Anthony Guarino v. Kroger

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CA02-499

DECEMBER 18, 2002

ANTHONY GUARINO AN APPEAL FROM THE ARKANSAS APPELLANT WORKERS' COMPENSATION

COMMISSION [F000556]

v.

KROGER

APPELLEE

AFFIRMED

Appellant, Anthony Guarino, appeals from a decision of the Workers' Compensation Commission (Commission) finding that he had failed to prove by a preponderance of the evidence that further physical therapy was reasonably necessary for treatment of his compensable injury. On appeal, appellant argues that (1) the Commission erred in its finding that additional physical therapy was not reasonably necessary, and (2) the Commission's decision was not supported by substantial testimony or medical evidence.

Appellant has worked for appellee, Kroger, since 1979. He currently works as a produce manager. In addition to his work as a produce manager, appellant also works as a car salesman and coaches softball. Appellant has suffered two prior work-related injuries,a lower back injury in 1994 and a cervical neck injury in 1995. On April 19 or 20, 1999, appellant sustained a third work-related injury when he injured his lower back while stacking boxes. Appellee accepted the injury as compensable. During the course of his treatment appellant was seen by Dr. Underhill, a chiropractor; Dr. Donald Hill, a general practitioner; Dr. Bruce Safman, an orthopaedic surgeon; and Dr. William Ackerman, III, a pain specialist.

In September of 1999, Dr. Safman referred appellant to Seth Coulter, a physical therapist. Coulter treated appellant for lower back pain and sacroiliac joint pain. In a letter dated July 20, 2000, Dr. Ackerman stated:

[Appellant] has disk degeneration. I feel that he should continue with his therapy. He has an underlying medical condition of degenerative disk disease causing long term chronic pain complaints. I do not feel that the need for the therapy is a result of his recent accident at Kroger's. He has been rated at MMI by me. It is my medical opinion with 51% certainty that his current complaint of intermittent pain are related [sic] to a medical condition and not to his work-related condition.

Based on Dr. Ackerman's letter, appellee controverted appellant's right to further medical treatment. On June 1, 2001, a hearing on the matter was held before an administrative law judge (ALJ).

At the hearing, appellant testified that he first injured his lower back in 1994 and that he received a "disability rating" for this injury. He also testified that he sustained a cervical neck injury in 1995 and that he also received an "impairment rating" for this injury. Appellant stated that from 1997 up until his present injury he was "pain free." He stated that he continued to work after his present injury. During his testimony, appellant asserted that he still needed medical treatment because he no longer performed his job the way he usedto, and that on some days, he is unable to walk. Appellant believed that the physical therapy helped his back muscles.

The deposition testimony of Seth Coulter, appellant's physical therapist, was presented at the hearing. In the deposition, Coulter stated he has been a physical therapist for seventeen years. Coulter also stated that when he first saw appellant, appellant's gait was consistent with that of someone with pain and muscle tightness in the lower back. He explained that muscle tightness was equivalent to a muscle spasm. Coulter testified that he actually felt and observed appellant's muscle tightness and that it was not under the total control of appellant. Coulter stated that he treated appellant with aquatic therapy, heat therapy, stretching exercises, and strength exercises. As a result of the therapy, Coulter stated that appellant's gait began to improve. Coulter acknowledged that appellant suffered some increased pain from coaching softball, and as a result, appellant had limited his coaching duties. Coulter felt that appellant was making progress, but was not where he could be. Coulter believed that additional physical therapy would decrease appellant's muscle tightening and would make it controllable. Coulter stated that if physical therapy was discontinued, appellant's muscles would become tight and his condition would deteriorate.

The ALJ found that appellant had failed to prove by a preponderance of the evidence that further physical therapy was reasonably necessary. The ALJ also found that based on the medical records, appellant had sustained an aggravation of an underlying degenerative condition and that his symptoms giving rise to his need for additional physical therapy werenot causally related to his compensable injury. Appellant appealed the ALJ's decision to the full Commission. The Commission affirmed and adopted the decision of the ALJ. This appeal followed.

In workers' compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm the decision if it is supported by substantial evidence. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Min-Ark. Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997). The issue is not whether we 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 we must affirm its decision. Id. The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).

Appellant asserts that the Commission erred in its finding that the additional physical therapy he requested was not reasonably necessary for treatment of his compensable injury. He also asserts that the Commission's decision is not supported by substantial testimony or medical evidence. Due to the nature of appellant's arguments, they can be addressed together.

Arkansas Code Annotated section 11-9-508(a) (Repl. 2002) requires an employer to provide such medical services as may be reasonably necessary in connection with anemployee's injury. Cox v. Klipsch & Assoc., 71 Ark. App. 433, 30 S.W.3d 764 (2000). What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. Wackenhut Corp. v. Jones, supra.

In addition to Coulter's deposition testimony, the Commission also had before it the July 20, 2000, letter from Dr. Ackerman. It appears that the Commission chose to give greater weight to Dr. Ackerman's letter. Accordingly, we can not say that the Commission's findings were not supported by substantial evidence; therefore, we affirm.

Affirmed.

Stroud, C.J., and Baker, J., agree.