Cabot Manor Nursing Center v. Sheila A. Strayhorn

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

CABOT MANOR NURSING

CENTER

APPELLANT

V.

SHEILA A. STRAYHORN

APPELLEE

CA 01-130

September 19, 2001

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION,

[E811754]

AFFIRMED

This is a workers' compensation case. Appellee, Sheila Strayhorn, was employed by appellant, Cabot Manor Nursing Center, as a certified nursing assistant. On July 6, 1998, she sustained an injury while lifting a patient. Appellant initially accepted appellee's claim as a medical-only claim, but subsequently decided that it was not compensable and controverted it. Following a hearing, the administrative law judge concluded that appellee sustained a compensable injury in that she aggravated a pre-existing neck condition and that she was entitled to benefits, including reasonably necessary medical benefits and related care, temporary total disability, and attorney's fees. The Commission affirmed and adopted the ALJ's findings except for a portion of the ALJ's decision in which the Commission "noted

that the administrative law judge applied an erroneous causation standard" concerning medical evidence and causal relationships. We affirm.

In reviewing a decision from the Workers' Compensation Commission, we view the evidence 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. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 49 S.W.3d 667 (2001). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from the Commission. Id. If reasonable minds could reach the result found by the Commission, we must affirm the decision. Id. In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Id.

Appellant first contends that the Commission's opinion is not supported by substantial evidence because appellee's condition and her claim for benefits is due to a recurrence of a non-compensable injury or to the natural result of aging, for which she is not entitled to benefits. We disagree.

An aggravation is a new injury resulting from an independent incident. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). The aggravation of a pre-existing, non-compensable condition by a compensable injury is itself compensable. Hubley v. Best Western-Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996). Moreover, the

aggravation of a pre-existing condition by a specific work-related incident need not be the major cause of a claimant's disability in order to be compensable. Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996).

Here, appellant testified that she was working for appellant on July 6, 1998, when she injured her neck lifting a patient. She stated that prior to this incident, she never had any serious neck or back injuries, but that sometimes she would get a "crick" in her neck or back from sleeping the wrong way. She acknowledged that she had seen Dr. Rochelle in 1995 with pain in her left arm and numbness in her shoulder down to her elbow, but that she did not have those problems on a regular basis from 1995 until July 1998; rather, she would have them "once in a blue moon" from sleeping the wrong way. She stated that as a result of the incident while working for appellant, she has had pain and physical problems located in her neck and across the top of her shoulders, "pretty much continuous since the day of the accident."

In his deposition testimony, Dr. Robert Dickins testified that the first time he saw appellee was August 18, 1998, and that she was referred to him by Dr. Joseph Shotts. He stated that she reported to him that while helping to transfer a completely helpless patient, she heard something audibly pop in her back or neck and that she had subsequently been experiencing neck and shoulder pain. He stated that he performed various clinical tests, and that an MRI of her cervical spine and an EMG study of her arms had been performed prior to him seeing her. He also reported that she was referred to Dr. Tony Russell for a second opinion, and that Russell ordered a myleogram and CT scan. Dickins described her medicalproblems as "cervical spondylosis, with narrowing of the spinal canal, which is referred to as spinal stenosis. This is accentuated by an ossification of the posterior longitudinal ligament, which is bony conversion of a ligament of the neck, which is a degenerative change." He reported that he did not have any history in his charts of her relating prior symptoms regarding her neck. Dr. Dickins stated that "the history we have to work with in a work-related injury is the history given to us by the patient. And this patient reports that she became symptomatic at the time a very well defined injury reportedly occurred." Moreover, physical therapy progress notes dated July 10, 15, 16, and 17 noted appellant's muscle spasms.

The progress notes of Dr. Steven Thompson, who saw appellee at the Baptist Health Center in Cabot on December 21, 1995, reveal that she gave a two-week history of "left-sided parietal and occipital headache," and that she was "beginning to develop left arm pain and numbness from the shoulder to the elbow."

Neither Dr. Thompson's progress notes made in 1995 nor appellee's testimony concerning her visit to Dr. Rochelle in 1995 establish appellant's contention that appellee suffered from the same degree of symptoms prior to her identifiable, work-related incident on July 6, 1998, as she did afterwards. Therefore, we conclude that there was substantial evidence to support the Commission's conclusion that appellee sustained a compensable injury in the form of an aggravation of her pre-existing condition.

Appellant's basic contention under its remaining point of appeal is that Dr. Dickins's opinion that there was a causal connection between appellee's condition and a work-relatedevent was based upon conjecture and speculation, and that "the Commission gave improper credence to selected portions of the testimony of Dr. Dickins when in fact that testimony had no factual basis in the record and was based upon the premise that the Appellee had no preexisting problem." Again, we disagree.

On cross-examination, Dr. Dickins testified:

I am basing that upon the fact and history that I took from her that she had no previous problems or no previous symptoms. I have no information of the nature that regards Ms. Strayhorn had previous left arm pain and numbness and neck pain since 1995. If she had had those problems as early as December 21, 1995, that would have an effect or bearing on my testimony today concerning the possibility of an aggravation of the preexisting degenerative problems that she had. She still could have had an aggravation of the symptoms, and that's the only statement that I can make on that. When I say "she could have" that would be speculation. I don't know the entire length of time, but if she became acutely symptomatic following an injury, that could be an aggravation of the prior condition. Typically, muscle spasms in the neck are related to an acute episode of neck pain, or injury. I have no record of Ms. Strayhorn telling me that she had had a previous work-related injury before the one I treated her for.

(Emphasis added.)

Appellant relies upon the doctor's statements that are emphasized in the quoted testimony and argues that this court's opinion in Freeman v. Con-Agra Frozen Foods, 70 Ark. App. 306, 27 S.W.3d 737 (2000), supports its position that the medical opinion lacks the requisite certainty. In Freeman, this court stated that while medical evidence is not ordinarily required to prove causation, if an unnecessary medical opinion is offered on that issue, it must be stated within a reasonable degree of medical certainty and that qualifying words such as "could," "may," "possibility," and "likely" would cause an opinion to lack the requisite certainty. However, this court's opinion in that was case was reversed by thesupreme court on a petition for review in Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 303, 40 S.W.3d 760, 765 (2001), where the supreme court explained:

To summarize, this court has held that medical evidence supported by objective findings is not essential in every case, but if medical opinions are offered, they must do more than state that the causal relationship between work and the injury is merely a possibility.

This court has never required that a doctor be absolute in an opinion or that the magic words "within a reasonable degree of medical certainty" even be used by the doctor. Rather, this court has simply held that the medical opinion be more than speculation. . . . Accordingly, if the doctor renders an opinion about causation with language that goes beyond possibilities and establishes that work was the reasonable cause of the injury, this should pass muster.

We find that Dr. Dickins's opinion went beyond speculation and established that appellee's work incident was the reasonable cause of the aggravation of her pre-existing condition.

Affirmed.

Neal and Vaught, JJ., agree.