Feed Store Caf v. Diane Baker

ca01-757

DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA01-757

February 20, 2002

FEED STORE CAFÉ AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E906075]

V.

DIANE BAKER

APPELLEE AFFIRMED

Appellant Feed Store Café appeals a decision by the Full Commission of the Arkansas Workers' Compensation Commission that found that medical services provided to appellee Diane Baker, including arthroscopic surgery, represented reasonably necessary medical services related to appellee's compensable right-knee injury. Appellant contends on appeal that the Commission's decision is not supported by substantial evidence and that the Commission erred in not finding that appellee's condition was the result of a non-work related independent, intervening cause. We affirm.

Factual and Procedural History

On December 27, 1997, while in the employ of appellant, appellee stepped into a box and fell onto her right knee. In a previous opinion dated February 25, 2000, the administrative law judge (ALJ) found that appellee sustained a compensable injury to herright knee. Appellant was held liable for expenses incurred as a result of treatment rendered to appellee's right knee by and at the direction of Dr. Malek Karassi and Dr. James Arnold. Appellee was also awarded temporary total disability benefits for the period of December 28, 1997, through March 5, 1998.

Appellant paid temporary total disability benefits and expenses associated with treatment appellee received from Dr. Karassi and Dr. Arnold that were incurred prior to the date of the February 25, 2000 opinion. However, appellant controverted appellee's entitlement to any additional benefits. As a result, the parties appeared before the ALJ for a second time on October 16, 2000.

Appellee testified at the October hearing that she sought additional treatment from Dr. Arnold on April 25, 2000, because her knee condition was getting worse. She testified that her legs were getting weaker and she could hardly get up and down out of a chair; that she could not walk up and down stairs; and that she had backaches, back pain, muscle spasms, and knots in her legs. According to appellee, these were the same problems that she experienced before the February 25, 2000, opinion. Appellee testified that before she visited Dr. Arnold on April 25, 2000, she had last seen a physician for her knee on March 15, 1998. She denied experiencing a fall in November of 1999, or having surgery on her knee.

The physician notes of appellee's treating physician, Dr. Arnold, were introduced into evidence. A clinic note dated April 25, 2000, diagnosed appellee with a probable posterior horn medial meniscus tear of undetermined size. The note stated that appellee was still having problems with her knee, including posterior joint pain that was located primarily in the hamstring insertion with some catching, giving way, and weakness with activity. Thenext note, dated May 30, 2000, stated that appellee "is still having clicking and lateral joint line pain." The note relayed that although appellee's 1998 MRI did not reveal an obvious tear, "she has an audible click in her lateral joint line." Under impression, the note states "lateral meniscus tear." The recommendation section read: "we talked about arthroscopy and I think this is probably the best route for her at this time. She wants to get back to work and I believe arthroscopic surgery would be the best method of treatment."

Appellant introduced into evidence the medical records of Dr. Rebecca Barrett. A December 16, 1999 progress note states:

she says back in December of 1997 she fell and had an injury to her knee and also hurt her back at the time but the emphasis was on that knee. She's had some surgery on it and is now seeing Dr. Arnold. He is trying to do physical therapy and then will repeat a MRI and possible therapy if the physical therapy doesn't help. . . . She says when she had an ER visit in November at Gravette she had a chest x-ray and they told her she had pleurisy but says Dr. Platt called her and said she had some fractures in her spine.

Next, on September 7, 2000, a progress note from Dr. Barrett indicated: "Apparently she had a fall back last November and a chest x-ray showed some osteoporosis on it."

Appellant also presented the testimony of DeLois Gray, a friend of appellee's, who testified that she did not have any idea if appellee ever injured her knee because appellee never told her. Pat Varner also testified that she had seen appellee walking on one occasion since March 15, 1998, and that she could not tell that appellee was having problems.

Appellant also introduced into the record the testimony of four witnesses who testified at the November 22, 1999, hearing. During the November 1999 hearing, Vicki Allen testified that she saw appellee three to four weeks after her accident and that appellee was walking fine. Tammi Smith testified that she observed appellee walking after December27, 1997, and that appellee was walking fine. Smith testified that the last time she had seen appellee was in September 1999, when appellee walked up to a teller's window at the bank where Smith worked. Smith testified that appellee did not make any complaints to her and that she did not observe appellee limp. Smith's testimony was echoed by Mika Wilson and Mary Varner, who testified that they had observed appellee walking without a limp.

Following the October hearing, the ALJ found that appellee met her burden of proving by a preponderance of the evidence her entitlement to additional medical services at appellant's expense. However, he declined to rule on whether appellee was entitled to additional temporary total disability benefits from the time of the recommended surgery until she was released because the issue had not ripened. Appellant appealed the ALJ's decision to the Full Commission, which reviewed the record de novo and found that the ALJ's decision was supported by a preponderance of the evidence. The Commission then affirmed the ALJ's decision and adopted the ALJ's findings of fact. This appeal followed.

Standard of Review

When reviewing decisions from the Commission, we view all evidence in the light most favorable to the results reached by the Commission. See Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). The critical factor is not whether this we would have reached a different result than the Commission or whether the evidence supports a contrary finding. See id. Rather, the findings of the Commission are affirmed when we determine that the findings are supported by substantial evidence, i.e., evidence upon which reasonable minds could have reached the same conclusion. See id. Credibility issues lie exclusively within the domain of the Commission which is allowed to consider the bases ofa medical opinion when determining the proper weight to give an opinion. See id. The Commission is not bound to accept medical testimony per se, however, it may not irrationally abandon the testimony of any witness. See Brock, supra. It is not essential that a physician base medical testimony exclusively on objective findings. Instead, it will suffice when the record contains supporting objective findings. See id. Contradictions in the evidence, including medical testimony, are reconciled by the Commission, which does not have to reject testimony or consider a claimant's testimony as undisputed. See id.

Entitlement to Additional Medical Services

Appellant initially contends that substantial evidence does not support the Commission's decision that appellee was entitled to additional medical services for her compensable right knee injury, including the recommended arthroscopic surgery. As proof, it argues that the record is devoid of any objective medical evidence of a meniscus tear and that the medical evidence relied on by the Commission was speculative. We disagree.

Arkansas Code Annotated section 11-9-102 (16) (A)(i) (Supp. 2001) defines objective findings as those findings that "cannot come under the voluntary control of the patient." Additionally, subsection (16)(B) requires that physicians state medical opinions within a reasonable degree of medical certainty. See Ark. Code Ann. § 11-9-102(16)(B) (Supp. 2001). In Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001), we reviewed whether a physician's opinion that used the word "probably" lacked the definiteness required under section 11-9-102(16)(b). We observed that the term "probably" is defined in The American Heritage Dictionary, New College Edition, as "most likely." We then held that the use of the term "probably" adequately satisfied the requirements of subsection (16)(B). See Wackenhut, supra.

Reviewing the evidence and all reasonable inferences in the light most favorable to the Commission's decision in the present case, we hold that there is substantial evidence to support the Commission's finding that appellee was entitled to additional medical services, including arthroscopic surgery, for her compensable right knee injury.

The additional medical services that were in dispute at the time of the hearing include two evaluations by Dr. Arnold and a recommended arthroscopic procedure, which the Commission observed was recommended by Dr. Arnold at the time he initially treated appellee. The Commission further noted that the services provided and recommended by Dr. Arnold were clearly of a type and nature commonly recognized as appropriate to treat an injury such as that sustained by appellant on December 27, 1997.

In rendering its decision, the Commission relied heavily on Dr. Arnold's medical notes dated April 25, 2000, and May 30, 2000. According to his clinical notes on April 25, 2000, Dr. Arnold noted that he had previously evaluated appellee, ordered an MRI, and that clinically, appellee had a meniscus tear. Dr. Arnold then stated that appellee was still having problems with her right knee, including posterior joint pain. The physician gave his impression of appellee's injury as a probable posterior horn medial meniscus tear of an undetermined size. Dr. Arnold recommended a dedicated physical therapy program, and stated that if the pain continued, he would obtain a current MRI to determine the extent of the posterior horn meniscus tear. The doctor went on to opine that appellee's symptoms were related to her initial injury. Again, on May 30, 2000, Dr. Arnold noted that appellee had an audible click in her lateral joint line, and diagnosed appellee with a lateral meniscustear. Contrary to appellant's contention, Dr. Arnold's observation of an audible joint clicking in appellee's lateral joint line was an objective finding, because it did not come within appellee's voluntary control. Also, Dr. Arnold's use of the term probable to describe his impression did not render the doctor's opinion speculative. It is important to note that when Dr. Arnold discussed obtaining an additional MRI, he indicated that he was doing so to determine the extent, and not the existence of a posterior horn meniscus tear.

Although appellant points to the fact that appellee's longtime friend, DeLois Gray, testified that she was not aware that appellee sustained a knee injury as proof of appellee's lack of credibility, we have consistently held that credibility issues lie within the exclusive domain of the Commission. See Brock, supra. The Commission, in adopting the findings of the ALJ, found that appellee's testimony was consistent with the history contained in her medical records. Independent Intervening Cause

For its second point on appeal, appellant argues that the medical reports of Dr. Barrett, combined with the testimony of appellant's witnesses, demonstrate an independent intervening cause of appellant's injury. Again, we disagree.

Arkansas Code Annotated section 11-9-102(4)(F)(iii) (Supp. 2001) reads as follows:

Under this subdivision (4)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.

Appellant presented the testimony of four witnesses, who testified during the November 1999 hearing that they observed appellee walking normally after her December 1997 fall. However, appellee denied falling in November 1999 or the occurrence of anysubsequent injury or activity that exacerbated her continuing right knee problems. The Commission found appellee's testimony to be credible and consistent with the medical evidence.

Next, appellant points to Dr. Barrett's medical notes. In a May 5, 2000 note, Dr. Barrett noted appellee's December 1997 fall as well as chest x-ray for pleurisy in November 1999. However, in a clinical note dated September 7, 2000, Dr. Barrett indicated that appellee sustained a fall in November 1999. Dr. Barrett's notes also erroneously state that appellee underwent surgery for her right knee. While the Commission could not arbitrarily disregard any testimony, the Commission had the responsibility of resolving conflicting medical evidence. It chose to discount Dr. Barrett's notes as erroneously transposing the date of appellee's December 1997 fall with her November 1999 chest x-ray, and to instead finding that there was no credible evidence that appellee's current difficulties were the result of a subsequent injury or condition. Reasonable persons, presented with the evidence before the Commission, could have reached the same decision as the Commission.

Lastly, appellant argues that appellee's failure to seek medical treatment for her knee problems from March 5, 1998, until April 25, 2000, despite appellant's refusal to pay for appellee's medical treatment, is itself an independent, intervening cause. Appellant cites no authority for this argument. The Commission, in adopting the findings of the ALJ, observed that appellee's failure to seek further medical treatment was adequately explained by her lack of finances and appellant's refusal to accept liability for the expense of continued treatment. Affirmed.

Hart and Vaught, JJ., agree.