Wendy's and ITT Hartford v. Donna Chamness

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

WENDY'S and ITT HARTFORD

APPELLANTS

V.

DONNA CHAMNESS

APPELLEE

CA 02-362

DECEMBER 18,2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMISSION [NO. E 606801]

AFFIRMED IN PART AND REMANDED IN PART

Wendy's restaurant and ITT Hartford, appellants, appeal the award of workers' compensation benefits by the Workers' Compensation Commission to Donna Chamness, appellee. Appellants raise two points on appeal: (1) that there was no substantial evidence to support the Commission's finding that the medical treatment received by appellee after January 9, 1997, was related to her May 8, 1996, accident, that it was reasonable or necessary, and that appellee was disabled through her last visit with Dr. Howser; and (2) that appellee did not sustain a compensable neck injury. We affirm in part, and remand in part.

Appellee was an assistant manager for Wendy's in Forrest City, Arkansas, in May 1996. She testified that on May 8, 1996, she arrived at work at approximately 6:40 a.m. for a shift that was to begin at 7 a.m. Appellee testified that she normally arrived early to unlock the restaurant, turn the alarm off and lights on, and, generally, ready the restaurant for the

other employees. Appellee testified that she unlocked the side door and walked across the carpeted area of the dining room, and as she stepped onto the "brick" area in front of the cash registers, she slipped and fell. Appellee testified that she discovered after she fell that the carpet in the dining area was wet from a spill that had occurred the previous night.

Appellee was on her way to turn the alarm off when she slipped and fell. Appellee also testified that as she fell she twisted to avoid falling on her back because she was seven and a half months pregnant. She testified that she landed hard on her tail bone and her hands. Immediately after she fell, she jumped up and ran to turned the alarm off because she did not want the police to come due to a false alarm. Appellee stated that she felt okay except on her lower left side and the upper right part of her rib cage. She did not clock in as soon as she arrived because she checked in an order shortly after she fell. She testified that she managed to stay at the restaurant for about forty-five minutes before she began to feel nauseated and dizzy. Another employee helped her to the office, and they called her brother-in-law. Her sister-in-law took her to see her gynecologist, Dr. Rossitt. The workers' compensation nurse set up an appointment for appellee in West Memphis with an orthopedist, Dr. Meredith.

Dr. Meredith could not do much for appellee because of her pregnancy, except rule out major fractures. He took limited x-rays and found no major fractures, but he could not rule out smaller fractures. He told appellee to come back six weeks after the baby was born. Appellee testified that the pain was so bad after the baby was born that she went back to see Dr. Meredith after only two weeks post-partum. This would have been at the end of July1996. Dr. Meredith put her on pain medication and started her on physical therapy. Appellee testified that she would have one or two hours of relief after the physical therapy. Appellee was to begin a work-hardening program in November 1996.

The day she was to start the work-hardening program, appellee picked up her four-month old daughter, and she experienced pain radiating from her knee down into her foot. She was unable to begin the work-hardening program or return to light duty after this incident. A myelogram was done in December 1996, and it did not reveal anything but a slight bulge. Dr. Meredith released appellee on January 9, 1997, with no restrictions. Appellee testified that she was told that nothing else could be done for her. She also testified that she had not improved.

Appellee went back to work on January 13 and 14. She did not work January 15 because she could hardly move, but she returned to work on January 16. Appellee testified that she was in so much pain that she could not stand up straight and her left leg was swollen to twice its normal size. Her general manager told her to go home and to see the doctor.

Appellee testified that she called the workers' compensation nurse, Vicky Scott, and left a voice-mail message. She then called Jeannie Roberts at Hartford and left a voice-mail message. She then called Dr. Meredith, but he refused to see her because there was nothing he could do for her, and he would not give her a referral. Appellee testified that after her phone calls were not returned, she sent a letter to the Workers' Compensation Commission requesting permission to change physicians. She later testified that she continued to call Ms. Scott and Ms. Roberts at Hartford for about a week with no success. It was at this point thatshe called Dr. Howser, a neurosurgeon, and made an appointment.

Dr. Howser placed appellee in a Boston overlap brace that was made of hard plastic and went from the bottom of her breasts to the top of her hip and down past her tailbone. The brace was used to keep her back straight and alleviate the pain. Dr. Howser required her to be off work. She testified that at this point she was only experiencing physical problems.

In August 1997, Dr. Howser referred her to Dr. Levitch for depression. Appellee was experiencing weight loss and the inability to sleep. Appellee weighed a mere 95 pounds when she first saw Dr. Levitch. Dr. Levitch diagnosed her with major depression and began treating her. Appellee testified that her marriage and her family suffered because of her injury. She had trouble concentrating and suffered forgetfulness. She and her husband almost divorced due to the strain on their marriage. They even had to make adjustments to their house to accommodate appellee and her injuries. They installed a shower because she could not take a bath or bend down to give her baby a bath. Appellee testified that her inability to work made her feel worthless, and this led to thoughts of suicide. Appellee testified that her depression would get better over the next four years, but it was a constant struggle due to the pain she was in all the time.

In 1999, appellee had a rhizotomy to try and relieve some of the pain in her leg. It was successful in relieving the pain from her knee to her ankle, and the pain from her hip to her knee began to slowly go away. Appellee testified that she continued to experience lower back, neck and spinal cord problems. She was continuing to suffer from depression four years after the accident, but she testified that it was getting better.

Appellant initially found appellee's claim to be compensable and paid for her visits until Dr. Meredith released her to return to work in January 1997. At the hearing in front of the ALJ in June 2001, appellant contended that appellee did not sustain a compensable injury because she was not performing employment services at the time of the injury. Appellants requested a credit or reimbursement for benefits paid due to this claim. The ALJ ruled in favor of the appellee, finding that she had proven by a preponderance of the evidence that she had sustained a compensable physical and mental injury arising out of and in the course of her employment. The ALJ also found that the medical treatment that appellee had received was reasonable and necessary and that the appellee was entitled to temporary total disability benefits from May 8, 1996, through her last visit with Dr. Howser in 2000. The ALJ also determined that the appellants were entitled to an offset of group benefits paid pursuant to Ark. Code Ann. § 11-9-411 (Repl. 2002). The Commission affirmed the decision of the ALJ. This appeal followed.

The standard of review for appeals from the Workers' Compensation Commission is well-settled. On appeal, this court will view evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). The issue 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, then we must affirm. Id. The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. GreenBay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

Appellants' first argument on appeal has three points: (1) that the medical treatment received by the appellee after January 9, 1997, was not related to the accident on May 8, 1996, due to an independent intervening cause in November 1996; (2) that the medical treatment appellee received after she was released by Dr. Meredith on January 9, 1997, was not reasonable and necessary; and (3) that appellee was not disabled through her last visit with Dr. Howser in April 2000.

Appellant first argues that the appellee suffered an unrelated injury due to an independent intervening cause when she tried to pick up her four-month old child in November 1996. Appellants contend that this incident worsened appellee's condition to the extent that it did not allow her to participate in the work-hardening program or return to light duty. Appellants insist that the act of appellee lifting her four-month old child was unreasonable, and thus, they are not responsible for the medical treatments required after appellee suffered increased back pain due to lifting her infant child. This court outlined the test for when an independent intervening cause will relieve an employer of liability in Broadway v. B.A.S.S., 41 Ark. App. 111, 114, 848 S.W.2d 445, 447 (1993). We stated that "the question is whether there is a causal connection between the primary injury and the subsequent disability; and if there is such a connection, there is no independent intervening cause unless the subsequent disability was triggered by activity on the part of the claimant which was unreasonable under the circumstances." Id.

The Commission found that the appellee's act of picking her infant child up was notunreasonable. The Commission stated that appellee's doctor had not imposed any lifting restrictions on the appellee and, therefore, she had no reason to believe that she should not attempt to pick up her child. Appellants' assertion that a four-month old child's weight would be an unreasonable amount to try and lift in appellee's condition is unfounded, especially when the appellee had not been given any lifting restrictions by her doctor. We find no fault with the Commission's reasoning or decision. Appellant's assertion that this incident was an independent intervening cause that relieved them of liability is unsubstantiated, and we find that the treatment appellee received after the November 1996 incident was related to her original May 8,1996, injury.

Appellants next argue that the medical treatment appellee received after being released by Dr. Meredith on January 9, 1997, was not reasonable or necessary. Arkansas Code Annotated section 11-9-508 (Repl. 2002) states that employers must provide all medical treatment that is reasonably necessary for the treatment of a compensable injury. What constitutes reasonable and necessary treatment under this statute is a question of fact for the Commission. Hill, supra; Geo Specialty Chem. Inc. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).

The Commission stated in its opinion that the appellee had no history of back injuries, and that appellee sought and received conservative treatment for her injury. Dr. Howser, who treated appellee after appellants controverted her claim, treated her conservatively and related appellee's low back condition to her workplace accident. Dr. Howser stated that it was his "opinion that the fall appellee sustained at Wendy's caused the cervical and lumbarfacet syndrome." He stated that his opinion was with a reasonable degree of medical certainty. He also stated in the record that it was his opinion, and it was with a reasonable degree of medical certainty, that appellee was not able to engage in substantial, gainful activity.1 The Commission based its decision on the testimonies and evidence provided by the appellee and her doctors. It is within the Commission's discretion to believe or not believe the testimony of witnesses. Hill, supra. We recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimonies. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). We hold that there was substantial evidence to support the Commission's finding that the medical treatment that appellee received after January 9, 1997, was reasonable and necessary.

Appellants also argue that appellee was not disabled through her last visit with Dr. Howser in April 2000. However, Dr. Howser gave testimony in May 2001 that he last saw appellee in April 2000, just before he retired. He testified that appellee's injuries were due to her fall at Wendy's in May 1996, and this opinion was given with a reasonable degree of medical certainty. He also testified that appellee was unable to work due to her injuries, and this opinion was also given with a reasonable degree of medical certainty. Dr. Levitch also testified as to the ongoing problems the appellee had with depression, which was a result ofbeing in constant pain and not being able to work. We hold that there was sufficient evidence to support the Commission's finding that appellee continued to be disabled through her last visit with Dr. Howser in April 2000 and affirm the award of temporary total disability benefits.

Appellants' second argument on appeal is that the appellee did not sustain a compensable neck injury. The appellee stated in her brief that the ALJ did not find that she had "sustained a compensable neck injury." The ALJ's order states "[t]he claimant has proven by a preponderance of the evidence that she sustained a compensable physical injury and a mental injury arising out of and in the course of her employment on May 8, 1996." However, the ALJ also states "[t]he claimant has proven by a preponderance of the evidence that the additional medical treatment she has sought is reasonable and necessary both for her compensable back and cervical injury and for her depression." (Emphasis added). The issue of a compensable cervical injury was not addressed by the Commission in its findings, and on that issue alone we remand for a finding of fact from the Commission.2

We affirm the findings of the Commission that the medical treatment appellee received after January 9, 1997, was related to her May 8, 1996, accident and that such treatment was reasonable and necessary. We also affirm the Commission's finding that appellee was disabled through her last visit with Dr. Howser in April 2000. We remand forfurther findings by the Commission on the compensability of the cervical injury referred to by the ALJ in her ruling and contested by the appellant.

Affirmed in part, remanded in part.

Vaught and Roaf, JJ., agree.

1 Appellants apparently misunderstood Dr. Howser's statement in the transcript of his deposition in May 2001. Upon a review of the statement in the record, and the question posed by appellee's counsel, it is our conclusion that the doctor did in fact state that in his opinion appellee was unable to work.

2 It should be noted that appellee appears to concede in her brief that she did not suffer a compensable neck injury on May 8, 1996. However, since the ALJ specifically addressed a "cervical injury" in her ruling, we feel that we must remand for a finding from the Commission on this issue.