Meyers Bakeries v. Lesa Pate

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

MEYERS BAKERIES

APPELLANT

V.

LESA PATE

APPELLEE

CA03-479

November 5, 2003

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F014363]

AFFIRMED

Josephine Linker Hart, Judge

Appellant Meyers Bakeries appeals the decision of the Arkansas Workers' Compensation Commission granting temporary disability benefits to appellee, Lesa Pate. For reversal, appellant argues that the facts do not support the Commission's holding that appellee's current medical problems are causally related to her original work-related injury. We disagree and affirm.

On December 9, 2000, appellee sustained a compensable injury to her lower back while working for appellant. However, on December 20, 2000, appellant notified appellee by mail that she was "laid off," and she has not been recalled to work. Appellant paid temporary total disability benefits until April 15, 2001, when all benefits were terminated after Dr. John Wilson, by letter dated March 22, 2001, returned her to work following a three-week working-conditioning program. Following a short period of employment with the Arkansas Highway and Transportation Department (AHTD) from May 11, 2001, until May 29, 2001, appellee drew unemployment benefits during June and July.

Appellee then sought entitlement to additional temporary total disability benefits from September 17, 2001, until a date yet to be determined and a determination that additional medical treatment was reasonable and necessary. After a hearing on March 21, 2002, the ALJ found that the medical treatment was reasonable and necessary and awarded appellee temporary total benefits from the requested date in September until an undetermined date. The Commission adopted, as its own, the findings of fact and conclusions of the ALJ. From that decision comes this appeal.

In reviewing a decision of the Workers' Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). These findings will be affirmed if supported by substantial evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). On review of workers' compensation cases, the question is not whether the evidence would have supported findings contrary to the ones made by the Commission; rather, it is whether there is substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact. See Privett v. Excel Specialty Prods., 76 Ark. App 527, 69 S.W.3d 445 (2002). The decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. See Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001).

For its sole point on appeal, appellant argues that substantial evidence did not support the Commission's finding that appellee proved that her current medical condition was causally related to her December 9, 2000, work-related injury. Noting that appellee was entering a second period of temporary total disability, appellant asserts without citing any authority that appellee's testimony concerning continuous back problems is not credible, and appellant concludes that appellee has failed to meet her burden of proof.

Appellee testified that after she was injured on December 9, 2000, she was referred for medical treatment to Dr. John Wilson by Dr. Michael Downs. According to appellee, Dr. Downs called appellee's office in an attempt to return her to light-duty work but was unable to do so because there were no light-duty jobs available. Appellee also stated that she saw Dr. Wilson, and he fitted her for a back brace and recommended physical therapy. Appellee testified that her condition improved with physical therapy but that it became worse once she stopped treatment. According to appellee, her back hurts "all of the time." Appellee saw Dr. Wilson in September of 2001 because her condition had progressively become worse.

In support of its conclusion that appellee was not a credible witness, appellant directs our attention to the appellee's testimony concerning her work at the AHTD. Appellee testified that her only employment after her injury was for the AHTD, where she worked as a "flagger" for approximately two weeks during May of 2001. According to appellee, she only worked part-time; however, the records from the AHTD showed that she worked fifty hours from May 11, 2001, through May 16, 2001, and eighty-nine hours from May 17, 2001, through May 29, 2001. Further, she testified at her deposition on June 8, 2001, that she was employed as a "flagger" for AHTD. Appellee also testified that although she was not required to perform any heavy lifting or strenuous physical labor, she left the AHTD after she was unable to perform the work and drew unemployment benefits until the end of July 2001. Appellee has not been employed since her visit to Dr. Wilson in September 2001.

Dr. Wilson, in his March 22, 2001, letter to Dr. Downs, stated that although appellee's job caused over 50% of her back problem, she "can return to work;" however, he placed heron a three-week work-conditioning program. In a similar letter dated June 11, 2001, Dr. Wilson wrote that appellee was released from his care and was to return to her normal activities. Further, he noted that she "has not experienced permanent impairment as a result of her injury."

However, in a letter dated September 17, 2001, Dr. Wilson departed from his previous recommendations and noted that appellee had "marked restriction of motion of the lumbar spine and a muscle spasm with positive straight leg raising." Further, he stated that appellee's condition had deteriorated, and he requested an EMG and nerve conduction studies of her back as well as outpatient physical therapy. At that time, Dr. Wilson recommended that appellee remain off work for two weeks and until the next appointment. On October 11, 2001, Dr. Wilson reported that appellee had significant back pain. His examination revealed that appellee had restriction of motion to her lumbar spine without muscle spasm. Dr. Wilson also stated that appellee would be "best served by a work conditioning program." On November 6, 2001, Dr. Wilson opined:

Ms. Pate's current problems do, indeed, relate to her difficulty back on December 9, 2000. While she had a spondylolisthesis, it was asymptomatic prior to this injury and she has had considerable difficulty with her back since that time. I can state with a reasonable degree of medical certainty that this lady has been unable to work since her September 17th visit.

Even though the Commission determined that there were inconsistencies in appellee's testimony regarding her employment with the AHTD, the Commission found that appellee's entitlement did not turn on appellee's credibility alone; rather, the issue was whether or not appellee's current problems were causally related to the compensable injury she sustained on December 9, 2000. Reciting that the evidence did not establish that appellee sustained other injuries after her release from Dr. Wilson's care in the spring of 2001, the Commission relied on the medical opinion of Dr. Wilson to establish that appellee's medical problems ofSeptember 17, 2001, were causally related to her compensable injury of December 9, 2000. Further, the Commission determined that appellee "continues to suffer from a lumbar strain superimposed on her preexisting spondylolisthesis, which coincides with Dr. Wilson's original March 22, 2001, diagnosis of spondylolisthesis which was asymptomatic prior to the work-related injury, with a superimposed lumbosacral strain."

The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). The Commission may accept only those portions of testimony that it determines are worthy of belief. Tucker v. Roberts-McNutt, 342 Ark. 511, 29 S.W.3d 706 (2000). Furthermore, it is well established that it is within the Commission's province to weigh all the medical evidence and to determine what is most credible. Smith Blair, Inc. v. Jones, 77 Ark. App. 273, 280, 72 S.W.3d 560, 565 (2002). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Id.

In our view, Dr. Wilson's opinion that appellee's current condition was causally related to her original compensable injury was substantial evidence to support the Commission's award of benefits. When we review the evidence in the light most favorable to the Commission's decision, we cannot say that the Commission's decision was not supported by substantial evidence; therefore, we affirm.

Affirmed.

Pittman and Griffen, JJ., agree.