Atwood Distributing v. Dana J. Rendeluk

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

ATWOOD DISTRIBUTING

APPELLANT

V.

DANA J. RENDELUK

APPELLEE

CA 01-850

February 6, 2002

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION, [E914107]

AFFIRMED

Appellee, Dana Rendeluk, was employed by appellant, Atwood Distributing, Inc., when she suffered a compensable back injury on September 20, 1999. Appellant initially accepted the injury as compensable and paid benefits. Even though appellant reassigned appellee to light-duty work, she quit her job on December 18, 1999, because she said she was hurting too badly to work. During the course of her treatment, appellee was referred to Dr. Anthony Capocelli, a neurosurgeon who first saw her on November 12, 1999. The last time she saw him was on March 2, 2000, and at that time he recommended a course of treatment that included a series of facet-block injections. Before that course of treatment was implemented, appellant sent appellee to Dr. Bradley Short, a doctor of osteopathy, for a second opinion. Dr. Short saw appellee on March 28, 2000, and opined that facetinjections were not indicated at that time. Consequently, appellant rejected the course of treatment

for appellee that had been recommended by Dr. Capocelli. Dr. Short saw appellee again in April and May and released her to return to work as of May 22, 2000.

Appellee contended before the ALJ that she was entitled to the additional medical treatment recommended by Dr. Capocelli; that she was entitled to temporary total disability benefits from May 22, 2000, to a date yet to be determined; and that she was entitled to attorney's fees. The ALJ found in her favor and the Commission affirmed, adopting the ALJ's findings and conclusions.

Appellant raises two points of appeal, asserting that there was not substantial evidence to support the Commission's findings that 1) further medical treatment with Dr. Capocelli was reasonably necessary in connection with appellee's compensable injury, and 2) appellee was entitled to additional temporary total disability benefits for the period beginning May 22, 2000, and extending until a date to be determined. We disagree and affirm.

When reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if supported by substantial evidence. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. A decision by the Workers' Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id. Moreover, the Commission has the duty of weighing the medical evidence as itdoes any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997).

Here, Dr. Capocelli's office notes of March 2, 2000, concerning appellee provide in part:

[S]he continues to have low back pain and point tenderness bilaterally around L4-5 and L5-S1. As a result and based on the CT showing facet arthopathy, I am going to go ahead and schedule her for a series of facet blocks. Based on the outcome of that, if she does get improvement, we will go ahead and do facet rhizotomies and if she does not, then we will plan on further workup oriented toward a disc which will include a myelogram.

In addition, the "off-work slip" that he prepared for appellee after the March 2 visit provides: "Dana Rendeluk was seen in my office on 3-2-00 and is unable to return to work until after facet blocks as of this time unscheduled." (Emphasis added.) In an October 20, 2000, response to a questionnaire from appellee's attorney, Dr. Capocelli stated, inter alia, that in his opinion appellee had not reached maximum medical improvement at the time of her March 2, 2000, visit to him and that she would not do so without the medical test and treatment outlined in his office note of that date.

The March 28, 2000, office notes from Dr. Bradley Short, who saw appellee in order to give a second opinion, provide:

Dana had an episode of severe low back pain radiating down her right lower extremity. This started after she did some heavy lifting of approximately 50 pounds at work and was in a bending type position. She reportedly felt something pop in her back and stretch and the pain radiated into her right hip and right lower extremity. Since this time, she has had difficulty with her pain and range of motion of her back. She has seen various specialists around the community and has been recommendedfor facet injections. She has undergone several epidural steroid injections, but has had little if any relief of her pain. It has been recently recommended that she have some facet injections. She has been referred to me for a second opinion regarding these.

No cyanosis, clubbing or edema. She has no edema. Manual muscle testing appears to be symmetrical. She does have difficulty moving her lower extremities secondary to pain in her back. She does have some muscle spasms of her lumbosacral paraspinals right and left. The right appears to be more pronounced. She has some point tenderness with palpation of bilateral sacroiliac areas.

Impression: 1. Myofascial pain; 2. Mild canal stenosis as per CT scan; 3. Chronic pain; 4. Osteoarthritis, and 5. Questionable mild sciatica versus sacroillitis.

I injected multiple areas with Marcaine and Depo-Medrol. I injected at least four trigger points. I advised her on taking her Celebrex and her Ultram. I will see her back in 2-4 weeks. I believe that facet injections at this time are not indicated, as with range of motion of her back she was able to perform extension with relative ease, as opposed to forward flexion.

(Emphasis added.) His office notes of April 18, 2000, provide in part that "[h]er exam is really unchanged" and that he wrote "on a prescription pad off work through 5-31-00." (Emphasis added.) His office notes of May 9, 2000, provide in part:

Objective: She has minimal muscle tightness. Still with limited range of motion of her lumbar spine. She does ambulate with an antalgic type gait.

Plan: I will continue her off work note through the 21st of May. I will see her back early next week. Review of her records reveals that she has tried epidural steroids with no improvement. I am not optimistic that facet type injections will be helpful for her. I believe we are reaching the gamut and we will consider maximum medical improvement next visit.

(Emphasis added.) Finally, his office notes of May 18, 2000, provide in part:

Objective: Her exam today is unchanged. Range of motion continues to be limited. She continues to ambulate with an antalgic gait.

Plan: I do not believe that further physical therapy will be beneficial for her. I did again emphasize that she needs to work on flexion activities as opposed to extension activities. I do believe she would benefit from a lumbosacral corset. I have recommended this. I have referred her to Snell's. In my opinion she has reached maximum medical improvement. I believe she can return to work on 5-22-00. I have elected to continue her on Zanaflex. She needs to continue her Celebrex as ordered previously.

(Emphasis added.) He advised that she could return to work on May 22, 2000, with certain restrictions.

In arguing its first point of appeal, appellant asserts that no reasonable person could conclude that the medical treatment prescribed by Dr. Capocelli was reasonably necessary and that the Commission erred in finding that it was. We do not agree.

The Commission's decision explained that Dr. Capocelli's opinion was given greater weight because 1) Capocelli was a neurosurgeon rather than a doctor of osteopathy, and 2) the subsequent medical records of Dr. Varsha Sikka, who saw appellee for a rehabilitation evaluation for DHS, provided that appellee suffered from chronic myofascial strain of the lumbosacral spine and that additional testing should be performed to rule out an L4-5 radiculopathy as opposed to spinal stenosis. Dr. Sikka also recommended medication and a home-exercise program. The Commission viewed this report as supporting that of Dr. Capocelli, which also recommended additional medical treatment for appellee. Moreover, as noted by the Commission, appellant's assertion that Dr. Short's opinion should be given more weight because he had examined appellee more recently than Capocelli is undermined by the fact that appellant prevented appellee from seeing Capocelli after March 2. Reasonable minds could accept these bases as adequate to support the Commission's conclusion, and therefore they constitute substantial evidence.

For its second point of appeal, appellant contends that substantial evidence does not support the Commission's finding that appellee was entitled to additional temporary total disability benefits for the period beginning May 22, 2000, and extending until a date to be determined because appellee "failed to prove she both remained within her healing period and was totally incapacitated from all work subsequent to this date." Again, we do not agree.

Temporary total disability "is that period within the healing period in which an employee suffers a total incapacity to earn wages." Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). It is clear from the previous discussion that the Commission's conclusion that appellee was still within her healing period is supported by substantial evidence. Appellant argues, however, that appellee was not totally incapacitated from earning wages as evidenced by her attempt to be rehired by appellant and also her looking for work in Vian and Sallisaw, Oklahoma. We are not convinced. First, it is important to note that appellee's attempts to find work were not successful, so there was no evidence presented that she actually worked during that period of time. Moreover, the Commission did not find the videotape that appellant secretly taped of appellee conducting her daily affairs to be particularly relevant on this issue, concluding that it was not sufficient, combined with the remaining evidence, to establish that appellee failed to meet her burdenof proof. Finally, in making the determination that appellee was entitled to temporary total disability, the Commission reasoned:

Dr. Capocelli had indicated that claimant should remain off work until she underwent the facet blocks. Claimant has yet to undergo that procedure; therefore, I find based upon the opinion of Dr. Capocelli that claimant has remained temporarily totally disabled since the date she was last paid compensation benefits on May 21, 2000. Accordingly, claimant has met her burden of proving by a preponderance of the evidence that she is entitled to temporary total disability benefits beginning May 22, 2000, and continuing through a date yet to be determined.

(Emphasis added.) We find that fair-minded persons could reach the same conclusion as the Commission if presented with the same facts. We, therefore, affirm the decision of the Commission.

Affirmed.

Jennings and Crabtree, JJ., agree.