Healthcor and Risk Management Resources v. Kathleen Cordry

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATON

ANDREE LAYTON ROAF, JUDGE

DIVISION I

HEALTHCOR and RISK MANAGEMENT RESOURCES

APPELLANTS

v.

KATHLEEN CORDRY

APPELLEE

CA02-109

NOVEMBER 13, 2002

APPEAL FROM ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E812752]

AFFIRMED

This is an appeal from a Workers' Compensation Commission's order, which found that appellee Kathleen Cordry had proven by a preponderance of the evidence that her additional medical treatment, including her surgery, was reasonable and necessary medical treatment related to her compensable injury. Appellant Healthcor argues on appeal (1) that the Commission's decision is not supported by substantial evidence, and (2) that the Commission erred in basing its ruling upon evidence that was not in the record. We affirm. On November 26, 1997, while employed by Healthcor as a registered nurse providing home health care, Cordry was injured in an automobile accident. Cordry testified that the other vehicle hit her right behind the driver's seat and that after the accident, her neck hurt, her cheekbones were bruised, and she was sore all over. Cordry testified that she reported the accident and continued to work, because she had patients who needed to be seen. After her pain became worse and she was hardly able to get out of bed several days after the accident, Cordry told her supervisor andHealthcor's Medicare coordinator, Mary Powell, that something was wrong with her neck and right arm. Powell told Cordry to go see Dr. Charles Marrow, because she could get in to see him that day.

Dr. Marrow ordered x-rays of Cordry's cervical spine, lumbar spine, left shoulder, and left knee. The radiologist's report from December 5, 1997, revealed a straightening of the alignment and "a 1 - 3 centimeter syndesmophyte anteriorly along the inferior margin of C6," in Cordry's cervical spine, and "minimal degenerative disease" in the lumbar spine. An MRI of Cordry's cervical spine in March 1998 indicated a "small posterior protrusion and/or herniation of the 5-6 disk." In April 1998, Dr. Marrow referred Cordry to Dr. Jeffrey DeHaan. Dr. DeHaan, in a letter dated October 8, 1998, stated that Cordry was referred to him with neck pain, primarily on the right side, that was aggravated when she turned her head. Dr. DeHaan prescribed physical therapy and anti-inflammatory medication, but Cordry continued to have persistent problems with her neck.

On April 30, 1998, Dr. DeHaan placed Cordry on light duty with a fifty-mile driving restriction. However, Cordry testified that Healthcor still scheduled her for more than 100 miles per day, because there was no one else to fill in for her. Cordry continued to work until June 1998, when Healthcor closed its office, although she testified that her pain kept increasing. On June 18, 1998, Dr. DeHaan told Cordry not to work at all until she saw Dr. Freddie Contreras for further evaluation and recommendations. Cordry was first evaluated by Dr. Contreras in August 1998, and he recommended that she have a cervical myelogram. Dr. Contreras also instructed Cordry not to work.

Healthcor had paid for Cordry's medical treatment until she was referred to Dr. Contreras. At that point, Cordry testified that Healthcor refused to authorize the myelogram. Cordry had the myelogram done anyway on October 9, 1998, and used her private health insurance. The results of the myelogram revealed that Cordry had "slight retrolisthesis of C5 on C6 as well as disc bulgingor herniation causing moderate canal stenosis and bilateral C6 nerve root impingement." According to Dr. Contreras's testimony, retrolisthesis occurs when one of the bones in the spine is not in normal alignment. Dr. Contreras stated that this condition is of a degenerative nature, because as a person ages, the cushion between the bones dries out, and the bones rub on each other, sometimes causing bone spurs. Dr. Contreras testified that Cordry had a big bone spur in her neck between the fifth and sixth cervical vertebrae. Although Dr. Contreras testified that the bone spur could be causing Cordry's symptoms of pain, numbness, and weakness, he also stated that on her initial visit, he thought she might have a small disc rupture between the fifth and sixth vertebrae that was causing her symptoms.

After receiving the results of the myelogram, both Dr. Contreras and Cordry testified that they discussed whether she should have an anterior surgical diskectomy and fusion at C5-6 performed. A note from Dr. Contreras on his prescription pad indicated that he recommended this procedure to Cordry. A second opinion was requested by Healthcor, and Cordry was referred to Dr. Anthony Russell on November 11, 1998. In his report, Dr. Russell stated that the bilateral nerve-root cutoff indicated on the myelogram corresponded well to the bilateral bone spurring, or spondylosis, seen on the MRI. In his opinion, Dr. Russell stated that the herniated disk was secondary to the spondylosis. However, Dr. Russell recommended that Cordry proceed with the diskectomy, as it would have a good chance of relieving her pain and returning her to the workforce. In a follow-up letter of November 25, 1998, Dr. Russell acknowledged that the radiologist's report from the myelogram mentioned that bilateral disc bulges were causing the nerve root cutoff. Dr. Russell stated that although it was his opinion that the bone spur was causing the major problem, the radiologist "has the final word." Dr. Russell also stated that the only person who could be sure of the source of the nerve root compression is Dr. Contreras when he performs the surgery.

Cordry testified that she elected to undergo the surgery; however, Dr. Contreras was unable to obtain authorization from Healthcor for the procedure. According to Cordry's testimony, her pain became so severe that she was unable to drive or do household chores, and she became dependent on family and friends to help her around the house. Therefore, she decided to proceed with the surgery without Healthcor's authorization. Dr. Contreras performed the diskectomy on January 22, 1999. In his operation report, Dr. Contreras noted that Cordry had a "soft disk rupture," which was removed, as well as "some osteophyte" that was drilled down and removed. When asked during his deposition if the osteophyte, or large bone spur, was the cause of Cordry's pain, numbness, and weakness, Dr. Contreras testified that Cordry did also have a soft disk rupture at that level and that he believed it was a combination of the spur and the disk rupture that caused her problems. Dr. Contreras was unable to quantify how much of Cordry's pain was caused by the disk, as opposed to the spur, but he did state that the disk rupture looked relatively recent, while the spur would take two or three years to develop. Dr. Contreras further testified that Cordry's symptoms could certainly have resulted from her automobile accident and that he had previously seen that type of injury occur after an accident.

Cordry was released by Dr. Contreras to return to work on July 20, 1999. Cordry testified that she still suffered from some pain and weakness, but that the pain was not as severe as it was before the surgery. Dr. Contreras testified that no spine surgery is a guaranteed success and that Cordry may continue to have some chronic pain, although physical therapy, anti-inflammatories, and muscle relaxers might improve her condition. After Cordry brought her claim against Healthcor to recover the expenses for her additional medical treatment, the Adminstrative Law Judge (ALJ) found that her treatment, specifically including her surgery, was reasonable and necessary medical treatment related to her compensable injury. The Commission affirmed and adopted the ALJ'sdecision, and Healthcor appeals.

Healthcor first argues that the Commission's opinion is not supported by substantial evidence. When reviewing a decision of the Workers' Compensation Commission, the Court of Appeals views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Rice v. Georgia Pac. Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, the appellate court must affirm its decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). In addition, the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001).

Arkansas Code Annotated section 11-9-508(a) (Repl. 2002) requires employers to provide such medical services as are reasonably necessary in connection with the injury received by the employee. The injured employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of a compensable injury. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2002); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonable and necessary treatment under section 11-9-508(a) is a fact question for the Commission. General Elec. Railcar Repair Servs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998).

Healthcor argues that Cordry's surgery is not compensable because the medical evidenceshowed that Cordry suffered from bone spurring caused by a degenerative disease, in addition to her soft disk rupture. Healthcor contends that Dr. Contreras's testimony that he was unable to state without speculating which condition caused most of Cordry's symptoms prevents her from proving that her compensable injury was the "major cause" of her need for treatment. However, for an accidental injury, such as Cordry's automobile accident, it is not necessary that the claimant prove that the injury is the major cause of the disability or need for treatment, as opposed to a gradual-onset injury, where such proof is required. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000); General Elec. Railcar Repair Servs. v. Hardin, supra.

Dr. Contreras's testimony explained that the surgical procedure was necessary because of the test results revealing Cordry's soft disk fragment and bone spurs. As the surgical report indicates, prior conservative treatment had been unsuccessful in relieving Cordry's symptoms and in fact, her symptoms continued to worsen. Dr. Russell also recommended that Cordry undergo the surgery to relieve her pain and return her to the workforce. Although Dr. Russell opined that the bone spur was causing Cordry's symptoms, he admitted that the radiologist had found disk bulging and herniation and that any opinion would be speculation until the results of the surgery were known. It is undisputed that the surgery revealed a soft disk fragment that was removed, as well as the bone spurs. Dr. Contreras testified that her ruptured disk could certainly have resulted from her accident, and although he was unable to state how much of Cordry's pain was caused by the disk fragment, he opined that the disk was causing most of her problems, as opposed to the bone spur.

Healthcor also argues that Cordry did not prove that her medical treatment was related to her compensable injury. Again, Healthcor notes Dr. Contreras's testimony and contends that he was unable to give a medical opinion with reasonable certainty as to the cause of Cordry's symptoms. However, medical evidence is not necessary to establish a causal relationship between the injury andthe accident as long as objective medical evidence establishes the injury's existence. Wal-Mart Stores, Inc. v. Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999).

Here, in addition to Dr. Contreras's testimony that Cordry's injury could certainly have resulted from her accident and that he had previously seen that type of injury occur from an automobile accident, there was a preponderance of other evidence to establish causation. Cordry testified that she had never had symptoms of pain or neck problems before the accident and that her symptoms started immediately after the accident. In addition, as the ALJ noted, several of Cordry's co-workers testified that they had observed her prior to and subsequent to the automobile accident. Each witness confirmed that Cordry did not display any symptoms of pain or problems with her neck prior to the accident and that she did demonstrate these symptoms after the accident. Thus, there is substantial evidence to support the Commission's decision that the additional medical treatment, including the surgery, was reasonable and necessary in connection with her compensable injury.

Healthcor also argues that the Commission erred in ruling based upon evidence that was not a part of the record. Healthcor bases its argument on a portion of the ALJ's opinion that states that "[a]lthough Dr. Contreras's report indicating the need for surgery was not introduced into evidence, it is apparent through the subsequent history and physical, and surgical report that Dr. Contreras recommended and performed an interior surgical diskectomy at C5-6." Healthcor contends that by this statement, the ALJ improperly relied upon evidence that was not in the record. Because the Commission affirmed and adopted the ALJ's decision, Healthcor argues that the Commission's decision is "fatally flawed" and should be reversed. The record reflects that Healthcor did not present this argument to the Commission; thus, it is not preserved for appellate review. Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). However, even if we wereto address Healthcor's argument, it has no merit. Contrary to Healthcor's assertions, the ALJ did not rely on evidence not in the record. The ALJ's opinion merely mentioned a report by Dr. Contreras, which purportedly indicated the need for surgery, that was not introduced into evidence and then went on to note other evidence, which was introduced, that Dr. Contreras had recommended the surgery to Cordry. Thus, the ALJ did not improperly rely on this report in making its decision, and it was not error for the Commission to affirm and adopt the ALJ's findings. Because there is substantial evidence to support the Commission's decision, we affirm.

Affirmed.

Jennings and Bird, JJ., agree.