Wal-Mart Stores, Inc., Employer, and Claims Management, Inc., Carrier v. Troy Kennedy

ca00-863

DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA00-863

April 18, 2001

WAL-MART STORES, INC., AN APPEAL FROM ARKANSAS

EMPLOYER, and CLAIMS WORKERS' COMPENSATION

MANAGEMENT, INC., CARRIER COMMISSION [E503884]

APPELLANTS

V.

TROY KENNEDY

APPELLEE AFFIRMED

Wal-Mart Stores, Inc., and Claims Management, Inc., the company's workers' compensation carrier, appeal from an order of the Workers' Compensation Commission. The Commission found that appellants were liable for any additional medical treatment for Troy Kennedy, Wal-Mart's employee, that was reasonably necessary and was related to his compensable injury sustained in February 1995. The Commission also found that appellants failed to establish that there was an independent intervening cause following appellee's compensable injury that caused or prolonged his disability or need for treatment. However, the Commission found that appellee failed to prove that routine follow-up visits for the sole purpose of monitoring his back condition were reasonably necessary. We hold that the Commission's decision is supported by substantial evidence; therefore, we affirm.

Appellee sustained an admittedly compensable, lower back injury on February 20, 1995. Dr. Ronald Williams performed a lumbar laminectomy at the L5-S1 level on appellee in March 1995. In September 1995, Dr. Williams assigned appellee a 10% permanent physical impairment rating to the body as a whole. Appellee returned to work on a part-time basis in October 1995, and returned on a full-time basis by late 1996. He was eventually required to return to positions requiring manual labor.

Appellee has experienced problems with low back pain, numbness, and pain radiating into his lower extremity since his injury. The medical records show that he received treatment for these problems until mid-1996, but there is no further evidence of subsequent medical treatment until May 1999, after he injured his back playing golf. Appellants refused to authorize additional medical treatment after April 21, 1998; therefore, a hearing was scheduled to determine if appellee was entitled to additional medical treatment.

At the time of the hearing before an Administrative Law Judge (ALJ), appellee continued to work for Wal-Mart driving a forklift. He testified that the bouncing motion and vibration of the forklift bothers his back. His wife, a registered nurse, testified that since his injury appellant had continuously experienced problems with low back pain, numbness, and pain radiating into his lower extremity.

Dr. Williams indicated in a narrative statement that he continues to see appellee "to monitor his progress with his job and with his back. I can either do that on a routine basis or on a prn [as needed] basis as symptoms arise." Both appellee and his wife indicated that his visits to Dr. Williams were not precipitated by any particular problems or symptoms, butthey both felt it was necessary for Dr. Williams to continue monitoring the condition of his back. In addition, appellee acknowledged that a partial motivation for the visits was to prevent the statute of limitations from barring his claim.1 Appellee also admitted that he exacerbated his low back pain symptoms while playing golf.

The ALJ found that appellants failed to establish an independent intervening cause that would remove their liability to provide additional treatment. The ALJ stated that appellee's original compensable injury resulted in the need for surgery, and appellant continued to experience pain and problems related to that injury. The ALJ further found that playing golf was not an unreasonable activity because Dr. Williams released appellee to return to work without any specific restrictions, and when appellee and his wife questioned Dr. Williams about activities in which he should and should not participate, Dr. Williams did not advise them that he should not play golf. Therefore, the ALJ found that appellants remained liable for any medical treatment that is reasonably necessary for the treatment of appellant's compensable injury.

However, the ALJ also found that appellee failed to prove that routine follow-ups solely to enable Dr. Williams to monitor his back condition were reasonably necessary. The Commission affirmed and adopted in full the findings of the ALJ. This appeal followed.

In reviewing a decision of the Worker's Compensation Commission, we view theevidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. See Geo Specialty Chemical v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue on appeal 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 the Commission's decision. See Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999).

Additional Medical Treatment

We hold that the Commission did not err in finding that appellee was entitled to additional medical treatment that is reasonably related to his original compensable injury. An employer is obligated to promptly provide for an injured employee such services as may be reasonably necessary in connection with the injury received by the employee. See Ark. Code Ann. § 11-9-508(a) (Repl. 1996). What constitutes reasonable and necessary treatment under this section is a question of fact for the Commission. See Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996).

Appellants maintain that there is no substantial evidence to support that additional medical treatment is reasonably necessary or is related to appellee's 1995 compensable injury. Appellee was thirty-seven years old at the time of the hearing. He had undergone two back surgeries. The record shows that one surgery was a laminectomy; the other surgery was unspecified. He testified that his current position driving a forklift "bounces" and "vibrates" him; that maneuvering the controls on the forklift "throws" him forward and back;and that he is required to manually push pallets weighing from seventy-five to 100 pounds. He testified that he continues to have problems with his back, and takes Darvocet, Flexeril, and Prednisone for pain management. Appellee testified that his wife sometimes has to assist him with putting on his shoes and pants. He stated the main reason he would like to continue to see Dr. Williams2 is so that "I can keep a check on my back, so that something major does not happen," but conceded that one of the reasons he wanted to continue treatment with Dr. Williams is to keep his claim open and to prevent the statute of limitations from running. Appellee's wife, a registered nurse, testified that he continues to experience pain radiating down into his right leg. She also opined that appellee's condition is chronic and therefore, needs to be monitored just as if he had another chronic condition, such as diabetes. She also testified that her insurance through her employer paid for appellee's visits to the chiropractor, and that there is no charge for her or her family to see their physician.

Dr. Williams assessed appellee with a 10% impairment rating, due to his back surgeries. On April 23, 1996, Dr. Williams opined that appellee had achieved "maximum medical disability." As early as July 1996, he indicated that he would continue to see appellee on an as-needed basis. On April 20, 1998, Dr. Williams indicated that appellee's visits on September 23, 1997, and March 3, 1998, were related to his back injury, although no active treatment was delivered on either visit. On April 22, 1998, Dr. Williams indicatedthat he did not "anticipate any further medical treatment will be necessary on Mr. Kennedy unless he becomes symptomatically worse or has another injury."

The issue in this case is whether indefinite continued monitoring of appellee by Dr. Williams constitutes reasonable and necessary medical treatment. We have not adopted a bright-line rule stating that continued monitoring is not reasonable and necessary treatment. However, on the facts of this case, we hold that the Commission did not err in finding that such continued monitoring is not reasonably necessary.

Appellee reached maximum medical improvement as early as April 23, 1996, or as late as April 22, 1998. As early as July 1996, Dr. Williams indicated that he would continue to see him on an as-needed basis. However, the medical evidence only showed that appellee received active treatment from Dr. Williams through July 1996. Even given appellee's subsequent injury in 1999, the record shows that the latest date that appellee has received either active treatment or monitoring from Dr. Williams was September 23, 1997. Appellee provides a reference in his brief to his medical records for May 15, 1999, through June 23, 1999, but these records are not abstracted. His record merely shows that he was "monitored" on two visits from some point prior to September 23, 1997, until the date of the hearing, April 20, 1998. Further, while he testified that he visited a chiropractor twenty-two times after his golfing injury, he did not testify that he received any treatment or monitoring from Dr. Williams after that injury. In addition, although appellee and his wife testified that he continually experienced pain, they conceded that his most recent visits to Dr. Williams were not precipitated by any particular problems or symptoms.

Appellee's additional treatment would be prospective, and he did not present any evidence, medical or otherwise, to indicate how long his condition would need to be monitored. Dr. Williams merely indicated that he could monitor appellant routinely or on an as-needed basis. Therefore, appellee seemingly asks this court to require his employer to pay for such monitoring for a potentially indefinite period of time. Even though appellee's express intent to keep his claim open is not dispositive in determining his entitlement to receive additional treatment,3 to affirm his entitlement to additional medical treatment where there is no evidence concerning how long his condition would need to be monitored would arguably violate the legislative intent in providing a timely resolution to additional claims for compensation that is inherent in the statute of limitations under Arkansas Code Annotated section 11-9-702(b)(1). Therefore, we hold that the Commission did not err in finding that appellee failed to demonstrate by a preponderance of the evidence that his continued monitoring by Dr. Williams was reasonably necessary.

Independent Intervening Cause

We further hold that the Commission did not err in finding that there was no independent intervening cause that removed appellants' obligation to furnish appellee with additional reasonably necessary treatment.

Appellants maintain that Act 796, Arkansas Code Annotated section 11-9-102(5)(F)(iii), and Davis v. Old Dominion Freight Lines, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000), should be strictly construed to read that the Arkansas workers' compensation law does not require unreasonable conduct on the part of the claimant in order to establish an independent intervening cause. They further assert that if unreasonable conduct is required to establish an intervening cause, appellee's conduct in playing golf was unreasonable.

It is well-settled that workers' compensation statutes are to be strictly construed. See Ark. Code Ann. § 11-9-1001; see also Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). The statute governing intervening causes provides that "benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant." Ark. Code Ann. § 11-9-102 (5)(F)(iii) (Supp. 1999).

Appellants maintain that this standard governing independent intervening causes does not require unreasonable conduct on the part of the claimant.4 However, this argument hasbeen rejected by our supreme court. In Guidry v. J & R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984), this court cited the pre-Act standard for determining whether an intervening cause existed, stating:

the question is whether there is a causal connection between the primary injury and the subsequent disability and if there is such a connection, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. (Citations omitted.) (Emphasis added.)

11 Ark. App. at 223, 669 S.W.2d at 485. The Guidry court further stated that "not only can there be an independent intervening cause without negligence or recklessness on the claimant's part, but unreasonable conduct on the claimant's part may create an independent intervening cause which would not otherwise exist." 11 Ark. App. at 224, 669 S.W.2d at 486. In Old Dominion, supra, our supreme court squarely held that the unreasonable standard articulated in Guidry still applied to post-Act cases. See 341 Ark. at 757-58, 20 S.W.3d at 330.

Therefore, it was necessary to show that appellee's conduct in playing golf was an unreasonable act that necessitated his need for further treatment. There is no dispute thatappellee's conduct in playing golf exacerbated his prior back injury. The issue is whether such conduct was unreasonable. With no citation to authority, appellants assert that, "The fact that appellee reached maximum medical improvement and then over a year later injured himself while playing golf is sufficient for the establishment of an independent intervening cause." Appellants would have us hold that because appellee had a prior back injury, playing golf, per se, was an unreasonable activity. They argue, without citation to authority or medical evidence, that the nature of appellee's back injury and the twisting motions required to play golf make it unreasonable for him to play golf. They further assert that appellee accepted a 10% impairment rating to the body as a whole, was aware of the permanent nature of his back injury, and that the bending and twisting of one's back required in playing golf are not reasonable movements for someone who has undergone two back surgeries.

Appellants also refer to a letter dated April 22, 1998, in which Dr. Williams indicated that he did not "anticipate any further medical treatment will be necessary on Mr. Kennedy unless he becomes symptomatically worse or has another injury." Therefore, they maintain that appellee reached maximum medical improvement no later than April 22, 1998, and did not require further medical treatment until he injured his back playing golf. It is undisputed that appellee went to the hospital on May 4, 1999, over one year later, as a result of a new injury resulting from a golfing accident.

It is true that in considering whether conduct is unreasonable, this court considers a claimant's knowledge of his condition. See Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993); Lunsford v. Rich Mountain Elec. Coop., 38 Ark. App. 188, 832 S.W.2d 291 (1992). However, such a consideration in this case supports the Commission's finding that appellee did not engage in unreasonable conduct in playing golf. The record shows that appellee's wife, a registered nurse, testified that Dr. Williams instructed appellee to "resume normal activities as much as he could." Appellee and his wife testified that he was cleared by his doctor to use his own judgment in resuming normal activities. He states that playing golf four years after the accident occurred, which was also two-and-one-half years after being instructed by his doctor to resume normal activity, is not unreasonable. Although appellee and his wife denied that he had played golf prior to 1999, appellants submitted into evidence a videotape taken in 1997, before appellee was released, that showed appellee playing golf with no apparent problems. The private investigator who taped the activity stated that appellee "didn't seem to display any kind of problem or disability or protective posture in his movements. When he golfed, it was just like anybody would golf . . . . He was just moving about in what I'd call a normal manner."

Appellants obviously introduced this tape in an effort to show that appellee was not a credible witness, but the fact that appellant was able to play golf without any apparent problems prior to his release supports the notion that he would be able to play without expecting any problems nearly two years later. While appellants were not required to prove an intervening independent cause by medical evidence, the lack of any evidence that golfing, per se, was an unreasonable activity for a person with appellant's medical history, combined with appellee's belief that he had not been restricted from playing golf, supports theCommission's decision.

In Lunsford v. Rich Mountain Elec. Coop., supra, this court held that the Commission erred in finding that the claimant engaged in an unreasonable activity where the claimant believed that his doctor had approved the activity of horseback riding, where the medical evidence of the effect of the activity on the claimant's condition was absent from the record, and where the claimant was not riding a horse when the incident occurred. The Lunsford court stated that although it deferred to the Commission's experience and knowledge when employed to make a finding based on the evidence before it, the Commission's expertise cannot be substituted for evidence. See id. Unlike the claimant in Lunsford, here it is undisputed that appellee was engaged in the activity in question, playing golf, when the second injury occurred. However, given that appellee had been released to return to work on a full-time basis with no restrictions, had been advised to resume normal activities, and that he was able to play golf in 1997 with no apparent problems, we hold that the Commission did not err in finding that appellee did not engage in unreasonable conduct by playing golf.

Affirmed.

Crabtree and Baker, JJ., agree.

1 Arkansas Code Annotated section 11-9-702(b)(1) (Repl. 1996) provides that a claim for additional compensation shall be barred unless filed with the Commission within one year from the date of the last payment of compensation or two years from the date of the injury, whichever is greater.

2 Appellee testified that his own insurance will not pay for his visits to Dr. Williams because Dr. Williams is not a network provider.

3 Pursuant to Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997), a claimant is not precluded from receiving benefits to which he may be otherwise entitled simply because one motivation for seeking additional treatment is to keep his workers' compensation claim active. The Georgia-Pacific court agreed with the Commission's finding that the issue was the claimant's entitlement to additional care, not her motivation for seeking additional care. Id. at 371, 950 S.W.2d at 466.

4 Appellants argue that the separation of negligence and reasonable conduct under the current application of section 11-9-102(5)(F)(iii) is contrary to legal reasoning. Section 11-9-102(5)(F)(iii) expressly states that a nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant. They maintain that a reasonableness standard is inherently incorporated in the negligence portion of the statute. Therefore, a standard that does not include a claimant's negligence but requires unreasonable conduct is logically inconsistent. Thus, appellants' claim that because the General Assembly has determined that negligence is not required to establish an intervening cause, a party's unreasonable conduct should not be a factor in establishingwhether an independent intervening cause exists.

As noted above, we are not persuaded by this argument. First, appellants did not raise this argument to the ALJ or the Commission. This court will not address issues that are raised for the first time on appeal. See W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996). Second, as noted previously, this argument has been implicitly rejected by the supreme court's holding in Old Dominion, supra, in which the court examined the language of the governing statute, and held that the reasonableness of a party's conduct shall be considered in determining whether an independent intervening cause exists to relieve the employer of liability for additional treatment.