Rimcor, Inc. and Superior National Insurance Group v. Albert Broach

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

MARGARET MEADS, JUDGE

DIVISION III

RIMCOR, INC. and SUPERIOR NATIONAL INSURANCE GROUP

APPELLANTS

V.

ALBERT BROACH

APPELLEE

CA00-600

December 6, 2000

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. E705697]

AFFIRMED

Appellee, Albert Broach, suffered an admittedly compensable injury on April 24, 1997, when a scaffolding collapsed, and he fell approximately twenty-five feet to the ground, almost severing his right foot at the ankle. Dr. Stephen Heim performed surgery to repair the ankle and placed an external fixation device to hold the ankle while it healed. On July 10, 1997, the fixation device was surgically removed. Appellee eventually underwent surgery to fuse his ankle, which left his right leg shorter than his left leg. Appellant was required to use a walker, crutches, and a cane while learning to ambulate, and now walks with an abnormal gait.

Dr. Heim opined that appellee reached maximum medical improvement on October 21, 1998, and assigned appellee a fifty-three percent impairment to the foot and a thirty-seven percent impairment to the lower extremity, which converted to a fifteen-percent

impairment to the body as a whole. Appellant has paid these benefits without question. Dr.Heim also placed restrictions on appellee, limiting any work to a sedentary job with periods of standing no longer than ten to fifteen minutes at a time, and walking on a smooth surface for no more than several hundred feet at a time.

As early as June 1997 appellee began experiencing back pain, which was treated by physical therapist Wayne Chaddock. In July 1998, appellee again experienced problems with his lower back, and Dr. Heim recommended further physical therapy and ordered x-rays, which showed minimal degenerative facet joint change at the L5 level on the left, but with the vertebral height, disc space heights, and posterior alignment preserved. Appellee continued to experience back pain, and on December 16, 1998, Dr. Heim referred him to Dr. John Swicegood, a pain management specialist, for treatment. Dr. Swicegood treated appellee with epidural steroid injections. An MRI performed at the behest of Dr. Swicegood in March 1999 indicated that appellee's condition had worsened since July 1998, and revealed a narrowing of the disc space at L5-S1. When appellee failed to obtain relief from the steroid injections, Dr. Swicegood referred him to Dr. Michael Standefer, a neurosurgeon. Dr. Standefer examined appellee on April 13, 1999, and stated that he suspected that appellee's back pain at the L5-S1 level was related to the stresses and strains imposed upon the lower back by the trauma from the compensable injury; however, he wanted to perform further tests on appellee.

Appellee attributed his back problems to his compensable ankle injury, and he sought to have appellant pay his expenses associated with medical treatment for his back as well as temporary total disability from December 17, 1998, until a date yet to be determined. Appellant disputed liability for these expenses. The Administrative Law Judge (ALJ) found that appellee's lower back condition was attributable to his compensable ankle injury, that appellee's medical expenses for his lower back were reasonable and necessary, and that appellant was liable for those medical expenses. The ALJ also found that appellee was temporarily totally disabled as a result of his lower back condition for a period beginning December 17, 1998, and continuing until a date yet to be determined. The Workers' Compensation Commission affirmed and adopted the ALJ's opinion. Appellant now appeals, arguing that there is not substantial evidence to support the Commission's decision. We affirm.

On appeal, the evidence is viewed in the light most favorable to the findings of the Commission and is given its strongest probative value in favor of the Commission's decision. Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983). The question is not whether the appellate court might have reached a different conclusion from the one found by the Commission if it were reviewing the case de novo, or even whether the evidence would have supported a contrary finding. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). The Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Johnson v. Democrat Printing and Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997).

When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for any natural consequence that flows from thatinjury. Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). The basic test is whether there is a causal connection between the two episodes. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). It is the Commission's duty to determine if a causal connection exists between the primary injury and any additional injuries. Williams v. Prostaff Temporaries, 336 Ark. 510, 988 S.W.2d 1 (1999).

In the present case, the Commission determined that appellee had proved a causal connection between his compensable injury and his ensuing back problems, and there is substantial evidence to support this decision. Appellee testified that he had no history of back problems prior to his injury, but began to experience back problems during his convalescence. The ALJ found this testimony to be credible, and we are bound by that determination. It is the exclusive function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

Moreover, all of the physicians who treated appellee opined that his lower back problems were probably a result of his compensable ankle injury. Although the Commission discounted Dr. Heim's opinion because he did not treat appellee's back condition, Dr. Heim opined that it was likely that appellee's abnormal gait and his prolonged use of crutches accelerated his back problems and made them worse. Dr. Swicegood indicated that appellee's low back pain may well be from his abnormal gait due to a guarding of his lower right extremity, and Dr. Standefer suspected that the pain in appellee's back at the L5-S1level was related to his compensable injury. Additionally, the March 1999 MRI indicated that appellee's back condition had worsened since the July 1998 x-rays.

Appellant contends that the facts of this case are similar to Smith v. Riceland Foods, Inc., 61 Ark. App. 132, 965 S.W.2d 794 (1998). We do not agree. In Smith, the Commission reversed the ALJ's award of benefits, finding that appellant's back problems were not a consequence of a fall in which he sustained a compensable right-knee injury. This court affirmed the denial of benefits, finding there was nothing in the record to connect appellant's back pain to his fall; thus, there was substantial evidence to support the Commission's decision. Here, the record contains medical proof from three physicians relating appellee's back condition to his compensable ankle injury. Applying the substantial-evidence standard of review to the present case, we affirm the Commission's award of benefits, because there is substantial evidence from which the Commission could conclude that appellee's back problems were a direct result of his compensable injury.

Appellant also contends there is insufficient evidence to support the Commission's award of temporary total disability benefits from December 17, 1998, until a date yet to be determined. In Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997), we stated:

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). The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period hasended. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The Commission has the duty of weighing the medical evidence as it does any other evidence, id., 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).

58 Ark. App. at 13, 944 S.W.2d at 860.

It is clear from Dr. Standefer's report that there are several options he wishes to explore with regard to appellee's back problems. None of appellee's physicians believes that appellee has reached maximum medical improvement with regard to his back. Therefore, there is substantial evidence that appellee remains in his healing period.

With regard to appellee's ability to earn wages, the ALJ concluded that the greater weight of the evidence indicated that appellee's back condition precluded him from engaging in any employment activities requiring frequent bending or twisting at the waist; prolonged sitting, standing, or walking; and heavy lifting or carrying. In support of its argument, appellant points to the testimony of Dr. Heim that appellee would not be disabled if only his back problem were taken into consideration. However, the Commission has the authority to accept or reject medical opinions and to determine their medical soundness and probative force. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Once the Commission has before it firm medical evidence of physical impairment and functional limitation, it has the advantage of its own superior knowledge of industrial demands, limitations, and requirements, and can apply that knowledge and expertise in weighing the medical evidence of functional limitations together with other evidence of the manner in which the functional disability will affect the ability of an injured employee to obtain or holda job. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Although Guess concerned a permanent partial disability rating rather than temporary total disability, the Commission's superior knowledge is no less applicable in the area of temporary total disability. Here, Dr. Heim testified that the limitations he placed on appellant for his ankle were the same limitations for his back. There is substantial evidence to support the Commission's decision that appellee was temporarily totally disabled by his back injury from December 17, 1998, until a time yet to be determined.

Affirmed.

Koonce and Crabtree, JJ., agree.