John P. Marinoni Construction Company and CGU Insurance Company v. Jim Atchison

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

JOHN P. MARINONI

CONSTRUCTION CO. and CGU

INSURANCE CO.

APPELLANTS

V.

JIM ATCHISON

APPELLEE

CA 02-17

AUGUST 28, 2002

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E616344]

AFFIRMED ON DIRECT APPEAL

AND CROSS-APPEAL

Appellee Jim Atchison sustained a compensable injury to his left knee while working for appellant John P. Marinoni Construction Company on August 22, 1996. The appellant paid medical expenses related to the knee injury, as well as temporary total disability benefits through September 8, 1999. Mr. Atchison subsequently brought a claim for benefits relating to his back condition, which he contended was a compensable consequence of the knee injury. The appellant controverted compensability of his back condition, and further asserted that it was entitled to a credit for overpayment of temporary total disability benefits related to the knee injury. Specifically, appellant contended that Mr. Atchison's healing period ended on July 23, 1997, and thus was not entitled to temporary total disability benefits beyond that date.

After a hearing, the Workers' Compensation Commission found that Mr. Atchison remains in his healing period through a date yet to be determined. Consequently, appellant's request for an overpayment credit became moot and was denied. The Commission further ruled that Mr. Atchison failed to prove that his back condition was compensable because it was not established by medical evidence supported by objective findings, as required by Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999).

John P. Marinoni Construction now appeals, arguing that the Commission erred in finding that Mr. Atchison was entitled to additional temporary total disability benefits, and in failing to award a credit for overpayment. Mr. Atchison cross-appeals, arguing that the Commission erred in finding that his back condition was not compensable. We affirm on direct appeal and on cross-appeal.

When reviewing decisions of 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 the decision is supported by substantial evidence. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

Mr. Atchison testified on his own behalf at the hearing. He stated that he was working as a job superintendent and was repairing courthouse steps for the appellant on August 22, 1996. He testified that a limestone step weighing 600 pounds fell off a forklift, struck him in the left leg, and came to rest on his foot. Mr. Atchison initially visited hisfamily physician, Dr. Stuart Benson, and then came under the care of Dr. James Arnold. Dr. Arnold performed arthroscopic knee surgery on December 9, 1996, and Mr. Atchison returned to work in January 1997.

Mr. Atchison stated that after returning to work he was only able to work half-days on restricted duty. He continued to work in this capacity until May 1997, but has not been able to work since. He indicated that he has not received treatment for his knee since August 5, 1997, when Dr. Arnold reported that he was totally and permanently disabled from his previous work duties.

Mr. Atchison also gave testimony regarding a back condition. He stated that he visited Dr. R.E. Shaw, a chiropractor, for the first time on January 20, 1997. Mr. Atchison testified that his back hurts when he stands or walks, and that it "just keeps getting worse." He related his back injury to his compensable knee injury because the knee injury caused a limp and shifted the way he walks. Mr. Atchison stated that he would like to undergo an MRI on his back pursuant to a recommendation by Dr. Arnold, but that the procedure has not been done because the appellant denied compensation for his back condition.

Mr. Atchison acknowledged that he experienced back pain for "quite a few years" before his compensable accident, which was treated with pain relievers and anti-inflammatory drugs. However, he stated that his current pain is located at his belt line or below, which is not the same area that was treated prior to injuring his knee.

For reversal on direct appeal, the appellant argues that the Commission erred in finding that Mr. Atchison is entitled to any temporary total disability benefits beyond July23, 1997. Citing Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001), the Commission stated that, since Mr. Atchison's injury is scheduled, he is entitled to temporary total disability benefits during his healing period or until he returns to work, pursuant to Ark. Code Ann. § 11-9-521(a) (Supp. 1999). The Commission awarded additional temporary total disability benefits based on its determination that Mr. Atchison did not return to his regular work duties, and that he remains in his healing period. The appellant specifically argues that the Commission erred in failing to find that Mr. Atchison's healing period ended on July 23, 1997.

In support of its argument, appellant asserts that Mr. Atchison has not received treatment related to his knee since June 1997. In correspondence dated September 2, 1997, Dr. David Collins gave the opinion that while Mr. Atchison may ultimately require surgical intervention or a total knee replacement, he had reached maximum medical improvement following his work-related injury. In a January 24, 2000, report, Dr. Arnold stated that Mr. Atchison had achieved maximum healing and that July 23, 1997, was the peak of his maximum medical improvement. Based on these medical opinions and the fact that Mr. Atchison has not continued to receive treatment, appellant contends that the Commission erred in finding that Mr. Atchison remains in his healing period.

For temporary total disability purposes, the healing period continues until the claimant 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. Emerson Elec. v.Gaston, supra. We hold that substantial evidence supports the Commission's finding that Mr. Atchison's knee injury never stabilized and that he remains within his healing period.

While Drs. Collins and Arnold opined that Mr. Atchison had reached maximum medical improvement, both doctors acknowledged that further treatment may be necessary. In this regard, Dr. Arnold reported that Mr. Atchison will require a knee arthroplasty sometime in the future. In addition, Dr. John Wright reported in April 1999 that Mr. Atchison's "painful left knee is affecting the entire kinetic chain of his lower extremity and placing extra strain on the peroneal muscle group as well as the left arch and the course of the left plantar fascia." By November 18, 1999, Dr. Frankie Griffin reported, "I think the only alternative to likely provide any lasting relief would be a total knee replacement." The medical evidence supported the Commission's finding that Mr. Atchison's knee condition had not become stable and that he is a candidate for further treatment to improve the condition.

The appellant's remaining argument is that the Commission erred in failing to award a credit for overpayment of temporary total disability benefits for the period from July 23, 1997, through September 8, 1999. Because we affirm the Commission's finding that Mr. Atchison is entitled to continuing temporary total disability benefits, we also affirm its finding that appellant has not overpaid compensation and is therefore not entitled to a credit.

We now turn to Mr. Atchison's cross-appeal. He argues that the Commission erred in failing to find that he sustained a compensable back injury. Mr. Atchison directs us to the opinions of Drs. Benson and Arnold, who both attributed his back condition to his primaryknee injury and associated altered gait. Mr. Atchison argues that there were objective findings to support the existence of his back condition contained in Dr. Arnold's January 17, 2000, report. In that report, Dr. Arnold noted that Mr. Atchison walks with a limp, and further reported:

His nerve stretch test is positive in both legs. He has diminished sensation over the S1 on the left and weakness of the S1 musculature of his left leg.

Mr. Atchison submits that Dr. Arnold's findings constitute "objective findings" to support the existence of a compensable injury.

We note that the Commission did not deny benefits because Mr. Atchison failed to prove a causal connection between his compensable knee injury and back injury, but rather on the basis that he failed to present objective medical findings to support the existence of a low-back injury or aggravation. When the Commission denies compensability, the substantial evidence standard of review requires the reviewing court to affirm if the Commission's decision displays a substantial basis for the denial of relief. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). We hold that the Commission's decision displays a substantial basis to deny relief because there was an absence of objective medical findings to support Mr. Atchison's claim for a compensable injury to his back.

Arkansas Code Annotated section 11-9-102(16)(i) (Supp. 1999) defines "objective findings" as those findings which cannot come under the voluntary control of the patient. Contrary to Mr. Atchison's argument, the existence of a limp cannot constitute an objective finding because it can come under the voluntary control of the claimant. The findingsreferenced in Dr. Arnold's January 17, 2000, report were not objective because they were dependent on subjective criteria such as nerve sensations and weakness. Because there were no objective medical findings, we affirm the Commission's decision denying compensability for a back condition.

Alternatively, Mr. Atchison argues that even if his back condition is not compensable, he is entitled to an MRI based on the following recommendation in Dr. Arnold's January 17, 2000, report:

Most importantly it appears his back is being limited from the limp of his left knee and this is subsequently causing him to walk in flexion and he is wearing out the anterior half of his medial tibial plateau at a remarkably accelerated rate. I believe he would best be served by a MRI of his lumbosacral spine as I feel he has a disc at this level. If this is the case, then hopefully removal of this disc would allow him to walk straighter and we would be able to discern how much disorder is coming from his knee. In view of this, I would like to request a MRI of his lumbosacral spine.

Mr. Atchison asserts that the recommended MRI of his back is necessary to properly diagnose and treat his compensable knee injury.1

Dr. Arnold's opinion suggests that Mr. Atchison's knee injury has caused a back problem, which in turn has exacerbated the knee injury. However, since we affirm the Commission's denial of compensability for any back condition, we are constrained to affirm its decision to deny the MRI, which has been primarily recommended to diagnose and treat a noncompensable condition.

Affirmed on direct appeal and on cross-appeal.

Pittman and Baker, JJ., agree.

1 We note that Mr. Atchison does not argue that he is entitled to the MRI because it is a necessary test to determine, objectively, whether he has compensable back injury.