Carwell Elevator Company, Inc. and Fremont Compensation v. Delores Taylor

ca03-500

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

CARWELL ELEVATOR COMPANY, INC., FREMONT COMPENSATION,

APPELLANTS

v.

DELORES TAYLOR,

APPELLEE

CA03-500

NOVEMBER 12, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

NO. F103361,

AFFIRMED IN PART; REMANDED IN PART

Sam Bird, Judge

Carwell Elevator Company (hereinafter "Carwell") and its insurance carrier appeal a decision of the Workers' Compensation Commission that awarded additional benefits to Delores Taylor for an admittedly compensable injury that she sustained on August 25, 2000. Taylor was on top of a railcar, loading rice, when another railcar slammed into it. She was knocked off, and her knee and leg had to be forced free after being pinned against the catwalk. Taylor received medical treatment related to this injury, including arthroscopic surgery to the right knee in February 2001. In April 2001 Taylor was injured in another incident when the automobile that her boyfriend was driving hit her during an argument.

A hearing was conducted before an administrative law judge on the issues of additional medical treatment after July 2, 2001; additional temporary total disability benefits after July 5, 2001; and the compensation rate related to average weekly wage. The law judge found that additional medical

treatment was reasonable and necessary and was related to the compensable injury; that there was not an independent intervening cause; that Taylor remained within her healing period; and that her compensation rate was $147, based on an average weekly wage of $220.

The Commission affirmed the opinion of the law judge. The Commission found that Taylor's disability was causally connected to her primary injury; that the April 2001 incident did not act as an independent intervening cause; that Taylor's activity during the April 2001 incident was not unreasonable under the circumstances; and that Taylor was entitled to additional reasonably necessary medical treatment. Appellants raise four points on appeal. The first two points challenge the sufficiency of the evidence to support the findings that Taylor is entitled to additional medical treatment and to additional temporary total disability benefits. The third point is whether the Commission erred by giving Taylor the benefit of the doubt in finding a causal link between her current problems and her compensable injury, and by failing to find an independent intervening cause. The fourth point challenges the sufficiency of the evidence that Taylor is entitled to a compensation rate of $147 per week based on a weekly wage of $220. We affirm on the first three points. We remand to the Commission for further development of the issue regarding weekly wage.

On appellate review, the evidence is viewed in the light most favorable to the findings of the Commission and the testimony is given its strongest probative force in favor of the action of the Commission. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). Our standard of review on appeal is whether the Commission's decision is supported by substantial evidence, which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at that conclusion. Id.

Taylor testified regarding the medical treatment she underwent following her compensable injury. She testified that she went to Dr. Jacobs within thirty or forty minutes of the accident on August 25, 2000, and that Dr. Jacobs referred her to Dr. Mosley, an orthopedic surgeon, who sent her to physical therapy for three weeks. She testified that her leg got worse with the physical therapy. She next went to Drs. Barbier, Houchin, and Brandt, a knee specialist who performed her arthroscopic surgery on February 9, 2001. She continued to have problems, and Dr. Brandt drew fluid off the upper part of her leg several times in March 2001. She testified that she subsequently went to Dr. Barnes, who proposed doing a twenty-minute orthopedic surgery to "open it up and look," but that she did not want to be cut on without being fixed because it had taken so long to get over her February surgery. She testified that she wanted to go back to Dr. Brandt because he was going to fix her leg, not just go in and look.

Taylor testified that in early April of 2001, her boyfriend pulled up beside the house. She testified that they had been arguing, that she was outside the car, and that she reached in through the window to fasten his son's seatbelt. She further testified:

Then my boyfriend spun off. When he did, my arm got caught up underneath the wheel, and got bruised. When he spun off, my arm got wrapped around the seatbelt and tried to pop me around. It threw me to the ground. When I was on the ground, my arm was on the ground beneath his tire. He ran over my forearm. I sought medical attention for the injury. I went to Dr. Houchin, and she referred me back to Dr. Brandt. I told Dr. Houchin what had happened. She treated me on Monday, and I went to Dr. Brandt on the following Wednesday. He had already read Dr. Houchin's report and spoken with her on the phone. I did not receive another injury to my knee. It did not do any more injury than had already been done to my leg. I had injuries to my arm.

Taylor testified that her knee was not swollen on Monday April 9 after this accident, but that by April 17 it was swollen like the times when Dr. Brandt had drawn fluid from it in March. Dr. Houchin's treatment note of April 9 states in part:

Right foot was run over by ex-boyfriend over the weekend. Really bruised and swollen, left lateral lower leg and ankle hurting, was getting better with her right knee following surgery, now after this injury, right knee swelling worse, pain is worse.

Dr. Houchin's office note of April 17, 2001, indicates "right knee still hurting, cannot bend or walk on it, still with marked swelling." Taylor explained in her testimony that her knee was worse from the time Dr. Houchin had first seen it because Taylor had been going to Dr. Brandt during that time.

Dr. Brandt's treatment note of April 11, 2001, reads as follows:

Delores returns today early. She has been injured by a vehicle that was pulling past her driveway and hit her causing multiple injuries. She possibly may have re-injured her knee. She was seen by Dr. Houchin.

I reviewed x-rays today. There is a forearm and elbow which show no fracture. Ankle and foot on the right which no fracture [sic].

On exam today she has full ROM. Normal motion strength. Marked bruising on the elbow region, although she has a full ROM. She is neurovascularly intact. Examination of the right knee, the portal sites look good. Trace effusion, full ROM. Her iliotibial band symptoms are improving.

At present, I see no evidence of new fracture or significant injury other than the contusions....

On a return visit of April 18, 2001, Dr. Houchin wrote that Taylor had a 2+ effusion on the knee and a bruise of approximately two centimeters on the anterolateral joint line.

Taylor testified regarding a knee evaluation performed by Dr. Lowry Barnes on May 14, 2001. She testified that he asked how she had hurt her knee and about her past medical history or injuries, but that she did not tell him about the automobile incident. She testified that the incident did not affect her leg in any way, and that she had not needed to have it drained after April. She testified that her knee hurt every day before the automobile incident, that it continued to hurt every day, that it popped and sometimes locked, that it often was swollen and she had to wear a brace prescribed by Dr. Brandt, and that her pain was severe.

Dr. Barnes testified that he saw Taylor on May 14, 2001, for an evaluation of her right knee. His report of that visit states that Taylor had significant effusion about the right knee, diffuse tenderness, and pain with motion; the report also presents Dr. Barnes's impression that Taylor's current symptoms were related to the work-related injury when she was working on the railcar. Dr. Barnes saw Taylor for the second and last time on July 2, 2001. His report of that date includes the following:

Because of her significant symptoms, we are going to proceed with arthroscopic evaluation. I am concerned that she has a component of reflex sympathetic dystrophy. She understands that this will be a diagnostic and possibly therapeutic arthroscopy. If her symptoms continue after such, she may require significant pain management treatment.

Ms. Taylor very much wanted further narcotic management of her pain.... I explained to her that I am not a fan of long-term narcotic management. She is convinced that her previous surgeon will continue her narcotics, because he understands what is going on. She has asked to get a copy of her records, because she would like to change physicians.

Dr. Barnes testified that Taylor did not tell him about the accident in which she was run over by her boyfriend's car, and that his new awareness of the incident rendered him unable to state that her symptoms at the time of evaluation were related to the work injury as opposed to the more recent trauma of April 2001. Dr. Barnes testified that records of Taylor's April 2001 visits to Dr. Brandt and Dr. Houchin apparently were received by him after he performed the May 14, 2001 evaluation.

1. Whether there is substantial evidence to support the Commission's decision that Taylor proved entitlement to additional medical treatment.

Arkansas Code Annotated section 11-9-102(4)(F)(iii) (2003)1 reads in pertinent part:

[B]enefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.

Carwell contends that Taylor's subsequent disability resulted from an independent intervening cause in April 2001, and that there is no substantial evidence that the need for additional medical treatment after July 2, 2001, was related to the compensable injury of August 25, 2000.

The determination of whether there is a causal connection between the injury and the disability is a question of fact for the Commission to determine, as is the determination of the existence of an independent intervening cause. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Ellison v. Therma-Tru, supra. We defer to the Commission's findings on what testimony it deems to be credible, and it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Ellison v. Therma-Tru, supra. When the Commission chooses to accept the testimony of one physician over another, we will not reverse that decision. Ellison v. Therma-Tru, supra.

The Commission evaluated the testimony and the medical evidence in this case as follows:

[T]he Full Commission finds that the claimant's disability is causally connected to her primary injury. We recognize Dr. Barnes' testimony that he could not relate the claimant's need for surgery to the compensable injury. Nevertheless, Dr. Brandt examined the claimant immediately after the alleged independent intervening incident. Dr. Brandt found no evidence of a new fracture or significant injury, and opined that the claimant's knee problems were causally related to her compensable injury. The Commission is authorized to accept or reject medical opinion and is authorized to determine its medical soundness and probative force. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). We find that Dr. Brandt's opinion on causation is entitled to significant weight.

The Commission concluded that there was a causal connection between Taylor's primary injury and subsequent disability, that the automobile incident of April 2001 was not an independent intervening cause, that Taylor's activity during that incident was not unreasonable under the circumstances, and that Taylor was entitled to additional reasonably necessary medical treatment.

Carwell contends that the evidence as a whole demonstrates that the independent intervening incident when Taylor was hit by her boyfriend's car on April 7, 2001, was the cause of her subsequent disability and need for treatment. Carwell notes the condition of Taylor's knee as reported by Dr. Houchin on April 17, 2001; by Dr. Brandt on April 18; and by Dr. Barnes on May 14. Carwell also points to Dr. Barnes's testimony that after being made aware of the automobile incident, he could not state with a reasonable degree of medical certainty that Taylor's current condition was related to her work-related injury of August 25, 2000. Carwell argues that Dr. Barnes's testimony corroborates the fact that Taylor re-injured her knee during the automobile incident, and that the Commission relied excessively upon Dr. Brandt's April 11, 2001, observation that there was no evidence of a new fracture or significant injury other than contusions. Carwell complains that Taylor's version of the automobile incident was incredible and does not coincide with the medical records; it further complains that her testimony regarding her treatment, recollection of events, and the history she provided her treating physicians was incredible. Finally, Carwell argues that because there was no causal connection between the compensable injury and any subsequent disability or need for treatment, Taylor's conduct in the automobile incident did not need to be unreasonable.

As stated previously, this court defers to the Commission in matters of credibility and the weight of the evidence. We hold that the opinion of Dr. Brandt, upon which the Commission relied, constitutes substantial evidence to support the finding of the Commission that Taylor's knee problems were causally related to her compensable injury and that there was no independent intervening injury. Thus, we need not address whether Taylor's behavior in the boyfriend's automobile incident was unreasonable. We affirm the Commission's finding that Taylor was entitled to additional medical treatment.

2. Whether there is substantial evidence to support the Commission's decision that Taylor was entitled to additional temporary total disability benefits from July 15, 2001, through a date to be determined.

Again contending that Taylor's condition was the result of an independent intervening injury of April 7, 2001, Carwell concludes that the healing period was related to the automobile incident. In support of this proposal, Carwell adopts and incorporates the arguments it made under the first point. We have rejected these arguments and have affirmed the Commission's finding that there was no independent intervening injury. We again reject these arguments, and we affirm the second point on appeal.

3. Whether the Commission erred by giving Taylor the benefit of the doubt that there was a causal link between her current knee problems and the August 25, 2000, injury.

Carwell argues that the Commission erroneously ignored overwhelming evidence establishing Taylor's injury of April 2001, and that the Commission erroneously gave Taylor the benefit of the doubt by failing to recognize that Dr. Barnes's initial opinion on causation was made without knowledge of the April injury. We do not agree.

After specifically recognizing Dr. Barnes's testimony that he could not relate Taylor's need for surgery to her compensable injury, the Commission assigned significant weight to Dr. Brandt's opinion that Taylor's knee problems were causally related to the compensable injury. The Commission is authorized to accept or reject medical opinion and is authorized to determine its medical soundness and probative force; we will not reverse the Commission's acceptance of one physician's testimony over that of another. Ellison v. Therma-Tru, supra; McClain v. Texaco, Inc., supra. Again, we hold that the opinion of Dr. Brandt, upon which the Commission relied, constitutes substantial evidence to support the finding that Taylor's knee problems were causally related to her compensable injury. Thus, we find no merit to Carwell's argument that the Commission erred by giving Taylor the benefit of the doubt in finding this causal connection.

4. Whether substantial evidence supports the Commission's decision to affirm the finding of the administrative law judge that Taylor was entitled to a compensation rate of $147 per week based on an average weekly wage of $220.

Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident and in no case shall be computed on less than a full-time work week in the employment. Ark. Code Ann. § 9-11-518(a)(1) (Repl. 2002). If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the Commission may determine the average weekly wage by a method that is just and fair to all parties concerned. Ark. Code Ann. § 9-11-518(c).

Taylor testified that after working for Carwell during the seasonal rice harvest of 1999, she returned to take a full-time job with Carwell in August 2000; after suffering the compensable injury on August 25, 2000, she continued to work for Carwell. A time sheet introduced into evidence reflects her work hours for the week of August 21-25, 2000. Another document introduced into evidence shows her hours and gross pay for that week as well as for the weeks she continued to work, ending on January 19, 2001. The administrative law judge referred to these documents in calculating the average weekly wage and rate of compensation:

I find that the wage records reveal the claimant's pay for the first week is $252.59 for 43.95 hours. . . . Utilizing the pay records, I was able to determine that the claimant was paid $5.50 per hour and considering the claimant's testimony that she was hired full time, I find that her average weekly wage is $220, making her compensation rate $147 per week. See, Ark. Code Ann. § 11-9-501(b). The payout from respondents reveals the claimant was paid $135 per week. I find that respondents should reimburse claimant for the difference in what was paid and what should have been paid in temporary total disability benefits.

Carwell contends that the law judge erred in finding a compensation rate of $147 based on an average weekly wage of $220. Carwell notes that Taylor worked only four days before her injury. Regarding the number of hours that Taylor worked on the day of her injury, Carwell notes that the wage record indicates nine hours of work although Taylor testified that she did not clock herself out after her afternoon injury. Carwell also submits that the hours listed for the week of the injury actually total 42.77 hours rather than 43.95 hours as shown on the document. Finally, Carwell argues that under a "more reasonable" method of determining Taylor's average weekly wage, the actual wages of the week preceding the injury should be averaged with the week following the injury for an average weekly wage of $203 and a compensation rate of $135.

Here, the Commission affirmed the law judge's decision but did not adopt its conclusions and findings. The decision of the Commission includes no discussion of Taylor's weekly wage and compensation rate even though Carwell included that issue in its appeal to the Commission from the law judge's findings. The findings of the administrative law judge are irrelevant for purposes of appeal, as the appellate court is required by precedent to review only the findings of the Commission and to ignore those of the law judge. Freeman v. Con-Agra Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Because the Commission made no findings regarding the compensation rate and because we cannot determine the basis of the Commission's decision on this issue, we remand to the Commission for further development of this last point on appeal.

Affirmed in part; remanded in part.

Hart and Vaught, JJ., agree.

1 Formerly Ark. Code Ann. § 11-9-102(5)(F)(iii) (Repl. 1996).