University of Ark. Med. Sciences v. Hart

UNIVERSITY OF ARKANSAS MEDICAL SCIENCES and
Public Employee Claims Division v. 
Phyllis HART

CA 97-600                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered December 22, 1997


1.   Workers' compensation -- standard of review -- substantial evidence
     defined. -- In reviewing appeals from the Workers' Compensation
     Commission, 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; substantial evidence is
     that which a reasonable person might accept as adequate to
     support a conclusion; the Commission's decision will be
     affirmed unless fair-minded persons presented with the same
     facts could not have arrived at the conclusion reached by the
     Commission; the question is not whether the evidence would
     have supported findings contrary to the ones made by the
     Commission; there may be substantial evidence to support the
     Commission's decision even though the appellate court might
     have reached a different conclusion had it sat as the trier of
     fact or heard the case de novo.

2.   Workers' compensation -- Commission determines credibility of witnesses and
     weight of testimony. -- It is the function of the Workers'
     Compensation Commission to determine the credibility of the
     witnesses and the weight to be given their testimony; the
     Commission has the duty of weighing medical evidence and, if
     the evidence is conflicting, its resolution is a question of
     fact for the Commission; 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 it deems worthy of belief.

3.   Workers' compensation -- "objective findings" defined. -- Arkansas Code
     Annotated section 11-9-102(5)(D) provides that a compensable
     injury must be established by medical evidence, supported by
     "objective findings" as defined in  11-9-102(16); "objective
     findings" are defined as findings that cannot come under the
     voluntary control of the patient.

4.   Workers' compensation -- substantial evidence supported determination that
     appellee's muscle spasms constituted "objective findings." -- Substantial
     evidence supported the determination that appellee's muscle
     spasms constituted "objective findings" in support of her
     claim of a compensable injury where a physician observed back
     and neck spasms, defined as "[a]n involuntary muscular
     contraction" or "[i]ncreased muscular tension and shortness
     which cannot be released voluntarily."

5.   Workers' compensation -- resolution of conflicting medical evidence was for
     Commission -- decision to accept physician's testimony upheld. -- While
     there was medical evidence to the contrary of the examining
     physician's observation and testimony, the resolution of this
     conflict was a question of fact for the Workers' Compensation
     Commission; given the substantial nature of the physician's
     testimony, the appellate court could not reverse the
     Commission's decision to accept the physician's testimony.

6.   Workers' compensation -- Commission's determination that appellee suffered
     compensable injury affirmed. -- Where, based upon the testimony of
     witnesses, the administrative law judge determined that
     appellee suffered a compensable injury arising out of and in
     the course of her employment, noting that there was no
     evidence that appellee sustained other upper back injuries
     while serving in the army, the appellate court affirmed the
     Workers' Compensation Commission's determination that appellee
     suffered a compensable injury because a reasonable person
     could accept the evidence as adequate to support the
     Commission's decision.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Nathan C. Culp, for appellants.
     The Whetstone Law Firm, P.A., by: Gary Davis, for appellee.
     D. Franklin Arey, III, Judge.
     This appeal challenges the Workers' Compensation Commission's
determination that the appellee, Phyllis Hart, suffered a
compensable injury.  Appellants argue that the Commission's finding
of a compensable injury is not supported by "objective findings" as
required by Ark. Code Ann.  11-9-102(5)(D)(Repl. 1996).  They also
argue that the Commission's finding that appellee suffered a
compensable injury in the course and scope of her employment is not
supported by substantial evidence.  We affirm the Commission on
both points.
     Both issues presented by appellants question whether
substantial evidence supports the Commission's finding.  
     In reviewing appeals from the Workers' Compensation
     Commission, we view the evidence and all reasonable
     inferences therefrom in the light most favorable to the
     Commission's decision and affirm that decision when it is
     supported by substantial evidence.  Substantial evidence
     is that which a reasonable person might accept as
     adequate to support a conclusion.  The Commission's
     decision will be affirmed unless fair-minded persons
     presented with the same facts could not have arrived at
     the conclusion reached by the Commission. 

Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 384-85, 944 S.W.2d 524, 526 (1997)(citations omitted); see City of Blytheville
v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997).  "The
question is not whether the evidence would have supported findings
contrary to the ones made by the Commission; there may be
substantial evidence to support the Commission's decision even
though we might have reached a different conclusion if we sat as
the trier of fact or heard the case de novo."  City of Blytheville,
56 Ark. App. at 152, 939 S.W.2d  at 856.
     In making our review, we recognize that it is the function of
the Commission to determine the credibility of the witnesses and
the weight to be given their testimony.  Whaley v. Hardee's, 51
Ark. App. 166, 912 S.W.2d 14 (1995).  The Commission has the duty
of weighing medical evidence and, if the evidence is conflicting,
its resolution is a question of fact for the Commission.  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 it deems worthy of
belief.  Id.
     Appellee was employed as a nursing assistant at UAMS.  Her
duties included clerical work, answering phones, putting out
linens, and making surgical packs.  At the hearing before the
Administrative Law Judge, she testified that on November 15, 1995,
while lifting linens she sustained a back injury causing her to
experience pain in her right shoulder, neck, and upper back.  There
were no witnesses to the injury.  She was seen at the emergency
room at UAMS on November 15, and she was diagnosed with a back
strain.  At the time of the injury she was five and one-half months
pregnant; because of her pregnancy, extensive diagnostic testing
could not be performed.
     Appellee was seen by Dr. Teresa Maxwell in a follow-up on
November 28.  The medical record indicates:
     It was unclear the etiology of her pain [on November 15]. 
     However, it appeared to be more trapezius and upper
     shoulder tightness.

     She comes in today for follow-up, without any
     improvements at all.

     On PE today, she is afebrile.  Her VS are stable.  She
     still walked and moved her head very slowly.  Had
     problems sitting for any length of time on the exam
     table.  Said that she did better in a regular chair
     without support.  

     However, it was noted on exam that she seemed to have no
     problems nodding her head "yes" or "no" answering
     questions, than the effort put forth while trying to test
     her cranial nerves. 

     She didn't seem to have any shoulder impingement.  And
     had a lot of pain when the midline spine was palpated
     from C-3/4 all the way down to the coccyx on palpation. 
     
The December 5, 1995 follow-up examination with Dr. Maxwell
revealed the following:
     PE today is unchanged.  She still complains of pain all
     the way down the midline spine to palpation as well as in
     the trapezes and the neck muscles.  However, noted when
     walking in she can turn her head just fine and answer
     questions.  

Dr. Maxwell diagnosed thoraco-lumbar strain. 
     Appellee was examined by Dr. Derek Lewis on December 22, 1995;
she complained of pain in her right arm, shoulder, and back.  Dr.
Lewis reported that appellee suffered neck and back spasms.  An
earlier medical report dated December 6, 1995, also notes a
diagnosis of positive spasms and lumbar strain.
     On January 8, 1996, the appellee was examined by Dr. J.K.
Smelz, an assistant professor with UAMS.  Dr. Smelz noted in her
physical examination that the appellee expressed symptoms of
myofascial pain syndrome.  Dr. Smelz was unable to determine
whether the myofascial pain was secondary to an underlying problem. 
Due to the pregnancy, X-rays, CT scans, and MRIs could not be
performed.  However, Dr. Smelz did order a nerve conduction test to
be performed, which was within normal limits.  In a letter dated
March 1, 1996, Dr. Smelz remarked that appellee did have some very
mild muscle spasms in her shoulder girdle muscles at the January 8,
1996 examination; these were no longer present during a repeat
examination on January 31, 1996.
     In an April 22, 1996 letter, Dr. Lewis stated that the
appellee presented to his office on December 22, 1995, with
complaints of neck, back, shoulder, and arm pain.  Dr. Lewis noted
that "[u]nfortunately, this patient was pregnant at the time which
prevented us from doing any type of X-ray studies which also
hampered us from establishing 'objective findings' other than the
exam."  Dr. Lewis again noted that his examination on that date did
reveal back and neck spasms.  
     The Commission affirmed the decision of the Administrative Law
Judge, and adopted her opinion as its own.  The ALJ found that
appellee sustained a compensable injury caused by a specific
incident, "supported by objective findings (muscle spasm)...."  The
ALJ "noted that [the] general practitioner, Dr. Lewis, is the only
physician who supports the claimant's position that this minor
injury caused debilitating muscle spasm....  It is clear that Drs.
Maxwell and Hunt felt the claimant's symptoms were out of
proportion to her history of injury and clinical examination...."
     Appellants first argue that appellee's injury was not
supported by objective findings.  They contend that the muscle
spasms were under her voluntary control, and point to Dr. Lewis's
statement that the spasms were "50%" under patient control in
support of this contention.
     To be compensable, appellee's injury to her back had to be
established by medical evidence, supported by "objective findings." 
Ark. Code Ann.  11-9-102(5)(A)(i) provides in pertinent part:
     (A) "Compensable injury" means:

     (i) An accidental injury causing internal or external
     physical harm to the body... arising out of and in the
     course of employment and which requires medical services
     or results in disability or death.  An injury is
     "accidental" only if it is caused by a specific incident
     and is identifiable by time and place of occurrence....

Ark. Code Ann.  11-9-102(5)(D) provides that a compensable injury
must be established by medical evidence, supported by "objective
findings" as defined in  11-9-102(16).  "Objective findings" are
defined as findings that cannot come under the voluntary control of
the patient.  Ark. Code Ann.  11-9-102(16)(A)(i); see Cox v. CFSI
Temp. Employment, 57 Ark. App. 310, 944 S.W.2d 856 (1997); Daniel
v. Firestone Bldg. Prods., 57 Ark. App. 123, 942 S.W.2d 277 (1997).
     Dr. Lewis's examination of appellee revealed back and neck
spasms.  Appellee cites us to the following definition of "spasm":
     1.  An involuntary muscular contraction....  2. 
     Increased muscular tension and shortness which cannot be
     released voluntarily and which prevent lengthening of the
     muscles involved; [spasm] is due to pain stimuli to the
     lower motor neuron.

Stedman's Medical Dictionary 1304 (23d ed. 1976).  Dr. Lewis agreed
that muscle spasms are out of the voluntary control of the patient,
although he did state that "50%" was "objective" and "50%" was
under patient control.
     Substantial evidence supports the determination that
appellee's muscle spasms constitute "objective findings" in support
of her claim of a compensable injury.  Upon examination of
appellee, Dr. Lewis observed back and neck spasms.  This
observation of "[a]n involuntary muscular contraction" or
"[i]ncreased muscular tension and shortness which cannot be
released voluntarily" constitutes an objective finding.  See
Daniel, 57 Ark. App. at 125, 942 S.W.2d  at 278 (finding that a
physician's direct observation of a fibrous mass, upon physical
examination of the claimant, constitutes an objective finding
pursuant to  11-9-102(16)).
     While there was medical evidence to the contrary of Dr.
Lewis's observation and testimony, the resolution of this conflict
was a question of fact for the Commission.  Given the substantial
nature of Dr. Lewis's testimony, we cannot reverse the Commission's
decision to accept Dr. Lewis's testimony.  See City of Blytheville,
56 Ark. App. at 155, 939 S.W.2d  at 858.
     Appellants also question whether appellee suffered a
compensable injury in the course and scope of her employment.  They
note inconsistent statements, and that no one witnessed the
appellee's accident.  They suggest that appellee's testimony is not
credible in light of perceived exaggerations and inconsistent
statements.   
     The appellee testified that she had been physically healthy. 
She testified that she participated in races until she discovered
she was pregnant in August of 1995.  In September 1995, appellee
brought a light duty release from her obstetrician, and her
coworkers were told to assist her in lifting.  The evidence
indicates that she had complained of leg problems in the past, but
had not complained of back, neck, or shoulder pain until the injury
in November 1995.    
     Following her injury, appellee attempted to return to work. 
She testified that she did not feel that her supervisor was
cooperative in providing light duty.  Appellee's supervisor, Nina
Westbrook, testified that she tried to accommodate appellee in
every way, not only for the work-related injury but also because of
her pregnancy.  Appellee returned to work on December 5, 1995, with
a fifteen-pound lifting restriction that was later reduced to five
pounds on December 11, 1995, and to two pounds on January 24, 1996. 
Ms. Westbrook testified that she literally weighed on a scale all
of the objects that appellee might have to lift while at work to
get an idea of what tasks appellee could perform. 
     Appellee was a member of the United States Army Reserve; her
duties involved paper work associated with the soldiers' physicals
and medical records. She testified that she injured her leg in 1991
when she fell down some stairs while stationed in Germany.  She was
diagnosed with tendonitis and stress fractures in her legs, but an
EMG nerve conduction study proved normal.  She further testified
that after her November 15, 1995, injury she signed in for army
duty but got permission to leave because of her injury.  
     Nicole Bogard testified that she was a captain in the army and
was appellee's immediate supervisor.  She testified that, to the
best of her recollection, appellee was in attendance for the drill
conducted on November 18 and 19, 1995.  Captain Bogard could not
recall exactly what tasks appellee performed that weekend; however,
she stated that it was probably administrative work because she was
prevented from lifting anything heavy due to her pregnancy. 
Appellee did not complain to her of any prior physical problems
before sustaining the back injury in November 1995.  Appellee
missed the drill in December, which Captain Bogard assumed was
related to her pregnancy.  Captain Bogard noted that when she saw
her again in January 1996, appellee mentioned her back injury. 
     The insurance adjuster, Davis Taylor, testified that her
decision to deny the claim stemmed from a lack of objective
findings in the medical records, a conflicting statement from
appellee that indicated her last Army drill was the weekend of
October 27 through the 29, and the conflicting statement from a
witness who did not recall that appellee was crying after the work-
related injury.
     Credibility of the witnesses is a matter exclusively within
the province of the Commission.  Gansky v. Hi-Tech Eng'g, 325 Ark.
163, 924 S.W.2d 790 (1996).  Based upon the foregoing testimony,
the ALJ determined that appellee suffered a compensable injury
arising out of and in the course of her employment.  The ALJ noted
that "[t]here is no evidence the [appellee] sustained other upper
back injuries in the Army."  Because a reasonable person could
accept this evidence as adequate to support the Commission's
decision, we affirm.
     Affirmed.  
     Jennings and Stroud, JJ., agree.