Baptist Health v. Donald Mee

DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CA03-75

JUNE 18, 2003

BAPTIST HEALTH AN APPEAL FROM THE WORKERS'

APPELLANT COMPENSATION COMMISSION [E913853]

v.

DONALD MEE

APPELLEE

AFFIRMED

Appellant, Baptist Health, appeals from a decision of the Workers' Compensation Commission affirming a decision of the administrative law judge to award the appellee, Donald Mee, temporary total disability benefits. On appeal, appellant asserts that appellee did not suffer a compensable injury on October 8, 1999; alternatively, appellant argues that if a compensable injury is found, appellee is not entitled to medical and temporary total disability benefits beyond December 6, 1999. We affirm.

In May of 1999, appellant employed appellee as a rehabilitation care associate. Appellee's job duties included feeding, bathing, transferring, and preparing patients for therapy. Appellee claimed that on October 8, 1999, while assisting other employees in lifting a 580 pound patient who had fallen, he injured his back. Following the injury, appellee stated that he informed LPN, Tim Rogers, that he felt a "pop" in his back, but thathe did not believe he was seriously injured.

Appellee continued to work for several days, but reportedly began hurting in his low back and down the left side of his body the following week, which was October 14. Believing that he could recover during his three-day weekend, appellee did not report his injury. Nevertheless, on October 18, 1999, appellee was scheduled to return to work, but was unable to, due to escalated pain. He, therefore, called in sick and informed the night supervisor that he needed medical attention. Appellee stated that he did not remember if he told the night supervisor that his injury was work-related, but stated that, "I told them that I was having problems with my back; that I'd hurt my back and I couldn't move; and that I was going to the doctor."

Following appellee's injury, he saw his primary care physician, Dr. Jeffrey Mayfield, on October 18, 1999. Dr. Mayfield referred appellee to several physicians, including Drs. Robert Porter and Thomas Hart. In a letter dated November 15, 1999, Dr. Porter, a neurosurgeon, noted that appellee related that "he was lifting a patient . . . and felt something pull in his back." Dr. Hart's medical notes further corroborated appellee's contention that he was injured on the job. Dr. Hart's notes, dated April 21, 2000, indicate that appellee's chief complaint involved "[l]ifting a 580-pound man on the third floor of BRI and felt a sharp pain in the left side of spinal cord. Continued working for approximately one week. Pain so bad, went to primary around the 18th of October and had chronic pain [on] both sides of spine, but nothing on the right side."

Following several referrals, appellee saw Dr. Richard Peek. Dr. Peek related in aletter dated September 21, 2000, that appellee's "problems began on October 14, 1999, while he was at work. He was helping lift a patient at that time and felt a popping sensation in his back." Dr. Peek released appellee to return to light duty work. While on light duty, appellee performed desk work, and he reported to charge nurse Gena Qualls. On December 12, 2000, Dr. Peek performed appellee's fusion surgery.

At the hearing before the administrative law judge, the appellee stated that since sustaining his injury, he has experienced continued back pain. When asked about filling out information regarding his injury, appellee admitted that he filled out short term disability benefits forms indicating that there was no type of injury or accident causing his problem, that there was no particular accident date, and that the injury was not work-related. Appellee stated that personnel told him to check "no" in some instances and that Gwen Wetzel of Baptist personnel was one of the ladies that told him to do that.

Gena Qualls testified that she supervised the appellee. She stated that she spoke with appellee after he was injured and that appellee told her that he had a kidney infection. She stated that it was not until after appellee went to the doctor that she learned it was a back injury, but she acknowledged that she was not sure at which point appellee told her his injury was work-related. She stated that when he told her such, she had him fill out the workers' compensation papers and go through that process.

Gwen Wetzel, manager of staffing and employee relations at Baptist, testified that at the time of appellee's injuries, she was responsible for workers' compensation and short-term disability. She stated that appellee called her on the phone and that she explained tohim that an employee could not draw short-term disability if he or she drew workers' compensation. She stated that appellee was upset, stating that he had tried to get workers' compensation, but that Baptist had denied it. Wetzel stated that she told appellee to contact Kathleen Zuber, who was handling short-term disability at that time. Wetzel testified that appellee did not state on his short-term disability form that he had been hurt at work.

The administrative law judge had before her several notations in appellee's Baptist Health Center file and some doctors' notes indicating that appellee sustained a work-related injury. Specifically, the Commission looked to notes dated October 18, October 21, and November 9, 1999, which all indicate that appellee presented with low back pain. Also, there were the notes of Dr. Wendell Phals, who saw appellee on October 28, 1999, and opined the following:

Donald . . . presents today complaining of lower back pain. He describes the pain as a burning, aching discomfort that is fairly intense. He denied any radiation of the pain, but does note it has prevented him from sleeping and resting lately. He relates that the initial injury he believes caused the pain involved an episode of lifting a 500 lb patient off the floor here at BRI. He admits however that although he lifted the patient and felt a little twinge of discomfort, that the twinge of discomfort quickly resolved and he was symptom-free for 2 entire weeks before he began noticing the pain. He denied any re-injury and simply states that he thinks that he must have hurt his back when he lifted that patient, because is [sic] the only thing he can think of that he has done to injury himself.

Dr. Phals noted that he did "not believe that this is related to any injury on duty, given his history of two complete weeks that he was symptom-free between his alleged injury and the onset of symptoms." Nonetheless, he diagnosed appellee with "tenderness across the lower lumbar region."

There was also the letter of Dr. Peek, stating that he could state, to a reasonable degree of medical certainty, that appellee's back injury was work-related. Dr. Peek assigned a twenty-five percent (25%) impairment rating to the body as a whole. Dr. Peek further acknowledged on March 23, 2001, that appellee would remain in his healing period for one year and was not able to return to work.

Following the hearing, the administrative law judge entered an opinion awarding the appellee benefits from December 9, 2000, to a date to be determined. The Workers' Compensation Commission affirmed the administrative law judge. From that order comes this appeal.

In a workers' compensation case, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable. See Bell v. Tri-Lakes Servs., 76 Ark. App. 42, 61 S.W.3d 867 (2001). On appeal, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission and will affirm the Commission's decision if it is supported by substantial evidence. See Magnet Cove Sch. Dist. v. Barnett, ___ Ark. App. ___, 97 S.W.3d 909 (Feb. 12, 2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. On an appeal from the Workers' Compensation Commission, the question is not whether the evidence would have supported findings contrary to those of the Commission; rather, the decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. See Horticare Landscape Mgmt. v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002).

Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary total disability. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). The healing period is statutorily defined as that period for healing of an injury resulting from an accident. Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001). The healing period ends when 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. K II Constr. Co. v. Crabtree, supra. The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Poulan Weed Eater v. Marshall, supra.

The evidence established that appellee was injured during and in the scope and course of his employment with appellant. Dr. Peek determined that appellee's injury was work-related and opined that he was still within his healing period as of March 23, 2001. The administrative law judge and the full Commission found appellee's testimony as well as Dr. Peek's medical evidence credible, and it is well-settled that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Horticare Landscape Mgmt. v. McDonald, supra. Thus, as substantial evidence supports the Commission's decision, we affirm.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.