Area Agency on Aging and Risk Management Resources v. Donna McGuire

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

AREA AGENCY ON AGING and RISK MANAGEMENT RESOURCES

APPELLANTS

V.

DONNA McGUIRE

APPELLEE

CA 01-905

MARCH 20, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION COURT

[NO. F 000105]

AFFIRMED

The appellant, Area Agency on Aging, appeals from a decision of the Arkansas Workers' Compensation Commission in which the Commission found that appellee, Donna McGuire, was entitled to benefits. On appeal, appellant argues that the Commission's decision was not supported by substantial evidence. Specifically, appellant argues the following: (1) that appellee did not sustain a compensable injury arising out of and in the course of employment; (2) that appellee did not sustain internal or external harm arising out of and in the course of employment; (3) that appellee's claim was not supported by medical testimony given within a reasonable degree of medical certainty; and (4) that appellee failed to prove entitlement to any benefits. We find no error and affirm.

Appellee worked for eight years as a hospice nurse for appellant. Appellee's duties

included home visits for patients, interacting with their doctors, and supplying patients with medical equipment as needed. On May 7, 1999, appellee reported to work shortly before 8:00 a.m., her regularly scheduled time. Upon arriving at work, appellee went to the third floor where she was required to sign-in. Appellee then proceeded up the stairs to her fourth floor office to see her supervisor about change orders. She had a case containing her patient files in one hand and a glass of iced tea in the other hand. Appellee stated that she tripped on about the third or fourth step and fell forward all the way down the stairs. Appellee landed on her knees, left hand, and right forearm. Appellee stated she immediately felt pain in her knees, left hand and her right shoulder. Appellee stated she was following her normal procedure of going to her office and checking in with her supervisor to determine if she had additional duties related to the patients she would be serving that day.

After her fall, appellee went back to the third floor where she told her supervisor, Judy Pixley, and Terri Cauthron what happened. She stated she was in pain, had already begun bruising on her hands and knees, and a knot was developing on her hand. She then filled out an accident report, and decided to continue working. During the next few weeks, her shoulder pain gradually worsened, and she went to a walk-in clinic, where she was examined by Dr. Greg Jones, an orthopedic surgeon. On November 22, 1999, she had surgery in which she received an arthroscopic subacromial decompression and acromioclavicular joint resection. She was diagnosed as having a torn acromioclavicular meniscus, marked hooking of the acromion, and dorsal rotator cuff changes. Appellee testified that she has never had an injury to her right shoulder, but previously was diagnosedwith a spur in her left shoulder. On February 23, 2000, Dr. Jones released her without permanent restrictions and assigned a five percent impairment rating to the body as a whole. Appellant denied compensability of appellee's injuries. By opinion dated July 28, 2000, an Administrative Law Judge (ALJ) determined that the injury was compensable and awarded medical benefits, temporary total disability, permanent partial disability, and an attorney's fee. Appellant appealed to the Commission, but submitted no brief. On April 27, 2001, the Commission filed an opinion affirming the ALJ. This appeal followed.

When reviewing a decision of the Arkansas Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

Appellee argues that because appellant did not submit a brief to the Commission thatit failed to preserve its arguments for appeal. We find no law requiring a party to submit a brief to the Commission. The Commission reviews the case de novo on the entire record. Appellant argued at the hearing before the ALJ that appellee's injury was not compensable. As such, we address the merits of appellant's arguments.

First, appellant argues that appellee did not sustain a compensable injury arising out of an in the course of employment. Arkansas Code Annotated section 11-9-102(4)(A)(i) (Supp. 2001) defines "compensable injury" as "an accidental injury causing internal or external harm . . . arising out of and in the course of employment . . . ." Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Spec. Prods., 347 Ark , S.W.3d (March 7, 2002); Pifer v. Single Source Transp., 347 Ark. , S.W.3d (March 7, 2002). We use the same test to determine whether an employee was performing "employment services" as we do when determining whether an employee was acting within "the course of employment." Collins, supra; Pifer, supra. The test is whether the injury occurred "within the time and space boundaries of employment, when the employee [was] carrying out the employer's purpose or advancing the employer's interests directly or indirectly." Collins, supra; Pifer, supra. This test has also been previously stated as whether the employee was engaged in the primary activity that he was hired to perform or in incidental activities which are inherently necessary for the performance of the primary activity. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).

Appellant contends that it was unnecessary for appellee to go to the office, as herduties were home patient care, and she had been informed the day before as to the homes she was to visit. Appellant submits that appellee's job did not involve coming to the office to drink tea. However, the evidence showed that appellee testified that she reported to work as normal, signed in on the third floor as required, and was in the process of carrying her work records to the fourth floor in order to check in with her supervisor about changes in her daily activities when she fell. By signing in, and going to check with her supervisor about changes in her schedule, appellee was advancing appellant's interest. We hold that appellee was engaged in incidental activities that were necessary for the performance of the primary activity she was hired to perform.

Second, appellant argues that appellee did not sustain internal or external harm to her body as required by Arkansas Code Annotated section 11-9-102(4)(A). Appellant also contends that the injury was not the major cause of appellee's impairment as required by Arkansas Code Annotated section 11-9-102(4)(E)(ii). However, appellee testified that after falling she immediately experienced bruising on her knees and left hand and a knot on her left hand. Further, Dr. Jones, appellant's surgeon, stated that appellant "sustained a torn acromioclavicular meniscus which was well visualized." The Commission found that appellant sustained an injury which caused internal or external physical harm to her body which required medical services and resulted in appellant's disability. We cannot say the Commission erred in its finding.

Next, appellant argues that appellee's claim was not supported by medical testimony given within a reasonable degree of medical certainty. "Medical opinions addressingcompensability and permanent impairment must be stated within a reasonable degree of medical certainty." Ark. Code Ann. § 11-9-102(16)(B) (Supp. 2001). However, an expert's opinion is to be judged upon the entirety of the opinion, and it is not invalidated on the presence or lack of "magic words." Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001) (holding that the use of the word "probably" was sufficient to satisfy the requirement that medical opinion addressing compensability be stated within a reasonable degree of medical certainty). In this case with regard to appellant's impairment rating and nature of her injury, Dr. Jones opined the following:

She has on the basis of objective crepitus with respect to her shoulder range of motion an 8% upper extremity impairment with corresponding five person, whole person conversion is applicable. I do believe with the mechanism of injury described, the temporal relationship of her reporting that injury and the onset of symptoms in a previously asymptomatic right shoulder are consistent with and reflect my opinion the causative factor in terms of the injury that led to her need for surgical treatment of the right shoulder.

We hold that this opinion is sufficient to support the decision of the Commission and to satisfy the requirement that medical opinions addressing compensability be stated within a reasonable degree of medical certainty.

In appellant's last point on appeal, it submits that appellee has failed to prove entitlement to any benefits under the act. Appellant presents several arguments under this point. Appellant asserts appellee failed to prove causation of the need for treatment. This argument is without merit. Appellant testified as to the fall and bruising on her knees and left hand. The Commission found that appellee filled out an accident report. Appellant argues that it is critical in the present case that appellee failed to call any witnesses whocould corroborate her proof of injury report. It is true that an interested party's testimony is never considered uncontroverted, however, it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines, supra. Appellant was free to call its own employees or witnesses to establish that an injury did not occur. Further, in a report dated April 27, 2000, Dr. Jones stated that in his opinion appellant's injury and her need for surgical treatment was causally related to the fall which occurred on May 7, 1999.

Appellant contends that there was no proof of reasonable and necessary medical treatment. We disagree. Appellee testified that she did not immediately seek medical attention because she hoped that her condition would improve. Thereafter, she was treated conservatively for several months following which a surgical procedure was performed. Next, appellant argues that there was no medical evidence supported by objective findings as required by Arkansas Code Annotated section 11-9-102. Objective findings are defined as "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 2001); Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). In this case, Dr. Jones gave appellee range of motion tests. Appellant points out that there was no testimony as to the range of motions tests and whether Dr. Jones gave an active or passive range of motion test. Appellant states that "[i]t cannot be presumed that the range of motion tests were passive, and, therefore, the impairment rating must fail." We disagree. Dr. Jones stated that the test result was based on objective crepitus. This clearly indicated that Dr. Jones heard a crackling sound. Thus, the crepituswas not under the voluntary control of appellant. As such, no error occurred.

Last, appellant submits that there is insufficient evidence to support the Commission's determination regarding temporary total disability. To obtain temporary total disability benefits, a claimant must show that he was totally incapacitated from earning wages, and that he was in his healing period. Arkansas State Highway & Transp. Dep't v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). A claimant is entitled to temporary total disability during his healing period if he shows by the preponderance of the evidence that he had a total incapacity to earn wages. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). Arkansas Code Annotated section 11-9-102(12) (Supp. 2001), defines the healing period "as that period for healing of an injury resulting from an accident."

Appellant was awarded temporary total disability benefits from the date of her surgery (November 22, 1999), through the date she was released to return to work by Dr. Jones with the limitation of less than five pounds of weightlifting with her right arm, and one-armed job duty (December 3, 1999). This period was certainly within appellant's healing period. It is true that appellant also received unemployment compensation benefits during this same period of time. Pursuant to Arkansas Code Annotated section 11-9-506(b) (Repl. 1996), the ALJ found that appellant was only entitled to compensation benefits to the extent that her temporary total disability benefits exceeded her unemployment compensation benefits. We cannot say the Commission erred in affirming the ALJ.

Affirmed.

Pittman and Neal, JJ., agree.