Wal-Mart Stores, Inc. v. Harold Hayden

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

WAL-MART STORES, INC.

APPELLANT

V.

HAROLD HAYDEN

APPELLEE

CA 01-539

OCTOBER 17, 2001

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E904047]

AFFIRMED

Appellee Harold Hayden sustained a compensable neck injury while working for appellant Wal-Mart Stores, Inc. on April 1, 1999. Mr. Hayden was directed to visit Wal-Mart's company doctor, Dr. Craig McDaniel, and after conservative treatment he was referred to Dr. Kenneth Tonymon, a neurologist. Dr. Tonymon diagnosed bilateral foraminal stenosis at C5-6, a disc bulge and possible herniation at C6-7, and carpal tunnel syndrome, and recommended surgery. Mr. Hayden opted to proceed with physical therapy instead of surgery, and was referred to Dr. Fereidoon Parsioon for a second opinion. Dr. Parsioon treated Mr. Hayden conservatively, and ultimately released him from care.

Mr. Hayden petitioned the Workers' Compensation Commission for a change of physician to the physician of his choice. Alternatively, he requested continued treatment from Dr. Tonymon, or an independent evaluation by a physician of the Commission'schoosing. Wal-Mart contested a change in physician, asserting that additional treatment by any physician was not reasonably necessary nor related to the compensable injury.

After a hearing, the Commission found that additional medical care was reasonably necessary for treatment of the compensable injury, and directed Wal-Mart to provide treatment by a physician selected by Mr. Hayden. Wal-Mart now appeals that decision, arguing that it is not supported by substantial evidence. We affirm.

When the Commission's findings of fact are challenged on appeal, we affirm if they are supported by substantial evidence. Pennington v. Gene Cosby Floor & Carpet, 51 Ark. App. 128, 911 S.W.2d 600 (1995). Substantial evidence means such relevant evidence as a reasonable mind might accept to support a conclusion. Id. We do not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Id.

On April 1, 1999, Mr. Hayden leaned forward, then raised up and hit his head on a sign while at work. He testified that someone else reported the work-related injury on that day because he was "knocked senseless." Mr. Hayden testified that he never had any head or neck injuries prior to that time, but has since suffered neck pain, headaches, and numbness in his arms.

Mr. Hayden acknowledged that he wanted to undergo physical therapy before resorting to the surgery recommended by Dr. Tonymon. However, he also testified that the surgery was canceled by Monica Fraser, the case consultant for his workers' compensation

claim. After Ms. Fraser referred him to Dr. Parsioon, Mr. Hayden was returned to work inApril 2000, but was unable to complete his shift due to severe headaches and numbness in his right arm.

Mr. Hayden underwent physical therapy at the direction of Dr. Parsioon with only limited success. According to Mr. Hayden, he later contacted Ms. Fraser asking for a change of physician, and she told him that she would find a replacement. However, Ms. Fraser never complied with Mr. Hayden's request.

For reversal, Wal-Mart contends that the Commission erred in ordering a change in physician because the change is not reasonable and necessary for the treatment of Mr. Hayden's compensable neck injury. It acknowledges that, pursuant to Ark. Code Ann. § 11-9-514(a)(3)(A)(ii) (Repl. 1999), a claimant may petition the Commission one time for a change of physician. However, it cites Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992), for the proposition that the claimant must prove a causal connection between the work-related incident and the later disabling injury. Wal-Mart submits that, while it accepted the April 1, 1999, injury as compensable, the medical evidence establishes that there is no causal connection between the work-related injury and the current physical problems for which Mr. Hayden seeks treatment.

In support of its argument, Wal-Mart notes that MRIs were taken thirteen days after the accident and, as read by Dr. John Phillips, they primarily revealed degenerative problems and no herniations. Mr. Hayden underwent a bone scan nine days later, from which Dr. Kenneth Tidwell concluded that, "I think the most likely etiology is degenerative type changes."

Wal-Mart acknowledges that Dr. Tonymon read the same MRIs as Dr. Phillips, and on June 21, 1999, reported, "There is a right C5-6 foraminal stenosis which is, I think, severe, and bulging disc at C6-7." Dr. Tonymon then ordered a myelogram and post-myelogram CT scan, which confirmed his earlier diagnoses, and further revealed a possible herniated disc. However, Wal-Mart contends, "A preponderance of the evidence establishes that Dr. Tonymon's quick recommendations of surgical treatment in the form of a discectomy and fusion was not reasonably necessary for the treatment of appellee's compensable 4-1-99 injury."

Wal-Mart relies on the medical opinions of Dr. Parsioon in asserting that Mr. Hayden's problems are all degenerative in nature and that there is no herniation or need for surgery. Dr. Parsioon reported on April 24, 2000, that "basically all of [appellee's] findings are chronic, old, arthritic changes." He further reported that there was no need for any further treatment except for home exercises. The only additional treatment suggested by Dr. Parsioon was the use of epidural nerve blocks, which Mr. Hayden declined. Dr. Parsioon concluded that Mr. Hayden had reached maximum medical improvement and assigned a zero-percent anatomical impairment rating. In a subsequent report dated May 24, 2000, Dr. Parsioon reiterated, "This gentlemen does not have an injury caused by disc trauma to him and all his changes are steophytic and spondolytic changes in the neck. He definitely does not need any surgical intervention." Wal-Mart asserts that the opinions of Dr. Parsioon establish that any further treatment would be for Mr. Hayden's degenerative disc problems and not for his work-related injury.

We do not agree with appellant's argument. It is undisputed that Mr. Hayden did suffer a compensable injury, and since the date of injury he has continued to suffer from headaches and neck pain, as well as pain and numbness in his arms. The Commission found Mr. Hayden to be a "most credible" witness, and he testified that he had never suffered any prior neck injury.

Although the initial reports and the opinion of Dr. Parsioon indicated that Mr. Hayden's problems are primarily degenerative, Dr. Tonymon diagnosed more than just degenerative changes, for which he recommended fusion surgery at two levels. Although appellant dismisses the opinion of Dr. Tonymon, it is the duty of the Commission to weigh conflicting medical evidence, see Hubley v. Best Western-Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996), and it placed greater weight on Dr. Tonymon's opinion than that expressed by Dr. Parsioon. Although Mr. Hayden initially elected physical therapy instead of surgery, the physical therapy proved unsuccessful. The Commission found that Mr. Hayden is entitled to treatment by a doctor of his choosing to assess the nature and extent of his compensable condition, and explore further treatment possibilities. We hold that substantial evidence supports the Commission's finding that Mr. Hayden continues to experience medical problems related to his compensable injury and that he is entitled to a one-time change of physician.

Affirmed.

Baker and Roaf, JJ., agree.