Waldron Nursing Center, Fire & Casualty Insurance Company of Connecticut, and Royal and Sun Alliance v. Carol Rose

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

WALDRON NURSING CENTER; FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT; and ROYAL AND SUN ALLIANCE

APPELLANTS

V.

CAROL ROSE

APPELLEE

CA03-295

November 12, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

F100800

AFFIRMED ON DIRECT APPEAL AND ON CROSS-APPEAL

Larry D. Vaught, Judge

This is an appeal from a decision of the Workers' Compensation Commission awarding appellee medical and temporary total disability benefits upon finding that she sustained a compensable injury. Appellants raise four points of appeal challenging the compensability of appellee's injury and the benefits awarded by the Commission. Appellee cross-appeals the Commission's decision to end temporary total disability as of February 19, 2001. We affirm on both the direct appeal and the cross-appeal.

Appellee Carol Rose worked for appellant Waldron Nursing Center since 1991. On December 11, 2000, she reported to the charge nurse on duty that she hurt her neck and back while trying to lift an adult patient back into bed. Appellee went to the emergency room that evening and reported that she was trying to lift a patient when she experienced pain, which began in her neck by her left ear and went to her low back. Dr. Glen Denning, who treated appellee in the ER, diagnosed a low back strain and gave her an injection of Demoral and Promethazine, as well as two Lorcet pills and a prescription for Flexeril. The next day she saw her physician, Dr. Nathan Bennett. He diagnosed her as having a cervical, thoracic, and lumbar strain. Appellants initially accepted appellee's injury as compensable and paid medical and temporary total disability benefits, but ultimately controverted the claim in its entirety. After a hearing, the administrative law judge found that appellee's December 11, 2000 injury was compensable and awarded her medical benefits and temporary total disability benefits from December 11, 2000, through February 19, 2001. Based on the activities appellee could perform as demonstrated by a surveillance video taken by appellants, the ALJ further found that appellee failed to prove that she continued to be totally disabled from performing all forms of regular gainful employment after February 19, 2001, as a result of her compensable injury. Appellants appealed the ALJ's decision to the full Commission, and appellee filed a cross-appeal on the issue of TTD after February 19, 2001. The full Commission affirmed and adopted the decision of the ALJ. Appellants filed a notice of appeal to this court, and appellee filed a notice of cross-appeal on the issue of TTD benefits after February 19, 2001. In reviewing the Commission's decision on a question of fact, we will affirm the Commission if its decision is supported by substantial evidence; substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. Co. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The evidence is viewed in the light most favorable to the findings of the Commission and is given its strongest probative value in favor of the Commission's decision. Id. The question is not whether the appellate court might have reached a different conclusion from the one found by the Commission if it were reviewing the case de novo, or even whether the evidence would have supported a contrary finding. Id. The Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id.

For their first two points of appeal, appellants contend that there is no substantial evidence to support the Commission's decision that the appellee sustained compensable neck and back injuries. The Commission found that appellee sustained compensable injuries in the form of lumbar and cervical strains and an aggravation of preexisting cervical spondylosis.

Arkansas Code Annotated section 11-9-102(4)(A)(i) (Supp. 2003) defines compensable injury as an "accidental injury causing internal or external physical harm to the body ... arising out of and inthe course of employment and which requires medical services[.]" It further states that an injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence. Arkansas Code Annotated section 11-9-102(4)(D) provides that a compensable injury must be established by medical evidence supported by "objective findings," which are defined in subdivision (16) of that section as "those findings which cannot come under the voluntary control of the patient." The claimant must also prove a causal relationship between his employment and the injury. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002).

Appellants challenge the Commission's finding of compensability of appellee's neck injury on two bases: that appellee's neck injuries and alleged disability therefrom were the result of chronic, preexisting problems and degenerative changes and not the alleged incident on December 11, 2000; that appellee was not a credible witness and had no corroborative evidence that her alleged work injury actually occurred.

With respect to appellants' attack on appellee's credibility, it is the Commission's duty to judge the credibility of witnesses, see Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001), and it found appellee to be credible and her testimony sufficient to establish the occurrence of the specific employment related injury on December 11, 2000. The Commission noted that appellee immediately reported the incident and onset of her difficulties and sought medical treatment the same day. The history of the incident given at the hearing was consistent with the history given to treating physicians. Although appellants attempt to challenge appellee's credibility on the bases that she failed to disclose a 1979 workers' compensation claim when she applied for a job at Waldron Nursing Center in 1991 and that her father had died while a resident of the nursing home only a month before the alleged injury, we are bound to defer to the Commission on the issue of appellee's credibility.

On the issue of whether the appellee's neck injury was the result of the December 11, 2000 incident or preexisting conditions, appellants cite to appellee's history of previous injuries and problems. The Commission noted that appellee's previous problems had resolved to the point that she was not prevented from performing her regular and rather strenuous employment activities for Waldron Nursing Center prior to December 11. It reasoned that the preponderance of the evidence demonstrated that appellee's difficulties indicative of lumbar and cervical strains and an aggravation of her preexisting cervical spondylosis occurred contemporaneously with her December 11 incident, and that the incident could logically produce such injuries, and that there was no other reasonable explanation for the onset of her difficulties. The Commission stated that it was aware that the appellee's preexisting spondylosis could have been aggravated by a multitude of events or even the passage of time, but it agreed with Dr. Standefer that the most likely or probable aggravating event was the one closest in time, which was the December 11 incident. Thus, the Commission found a causal connection between the injuries and the December 11 incident.

Appellants argue that Dr. Standefer could not state "to a reasonable degree of medical certainty" whether the degenerative changes and related findings in appellee's cervical spine were the result of the alleged injury. While medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty pursuant to Ark. Code Ann. § 11-9-102(16)(B) (Supp. 2003), Dr. Standefer's alleged failure to state his opinion on causation to a reasonable degree of medical certainty is not dispositive of the issue. Objective medical evidence is necessary to establish the existence and extent of an injury but is not essential to establish the causal relationship between the injury and a work-related accident in a workers' compensation case. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). In the present case, there is substantial evidence to support the Commission's finding that appellee's neck problems were compensable. As stated previously, appellee went to the ER on the same day of the incident and her reports of the incident to the medical providers were consistent with her account of events. Her previous problems that appellants take issue with had resolved to the point that appellee was able to continue her strenuous employment with Waldron Nursing Center. Dr. Standefer opined that without an MRI immediately before and after the December 11 incident there would be no way of knowing whether the changes in appellee were due to the December 11 incident or the degenerative changes. He testified that the temporal relationship between the onset of symptoms and the traumatic event would have a bearing on his opinion of causation and that the closer the time frame, the stronger the causal connection. With respect to the temporal relationship in appellee's case, he stated that she was taken to the ER the same day as the incident, noting that the ER report described the onset of symptoms as arising when appellee was attempting to lift the patient. He opined that the condition for which he saw appellee in January 2001 was likely due to the December 11 lifting event. He clarified that the event did not cause the arthritic changes in the neck or the canal stenosis, but that it caused the symptoms to develop. He also testified that it takes less trauma to cause an injury in a person with preexisting degenerative conditions in her spine.

In regard to the back injury, appellants contend that there are no objective findings to support the Commission's finding that appellee sustained a low back strain. Appellants contend that the Commission relied on the ER physicians's observations of muscle spasms and tight "ropey" muscles in the affected area. Appellants argue that appellee could have made her muscles contract to feel tight and ropey. Medical notation of muscle spasms have been held sufficient to satisfy the requirement that a compensable injury must be established by medical evidence supported by objective findings. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). In addition, the Commission noted the existence of an injury based on the MRI. Dr. Standefer also testified that the C6-7 disc bulge in the 2001 MRI, which was classified as significant, was worse than it was in the 1993 MRI. He added that lifting an adult patient could cause the bulge to worsen, and that the immediate onset of her symptoms after the December 11 incident made it more likely than not that the worsening of the bulge was caused by the incident. Based on these facts, there was substantial evidence of objective findings of a back injury.

For their third point of appeal, appellants contend that even if appellee could establish some compensable injury, there is no substantial evidence to support the Workers' Compensation Commission's decision that appellee is entitled to TTD benefits from December 11, 2000, through February 19, 2001. For her-cross appeal, appellee argues that there is not substantial evidence to support the Commission's decision to terminate TTD benefits after February 19, 2001. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). Therefore, the claimant must prove that she is within her healing period and that she is totally incapacitated from earning wages.

The Commission found that appellee continued within her healing period and was prevented from performing any form of regular gainful employment from December 12, 2000, through February 19, 2001. Substantial evidence supports the Commission's decision that appellee remained within her healing period. During the period for which benefits were awarded, appellee remained under the care of physicians and had not been released. Appellee was seen by Dr. Standefer on January 24, 2001. In his report, he stated that appellee appeared to be having symptomatic cervical spondylosis with attendant multifocal disc protrusion, possible ossification of the posterior longitudinal ligament, and cervical canal stenosis with cord compression. Based on his review of her history, including an MRI taken January 5, 2001, and talking with appellee, he recommended further evaluation to include myelography and post myleogram CT scanning, and after those tests consideration for surgery. The report also noted that the myleogram would be scheduled and that appellee was undergoing physical therapy. Even after Dr. Standefer's and Dr. Bradley Short's evaluation of the video, they merely opined that their treatment recommendation would have been different, not that no treatment was necessary.

The second part of the analysis is whether appellee established that she was totally incapacitated from earning wages from December 11, 2000, through February 19, 2001. Appellants contend that she failed to prove this based on the surveillance video and Dr. Standefer's and Dr. Bradley Short's opinions based on the video. Dr. Standefer testified in his deposition that appellee would have been able to perform some type of employment as of the date the video was recorded. Dr. Short performed an independent medical evaluation on March 6, 2001. Based on his review of her medical records and physical examination, he diagnosed her with cervical spinal stenosis, myofacial pain syndrome, possible fibromyalgia, and osteoarthritis. After the evaluation, Dr. Short reviewed the video surveillance and stated that he was then suspicious that his physical examination of appellee did not accurately represent her physical capabilities, and he was more inclined to believe that her capabilities were more consistent with her abilities demonstrated in the video.

Appellee testified that she could not perform any job that she knew of for eight hours a day. She stated that she had good days and bad days. Dr. Standefer testified that people with cervical spine problems have some days that are better than others and that their spinal conditions are dynamic in the sense that they do not stay the same from day to day. Appellee also explained that the child she was seen lifting on the video was her granddaughter that she does not see often. She also admitted in her testimony that the video depicted her carrying two Wal-Mart bags and her purse in one hand while reaching to open the car door in the other hand. She also acknowledged that the video showed her helping to carry a television set. At the time of the hearing, appellee had not asked appellant if there was any light-duty available and had not looked for any employment since the December 11, 2000 injury.

After reviewing the evidence, including the video surveillance, the Commission concluded that appellee was totally incapacitated from performing any regular gainful employment from December 12, 2000 through February 19, 2001. However, the Commission found that appellee failed to prove that her compensable injuries prevented her from performing any form of regular employment for which she was otherwise qualified on or after February 20, 2001. Its decision was based on appellee's physical capabilities demonstrated by the February 20, 2001 surveillance. On this day, the Commission found that appellee was able to ambulate and frequently bend at the waist without any apparent difficulty. She was physically capable of walking for an extended period and was also shown to be capable of bending at the waist and touching the ground, maintaining such a posture for an extended period of time. She was also able to repeatedly pick up a young child and hold/carry the child in one arm for an extended period of time. The tape also showed that appellee was basically babysitting two young children. The Commission stated that all of these tasks were performed without apparent difficulty or complaints. Based on these activities, the Commission reasoned that, while her performance of those activities did not prove she could return to her original employment position, appellee would be able to perform less strenuous positions for which she would be qualified, such as positions of a clerical or sales nature or light factory work.

Based on our review, we hold that there was substantial evidence to support both the Commission's award of TTD benefits through February 19, 2001, and the Commission's denial of TTD benefits after that date.

Finally, appellants contend that even if appellee could establish a compensable injury, there isno substantial evidence to support the Workers' Compensation Commission's decision that further medical treatment would be reasonably necessary or related to the injury alleged. Their argument is based on Dr. Standefer's review of the video surveillance tapes and his opinion that appellee is functioning adequately and thought that surgery was no longer necessary. The Commission did not rule that appellee was entitled to further medical treatment. Rather, the Commission found that the medical services provided to appellee by and at the direction of Scott County Emergency Room, Dr. N. Bennett, and Dr. Michael Standefer constitute reasonably necessary medical service for her compensable injury. Thus, appellants' argument on this point is without merit.

Affirmed.

Hart and Bird, JJ., agree.