North American Railway Service v. Carl Henderson

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA03-872

FEBRUARY 18, 2004

NORTH AMERICAN RAILWAY AN APPEAL FROM THE ARKANSAS

SERVICE WORKERS' COMPENSATION

APPELLANT COMMISSION [F007376]

V.

CARL HENDERSON

APPELLEE AFFIRMED

Olly Neal, Judge

North American Railway Service (NARS) appeals from the decision of the Workers' Compensation Commission (Commission), reversing the administrative law judge (ALJ) and awarding appellee additional reasonably necessary medical treatment and temporary total disability compensation. For its sole point on appeal, NARS contends that substantial evidence does not support the Commission's decision that appellee's condition for which he had surgery was causally related to the compensable injury. We affirm the award of additional benefits.

In a workers' compensation appeal, 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. Collins v. Lennox Indus. Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to sustain a conclusion. Id. 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. Id.

The facts are that appellee Carl Henderson worked for NARS as a trackman, putting in cross ties and laying rail. This job required lifting cross ties, some of which weighed between 70 and 100 pounds. On March 20, 2000, appellee injured his back while lifting cross ties. Appellee thought that he had suffered only a pulled muscle; therefore, he told his supervisor about the incident, but continued to work.

After three or four weeks, appellee noticed that the pain in his back worsened. He experienced excruciating low back pain, his left leg was "getting numb," and pain was shooting up the back part of his leg. Appellee informed his supervisor that he continued to have pain, and appellant sent appellee to the doctor for treatment. Appellee received an assessment of "muscle skeletal pain" and the treating physician prescribed medication.

In May of 2000, appellee reported increased pain "along spinal column" after using a sledge hammer at work. A physician assessed "muscle skeletal pain" and ordered physical therapy twice a week for three weeks. On May 31, 2000, appellant continued to have pain in his leg and hip. The notes indicated that the pain increased with straight leg lifts, although greater on the left than on the right. The physician scheduled an MRI. The MRI, performed June 7, 2000, indicated a "[b]roadbased posterior bulging and right-sided herniation of the degenerating L4-5 disc[.]" Thereafter, NARS began paying temporary total disability benefits on June 18, 2000.

On June 19, 2000, appellee saw Dr. P.B. Simpson. Dr. Simpson noted:

PRESENT ILLNESS: Mr. Henderson is a gentleman who has been working for the railroad for about three years. On 3-20-00 he was pulling cross ties and spikes and developed some pain in his back. He felt pain in the back, left hip and sometimes a little mild ache down the posterior aspect of the left proximal thigh. He has no symptoms on the right side what so ever. All symptoms are on the left. He has been on light duty since the accident occurred which has been basically three months ago now. He has been referred here for evaluation.

He has never had any serious back problems before. He does not have any right sided radiculopathy.

* * *

IMPRESSION: Lower back pain.

I have reviewed the MRI done on June 7, 2000. This shows that he has a disk protrusion at L 4-5 but it is on the right side. All of his symptoms are on the left side. This also shows that he has some degenerative changes especially at L5, S1 but some at 4-5 also. I don't see anything which would account for his left sided symptomatology out in the formation or in the canal at 3-4, 4-5 or L5, S1.

PLAN/TREATMENT: He will return to the office on as needed basis.

ESTIMATED RETURN TO WORK: He will continue on light duty until 7-5-00 after which he will return to regular duties.

Dr. Simpson released appellee with no anatomical impairment on July 5, 2000, and NARS ceased paying benefits after July 15, 2000. When appellee returned to work, he was not allowed to return to work, testifying, "[w]hen I came to work my supervisor said that he couldn't use me until I was completely well. He said he couldn't use anybody on the railroad that was hurt so they would not let me come back."

In February of 2001, appellee sought medical treatment from the Veterans Hospital. While there, a second MRI was performed. That MRI revealed:

AT L4-5, THE DISC IS NARROWED WITH DEGENERATIVE CHANGES IN THE END PLATES AND INFERIOR L4 END PLATE SCHMORL'S NODE. CONCENTRIC DISC BULGING IS PRESENT WITH EVIDENCE OF A VERY SMALL [ANNULAR] TEAR TO THE RIGHT OF MID LINE. THERE IS MILD ENCROACHMENT ON THE RIGHT NEUROFORAMEN AND MODERATE ENCROACHMENT ON THE LEFT NEUROFORAMEN WHERE A MORE PROMINENT FOCAL LATERAL HERNIATION IS PRESENT.

Subsequent to the second MRI, appellee underwent back surgery. Appellee sought additional benefits, contending that his surgery in August 2001 was causally related to his compensable injury. NARS denied the request for additional benefits. The ALJ determined that appellee failed to prove "a causal connection between his March 20, 2000, accident and his backsurgery in August 2001, based on comparative MRI scans." Following appellee's appeal of that decision, the Commission reversed the ALJ, determining that appellee proved he remained within his healing period and totally incapacitated from earning wages. The Commission therefore awarded appellant temporary total disability from July 16, 2000, to November 15, 2001. This appeal followed.

NARS contends that substantial evidence does not support the opinion of the Commission that appellee's surgery was causally related to his compensable injury. It argues that there is no evidence in the record that the new findings of the February 2001 MRI of a left-sided herniation was caused by the compensable injury of March 2000, where an MRI conducted shortly after the injury indicated right-sided protrusion. Instead, NARS suggests that appellee's residential moves from Crossett to Dumas and then from Dumas to Little Rock may have attributed to his left-sided injury. In workers' compensation law, an employer takes the employee as he finds him. Williams v. L & W Janitorial, Inc., ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 4, 2004). To sustain a compensable injury, one must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Whether there is a causal connection between the injury and a disability is a question of fact for the Commission to determine. See id. Such a determination hinges on credibility. See Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). In making our review, we recognize that it is the Commission's function to determine the credibility of the witnesses and the weight to be given their testimony. Searcy Indus. Laundry Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). Moreover, the Commission has the duty of weighing medical evidence, and if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. The Commission's resolution of the medical evidence has the force and effect of a jury verdict. Stafford v. Arkmo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996).

Here, there is no dispute that appellee sustained a compensable back injury on March 20, 2000. What is disputed is whether appellee's surgery was causally related to the injury. The Commission determined that appellee proved he was entitled to additional reasonably necessary medical treatment provided in connection with the compensable injury, including the surgery. We are convinced that fair-minded persons with the same facts before them could reach the same conclusion.

In its opinion, the Commission specifically stated that it found appellee to be a credible witness who testified that, although most of his pain was in the low back radiating to the left leg, he sometimes felt symptoms in both legs. Additionally, the Commission acknowledged that Dr. Simpson agreed that there was a right-side disc protrusion, but that he did not think this objective finding accounted for appellee's left-sided symptoms. The Commission also looked to the notes of occupational medicine specialist, Gregory Smith, who determined like Dr. Simpson that appellee did not have a "surgical disease." Nevertheless, the Commission opined that

Although Dr. Simpson and Dr. Smith did not think the claimant needed surgery in connection with the claimant's compensable injury, the treating neurological surgeon obviously did consider surgery to be reasonably necessary. The claimant credibly testified that his physical condition greatly improved following the lumbar discectomy. The evidence corroborates the claimant's testimony, in that the claimant was able to return to full-time work for another employer following the surgery. Post-surgical improvement is a relevant consideration in considering whether surgery was reasonably necessary. Hill v. Baptist Medical Center, 74 Ark. App. 250, 48 S.W.3d 544 (2001), citing Winslow v. D&B Mech. Contractors, 69 Ark. App. 285, 13 S.W.3d 180 (2000). In considering the entire record in the present matter, the Full Commission minimizes the weight attached to the opinions of Dr. Simpson and Dr. Smith with regard to the claimant's need for surgery.

Indeed, it is the function of the Commission to weigh medical evidence, Searcy Indus. Laundry Inc. v. Ferren, supra, and in this case, substantial evidence supports the Commission's determination that appellee's surgery was causally related to his injury.

As substantial evidence supports the Commission, we affirm.

Affirmed.

Robbins and Griffen, JJ., agree.