November 4, 1992, which
alleviated appellant's symptoms. Following the surgery, appellant
sought additional temporary total disability benefits from January
1, 1990, to April 1993, medical benefits for treatment from UAMS,
and a retroactive change of physician to Dr. Agnew.
The Commission found that appellant failed to prove that his
treatment from UAMS was causally related to either compensable
injury or to the surgery following the 1986 injury. When reviewing
the sufficiency of the evidence to support a decision of 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 will affirm if the
Commission's decision is supported by substantial evidence. Wright
v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993).
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Id. 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. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark.
App. 168, 856 S.W.2d 30 (1993). Moreover, the Commission has the
authority to accept or reject medical opinions, and its resolution
of the medical evidence has the force and effect of a jury verdict.
McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989).
Dr. Agnew's December 9, 1992, report stated: (1) that a May
9, 1991, examination revealed recurrent impingement syndrome of
appellant's left shoulder, (2) that a repeat acromioplasty was
performed November 4, 1992, and (3) that there was no indication
that the acromioplasty performed by Dr. Crow after the 1986 injury
was inadequate. He further stated, "It cannot be determined with
any degree of reasonable certainty as to what event caused the
recurrent or persistent symptoms.... Specifically, one cannot
determine whether the accident of August 1986, December 16, 1988,
or the surgery of Dr. Crow specifically is the event. One can
state with reasonable assurity that all three play in some part to
[appellant's] overall complaints." Dr. J. M. Grunwald, a physician
at UAMS who treated appellant, stated in a September 19, 1990,
report that "there is no way to decide if the orthopedic problem
which [appellant] has is related to or caused by his work related
injury or if they were caused by Dr. Crow's treatment surgery. I
do not feel that Dr. Crow's surgery was inadequate or substandard."
He further said, "There is no way to decide which part of the
symptoms that [appellant] is presenting with is related to his
first and which part is related to his second accident." Lastly,
Dr. James Blankenship, a UAMS physician, said in a March 23, 1993,
report that appellant has two cysts which are almost certainly
congenital and which are believed to be causing some of appellant's
complaints.
Appellant argues that Dr. Agnew's opinion should be
interpreted to mean that both compensable injuries and the first
surgery played a part in his need for the second surgery although
Dr. Agnew could not say which one precipitated his condition. He
also contends that causation was established because the second
surgery in November 1992 alleviated his problems.
The interpretation of medical opinion was for the Commission,
and we cannot say that the Commission's finding that a causal
connection between his medical treatment and the compensable
injuries was not established is not supported by substantial
evidence. Therefore, we decline to address appellant's arguments
concerning a change of physician to Dr. Agnew.
Appellant also argues that he is entitled to temporary total
disability benefits from January 1, 1990. The Commission found
that appellant failed to prove that he was unable to perform
employment subsequent to January 1990 and that the medical and lay
testimony indicated that appellant had reached a plateau of
recovery and was performing some gainful employment.
Temporary total disability is that period within the healing
period in which an employee suffers a total incapacity to earn
wages. J. A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). After Dr. William Blankenship's release to
return to work with restrictions on January 8, 1990, appellant
testified that he returned to his employer who did not have any
work available within the restrictions. Appellant said that had
there been a job available, he would have tried to do it.
Appellant stated that he has not sought employment anywhere since
his second injury in December 1988. However, the record shows that
from at least 1990 to 1992, appellant operated a lawn care
business. Appellant said that he could do only two or three yards
each week, never worked more than four hours a day, only did a
dozen yards in 1991 and earned less than $600 a year in the
business. Our review indicates that the Commission's findings and
decision to deny temporary total disability benefits is supported
by substantial evidence.
Affirmed.
Jennings, C.J., and Griffen, Neal, and Rogers, JJ., agree.
Mayfield, J., dissents.
EN BANC
CA 94-1373
JULY 3, 1996
TOMMY STAFFORD AN APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
APPELLANT COMMISSION
VS.
ARKMO LUMBER COMPANY, ET AL. DISSENTING OPINION
APPELLEES
Melvin Mayfield, Judge.
This case has been in this court before. In an opinion styled
Stafford v. Diamond Construction Co., et al., 31 Ark. App. 215, 793 S.W.2d 109 (1990) (Mayfield dissenting), we granted the appellees'
motion to dismiss the appeal on the basis that the order the
appellant attempted to appeal was not a final, appealable order.
Although the style of that case does not specifically name "Arkmo
Lumber Company" as an appellee, that appellee was included in the
designation "et al."
Thus, there are two appellees in this case. This results from
the fact, as the majority opinion points out, that the appellant
sustained a compensable injury in August 1986, while working for
Arkmo Lumber Company, and sustained another compensable injury in
December 1988, while working for Diamond Construction Company. The
notice of appeal from the decision of the Commission in this case
names both companies as appellees, and both of them have filed
briefs.
In order to focus on the points that are involved in this
appeal, it is not necessary to recite all of the details of the
long and complex history of the case. A short summary, taken from
the helpful "Introduction" to the "Argument" in the brief of the
appellee Diamond Construction Company, discloses that after
appellant's compensable injury in August 1986, he was treated and
had surgery on his left shoulder by Dr. Crow, was paid temporary
total benefits for some period, and was paid for a permanent
partial disability of 20 percent to the arm. And on December 16,
1988, while working for Diamond Construction Company, the appellant
sustained a compensable aggravation of his left shoulder. As a
result of this disability, he was paid temporary total disability
benefits from December 17, 1988, until January 8, 1990, when he was
released by Dr. Blankenship. In addition to these benefits, the
medical expenses associated with the care of Dr. Crow and Dr.
Blankenship have been paid.
The appellant, however, contends in this appeal (1) that he
should be paid temporary total benefits for the period from January
8, 1990, to April 1993, (2) that the administrative law judge erred
in selecting Dr. Blankenship as appellant's one-time-only change of
physician, and the Commission should have allowed a change to UAMS,
and (3) that the medical bills of UAMS and all the physicians who
rendered medical services to the appellant should be paid.
The issue concerning the change of physician to Dr.
Blankenship is the issue that appellant attempted to appeal in
Stafford v. Diamond Construction Co. et al., supra. The majority
opinion in that case stated:
The appellant . . . petitioned the Workers'
Compensation Commission for a change of physician. The
petition was granted and a new physician was appointed by
the administrative law judge (ALJ). Apparently
dissatisfied with ALJ's choice of physician, the
appellant appealed to the full Commission contending that
he never agreed to the procedure by which the new
physician was selected, and the Commission affirmed the
ALJ's decision. . . .
. . . Here, the appellant obtained the relief he
sought before the Commission . . . and we consider the
dispute concerning the method by which the new physician
was selected to be interlocutory and incidental in
nature. Without expressing an opinion on the finality or
appealability of an order denying a change of physician,
we hold that, on these facts, the order granting a change
of physician is not appealable by the petitioning party
at this time.
31 Ark. App. at 216, 793 S.W.2d at 110.
This point, therefore, is now before this Court in this
appeal. Prior to the first appeal, which we dismissed, the full
Commission had held that the ALJ's order was appealable on the
basis that it raised an issue to a "separable branch of the
litigation," and the ALJ's order was affirmed. However, after this
court held that the Commission's order affirming the ALJ's decision
was not appealable, the Commission in the decision now before this
court again passed on the change-of-physician issue and again
affirmed the ALJ's order on that point. The Commission treated the
issue as involving a request for a "retroactive change of
physician," and held that "claimant failed to prove by a
preponderance of the credible evidence that he is entitled to
another change of physician . . . ."
This issue is not discussed by the majority opinion; however,
it is fully argued in the appellant's brief which points out that
on April 19, 1989, the appellant requested a change of physician
from Dr. Crow; that on May 9, 1989, the ALJ suggested that the
necessity of a hearing could be obviated by allowing him to select
an independent examiner; that on June 12, 1989, appellee Diamond
Construction, through its attorney, wrote the ALJ and suggested
that he enter an order granting a change of physician to a "doctor
selected by you"; that on June 16, 1989, appellant's attorney wrote
the ALJ that he was in the process of attempting to ascertain the
appellant's wishes regarding the ALJ's suggestion, but in a
postscript to the letter, the attorney stated, "Since dictating
this letter, I have now talked with my client and I now have the
authority to agree that you may select the physician to be the
change of physicians for [the appellant]."
But the appellant's argument goes on to point out that on the
day after appellant's attorney received the ALJ's order filed June
15, 1989, which said that the appellant would be evaluated and
treated by Dr. Blankenship and that this would be the one-time-only
change under Ark. Code Ann. 11-9-514(a)(2) (1987), the
appellant's attorney hand delivered a letter to the ALJ stating
that the earlier letter of the attorney mailed on June 16, 1989,
should be ignored because it "has been superseded by this letter."
Then on June 29, 1989, a hearing was held on this issue by the
ALJ who held on July 11, 1989, that the evidence established that
the appellant's attorney agreed to the procedure by which a change
of physician was made and only objected when he found out that Dr.
Blankenship had been selected by the ALJ. Finding that the
selection had been made in accordance with the law, and that Dr.
Blankenship was a licensed and qualified orthopedic surgeon, the
ALJ refused to change his selection.
Appellant argues that there was no agreement that the ALJ
could select a one-time-only change of physician; that the full
Commission should have allowed appellant to present evidence on
this issue; that Dr. Blankenship was a "conservative" physician;
and that the appellant was entitled to "reasonable medical care."
Because the above point is closely connected with appellant's
other two points in this appeal, I want to discuss the other points
now and then come back to the change-of-physician point.
The majority opinion relies upon a report by Dr. Agnew þ a
doctor at the University of Arkansas For Medical Sciences (UAMS) to
whom appellant went after he stopped seeing Dr. Blankenship þ to
support the holding by the majority that the Commission's decision
in this case should be affirmed. The majority opinion states that
because the "Commission's finding that a causal connection between
[Agnew's] medical treatment and the compensable injuries was not
established" is supported by substantial evidence, "we decline to
address appellant's arguments concerning a change of physician to
Dr. Agnew."
Of course, as the appellant points out in his brief, it should
make no difference in evaluating the testimony of Dr. Agnew whether
or not his treatment was authorized by the ALJ. See Markham v. K-
Mart Corp., 4 Ark. App. 310, 630 S.W.2d 550 (1982), citing 2
Larson, The Law of Workmen's Compensation 61.12 (j), at 10-902
(1996), where it is said that "the reports of an unauthorized
doctor must be considered in determining extent of disability."
Therefore, putting this matter in proper perspective, we have
a worker who admittedly has received two compensable injuries to
his left shoulder and has been paid compensation benefits for both
of them. After the last injury on December 16, 1988, he received
temporary total disability until January 8, 1990, when he was
released by Dr. Blankenship. He then goes to see Dr. Agnew who in
a report of December 9, 1992, traces the appellant's medical
history and the fact that a left acromioplasty was performed in
1988 while appellant was under the care of Dr. Crow. Dr. Agnew's
report also points out that this procedure gave appellant some
relief for a period but that he came to UAMS in 1990 complaining of
shoulder and parascapular pain. He was started, the report
continues, "on local modalities and shoulder girdle strengthening
exercises" and that, on or about May 9, 1991, a repeat clinical
evaluation was consistent with findings of "recurrent impingement
syndrome of his left shoulder and possible AC joint arthritis."
Without setting out the complete report of Dr. Agnew, we quote
the following pertinent statements:
At that time, he was seen by other members of the trauma
service, whereby a distal clavicle resection and possible
repeat acromioplasty was recommended. Attempts to aid
Mr. Stafford with this surgical procedure were
unsuccessful due to the inability to obtain hospital
admission for Mr. Stafford because of the lack of
available hospital beds.
. . . .
On September 10, 1992 Mr. Stafford was seen back in
the orthopaedic clinic after having successfully
completed an arthrogram which revealed a rotator cuff
tear. It was based on his clinical findings and the
arthrogram report that repeat acromioplasty was
recommended and scheduled.
On November 4, 1992 Mr. Stafford underwent a repeat
or revision acromioplasty with [debridement] of his
muscular rotator cuff and repair of an erosive type
defect in his rotator cuff. On clinical exam at the time
of surgery there was no overt evidence of significant
pathology and the acromioclavicular joints of this was
not addressed surgically. At the present time, Mr.
Stafford has been followed on a consistent basis by both
myself and the orthopaedic office as well as members of
the physical therapy rehabilitation service [and]
continues to make increasing gains in his strength and
motion.
And in answers to specific questions that the appellant's
attorney had addressed to Dr. Agnew, the following answers from his
report are quoted:
Item 2: It cannot be determined with any degree of
reasonable certainty as to what event caused the
recurrent or persistent symptoms that Mr. Stafford sought
our medical attention. Specifically, one cannot
determine whether the accident of August 1986, December
16, 1988, or the surgery of Dr. Crow specifically is the
event. One can state with reasonable assurity that all
three play in some part to Mr. Stafford's overall
complaints.
Item 6: Mr. Stafford is still in the healing,
recuperative, or rehabilitative phase of his most recent
surgery. It is anticipated that with continued
rehabilitation that Mr. Stafford should regain
approximately 90% function in a painless manner to his
entire arm. . . .
The opinion of the Commission, the briefs of both appellees,
and the majority opinion all rely heavily upon one statement made
in Dr. Agnew's report to support the finding of the Commission that
the evidence does not show that the care and treatment rendered by
UAMS (which includes Dr. Agnew) was causally connected to the
appellant's work-related injury. That one statement is the answer
quoted above in "Item 2." I do not believe, however, that a
common-sense reading of that statement could reach the conclusion
that Dr. Agnew either said or believed that there was no causal
connection between the appellant's work-related injuries and the
treatment by Dr. Crow and the treatment and the surgical procedure
afforded appellant by UAMS.
The report of Dr. Agnew reasonably and logically traces the
factual history of the appellant's injuries and medical treatment.
The report explains why and how a repeat acromioplasty was
recommended and performed and the anticipated recovery and 90
percent "function in a painless manner" that will likely result
from the treatment provided by UAMS. This surgical procedure was
performed in November 1992. At the hearing before the ALJ on June
1, 1993, the appellant testified that after this surgery the
stinging, burning pain he had in his arm and hand was gone; that
the popping he had in his arm and shoulder was gone; that his
shoulder is now fine; and that he is now able to work and is trying
to "draw me up" a business working on yards and landscaping.
So the appellant, who admittedly sustained compensable
injuries to his left shoulder in 1986 and 1988, had a left
acromioplasty in 1988 while under the care of Dr. Crow; was in the
care of Dr. Blankenship from July 1989 to January 1990; was
released to return to work with some lifting and arm-raising
restrictions; and was terminated by his employer because there was
no work available with those restrictions. At that point, the
appellant went to the University Hospital where he saw Dr. J.M.
Grunwald. This eventually resulted in the repeat acromioplasty,
relief from previous symptoms, and a much brighter outlook for this
now forty-three-year-old manual laborer.
But the majority opinion holds that the appellant loses his
claim for temporary disability payments because Dr. Blankenship
thought his healing period ended in January 1990, and because Dr.
Agnew said in "Item 2" of his report that he could not determine
"whether the accident of August 1986, December 16, 1988, or the
surgery of Dr. Crow" was the specific "event" that "caused the
recurrent or persistent symptoms" for which appellant sought
treatment at UAMS. Overlooked by the Commission and this court's
majority opinion þ and skipped over lightly by the appellees þ is
Dr. Agnew's concluding sentence in "Item 2," that "One can state
with reasonable assurity that all three play in some part to Mr.
Stafford's overall complaint." Actually, Dr. Agnew's statements in
"Item 2" of his report lend much more support to a finding that the
care and treatment rendered to appellant by UAMS was casually
connected to his work-related injuries then they do to the contrary
finding made by the Commission. And it is obvious that Dr.
Blankenship who testified by deposition that he last saw the
appellant on January 29, 1990, could not dispute the findings and
surgical procedure described in Dr. Agnew's report of December 9,
1992, and could not deny that the appellant's symptoms have
dramatically improved since he has been under UAMS care and
treatment.
As a legal matter "it is not essential that the causal
relationship between the accident and the disability be established
by medical evidence . . . or that the evidence be medically
certain." Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 248,
674 S.W.2d 944, 946 (1984). See also Gerber Products v. McDonald,
15 Ark. App. 226, 691 S.W.2d 879 (1985). (It should be noted that
the change made by Act 796 of 1993, which modified Ark. Code Ann.
11-9-102 (16) (Repl. 1996) to require that medical opinions be
stated with a reasonable degree of medical certainty, does not
apply to the present case where the last injury occurred in 1988.)
Moreover, we have also held that "if the original injury is
compensable, every natural consequence from it is also
compensable." Hubley v. Best Western Governor's Inn, 52 Ark. App.
226, 232, 916 S.W.2d 143, 146 (1996).
And in simple fact, the Commission's finding that the care and
treatment rendered to appellant by UAMS was not causally connected
to his work-related injuries is not supported by substantial
evidence because fair-minded persons with the same evidence before
them could not have reached the same conclusion. In that situation
it is our duty to reverse the Commission's finding. Kuhn v.
Majestic Hotel, 324 Ark. 21, 918 S.W.2d 162 (1996); see also Morgan
v. Desha County Tax Assessor's Office, 45 Ark. 95, 871 S.W.2d 429
(1994).
Therefore, I would reverse the Commission's decision that
appellant is not entitled to temporary total benefits during the
healing period that followed the surgical procedure he received at
UAMS in November 1992. The number of days of temporary total
disability within that healing period is not a matter that we can
determine from the record on appeal, and I would remand to the
Commission for a determination of that issue.
As to payment of the medical bills of UAMS and the physicians
who performed services for appellant after he was released by Dr.
Blankenship, the appellees argue that under Ark. Code Ann. 11-9-
514(a)(1) and (2) (Supp. 1996) the appellant had a one-time-only
change of physician from Dr. Crow to Dr. Blankenship, and that to
require the payment of the UAMS bills (including the physicians)
would constitute a retroactive change of physician contrary to
section 11-9-514. I think this argument, under my view of this
case, is not on point. Neither is the appellant's argument on
point in contending that the ALJ erred in selecting Dr. Blankenship
as the physician to replace Dr. Crow. Of course, the appellees are
not obligated to pay the medical bills of UAMS and Dr. Agnew unless
those bills are for medical care and attention causally connected
to appellant's compensable injuries. But having decided that such
a connection exists, then the only question left is whether the
bills are for medical care and attention that was reasonable and
necessary for the treatment of the compensable injuries.
In my view, after Dr. Blankenship released the appellant to
return to work and saw appellant for the last time on January 8,
1990, the provisions of Ark. Code Ann. 11-9-514(a) (1) and (2) no
longer applied. At that point the statute that applied was Ark.
Code Ann. 11-9-508(a) and (b), which on the date of appellant's
compensable injuries, as well as on January 8, 1992, provided that
the employer shall provide for the medical services that are
"reasonably necessary in connection with the injury received by the
employee," and if the employer fails to provide such services
within a reasonable time after knowledge of such injuries the
Commission may direct that they be paid by the employer; and that
the employer is also liable for emergency treatment rendered an
employee as is reasonably necessary in connection with a
compensable injury.
The case of Universal Underwriters Ins. Co. v. Bussey, 17 Ark.
App. 47, 703 S.W.2d 459 (1986), deals with the situation discussed
in the preceding paragraph of this opinion and is authority for the
position I take with regard to what is referred to in this case as
the UAMS bills. Of course, it would be necessary to remand for the
Commission to determine the amount of the medical bills that should
be paid for the care and treatment of the appellant after January
8, 1990.
Therefore, I would reverse and remand for the purposes
indicated in this opinion.
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