Prairie Farms Dairy, Inc. and Crawford & Company v. Garlan L. Foote

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

PRAIRIE FARMS DAIRY, INC. AND

CRAWFORD & COMPANY,

APPELLANTS

v.

GARLAN L. FOOTE,

APPELLEE

CA02-268

DECEMBER 4, 2002

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. E802937,

AFFIRMED

Garlan L. Foote suffered a compensable work-related injury on March 2, 1998, while employed by Prairie Farms Dairy as a transport driver. Prairie Farms paid for temporary total and permanent partial disability through September 1, 2000; medical treatment, including a complete knee replacement; and benefits based on a fifty-percent impairment rating. A hearing was held before an administrative law judge on Foote's request for additional medical services. The law judge found that Foote was entitled to additional medical treatment, and the Commission affirmed the award. Prairie Farms appeals the Commission's decision, raising the sole point that there is no substantial evidence to support the determination that Foote established that additional medical treatment is reasonable and necessary. We disagree and, therefore, affirm the decision of the Commission.

What constitutes reasonable and necessary treatment under this section is a question of fact for the Commission. Georgia-Pac. Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997). In appeals involving claims for workers' compensation, we view the evidence in a light most favorable to the Commission's decision and affirm the decision if it is supported by substantial

evidence. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. Although the Commission may not arbitrarily disregard the testimony of any witness, the appellate court defers to the Commission on issues involving the weight of the evidence and the credibility of witnesses. Id.

There is no dispute over the occurrence of Foote's injury or the medical treatment that was rendered. The injury occurred when his shoe became caught and he fell off a truck during the process of unloading milk. Dr. Nils Axelsen, an orthopedic surgeon, performed the knee replacement and remained the primary treating physician. Foote testified that he paid out of his own pocket for a return visit to Dr. Axelsen in November 2000 because the respondents had refused to pay for it. Foote testified that pain in his hip while sitting caused him to return to the doctor, that he probably had experienced the pain for twelve to sixteen months before returning to the doctor, that he had not had a new injury or done anything to cause the pain to increase, and that he didn't like to go to the doctor until he couldn't "take it" anymore. He said that Dr. Axelsen prescribed Vioxx for him but that he didn't fill it because he could not afford to pay for it, and that prescriptions are not covered by Medicare, which he was receiving.

Dr. Axelsen's office notes from the November 2000 visit state that Foote continued to have tightness and aching in the knee similar to that of June 1999, that Foote did not remember that Celebrex helped much and that Vioxx was being prescribed, that Foote should get back on hisexercises, that the knee was in position, and that there was no change from the x-rays a year and a half earlier. Dr. Axelsen noted that he planned to see Foote again in a year to take new x-rays for comparison. In a letter to Foote's counsel in January 2001, Dr. Axelsen wrote that the November x-rays had revealed no changes after June 1999, that the knee component looked stable, and that there was nothing to do surgically in the near future. He also wrote:

[T]he patient is presently 60 years old. We usually tell patients that prosthesis has a 10-15 year life span, in most instances, so there is a fair to good chance that he will need a revision total knee arthroplasty in his lifetime. Of course, if something comes up prior to that time, loosening of the prosthesis, etc. then there would be the chance that he would need one sooner.

Arkansas Code Annotated section 11-9-508 (Supp. 1995) requires an employer to promptly provide such medical services as may be reasonably necessary in connection with the employee's injury. Section 11-9-702(b) (Supp. 1995) sets forth the statute of limitations for filing a claim for additional compensation:

In cases where any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.

The respondents contend that the award of additional medical treatment, which they refer to as "annual visits to toll the statute of limitations," is not reasonable and necessary. They contend that the Commission disregarded Foote's testimony under cross-examination:

Garlan, when you say you want additional medical treatment, what treatment is it you're wanting?

A. Well, I just want them to be responsible for whatever I've got to have done on my knee.

Q. So you're just wanting to keep them on the hook in the event you need the total knee sometime in the future?

A. That's right. I think they should be responsible for it.

There is no support for the respondents' argument that the Commission ignored this testimony. Indeed, the Commission quoted Foote's elicited responses before noting in its opinion, "The respondents stated that the claimant is attempting to obtain continuing medical treatment for no other reason than to toll the statute of limitations to keep his claim open...." Clearly, the Commission considered Foote's testimony and simply weighed it, along with other evidence, in reaching the decision that additional medical treatment was reasonable and necessary.

In Georgia-Pacific Corporation v. Dickens, 58 Ark. App 266, 950 S.W.2d 463 (1997), we affirmed the Commission's award for additional medical treatment where the claimant testified that, upon her attorney's advice, she was seeing her doctor at six-month intervals until her worker's compensation claim was settled. The Commission noted her multiple surgeries, persistent symptoms of pain, irritation, limitation of motion in her elbow, and continued use of medication and a TENS unit. We wrote that the issue was not the claimant's motivation for seeking follow-up care, but whether she was entitled to the follow-up care. 58 Ark. App. at 271, 950 S.W.2d at 466.

Here, as in Dickens, the issue is whether Foote is entitled to follow-up care. The respondents contend that additional treatment was not reasonable and necessary because Dr. Axelsen did not recommend surgery or any other treatment, but merely recommended that Foote continue home exercises that had been provided previously; because Foote's complaints in November 2000 wereunchanged from his last visit to Dr. Axelsen approximately eleven months earlier;1 because the examination "did not reveal any problem" and Dr. Axelsen did not recommend any future treatment; and because Dr. Axelsen's recommendation for a follow-up visit a year later would serve only to confirm the stability of the knee replacement.

The Commission found that Foote's symptoms had remained in the form of persistent knee aching and tightness, that Dr. Axelsen had prescribed mediation and exercise, and that there was a pattern of x-ray studies to monitor the prosthetic replacement. The Commission ruled that monitoring of the prosthetic knee constituted reasonable and necessary medical treatment, particularly in view of (1) his continued symptoms, (2) the known likelihood of additional surgery within ten to fifteen years, and (3) his doctor's recommendation of annual monitoring since the knee could destabilize sooner. We find that the evidence set forth by the Commission constitutes substantial evidence to support its decision that Foote is entitled to additional medical treatment.

Affirmed.

Jennings and Crabtree, JJ., agree.

1 Appellants do not cite any parts of the medical records in the addendum that might refer to an eleven-month period between visits. Dr. Axelsen's progress note of November 30, 2000, refers to Foote's "last visit in June of 1999."