James R. Harelson v. Diamond International Risk Management

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

JAMES R. HARELSON

APPELLANT

V.

DIAMOND INTERNATIONAL RISK MANAGEMENT

APPELLEE

CA02-205

SEPTEMBER 25, 2002

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[F007374]

AFFIRMED

This is an appeal from the Workers' Compensation Commission. Appellant, James R. Harelson, appeals the Commission's denial of his entitlement to additional medical benefits and his entitlement to temporary total disability benefits after November 1, 2000. He has two points on appeal. First, he argues that the Commission erred in failing to find that appellant was entitled to additional medical benefits after November 1, 2000. Second, he argues that the Commission erred in finding that appellant was not entitled to additional temporary total disability benefits after November 1, 2000. We affirm.

Appellant was employed as a diesel mechanic for appellee, Diamond International. On May 26, 2000, appellant was injured while repairing a Peterbilt 379 engine. The actual injury occurred when he slipped on some oil while carrying a fan hub that weighed approximately fifty pounds. After hitting the ground, he "felt fire immediately" in the center of his back. Appellant returned to work that day; however, he had his wife call to make a doctor's appointment.

He was initially treated by Dr. Russell Pearson, a chiropractor. He was also later evaluated by Dr. Jeffrey Yates and Dr. Larry Price. Both Dr. Yates and Dr. Price administered conservative treatment. However, he was ultimately referred to orthopaedic surgeon Dr. Russell Allison, with symptoms consisting of "pain in most of [his] lower back and right hip, and [his] right leg had knots and shooting pain that went all the way down." On June 16, 2000, an MRI test revealed substantially normal results with mild irregularities in the L-5, S-1 space, but no true nerve-root impingement. On July 17, 2000, appellant returned to Dr. Allison earlier than planned due to continuing symptoms. Dr. Allison assessed him with a "herniated disk lumbar spine;" however, his MRI was substantially normal, and the treatment did not offer any relief to appellant. As a result, he was sent to Dr. McCoy for EMG and nerve conduction studies. Dr. McCoy's impression was that "no active denervation was seen." On August 2, 2000, appellant was again seen by Dr. Allison, and his physical examination was normal. Dr. Allison did not recommend surgery; however, he sent appellant to Dr. Valley for epidural steroid injections in an attempt to relieve appellant of his complaints of pain. Dr. Valley testified that he concluded that appellant suffered from a herniated disc in the lumbar spine. Dr. Valley stated that the best course of treatment for appellant was the epidural steroid injection. However, he also agreed that there were only "minimal alterations from normal" with "no true nerve root impingement" on the MRIs of June 23, 2000 and of October 3, 2000. Appellant testified that the steriod injection given by Dr. Valley offered him some relief from pain; however, on October 1, 2000, Dr. Allison released appellant to return to his full work duties in four weeks, beginning November 1, 2000. Dr. Allison opined that surgery was not recommended, and Dr. Allison stated in a letter that appellant appeared to be in discomfort despite the absence of any determined "true diagnosis." An October 3, 2000, MRI, recommended by Dr. Allison, showed a negative study except for a minuscule bulge at L-5, S-1, which was a "minimal alteration fromnormal." On October 6, 2000, Dr. Allison assessed appellant with "right leg pain" despite his normal MRI tests and referred him to another doctor because he could no longer offer him any relief. In a letter dated December 12, 2000, Dr. Allison stated that appellant received a second opinion based on his recommendation of October 6, 2000. That second opinion was in line with Dr. Allison's recommendations that surgery was not an option. Further, Dr. Allison stated that "at that point he continued to be in a large amount of discomfort without being able to determine a true diagnosis."

Also at the hearing, a videotape surveillance of appellant in his yard was reviewed. The videotape was taken on October 28, 2000, through October 31, 2000. On the videotape, appellant was observed bending, stooping, lifting, and carrying items with no obvious physical limitations or expressions of pain. When questioned about the observances from the video tape, Dr. Valley stated that "the type of injury that [appellant] had [did] not prevent a person from bending, squatting, stooping, picking up a child, or riding a riding lawnmower." Moreover, Dr. Valley admitted that he "did not try to fix an anatomical or mechanical problem" in regards to appellant's back.

Based on the evidence, the ALJ found that appellant was not entitled to additional medical benefits or to temporary total disability benefits after November 1, 2000. The Commission affirmed the ALJ's decision. This appeal followed.

Our standard of review is well-settled: In determining the sufficiency of the evidence to support the findings 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 we will affirm if those findings are supported by substantial evidence. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The determination of thecredibility and weight to be given a witness's testimony is within the sole province of the Commission. Id.; Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Smith-Blair, Inc. v. Jones, supra (citing Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001)).

First, appellant argues that the Commission erred in failing to find that appellant was entitled to additional medical benefits after November 1, 2000. Employers must only provide medical services that are reasonably necessary for treatment of the compensable injury. See Ark. Code Ann. § 11-9-508(a) (Repl. 1996); White Consol. Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001). What constitutes reasonably necessary medical treatment is a question to be determined by the Commission. Id. (citing Gansky v. Hi-Tech Eng'g., 325 Ark. 163, 924 S.W.2d 790 (1996)). In the instant case, given the medical evidence provided by appellant's physicians, we hold that there was substantial evidence to support the Commission's finding that appellant was not entitled to additional medical treatment after November 1, 2000.

While there was conflicting medical evidence as to appellant's need for additional medical treatment, both MRIs done on June 16, 2000, and October 3, 2000, showed almost normal results with minimal alterations from normal. Dr. Allison opined that after several attempts to treat appellant, "he continued to be in a large amount of discomfort without being able to determine a true diagnosis." Dr. McCoy's nerve conduction studies were normal with "no active denervation." Appellant's physical examination remained normal, and surgery was not recommended by any of the doctors. Although his symptoms indicated a herniated disc in the lumbar spine, there was no objective medical evidence to demonstrate any injury. The MRIs revealed no true nerve impingement. Dr. Valley even testified that he was not trying to fix an anatomical or mechanicalproblem. Nonetheless, he recommended epidural steroid injections for appellant's complaints. Moreover, observances from a video surveillance tape of appellant's activities were in direct conflict with appellant's complaints of injury and pain. Finally, Dr. Allison's letter of December 12, 2000, concluded that appellant's MRI results were normal, surgery was not an option, and a second opinion confirmed his opinions with regard to appellant's complaints. Although appellant argues that additional treatment is reasonable and necessary due to Dr. Valley's opinion that appellant suffered from a herniated disc in the lumbar spine, whether a medical procedure or device is reasonable and necessary treatment is a question of fact to be decided by the Commission. See Cox v. Klipsch & Assocs., 71 Ark. App. 433, 30 S.W.3d 764 (2000). Based on the aforementioned facts, we hold that there was clearly substantial evidence to support the Commission's denial of additional benefits after November 1, 2000.

Second, appellant argues that the Commission erred in finding that appellant was not entitled to additional temporary total disability benefits after November 1, 2000. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001) (citing Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996)). Arkansas Code Annotated section 11-9-102(12) (Repl. 2002) defines "healing period" as that period for healing of an injury resulting from an accident. The healing period continues until the employee 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., supra. The determination of when the healing period has ended is a factual determination for the Commission, which is affirmed on appeal if supported by substantial evidence. Id. In this case, there was ample evidence to support the Commission'sdecision. According to appellant's testimony, he returned to work sometime in September or October. On October 1, 2000, Dr. Allison provided appellant with a work release ending November 1, 2000. Although Dr. Valley indicated that he wanted to give appellant future injections for pain, other evidence showed normal MRI results, normal conduction studies, and a video of appellant's activities demonstrating his ability to perform numerous tasks. Dr. Allison recommended a second opinion by Dr. Wayne Bruffet, which concluded that appellant continued to complain of pain without being able to determine a true diagnosis. In view of this evidence, we hold that substantial evidence supported the denial of temporary total disability benefits after November 1, 2000.

It is well established that it is within the Commission's province to weigh all the medical evidence and to determine what is most credible. Smith-Blair, Inc. v. Jones, supra (citing Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999)). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Id. (citing Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000)). Thus, the Commission, as fact-finder, was free to accept the medical opinions that it determined to be credible, and they amounted to substantial evidence supporting its decision that appellant was not entitled to additional medical treatment or temporary total disability after November 1, 2000.

Pursuant to the Commission's authority, it heard and weighed the conflicting evidence presented in this case and gave the evidence the weight it deemed appropriate. We hold that the Commission's decision was supported by substantial evidence and affirm.

Bird and Neal, JJ., agree.