St. Edward Mercy Medical Center and Sisters of Mercy Health System v. Myrtle Nemeth

ca01-730

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOSEPHINE LINKER HART, JUDGE

DIVISION I

ST. EDWARD MERCY MEDICAL CENTER

SISTERS OF MERCY HEALTH SYSTEM

APPELLANTS

V.

MYRTLE NEMETH

APPELLEE

CA01-730

January 30, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. E910984]

AFFIRMED

St. Edward Mercy Medical Center and Sisters of Mercy Health System, appellants, appeal the decision of the Arkansas Workers' Compensation Commission (Commission) awarding continued benefits to appellee for her compensable lower back injury. For reversal, appellants argue that substantial evidence did not support the Commission's finding that appellants should pay for medical benefits related to appellee's lower back injury beyond October 18, 1999, and temporary total disability benefits from October 18, 1999, through June 22, 2000. We disagree and affirm.

On August 31, 1999, appellee sustained an injury to her lower back while working as a nurse for St. Edward Mercy Medical Center. Initially, appellants accepted appellee's claim as a compensable injury and paid medical and temporary total disability benefits through October 17, 1999. Thereafter, appellants, without controverting the initial injury,denied any further obligation to provide appellee with temporary disability payment or medical benefits. According to the medical records, appellee's initial complaint was for the injury to her lower back. However, on October 21, 1999, the medical records of Dr. Anthony L. Capocelli documented a complaint from appellee that she was experiencing pain in her neck, and on February 29, 2000, appellee underwent a surgical procedure on her cervical spine.

A hearing was held on August 1, 2000, and the Administrative Law Judge (ALJ) concluded that as a result of the lumbar spine injury, appellee was temporarily totally disabled from October 18, 1999, through June 22, 2000, and that continued medical treatment after October 18, 1999, was reasonable and necessary. The ALJ also found that appellee had failed to prove she sustained a compensable injury to her cervical spine on August 31, 1999, or that her cervical spine condition was a compensable consequence of the August 31, 1999, injury to her lumbar spine.1 On appeal, the full Commission conducted a de novo review of the record and affirmed the findings of the ALJ, holding that the findings were supported by a preponderance of credible evidence.

In reviewing a decision of the Workers' Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). These findings will be affirmed if supported by substantial evidence. Georgia-Pacific Corp.

v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wackenhut Corp. and St. Paul Fire & Marine Ins. Co. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). On an appeal from the Workers' Compensation Commission, the question is not whether the evidence would have supported findings contrary to those of the Commission; rather, the decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. See Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001); Barnett v. Natural Gas Pipeline Co., 62 Ark. App. 265, 970 S.W.2d 319 (1998).

For reversal, appellants assert that the Commission erred in finding that they are responsible for providing additional medical benefits related to appellee's lower back injury as well as temporary total disability benefits from October 1999 through June 2000, because the proof establishes that appellee had pre-existing back problems that caused her continued pain. Appellants' arguments in support of this contention are two-fold. They first note that appellee had a pre-existing back condition, which caused her continued complaints of pain. Further, this condition was confirmed by diagnostic testing that verified the presence of severe degenerative disc space narrowing at L5-S1 with spondylitic spurring. Next, they argue that appellee's inability to return to work was caused by her cervical condition which the Commission properly found to be a non-compensable claim.

Appellee, an Licensed Practical Nurse, testified that while she was positioning a patient in the bed using a draw sheet, her lower back went into spasms, and she experiencedgreat pain. The following day, she reported to the emergency room at St. Edward and was diagnosed as suffering a lumbar sprain. On September 8, 1999, Dr. Mouhammed K. Sheikha referred appellee to a neurosurgeon, Dr. Anthony L. Capocelli.

After an MRI was performed on September 23, 1999,2 Dr. Capocelli diagnosed appellee with multiple disc bulges and L5-S1 spondylolisthesis with spondylolysis and mild to moderate canal stenosis and neuroforaminal compromise. His treatment plan for appellee consisted of reducing her activity for several weeks, prescribing pain medication, physical therapy, and a lumbar epidural steroid injection. He also ordered a flexion/extension LS spine series to evaluate the retrolisthesis further, and noted that appellee was a candidate for L5 laminectomy with fusion at L5-S1 with pedical screws if she did not improve with the conservative treatment. Dr. Sheikha saw appellee on September 27, October 1, and October 13, and his notes from these dates stated that he would not send appellee to work until she responded to treatment. He also noted that appellee experienced difficulty after the steroid injection, and that she expressed her intent to proceed with the surgery. However, rather than having the surgery performed, appellee underwent conservative treatment.

On October 21, 1999, Dr. Capocelli's medical records documented for the first time appellee's claim of a neck injury. He ordered MRIs of appellee's cervical and thoracic spineto elucidate the etiology of the neck injury from which she complained. The MRI report for the cervical spine verified appellee's condition to include the following: (1) broad posterior disc bulge and spur at C6-7 with mild bilateral uncovertabral spurring; (2) broad posterior prominence of disc material eccentric to the left side at C5-6, suggesting an asymmetric disc bulge or spondylitic ridge; (3) mild bulging of the disc at C4-5. Further, the report of the thoracic MRI indicated that appellee had mild bulging of the disc at T9-10 level with no other significant abnormality evident. Subsequently, on February 29, 2000, Dr. Capocelli performed an anterior cervical discectomy and fusion at C5-6 and C6-7 with grafting and plating.

Citing Dr. Capocelli's testimony, appellants assert that appellee suffered from chronic

degenerative changes in her spine.3 Further, appellants argue that Dr. Capocelli admitted that it was not possible to relate the degenerative changes and disc bulges relied upon by the

Commission to this single incident.4 However, Dr. Capocelli did say in this colloquy, "[t]he disc bulges and disc protrusions could certainly be related to a single incident." Furthermore, Dr. Capocelli diagnosed appellee as suffering from lumbar strain and a bulging herniated disc. He described the lumbar strain as an acute injury and prescribed epidural steroid injections for appellee's lumbar spine complaints. Dr. Capocelli explained that although appellee was a candidate for a L5 laminectomy with fusion at L5-S1 with pedicle screws, and the herniated disc at L3-L4 is a permanent condition, she had improved with conservative treatment. However, he expounded further by noting that it was possible that she would require future treatment.

Here, the testimony of the treating physician provided evidence from which the Commission could find the appellee's compensable injury to her lumbar spine was the basis for her need for medical treatment. The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Hill v. Baptist Med. Ctr.,74 Ark. App. 250, 57 S.W.3d 735 (2001). The Commission may accept only those portions of testimony that it determines are worthy of belief. Tucker v. Roberts-McNutt, 342 Ark. 511, 29 S.W.3d 706 (2000).

Further, as noted by appellants, appellee bore the burden of proving that additional medical treatment is reasonable and necessary, given her condition. Arkansas Code Annotated section 11-9-508(a)(Repl. 1996) states:

The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.

It is a question of fact for the Commission to determine whether medical services are reasonably necessary with respect to a particular employee's injury. White Consol. Indust. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001). In this instance, appellants did not contest the compensability of the initial injury; instead, they ceased paying temporary total disability benefits and medical benefits. The dispute is whether there is a causal connection between the injury and past and future medical treatment. Moreover, we note that when a claimant is seeking medical treatment and temporary disability benefits for an accidental injury "identified by specific incident and time, it is not necessary that the claimant prove that the work, rather than the injury, was a major cause of the disability and need for treatment." Estridge v. Waste Mgmt., 343 Ark. 276, 280-81, 33 S.W.3d 167, 170 (2000).

Here, the evidence established that appellee did suffer from degenerative disc disease;however, the main source of appellee's complaints occurred after her compensable injury. Appellee's treating physician opined that he continued his treatment of appellee for her lower back condition until she was released to return to work with limitations on June 22, 2000. He also ascertained that he expected her to require future medical treatment for her condition. Thus, we cannot say that reasonable minds could not have reached the Commission's conclusions.

For the second argument, appellants claim that appellee's inability to work from October 17, 1999, until June 22, 2000, was based on the cervical spine condition and treatment, which the Commission found to be a non-compensable claim. Further, the appellants claim that there was no proof that the healing period for appellee's lumbar spine injury extended beyond October 17, 1999. Appellants assert that credible evidence establishes that Dr. Capocelli's treatment of appellee addressed appellee's cervical spine and not her lumbar spine. According to appellants' argument, Dr. Capocelli failed to perform clinical examinations of the appellee's lumbar spine and his medical records failed to document a single clinical exam of the lumbar spine during appellee's appointments from November 1999 through June 2000.

Arkansas Code Annotated section 11-9-102(12) (Supp. 2001) defines "healing period" as that period for healing of an injury resulting from an accident. This period "continues until the employee is as far restored as the permanent character of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended." Am. Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998) (citing Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996)). Determining when the healing period has ended is a factual determination for the Commission, and that determination will be affirmed on appeal if supported by substantial evidence. Id.

As the Commission noted in their opinion, Dr. Capocelli's testimony demonstrated that he did not stop treating the claimant during the relevant period. Instead, he continued to examine her lower back during the period and did not release her from modified duty related to her lower back until June 22, 2000. When we review the evidence in the light most favorable to the Commission's decision, we cannot say that the Commission's decision was not supported by substantial evidence; therefore, we affirm.

Affirmed.

Griffen and Vaught, JJ., agree.

1 There was no appeal by appellee from these findings.

2 The MRI had shown disc bulges at T12-L1 and L1-2, L2-3 and minimal posterior disc bulges at L3-4 and L4-5 with no significant canal foraminal stenosis and no nerve root impingement. Further, it showed that at L5-S1 there was a loss of invertebral disc height with a Grade 1 retrolisthesis of L5-S1 and partially covering the disc space as well as a posterior disc bulge with facet degenerative changes in the retrolisthesis, which produced neuroforaminal stenosis with the nerve roots.

3 Dr. Capocelli's testimony taken from his deposition regarding appellee's lumbar spine:

Counsel: Okay. Either of those conditions can develop as a result of normal everyday wear and tear on a person's body, is that right?

Capocelli: Sure, uh-huh.

Counsel: The lumbar MRI references osteophyte formation?

Capocelli: Yes.

Counsel: And would that be a chronic degenerative condition?

Capocelli: Absolutely.

Counsel: Okay. And the lumbar MRI, I think confirms what we've already testified or you've testified to, that there were chronic abnormalities of a long-standing kind of thing?

Capocelli: Well, I don't really have an idea on the time frame, but certainly degenerative changes in the spine.

4 Dr. Capocelli's response, taken from his deposition, regarding whether the single incident caused all the disc bulges, all of the spondylolisthesis and all of the degenerative changes is as follows:

Counsel: Can you objectively relate any of those findings to any isolated single incident?

Capocelli: Sure. The disc bulges and disc protrusions could certainly by related to a single incident.

Counsel: I mean they could be, but can you-

Capocelli: Yeah.

Counsel: They could be related to anything, whether it's work-related or-

Capocelli: Well, certainly, I mean, and in speaking of the patient, her pain began at the time of her accident at the, at St. Edward's, and presumably that's when her problems began.