Hubley v. Best Western Governor's Inn

Debra I. HUBLEY v. BEST WESTERN-GOVERNOR'S
INN

CA 95-381                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered March 6, 1996


1.   Workers' compensation -- substantial evidence test discussed -
     - factors on review. -- The substantial evidence test
     applicable for judicial review of a Commission decision means
     that the Commission should not be reversed unless it is clear
     that fair-minded persons could not have reached the same
     result if presented with the same facts; the Commission has
     broad discretion in deciding to admit evidence, and its
     decision will not be reversed without a showing of abuse of
     discretion; the Commission has the authority to accept or
     reject medical opinion, and the authority to determine its
     soundness and probative force; this includes the duty of
     weighing conflicting medical evidence; when that evidence is
     conflicting and the Commission chooses to accept the testimony
     of one physician over another, the appellate court is without
     power to reverse the decision unless substantial evidence is
     lacking. 

2.   Workers' compensation -- Commission's decision not supported
     by substantial evidence -- Commission failed to properly weigh
     conflicting medical evidence. -- Where the Commission's
     decision that appellant failed to prove by a preponderance of
     the evidence that her TMJ complaint was caused by a
     compensable injury rested in part on the determination that
     there had been no evidence from a medical practitioner that
     appellant's dental problems were a result of her work-related
     accident, yet the record reflected that such evidence had been 
     presented by a medical doctor, the error was prejudicial,
     particularly given the Commission's double-standard analysis
     of the opinion evidence from three dentists whose opinions
     were given the greatest scrutiny; while the Commission deemed
     one dentist's opinion, that the accident triggered appellant's
     TMJ symptoms, to be lacking in probative weight because he was
     a dentist even though his testimony was in fact supported by
     one doctor's testimony, the Commission went on to give the
     opinions of two other witnesses more weight despite the fact
     that they too were dentists, and had never examined appellant;
     the Commission's decision was reversed. 

3.   Workers' compensation -- aggravation of a pre-existing non-
     compensable condition by a compensable injury is compensable -
     - Commission's decision in error. -- Proof of causation in
     workers' compensation cases does not require medical certainty
     and if the original injury is compensable, every natural
     consequence from it is also compensable; here there was proof
     from a physician that the compensable cervical strain produced
     muscle spasms that resulted in appellant's TMJ complaints,
     possibly in conjunction with other pre-existing conditions; it
     is well-settled that the aggravation of a pre-existing non-
     compensable condition by a compensable injury is, itself,
     compensable; the Commission's decision was based on the
     erroneous view that appellant's TMJ condition could not be
     compensable because there were other possible causes for it. 


     Appeal from Arkansas Workers' Compensation Commission;
reversed and remanded.
     Gary Eubanks & Associates, by:  James Gerard Schulze, for
appellant.
     Friday, Eldredge & Clark, by:  J. Michael Pickens, for
appellee.

     Wendell L. Griffen, Judge.
*ADVREPCA10*               DIVISION II





                                   CA 95-381

                                                March 6, 1996


DEBRA I. HUBLEY                    AN APPEAL FROM ARKANSAS
               APPELLANT           WORKERS' COMPENSATION
                                   COMMISSION
                                   E206699

V.

BEST WESTERN-GOVERNOR'S INN               
                APPELLEE           REVERSED AND REMANDED




                   Wendell L. Griffen, Judge.

    Debra Hubley has appealed from the December 14, 1994, decision
of the Workersþ Compensation Commission denying her claim for
workersþ compensation benefits for treatment of complaints with her
mouth and jaw that she alleges were caused by a compensable injury
on April 3, 1992.  The Commission denied appellantþs claim for
treatment of temporomandibular joint pain and held that appellant
had failed to prove by a preponderance of the evidence that her
temporomandibular joint pain was caused by the cervical sprain
injury that she sustained from an automobile accident that arose
out of her employment.  Appellant argues on appeal that the
Commissionþs decision is not supported by substantial evidence.  We
agree.  Therefore, we reverse the Commission and remand the case to
it for further consideration.
    On April 3, 1992, appellant was involved in an automobile
accident while returning to her workplace from a work-related
meeting.  She was taken from the accident scene by ambulance to a
hospital, and was treated for injuries to her head, neck, and back,
before being released to her home later that day.  Over the next
several days appellant obtained additional medical care due to
headaches and muscle spasms in her back and neck.  About a week
after the accident, she began to experience pain in her mouth and
cheek area.  She learned that she had a broken tooth.  The tooth
was removed, and the dentist who removed it noticed that her jaw
seemed out of alignment.  He referred appellant to another dentist,
Dr. Shelby Woodiel, who diagnosed appellantþs condition as a
musculoskeletal dysfunction with referred pain to the
temporomandibular joint (TMJ) area.  Dr. Woodiel prescribed a
temporary orthotic, and opined that appellant would either need to
undergo orthodontic treatment or would need to have overlays made
for her teeth so that her jaws would be in proper position if the
temporary orthotic failed to correct appellantþs condition. 
Appellee refused to pay the cost of Dr. Woodielþs treatment, and
all other expenses related to her mouth and jaw complaints.   An
administrative law judge held an evidentiary hearing January 24,
1994, and held that appellantþs dental complaints were compensable. 
Appellee appealed that decision to the Commission, which reversed
the administrative law judge in a split decision.
    Appellant's sole contention on appeal is that there is no
substantial evidence to support the Commissionþs finding that Dr.
Woodiel was not qualified to render an opinion on the causation of
TMJ pain.  The Commission made that finding while concluding that
appellant failed to prove by a preponderance of the evidence that
her TMJ complaint was caused by the compensable injury.  Appellant
mounts a direct challenge to the Commissionþs finding regarding Dr.
Woodielþs lack of qualifications to opine concerning the causes of
her TMJ pain.  Appellee argues that the Commissionþs ruling was
proper because the Commission had evidence before it from two other
dentists, Dr. Frederick McFall and Dr. J.R. Graham, who opined that
appellantþs complaints were not caused by the compensable accident. 
Our decision to reverse is not based on this argument concerning
Dr. Woodiel's qualification to render opinion testimony.  Instead,
we hold that the finding that appellant failed to prove that her
TMJ complaint was caused by the compensable injury is not supported
by substantial evidence.
    The substantial evidence test applicable for judicial review
of a Commission decision means that the Commission should not be
reversed unless it is clear that fair-minded persons could not have
reached the same result if presented with the same facts.  Lepard
v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666
(1995).  The Commission has broad discretion in deciding to admit
evidence, and its decision will not be reversed without a showing
of abuse of discretion.  Kendrick v. Peel, 32 Ark. App. 29, 795 S.W.2d 365 (1990).  We have also stated that the Commission has the
authority to accept or reject medical opinion, and the authority to
determine its soundness and probative force.  Jordan v. Tyson
Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  This
includes the duty of weighing conflicting medical evidence.  When
that evidence is conflicting and the Commission chooses to accept
the testimony of one physician over another, we are without power
to reverse the decision unless substantial evidence is lacking.
Whaley v. Hardeeþs, 51 Ark. App. 166, 912 S.W.2d 14 (1995).
    The substantial evidence standard of appellate review means
that we must affirm the Commission if fair-minded people could have
reached the same result after reviewing the evidence in the light
most favorable to the result that the Commission reached (i.e.,
that appellant's TMJ discomfort and the treatment for it were not
caused by the compensable injury).  In reaching that decision, the
Commission concluded that " . . . there is no opinion from a
medical practitioner suggesting that the cervical injury is
responsible for the claimant's dental or temporomandibular joint
problems, and there is no suggestion in the medical records that a
medical practitioner has ever suspected such a relationship." 
While the Commission made a passing reference to the fact that Dr.
Edwin Barron, a medical doctor, had been appellant's treating
physician for her cervical and low back complaints, and that his
records noted tenderness over the temporomandibular joint, the
Commission failed to mention that Dr. Barron never retracted his
opinion that appellant's TMJ pain and loosened gold crown was
"possibly secondary to the MVA."  This error is prejudicial,
particularly given the Commission's double-standard analysis of the
opinion evidence from Dr. Woodiel, Dr. McFall, and Dr. Graham,
three dentists whose opinions were given the greatest scrutiny.
    The Commission's decision cannot be sustained when we consider
that Dr. Woodiel's conclusion and Dr. Barron's initial impression
are consistent.  Dr. Woodiel opined that although appellant
definitely had pre-existing periodontal disease that could have
been the cause of her pain, the stress of the muscle spasm
associated with her cervical strain triggered the onset of her TMJ
symptoms.  That opinion was not contradicted by any medical doctor
despite the fact that the Commission states that medical opinion
evidence would have been important to determine causation. 
Instead, the Commission reasoned as follows:
    Consequently, Dr. Woodiel's opinion is based on his evaluation
    and assessment of the physical injury to the claimant's
    cervical spine.  However, Dr. Woodiel is a dentist and we are
    aware of no authority which suggests that the practice of
    dentistry includes the examination, diagnosis, and treatment
    of physical injuries to areas other than the oral cavity,
    teeth, gingivae, and jaw.  See, e.g., Ark. Code Ann.  17-82-
    191 (1987).  Instead, it is commonly accepted that the
    examination, diagnosis, and treatment of physical injuries to
    other areas of the body, such as the cervical spine, is
    limited to those licensed to practice in such areas such as
    medicine, chiropractic, and osteopathy.  See Ark. Code Ann. 
    17-93-201 & 17-93-202 (1987).  There simply is no evidence in
    the record establishing that Dr. Woodiel, as a dentist, is
    qualified to render an opinion regarding medical matters such
    as cervical strains and cervical muscle spasms.  Such matters
    may affect dental conditions, and, when this occurs, the
    evaluations and opinions of medical practitioners may be
    important in determining causation.

         In the present claim, there is no opinion from a medical
    practitioner suggesting that the cervical injury is
    responsible for the claimant's dental or temporomandibular
    joint problems, and that there is no suggestion in the medical
    records that a medical practitioner has ever suspected such a
    relationship.

(Appellant's Abstract, pages 12-13).

    The Commission's analysis was both factually inaccurate and
logically flawed.  As mentioned earlier, Dr. Barron, a medical
doctor, had suggested that appellant's TMJ difficulties were
secondary to the injuries received in the automobile accident.  Dr.
Barron had the very credentials that the Commission professed to
find credible on the issue.  His was the only medical opinion
addressed to this question, and was not refuted by another medical
doctor.  
    Even if we accept the Commission's reasoning about the relative
probative value to be given to testimony from medical doctors
versus dentists on this issue (a conclusion that we do not affirm),
we may not ignore the plain failure by the Commission to
consistently apply its own standard for evaluating the evidence. 
The opinion by Dr. Woodiel was deemed lacking in probative weight
because he is a dentist; the opinions of Doctors McFall and Graham
were given more weight despite the fact that they too are dentists,
and had never examined appellant.  The logical fallacy in that
analysis is self-evident.  If one multiplied by zero equals zero in
the case of Dr. Woodiel, then two times zero cannot be more than
zero in the case of the opinions by Doctors McFall and Graham.
The Commission's decision demonstrates the sort of arbitrary
reasoning that the substantial evidence rule was never intended to
insulate from judicial review, and that compels that its decision
be reversed.
    Additional proof that the Commission's decision must be
reversed arises from its view that appellant's condition could not
be compensable because, as stated in the Commission's opinion:
    Dr. Woodiel could not say that this problem was a direct
    result of the compensable injury.  In this regard, his
    testimony suggests that the pain is actually caused by other
    causes, such as structural abnormalities including the
    crowding of the lower anterior teeth, flaring of the upper
    anterior teeth, inclination on lower posterior tooth, a high
    roof, and evidence of uneven stress on teeth.  Dr. Woodiel
    testified that any of these conditions, as well as the gum
    disease, could be the cause of the claimant's pain, although
    he concludes that the stress of the cervical muscle spasm
    triggered the onset of the symptoms.  Interestingly, although
    Dr. Woodiel asserts that these problems are the result of the
    cervical muscle spasm, he also asserts that orthodontic
    treatment and the restructuring of the overlays is needed for
    treatment of the problem.

(Appellant's abstract, pages 13-14, emphasis added).

    Appellant was examined in the emergency room on the day the
accident occurred, and no acute discomfort to the temporomandibular
joint was detected by the treating physicians during that
examination.  Ten days later (April 13, 1992), appellant was
examined by Dr. Barron as a follow-up.  Dr. Barron, a medical
doctor, noted that she had tenderness in the temporomandibular
joint on the left.  He opined that appellant had a gold crown that
was loosened, possibly due to the motor vehicle accident. 
Afterwards, appellant consulted Dr. Woodiel who concluded that she
had substantial gum disease that predated the compensable injury
which could have contributed to her problems.  Although Dr. Woodiel
could not state whether all of appellantþs TMJ complaints had been
caused by the compensable injuries sustained in the automobile
accident, he did opine that had those conditions been present when
the accident occurred they would have been þgreatly aggravatedþ by
the accident.  
    Proof of causation in workers' compensation cases does not
require medical certainty.  Gencorp Polymer Products v. Landers, 36
Ark. App. 190, 820 S.W.2d 375 (1991).  And we have held that if
the original injury is compensable, every natural consequence from
it is also compensable.  McDonald Equipment Co. v. Turner, 26 Ark.
App 264, 766 S.W.2d 936 (1989).  Here there was proof from Dr.
Barron that the compensable cervical strain produced muscle spasms
that resulted in appellant's TMJ complaints, possibly in
conjunction with other pre-existing conditions according to Dr.
Woodiel.  Since it is well-settled that the aggravation of a pre-
existing non-compensable condition by a compensable injury is,
itself, compensable, we must also reverse the Commission's decision
because it is based on the erroneous view that appellant's TMJ
condition could not be compensable because there were other
possible causes for it.  See Beardon Lumber Co. v. Bond, 7 Ark.
App. 65, 644 S.W.2d 321 (1983).
    To avoid being arbitrary, the Commission should have analyzed
the evidence to determine whether the appellee produced any proof
to counter the opinion by Dr. Barron that appellant's condition was
possibly caused by the compensable automobile accident.  If
appellee failed to produce that evidence, then appellant's proof
constituted the only proof on the critical issue.  The opinions of
Doctors McFall and Graham could not supply the missing proof for
appellee, however, because they are dentists and, according to the
Commission, are unqualified to render a credible opinion on the
existence or non-existence of a causal relationship between a
medical condition (appellant's cervical strain and associated
muscle spasm) and her TMJ symptoms.
    Therefore, we reverse the Commission's decision denying the
compensation benefits sought by appellant, and remand the case to
the Commission for further consideration in light of this opinion. 
    Reversed and remanded.
    Jennings, C.J., and Robbins, J., agree.