Robert Dickerson v. Baxter County, Arkansas; Association of Arkansas Counties

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION I

ROBERT DICKERSON

APPELLANT

V.

BAXTER COUNTY, ARKANSAS; ASSOCIATION OF ARKANSAS COUNTIES

APPELLEES

CA01-575

February 13, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E900713]

AFFIRMED

Appellant argues that the Arkansas Workers' Compensation Commission erred in concluding that his February 8, 1999, back surgery following his January 14, 1999, fall on ice was not reasonably necessary medical treatment in connection with the injury. Appellant further contends that, if we find the Commission so erred, then, a fortiori, it further erred in denying him temporary total disability benefits for one year following the surgery. Giving due regard to our standard of review, we affirm the Commission, concluding that its decision was supported by substantial evidence.

The Commission found that on January 14, 1999, appellant "sustained a compensable injury, arising out of and in the course of his employment, at a time when employment services were being performed." Appellant requested that the Commission find that his back surgery of February 8, 1999, was reasonably necessary and award temporary total disability

benefits. The Commission, however, found that the "preponderance of the evidence fails to show that [appellant's] surgery ... was reasonably necessary in connection with [his] compensable injury, but shows that it was a consequence of his preexisting pathology." Further, the Commission found that the preponderance of the evidence established that appellant "was in his healing period and totally incapacitated as a result of his compensable injury from the date of injury until the date of his surgery," and therefore, he was entitled to temporary total disability benefits and reasonably necessary medical treatment and related expenses only for that period. On appeal, he challenges these rulings.

An employer must provide an injured employee such surgery "as may be reasonably necessary in connection with the injury received by the employee." Ark. Code Ann. § 11-9-508(a) (Repl. 1996). We note that "[w]hether a medical procedure ... is reasonable and necessary treatment is a question of fact to be decided by the Commission." Cox v. Klipsch & Assocs., 71 Ark. App. 433, 437, 30 S.W.3d 764, 766-67 (2000). Further, "when reviewing decisions from the Workers' Compensation Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirms if supported by substantial evidence." Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 269, 950 S.W.2d 463, 464-65 (1997). We have further stated that "[p]ostsurgical improvement is a proper consideration in determining whether surgery was reasonable and necessary." Cox, 71 Ark. App. at 438, 30 S.W.3d at 767.

As is apparent from the copious medical records, appellant previously suffered from a lower back injury and had undergone other surgeries prior to the current compensable backinjury. Medical records further revealed that on February 25, 1997, an MRI established that appellant had "[m]arked intervertebral disc space narrowing and degenerative disease with bulging discs and osteophyte encroachment significantly into the intervertebral foramina bilaterally at L5-S1." The next month, appellant underwent a lumbar discography at the L4-L5 level. Following this, appellant's physician recommended that he undergo an anterior lumbar interbody fusion at L5-S1.

On the day of appellant's 1999 injury, x-rays revealed no fractures, only "degenerative changes at L4-L5 and L5-S1, some mild spondylolisthesis, surgical resection of lamina of L5 vertebra." On January 19, 1999, another MRI was performed on appellant, after which a physician noted that there was "not a great deal of change" from the previous MRI and that "[n]o herniated disc material is appreciated." Another physician subsequently concurred that the "MRIs do not show a particular change." Nevertheless, on February 8, 1999, an "[a]nterior lumbar discetomy at L3-L4 and L4-L5 with interbody fusion of L4-L5 and L3-L4 with a BAK device and iliac crest bond graft" was performed on appellant.

At the hearing, appellant testified that he has continuing severe pain. He further testified that he takes "very strong" narcotics for pain, even though the drugs provide little relief. Further, he was scheduled to have surgery for the implantation of a pump to provide him with narcotics for his pain. Appellant testified that he could sit in a chair or stand only for ten to thirty minutes and that he had difficulty twisting, bending over, climbing stairs, and driving. He further testified that he does not sleep well, waking every one-and-one-half hours and sleeping only three or four hours a night. He did state, however, that the surgerydid give him some relief from the pain in his right leg, where he described the pain as "moderate."

As is apparent from the physicians' remarks regarding a comparison of the pre-injury MRI and the post-injury MRI, there was no appreciable change to appellant's back after the injury. This fact supports the Commission's conclusion that the medical procedure was not reasonable and necessary treatment, as it indicates that there was no pathology resulting from the injury that required surgical intervention. Further, appellant did not improve after the surgery, a fact that is proper to consider in determining this issue and that provides support for the Commission's decision. Given this evidence, we cannot conclude that the Commission's finding that the surgery was not reasonably necessary was not supported by substantial evidence. Because we so conclude, we need not examine appellant's argument regarding the temporary total disability benefits, as his argument was premised on his assumption that this court would reverse the Commission's decision on the previous point.

Affirmed.

Griffen and Vaught, JJ., agree.