Union County v. Judith Hughes

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

UNION COUNTY

APPELLANT

V.

JUDITH HUGHES

APPELLEE

CA00-566

January 24, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E005739]

AFFIRMED ON APPEAL AND CROSS-APPEAL

The appellee in this worker's compensation case was injured in a work-related traffic accident while employed as a paralegal by appellant Union County. As a result of this compensable injury, appellee underwent five surgeries to her neck, the final procedure being performed on August 1, 1997. Appellee filed a claim for additional temporary total disability benefits beyond June 1998, and for additional medical benefits. The Commission granted her request for additional medical benefits but denied additional temporary total disability benefits after finding that her healing period had ended. From that decision, comes this appeal.

Union County appeals, arguing that the Commission erred in finding that the additional medical benefits were reasonable and necessary for treatment of appellee's compensable injury. Appellee cross-appeals, contending that the Commission erred in finding that her healing period had

ended so as to foreclose any additional temporary total disability benefits. We affirm on appeal and on cross-appeal.

With respect to appellee's claim for additional medical treatment, appellant contends that the Commission erred in finding that continuing treatment and medication by Dr. Hart is reasonable and necessary, that follow-up treatment by Dr. Sheppard is reasonable and necessary, and that psychiatric treatment by a psychiatrist in El Dorado is reasonable and necessary. Appellant also asserts that there is no substantial evidence to support the Commission's denial of appellant's request that appellee submit to an evaluation by Dr. Valentine, or to support the Commission's finding that appellee is entitled to an EMG ordered by Dr. Saer.

Arkansas Code Annotated § 11-9-508 (Repl. 1996) requires employers to provide all medical treatment that is reasonably necessary for the treatment of a compensable injury. What constitutes reasonable and necessary treatment under this statute is a question of fact for the Commission. Geo Specialty Chemical v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). In determining the sufficiency of the evidence to support the findings 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 we will affirm if those findings are supported by substantial evidence. Winslow v. D & B Mechanical Contractors, 69 Ark. App. 285, 13 S.W.3d 180 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Nelson v. Timberline International, Inc., 57 Ark. App. 34, 942 S.W.2d 260 (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. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). Thedetermination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Winslow v. D & B Mechanical Contractors, supra. 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.

Viewing the evidence, as our standard of review requires, in the light most favorable to the Commission's findings, the record reflects that, following her injury, appellee suffered from increasing pain which was not rectified despite five surgical operations to her neck. Dr. Hart treated appellee's pain with narcotics, stating that it was a reasonable and accepted practice to do so on a long-term basis in cases of extreme, debilitating pain such as that experienced by appellee. Appellant objected to Dr. Hart's treatment and threatened to withhold further treatments unless appellee submitted to a detoxification program administered by Dr. Safman. Appellee did so, but as a result her condition deteriorated dramatically. Suffering from extreme pain and concomitant emotional distress, she sought treatment from a local friend and physician, Dr. Sheppard, and returned to Dr. Hart who reinstated treatment with narcotics. Her condition has improved somewhat and stabilized since that time.

Appellant's arguments on appeal are generally addressed to matters of weight and credibility, and therefore provide no basis for reversal. As we have already stated, the determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Winslow v. D & B Mechanical Contractors, supra. For example, determining the reasonableness of Dr. Hart's treatment requires the fact-finder to choose between the testimony of Dr. Hart and Dr. Safman, whose views regarding the use of narcotics for pain management are diametrically opposed. Although there was a considerable amount of evidence adduced at the hearing to show that Dr. Hart's treatment of appellee was reasonable and necessary, Dr. Safman wasthe only physician to suggest that Dr. Hart's method of treatment was inappropriate, and Dr. Safman conceded that he himself never treats patients with narcotic medications. The interpretation of medical opinion is for the Commission, and the interpretation given to such evidence by the Commission has the force and weight of a jury verdict. Geo Specialty Chemical v. Clingan, supra. When the medical evidence is conflicting and the Commission chooses to accept the testimony of one physician over that of another, the courts are powerless to reverse the Commission's conclusion in this regard. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998); Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981); Hunter Wasson Pulpwood v. Banks, 270 Ark. 404, 605 S.W.2d 753 (Ark. App. 1980).

With regard to the reasonableness and necessity of Dr. Sheppard's treatment, the Commission noted that appellee was in significant pain when she concluded Dr. Safman's 30-day inpatient program in June 1998 because Dr. Safman had replaced all of her pain medication with placebos. Dr. Sheppard, who was acquainted with appellee, was struck by her appearance when she concluded the program and returned to El Dorado, re-instituted appellee's pain medication, and saw appellee very frequently for a brief time thereafter because she was so distraught, with office visits quickly tapering off to one per month at his office in El Dorado, where appellee resides. Noting the testimony of Drs. Hart, Safman, and Sheppard that appellee's chronic pain management will require some type of team approach; the testimony that appellee was exceedingly distraught after she underwent Dr. Safman's inpatient program at appellant's insistence; and the evidence that appellee refused to authorize a treating psychiatrist or psychologist in her hometown of El Dorado, the Commission concluded that Dr. Sheppard's treatments were reasonable and necessary for the treatment of appellee's chronic pain. Appellant's arguments to the contrary are premised on considerations of weight and inferences to be drawn from the evidence, Winslow v. D & BMechanical Contractors, supra, and we hold that the Commission's decision in this regard is supported by substantial evidence.

Appellant next argues that the Commission erred in finding that psychiatric treatment by an El Dorado psychiatrist is reasonable and necessary. On appeal, appellant concedes that appellee needs psychiatric treatment, but asserts that it did not deny this treatment to appellee, but instead merely sought an independent psychiatric evaluation by Dr. Rice in Little Rock so that he could recommend a competent psychiatrist in El Dorado. Appellant asserts that it was error for the Commission to deny such an independent evaluation. However, the Commission did not rule on appellant's request for an independent medical evaluation by Dr. Rice, but instead held only that it was unreasonable for appellant to withhold local psychiatric treatment pending such an examination because appellee lives in El Dorado, she cannot drive herself to Little Rock, and she will at least initially be likely to require psychiatric care too frequently to make it practical to employ a Little Rock practitioner. It was the appellant's responsibility to obtain a ruling on this issue by the Commission, and a question not passed upon below presents no question for decision on appeal. W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996). Consequently, there is nothing for us to review with regard to this issue.

Appellant further contends that there is no substantial evidence to support the Commission's denial of appellant's request that appellee submit to an evaluation by Dr. Valentine, a pain-management specialist in Little Rock. However, the Commission held that appellant did not attempt to secure a mere evaluation by Dr. Valentine, but actually intended to obtain a change of physician rather than a mere evaluation. In light of the testimony of appellant's adjuster that, if appellee had in fact presented to Dr. Valentine, the adjuster would have treated this as a change of physician, we cannot say that the Commission erred in so finding.

Finally, appellant argues that there is no substantial evidence to support the Commission's finding that appellee is entitled to an EMG ordered by Dr. Saer. They argue that Dr. Saer did not order an EMG, and that an EMG was unnecessary after an MRI performed in February 1999 revealed no new problem with appellee's neck. We do not agree. In a report dated February 9, 1999, Dr. Saer noted that appellee presented with new symptoms, and that the problem was a very complicated one to diagnose given that she had undergone five surgeries to her neck. He stated that it "would be helpful to get an MRI to evaluate this further," and that he "could do EMG studies as well if needed." In light of the evidence that the MRI performed on February 24, 1999, yielded no new information, we think the Commission reasonably concluded that the EMG studies mentioned by Dr. Saer as a possibility were therefore "needed."

On cross-appeal, appellee contends that the Commission erred in failing to grant additional temporary total disability benefits. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). Arkansas Code Annotated section 11-9-102(13) (Repl. 1996) defines "healing period" as that period for healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. American Greetings Corp. v. Garey, supra. The determination of when the healing period has ended is a factual determination for the Commission which will be affirmed on appeal if supported by substantial evidence. Id.

Appellee argues that, because all parties now agree that she requires psychiatric treatment, she will be more able to work following the psychiatric treatment ordered by the Commission andis therefore still within her healing period. However, there is no evidence that this treatment will actually restore her ability to work, rather than merely deal with issues relating to narcotic addiction associated with her pain management. It is the claimant's burden to show entitlement to workers' compensation benefits by a preponderance of the evidence, Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995), and, in light of the testimony of Drs. Saer and Safman to the effect that appellee had reached maximum medical improvement by June 1998, we cannot say that the Commission erred in finding that her healing period ended as of that date.

Affirmed on appeal; affirmed on cross-appeal.

Griffen and Roaf, JJ., agree.