Baxter Healthcare Corporation et al. v. Janet M. Roberts

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA01-689

DECEMBER 5, 2001

BAXTER HEALTHCARE

CORPORATION AND AMERICAN

MANUFACTURERS MUTUAL AN APPEAL FROM THE ARKANSAS

INSURANCE COMPANY WORKERS' COMPENSATION

APPELLANTS COMMISSION [E714829]

v.

JANET M. ROBERTS

APPELLEE

AFFIRMED

Appellants, Baxter Healthcare Corporation and American Manufacturers Mutual Insurance Company, appeal from a decision of the Arkansas Workers' Compensation Commission, reversing the decision of the Administrative Law Judge (ALJ) and finding that appellee established by a preponderance of the evidence that as a result of a fall on December 6, 1997, she received a compensable aggravation of her preexisting injury to her right knee. The Commission awarded medical benefits for reasonable and necessary treatment of the knee, but denied appellee's claim for any benefits, finding that she failed to establish, by a preponderance of the evidence, that her compensable injury was the major cause of the permanent impairment.

On appeal, appellants assert that the Commission's finding that appellee's medical treatment, including total knee replacement surgery, was causally related to a knee injury that was caused by a compensable aggravation of a preexisting condition as a result of a fall on December 6, 1997, is not supported by substantial evidence. Appellee cross-appeals, arguing that the Commission erred in denying her claim for permanency benefits. We disagree, and therefore, affirm on direct appeal and cross appeal.

Appellee, Janet Roberts, was employed with the Baxter Healthcare Corporation in Mountain Home, Arkansas, when she fell down some steps and suffered a compensable injury to her right hip. Appellee contended that, as a result of the fall, she also received a compensable injury to her right knee. It was revealed that thirty years prior, appellee had suffered a severe injury to her right knee. On April 11, 1998, appellee underwent a total knee replacement surgery performed by Dr. Carl Nelson. As a result, she sought workers' compensation benefits in the form of payment of medical expenses, including the expense of the surgery, and benefits for permanent impairment as well.

When reviewing a decision of the Workers' Compensation Commission, the appellate court reviews the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001); Campbell v. Randal Tyler Ford Mercury, 70 Ark. App. 35, 13 S.W.3d 916 (2000). The question is not whether the evidence would have supported findings contrary to those made by the Commission, but only whether the Commission's decision is supported by substantial evidence. Matlock v. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). Substantial evidence is that evidencewhich a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001).

Appellants do not dispute the fact that appellee suffered a compensable hip injury, but argue that substantial evidence does not support the Commission's finding that the aggravation of appellee's preexisting knee condition was causally related to that injury. Appellants also maintain that there are no objective findings supporting the alleged compensable aggravation, and the medical opinions, relied upon by the Commission, are not stated within a reasonable degree of medical certainty.

It is well settled that the employer takes an employee as he finds him. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Being a new injury with an independent cause, an aggravation must meet the requirements for a compensable injury. Id. To sustain a compensable injury, one must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of the employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment. Id.

Whether there is a causal connection between the injury and a disability and whether there is an independent intervening cause are questions of fact for the Commission todetermine. Oak Grove Lumber v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Further, a compensable injury must be established by medical evidence supported by objective findings. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. See Crudup, supra. Speculation and conjecture cannot substitute for credible evidence. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (Ark. App. 1980). Appellants contend that there is no expert medical evidence to support the Commission's conclusion. Specifically, they point to the medical opinions of Drs. Harp and Nelson, and contend that neither opinion is supported by objective findings of an aggravation; likewise, they argue that neither opinion is stated within a reasonable degree of medical certainty. Appellants also assert that the Commission, "while disregarding Dr. Wolfe's opinion on causation," cites "Wolfe's report of March 10, 1998, as the sole basis for finding objective evidence of aggravation, i.e., Dr. Wolfe's observation of effusion and crepitus in the right knee." (Emphasis in original).

In making its review, we recognize that it is the function of the Workers' Compensation Commission to determine credibility of witnesses and the weight to be given their testimony. Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998). 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. Furthermore, it is well established that it is within the Commission's province to weigh all the medical evidence and to determine what is mostcredible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).

In the instant case, the Commission found that a preponderance of the evidence indicated that appellee permanently aggravated her pre-existing knee condition in the December 6, 1997, fall, ultimately requiring the total knee replacement. In reaching this conclusion, the Commission was particularly persuaded by the appellee's testimony, consistent with the medical reports, and the opinions of her treating physicians, Drs. Harp and Nelson, who "opined that the claimant's fall exacerbated/aggravated her pre-existing asymptomatic right knee condition." Further, the Commission stated that they did "not see a basis from the medical record to conclude that these physicians were under any misunderstanding as to how or when the claimant's right knee symptoms started following the December 6, 1997 fall [sic]."

Our review of the record indicates that in the medical notes dated January 27, 1998, Dr. Harp indicated that "I believe that she [appellee] has severe degenerative arthritis and this has probably been exacerbated by her recent fall. A total knee replacement may be required." The use of the word "probably" is sufficient to satisfy the requirement that medical opinions be stated within a reasonable degree of medical certainty. See, e.g., Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). Also, the independent medical evaluation of Dr. Wolfe revealed that appellee did have "effusion" and "crepitus"in her right knee. The Commission noted that "Dr. Wolfe's clinical observation of knee effusion in March is entirely consistent with the claimant's complaints of knee swelling first documented in the medical record two weeks after the fall in December."

We hold that substantial evidence exists to support the Commission's finding that appellee proved by a preponderance of the evidence that as a result of her compensable fall at work, she sustained a permanent aggravation to a preexisting knee condition that ultimately required a total knee replacement.

II. Appellee's Cross Appeal

We also affirm the Commission on appellee's cross appeal. Appellee argues that the Commission erred in denying her claim for permanent anatomical impairment benefits. However, we disagree.

Appellee asserts that she needed the total knee replacement due to her compensable fall at work, and thus, the Commission should have found compensable a fifty-percent (50%) permanent impairment. The Commission notes in its opinion that Dr. Wolfe assigned the fifty percent (50%) impairment rating to appellee's right knee "based on arthritic changes that preceded her recent injury." No other evidence was presented regarding an impairment. Hence, appellee failed to establish by a preponderance of the evidence that her compensable injury was the major cause of the impairment.

Affirmed.

Robbins and Crabtree, JJ., agree.