Healthsouth Rehabilitation Hospital et al. v. Maxine Reese

ca03-256

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CA03-256

October 1, 2003

HEALTHSOUTH REHAB, AN APPEAL FROM ARKANSAS

PACIFIC EMPLOYERS WORKERS' COMPENSATION

APPELLANTS COMMISSION [F200431]

V.

MAXINE REESE AFFIRMED IN PART;

APPELLEE REVERSED AND REMANDED IN PART

Wendell L. Griffen, Judge

This case arises from the Arkansas Workers' Compensation Commission's finding that appellee, Maxine Reese, was entitled to reasonably necessary medical treatment and temporary total disability compensation. Appellants, Healthsouth Rehabilitation Hospital and Pacific Employers Insurance Company, argue that the Commission's finding that appellee is entitled to additional benefits is not supported by substantial evidence. They also argue that the Commission's finding that appellee is entitled to temporary total disability benefits until August 1, 2001, is not supported by substantial evidence. For reasons explained below, we affirm in part and reverse and remand in part.

On February 22, 2001, appellee was sixty years of age and an employee of appellant, Healthsouth Rehabilitation Hospital. During that day, appellee attempted to lift a patient to her bed from a wheelchair. As she was lifting the patient, appellee fell onto the bed and the patient landed on appellee's left shoulder. Appellee complained of pain right away. Right after the incident, appellee filed a workers' compensation claim and continued to work. The following day she sought medical treatment. She complained of pain in her trapezius muscle. Returning to the doctor on February 27, 2001, appellee complained of continuing pain in her trapezius muscle and new pain hurting into her shoulder. The treating physician, Dr. McDaniel, noted that appellee had some pain in the same shoulder about a year ago. He also noted that appellee could raise her arm well and that the x-ray was negative.

On February 28, 2001, Dr. Woloszyn acted upon referral from Dr. McDaniel and provided appellee with literature on therapeutic exercises and sent her back to work on light duty, one-handed, for the next two weeks. Appellee returned to work but left after a few hours, again complaining of pain.

On March 5, 2001, appellee returned to Dr. Woloszyn and complained about pain from her shoulder into her elbow. Dr. Newman performed a CT scan of her neck and noted "minimal degenerative changes" in her cervical and upper thoracic spine, finding no evidence of any neural compromise. On March 21, 2001, appellee underwent an MRI. Dr. Nicell found, upon the MRI results, that there was no evidence of a rotator cuff tear and that there was a moderately severe degenerative joint disease to the acromioclavicularjoint, without significant impingement upon the supraspinatus. During a visit on March 28, 2001, Dr. Woloszyn noted that the MRI showed moderately severe degenerative joint disease. Dr. Woloszyn continued appellee on light, one-handed duty until April 2, 2001. On April 2, 2001, Dr. Woloszyn released appellee from work until April 11, 2001.

On April 11, 2001, appellee returned to Dr. Woloszyn. Dr. Woloszyn then offered a distal clavicle resection as a treatment option. That surgery occurred on May 4, 2001. Appellee later testified that she felt fine after the surgery and could do anything she wanted to do. She was released back to work two weeks after surgery, but appellee testified that she knew she could not return to work because she could not lift her shoulder. Prior to May 21, 2001, the date she was supposed to have returned to work, appellee called appellant Healthsouth Rehabilitation Hospital and stated that she would not return to work. Appellee did not engage in any physical therapy. Appellee testified that she was supposed to receive physical therapy, but the doctor "never set [her] up." However, she took medication, stayed at home, and rested. During that time, she stated, her shoulder got "better and better." On August 1, 2001, appellee started work for the Arkansas Health Department.

Concerning appellee's preexisting conditions, she admitted that she suffered from arthritis, a condition that had necessitated knee surgery in the past. Appellee also had surgery on her right shoulder to repair a torn rotator cuff. With regard to her left shoulder, appellee underwent an MRI on October 29, 1999. The resulting report showed that appellee had significant chronic degenerative changes in the acromioclavicular joint with only mild flattening of the supraspinatus muscle. The report also highlighted what appeared to be chronic degenerative changes in the glenohumeral joint with some slight irregularity of the cartilage but no labral injury and no definite loose bodies.

On June 11, 2002, an administrative law judge (ALJ) heard the case. The ALJ subsequently denied additional benefits to appellee on the grounds that she had failed to prove by a preponderance of the evidence that she had sustained a compensable injury. Upon appeal, the Commission reviewed the case and reversed the ALJ's determination. The Commission awarded benefits for reasonably necessary medical treatment in connection with appellee's compensable injury and also awarded temporary total disability compensation from February 22, 2001, to August 1, 2001. Appellants now bring this appeal.

Substantial Evidence for Additional Benefits

Appellants argue that the Commission's findings in favor of additional benefits were not supported by substantial evidence. We review Workers' Compensation Commission decisions by asking whether there is substantial evidence to support the decision of the Commission. Rice v. Georgia-Pacific Corp., 72 Ark. App. 149, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). We review the evidence and all reasonable inferences in the light most favorable to the Commission's findings and affirm the Commission if its findings are supported by substantial evidence. Geo Speciality Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding-rather, we affirm if reasonable minds could reach the Commission's conclusion. Sharp County Sheriff's Dep't v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001). The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Williams v. Brown's Sheet Metal/CNA Ins. Co., __ Ark. App. __, 105 S.W.3d 382 (April 23, 2003). It is also within the Commission's province to weigh all the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).

A claimant must prove below that the injury was "the result of an accidental injury that arose in the course of employment, and that it grew out of, or resulted from, the employment." Cook v. Aluminum Co. of America, 35 Ark. App. 16, 21, 811 S.W.2d 329, 332 (1991); see also Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2002). Objective findings are those findings which cannot come under the voluntary control of the patient-claimant. Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 2002). Complaints of pain per se may not be considered by the physician, the administrative law judge, the Commission, or the courts. See Ark. Code Ann. § 11-9-102(16)(A)(ii) (Repl. 2002).

Furthermore, an employer takes an employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable under workers' compensation law. Continental Exp., Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). An aggravation is a new injury resulting from an independent incident and must meet the requirements for a compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998).

In the present case, we hold that there was substantial evidence to support the Commission's findings in favor of additional benefits. The MRI report, dated March 22, 2001, established the following findings:

There is contrast material within the anterior soft tissue of the shoulder which may be secondary to attempted arthrographic instillation of contrast. No definite tear of the subscapularis tendon. The caracoid process is normal length. The biceps tendon is normal within the bicipital groove. There is abnormal increased T2 signal and hypertrophy of the acromioclavicular capsule and joint with increased T2 signal in the distal ends of the clavicle and acromion. Although there is hypertrophy of the joint capsule, there is no significant impingement upon the distal supraspinatus tendon. Very small amount of increased T2 signal in the distal supraspinatous tendon and subacromial bursa. Glenoid labrum and glenoid fossa appear normal. Normal bony cortical outlines of the humeral head. Normal marrow signal within the humeral head. The hyaline cartilage covering the glenoid fossa and the humeral head is within normal limits.

(Emphasis provided.)

By contrast, the October 1999 MRI provided the following findings for appellee's left shoulder:

The patient has significant chronic degenerative changes in the acromioclavicular joint with only mild flattening of the supraspinatus muscle. The acromion is in a slightly low lying position but did not show excessive hooking. The supraspinatus tendon showed some increased signal intensity, but no tear. A small amount of fluid is seen in the subacrominal-subdeltoid bursa which are often seen in patient[s] with impingement.

There also appeared to be chronic degenerative changes in the glenohumeral joint with some slight irregularity of the cartilage but no labral injury and no definite loose bodies.

Consequently, we note that the 2001 MRI found, in contrast to the 1999 MRI, "abnormal increased T2 signal and hypertrophy of the acromioclavicular capsule and joint with increased T2 signal in the distal ends of the clavicle and acromion." In addition, the Commission had before it testimony establishing that appellee suffered through a fall in the course of which a patient landed on her left shoulder in February 2001. Appellee complained of pain immediately. Appellee underwent the 2001 MRI in March of 2001. The 2001 MRI constitutes objective medical findings outside the control of appellee, the patient. The February 2001 event took place during appellee's employment at Healthsouth Rehabilitation Hospital. There is no question that the incident itself qualifies as a compensable work injury. Therefore, we affirm the Commission's decision on that point.

Substantial Evidence for Temporary Total Disability Benefits

Appellants also argue that substantial evidence does not support an award of temporary total disability benefits until August 1, 2001. Temporary total disability is that period within the healing period in which an employee suffers a total or partial incapacity to earn wages. Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002). An employee who has suffered a work-related injury is entitled to benefits for temporary total disability during her healing period or until she returns to work. Ark. Code Ann. § 11-9-521(a) (Repl. 2002). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). If the underlying condition causing the disability has become more stable and if there is nothing further in the way of treatment that will improve that condition, the healing period has ended. Id. Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Breakfield v. In & Out, Inc., supra. The question of when the healing period has ended is a factual determination for the Commission that will be affirmed if it is supported by substantial evidence. Id.

Here, we reverse and remand to the Commission because we find that the record before us does not contain substantial evidence to support its award of temporary total disability benefits until August 1, 2001. Appellee underwent surgery on May 4, 2001. Her scheduled date of return to work would have been May 21, 2001. However, appellee testified that she could not lift her arm and thus knew that she could not return to work. She also stated that she was supposed to receive physical therapy, but did not receive any. Instead, she relied on medication and stayed at home until the pain had eased. She also stated that she did not look for a job earlier because she did not wish to do anything that would irritate her shoulder condition. On August 1, 2001, appellee started a new employment with the Arkansas Health Department.

Appellee never stated, even approximately, when the condition of her arm improved so that she was able to resume employment. Instead, we are faced with a temporally amorphous period starting around the time when appellee was supposed to return to work but realized that she still could not lift her arm. That was on or around May 21, 2001. For the time between May 21 and August 1, 2001, the date when she began her new job, the testimony is scant at best. We realize that some or all of that time might properly belong to appellee's healing period, but we cannot determine when that healing period ended. There is no evidence, either from appellee's testimony or from any independent source, such as a therapist's records-which services she chose not to use-stating that appellee's arm hurt and she was totally incapacitated from work until August 1, 2001. Because of this lack of evidence, we reverse and remand the Commission's decision to award temporary total disability benefits until August 1, 2001. Affirmed in part; reversed and remanded in part.

Robbins and Neal, JJ., agree.