Herbert Brake v. The Kroger Company, Inc., and CNA Insurance Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

HERBERT BRAKE,

APPELLANT

V.

THE KROGER COMPANY, INC.,

AND CNA INSURANCE COMPANY

APPELLEE

CA 03-604

December 17, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. E702191]

AFFIRMED

Terry Crabtree, Judge

In this workers' compensation case, the Commission reversed the Administrative Law Judge's decision and found that the appellant, Herbert Brake, failed to prove that the additional medical treatment he sought for his compensable neck injury was reasonable and necessary. On appeal, appellant claims that the Commission's decision is not supported by substantial evidence. We affirm.

In reviewing a decision of the Arkansas Workers' Compensation Commission, 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 Ark. Code Ann. § 11-9-711(b)(4)(d) (Repl. 2002); Spencer v. Stone Container Corp., 72 Ark. App. 450, 38 S.W.3d 909 (2001); Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to sustain a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).

The appellee, Kroger Company, employed appellant as a evening stocker, cashier, and bagger. On February 1, 1997, appellant suffered a compensable injury as he was stocking the cereal aisle while using a platform ladder. The ladder fell, and appellant landed backwards on his head and neck. Appellant immediately presented to the St. Bernards Regional Medical Center in Jonesboro, Arkansas, and was treated in the emergency room. X-rays were taken of appellant's thoracic spine, and Dr. Robert Green concluded that it was "within normal limits." Appellant made follow-up visits with his family physician, Dr. Scott Hoke.

Thereafter, appellee sent appellant to the company's physician, Dr. Terence Braden, who performed diagnostic tests, administered steroid injections, and referred appellant to physical therapy. Dr. Braden also performed x-rays and an MRI on appellant, which showed, "[n]o cord abnormalities." However, appellant reported to Dr. Braden that he suffered neck pain. Appellant stated that after Dr. Braden administered a third steroid injection to his neck, he began experiencing debilitating headaches and was unable to return to work. Appellant also stated that he returned to Dr. Braden but that the doctor had nothing further to offer him even though his headaches had worsened.

Next, appellant returned to Dr. Hoke, and on Christmas Eve 1997, appellant presented to the emergency room where he received an injection of medications. According to appellant, he slept for twenty-one hours and then had to return to the emergency room, where he received a CT scan. The CT scan revealed a subdural hematoma and later another hematoma was identified. Dr. Kenneth Tonymon performed two surgeries to remove the hematomas. The hematoma condition was litigated, and in an unpublished opinion, this court upheld the Commission's finding that it was not related to appellant's compensable injury. See Brake v. Kroger, CA 99-1350 (Ark. App. June 7, 2000).

Appellant testified that, after his headaches subsided, his neck pain increased. According to appellant, he experienced numbness, tingling, and muscle spasms. He stated that his condition worsened to the point where he had whole-body seizures. Then, appellant began working again in November 2000. He worked for Global Computer Associates in Kansas City, where he was a project consultant. Appellant stated that he left his job in March of 2001 because of his numerous doctors' appointments, an economic recession, and his "temper flaring" due to his pain.

In May of 2001, appellant sought treatment fro Dr. Laverne Lovell, a neurosurgeon, who ordered an MRI. The MRI revealed a C5-C6 disc herniation with some abutment into the cord and some distortion of the spinal cord at that level. Dr. Lovell discussed an anterior cervical discectomy; however, appellant's COBRA insurance would not pay for the surgery. Appellant testified that he has severe neck pain almost daily, which has caused him to increase his pain medication.

Our workers' compensation laws serve to provide disability benefits to legitimately injured workers, to pay reasonable and necessary medical expenses, and to return the worker to the workplace. Congo Stove v. Rickenbacker, 77 Ark. App. 346, 74 S.W.3d 238 (2002). The issue of whether treatment is reasonable and necessary is a question of fact for the Commission. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). However, when the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for any natural consequence that flows from that injury, and the basic test is whether there is a causal connection between the injury and the consequences of such. K II Construction Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). In this instance, the Commission found that additional medical treatment was not reasonable and necessary for appellant's 1997 compensable neck injury. The Commission wrote:

[W]e find that there is no evidence to support a finding that the new findings on the June, [sic] 2001, [sic] MRI were related to [appellant's] original injury. Due to the lengthy period of time between the two MRI's, it is pure speculation to link the new findings to [appellant's] February, [sic] 1997, [sic] injury. Dr. Braden testified that he could not link the two. Conjecture and speculation, even if plausible, cannot take the place of proof.

The medical evidence does not support appellant's contention that he suffered from neck pain continuously since April of 1997. In contrast, the medical evidence demonstrated and appellant admitted that he has suffered from headaches since that time. He testified that the headaches peaked when he was diagnosed with two subdural hematomas in December of 1997. He claims that he complained of neck pain after the December 1997 surgeries. Dr. Hoke's records do not reflect that appellant complained of neck pain during the numerous visits from March of 1998 to May of 2001. These records do, however, reflect that appellant complained of headaches. In addition, appellant complained of chest pain, hand problems, knee pain, rashes, and ear pain.

In 1997, appellant presented to a neurologist, Dr. Chan. Dr. Chan's medical records reflect that appellant complained only of headaches and that Dr. Chan diagnosed him with "chronic daily headaches." In May of 1999, appellant was treated by another neurologist, and those records reflect that appellant complained of headaches rather than neck pain. Appellant was ultimately diagnosed with "common migraine headaches." In May of 2001, appellant presented to Dr. Jeff Sidman, but again, appellant did not complain of neck pain. Clearly, the medical evidence does not support appellant's contention that he has suffered from neck pain continuously since April of 1997. Between April 1997 and May 2001, appellant's overwhelming number of complaints involved headaches rather than neck pain.

The medical evidence demonstrates that there were new findings on appellant's June 2001 MRI. In February of 1997, Dr. Braden ordered an MRI, which showed, "No cord abnormalities." At that time, surgery was not recommended. The June 2001 MRI, ordered by Dr. Lovell, revealed a "disc herniation with some abutment into the cord and a little bit of distortion of the spinal cord at that level." Dr. Braden testified in his deposition that the abutment into the cord and distortion of the spinal cord were new findings since the 1997 injury. Dr. Braden also testified that he could not say what caused the new findings since there was a four-year period between the MRIs.

It is apparent that the Commission did not find appellant's testimony convincing. Although appellant testified to the contrary, the Commission found:

Since . . . April of 1997, [appellant] has been very busy and active and many things could have happened to cause the new findings on his MRI. [Appellant] is able to do his household chores and mow his grass. He is able to go to Tunica to gamble. He was able to finish the construction on his new house where he acted as the general contractor. He also did the electrical wiring himself. In addition, [appellant] was in a motor vehicle accident in October of 1997.

In addition, appellant confirmed under cross-examination that the only reason he was fired from Global Computer Associates was because of friction between him and a co-worker. Appellant authored his exit evaluation from the computer company and in it, he made no mention of his neck pain or doctors' visits. It is well-established that the determination of the credibility and weight to be given a witness's testimony is within the sole province of the Workers' Compensation Commission; the Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). The Commission has the duty of weighing the medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). On this record, we cannot say that the Commission erred in finding that appellant failed to prove that additional medical treatment was reasonable and necessary for the 1997 compensable injury.

Affirmed.

Robbins and Vaught, JJ., agree.