Wanda Benfield v. Wal-Mart Stores, Inc.

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, Judge

DIVISION I

WANDA BENFIELD

APPELLANT

v.

WAL-MART STORES, INC.

APPELLEE

CA 01-00044

SEPTEMBER 5, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E801965]

AFFIRMED

Wanda Benfield appeals from a Workers' Compensation Commission's order finding that she was not entitled to additional temporary total disability benefits and that she failed to prove by a preponderance of the evidence that disk-fusion surgery was reasonable and necessary medical treatment. We affirm.

Benfield, while working for Wal-Mart in night receiving, suffered a compensable injury to her low back on January 27, 1998, when she pushed down on a pallet. After she failed to respond to three months of conservative treatment, Dr. Phillip Johnson performed a lumbar laminectomy at L5-S1 left with discectomy. Following the surgery, Benfield complained of muscle spasms and persistent pain in her back and legs. Dr. Johnson performed an MRI that revealed the build-up ofscar tissue. Dr. Johnson referred Benfield to a pain clinic, but she reported that her pain was not alleviated by the treatment. On November 11, 1998, Dr. Johnson opined that, despite his efforts with conservative treatment, "the claimant was going to need surgery." Dr. Johnson referred Benfield to a doctor for his recommendation and opinion, but Wal-Mart refused that referral and referred Benfield to Dr. Wayne Bruffett.

Dr. Bruffett's initial report was not introduced into evidence, but according to Dr. Johnson's December 9, 1998, clinical note, Dr. Bruffett recommended Benfield take non-steroidal anti-inflammatory medication and physical therapy. Benfield saw Dr. Bruffett again on January 6, 1999, when Dr. Bruffett diagnosed Benfield with "failed spinal surgical syndrome with persistent low back pain" and stated that "she has again reached maximum medical improvement" and "may have some degree of impairment based on her pain." He recommended Benfield undergo therapy to strengthen her abdomen and back , undergo a functional capacity evaluation and then "find a job that meets these limitations." The recommended functional capacity evaluation found Benfield capable of work within the sedentary category according to U.S. Department of Labor Standards.

On January 13, 1999, Benfield was referred to Dr. Bruce Safman, who assigned Benfield a ten-percent disability rating pursuant to the Guides to the Evaluation of Permanent Impairment and restricted her from lifting over fifteen pounds with no repetitive lifting or twisting. Dr. Safman's May 10, 1999, letter to the respondent-carrier stated, "I was not convinced that she was having a great deal of pain at the time of her examination." Wal-Mart accepted and paid Benfield benefits pursuant to Dr. Safman's rating. By agreement of the parties, the Commission ordered Benfield to undergo an independent medical evaluation by Dr. Jim Moore, who concluded that Benfield would not likely benefit from additional surgery, that her healing period had ended, and that she sustained permanent impairment in accordance with her previous ten-percent rating.

At the April 26, 2000, hearing before the Administrative Law Judge (ALJ), Benfield claimed that the surgical fusion recommended by Dr. Johnson was reasonable and necessary, that she was entitled to temporary total disability (TTD) benefits, and that she was entitled to an automatic change of physician to Dr. Johnson. Wal-Mart controverted all of her claims.

At the hearing, Benfield testified that she was in constant pain, and she acknowledged that Dr. Johnson advised her that there was only a fifty-fifty chance that the proposed surgical procedure would relieve some of her pain. She also stated that Wal-Mart had offered her a job as a "greeter" but testified that she could not perform the job because she could not drive, she was "drunk" from her medication, and because the job required her to perform tasks outside her sedentary restrictions, such as mop the floor and pull carts apart.

The ALJ found that: (1) Benfield failed to prove by a preponderance of the evidence that she remained within her healing period and was totally incapacitated from earning wages subsequent to January 6, 1999, and therefore, she failed to prove she was entitled to additional TTD benefits; (2) Wal-Mart paid TTD benefits through January 20, 1999, and was entitled to a credit for any benefits paid beyond January 6, 1999; (3) Benfield failed to prove by a preponderance of the evidence that Dr. Johnson's recommended surgery was reasonable and necessary medical treatment related to her compensable injury; and (4) Benfield failed to prove she was entitled to a change of physician back to Dr. Johnson. The Commission vacated the ALJ's decision regarding Benfield's entitlement to a change of physician because it found that Dr. Johnson was already her authorized treating physician. However, it adopted the ALJ's findings in regard to TTD and the reasonableness of the surgery, and from these findings, Benfield appeals.

The standard of review in workers' compensation cases is well settled. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission'sfindings and affirm the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The issue 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 its decision. Geo Specialty, supra.

Benfield first argues that the Commission erred in finding that she failed to prove that the surgery Dr. Robinson recommended was reasonable and necessary medical treatment related to her compensable injury as required by Arkansas Code Annotated § 11-9-508(a) (Repl.1996). See also American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). Whether a medical procedure is reasonable and necessary is a question of fact to be decided by the Commission. Air Compressor Equipment v. Sword, supra.

Benfield's argument focuses on Dr. Johnson's medical records and opinions. While it is true that Dr. Johnson opined that the disk-fusion surgery was reasonable and necessary treatment, her argument ignores the fact that Dr. Johnson's recommendations were not based on objective findings but upon Benfield's complaints of pain and her positive pain response to the provocative diskogram, the reliability of which was questioned by Dr. Moore. Further, both Dr. Johnson and Benfield acknowledged that the surgery was only fifty-percent likely to alleviate her pain, and Dr. Safman questioned the extent and amount of Benfield's pain. Her argument also ignores medical opinions from the other physicians that the spinal fusion was not reasonable and necessary. The Commission clearly gave these opinions more credibility and weight than the opinion of Dr. Johnson. This determination is within the sole province of the Commission; the Commission's authority to resolve conflicting evidence extends to medical testimony. Maverick Transportation v. Buzzard, 69 Ark.App. 128, 10 S.W.3d 467 (2000). Therefore, there is substantial evidence to support the Commission's finding.

Benfield also contends that the Commission erred in adopting the ALJ's finding that she is not entitled to TTD benefits beyond January 6, 1999, the date Dr. Bruffett reported that Benfield had reached maximum medical improvement. Temporary total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Stafford v. Arkmo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996). The healing period is that period for healing of an injury which continues until the claimant is as far restored as the permanent character of the injury will permit. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998).

Benfield's argument again focuses on the medical opinion of Dr. Johnson, who stated that she was still within her healing period and unable to work. However, the record reveals that on January 6, 1999, Dr. Bruffett stated that Benfield had reached maximum medical improvement. Further, Dr. Safman rated Benfield with a permanent impairment rating and imposed permanent lifting restrictions, which Wal-Mart paid. The permanent character of an injury cannot be ascertained until the healing period has ended. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). While Benfield testified that she has persistent pain, persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982) (citing 2 Larson, The Law of Workmen's Compensation s 57.12, pp. 10-8-10- 16 (1981)). Hence, the record presents substantial evidence to support the Commission's conclusion that Benfield failed to establish by a preponderance of the evidence that she is still within her healing period.

Substantial evidence also supports the Commission's finding that Benfield did not prove bya preponderance of the evidence that she was totally incapacitated from earning wages. Wal-Mart offered Benfield a job as a "people greeter" that fit within her sedentary work restrictions. While Benfield testified that she could not perform the job because she had observed that it required tasks outside her restrictions, there was no evidence that she would have to perform duties outside the scope of Wal-Mart's stated requirements that she "meet and greet customers, ticket return items with garvey gun, ensure that the entrance has safe floor conditions for our customers, and hand out stickers to children." Notably, Benfield did not even attempt to perform the job after the offer was extended.

Affirmed.

Pittmann and Hart, JJ., agree.