Sandra Harman v. Kroger

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MARCH 31, 2004




Karen R. Baker, Judge

Appellant, Sandra Harmon, appeals from a decision by the Workers' Compensation Commission reversing the ALJ and finding that appellant failed to prove by a preponderance of the evidence that a bone scan was reasonably necessary. On appeal, she asserts that the Commission erred in not upholding her treating physician's orders in the absence of any other medical evidence. We affirm.

On September 27, 2001, appellant sustained an admittedly compensable injury when she was struck in the stomach directly below the rib cage by the metal prongs of a bag rack while bagging groceries at Kroger. Appellant reported the injury, and she was treated in the emergency room for an abdominal wall contusion (bruising) the following day. Appellant was released with a prescription for Motrin and was instructed to use a warm compress on her stomach. She was allowed to return to light-duty work for a few days and then full-duty. Appellant worked full-duty until she left employment with Kroger to find a job that would provide her with more working hours. The September 28, 2001, emergency-room report stated:

The abdomen is soft. There is no distention. Minimal area of ecchymosis in the epigastric region. This area is quite tender to palpation. There is [sic] no palpable masses. The aorta is easily palpable and is not enlarged. No right upper quadrant tenderness. There are no abrasions or lacerations.

In November 2001, appellant received a back injury while at work. She was not seen in the emergency room for this injury until December 29, 2001, the same day she terminated her employment at Kroger. On that date, she told the emergency room doctor that she was experiencing back pain. The report indicated "back pain, likely secondary to strain." The report also stated that the abdomen was "nontender." An x-ray of the lumbosacral spine indicated that there were no fractures. She was given Vicodin and Motrin for pain. On January 2, 2002, appellant visited the clinic again stating that she had injured her back at work. The report from the visit stated that appellant complained of mid and lower back pain "without radicular symptoms, weakness, or paresthesias," and "she denie[d] abdominal pain or distention and note[d] no nausea or vomiting, and no stool changes." Appellant was given medication for pain and released with limitations on work. A follow-up appointment was made for January 9, 2002. The case management note prepared by Bill Lee, RN, from that visit stated that appellant did not appear to be in acute pain or distress; she, instead, had "multiple complaints about her employer." Specifically, she stated that she had injured her abdomen "several weeks ago at work" and that she was not allowed by her supervisors to come to the clinic for treatment. The case note further stated that appellant "complained so much about her employer and employment situation that it almost became nonstop rambling while she was here in my office for discharge instructions." "When she was leaving [the] office[,] she stated she was probably getting [sic] to get a new job and probably going to do something to `cause Kroger's to pay her a lot of money.'"

At appellant's follow-up visit on January 9, 2002, her complaints of pain to the xyphoid area had returned. However, she denied any shortness of breath; she noted no abdominal pain, distention, nausea, vomiting, or stool changes. She indicated to Dr. Garrett on this date that her abdominal injury occurred "just before Thanksgiving of 2001." The report indicated that there was "tenderness to palpation over the xyphoid with no bony deformity or crepitance," there was "no localized swelling or discoloration," and the abdomen was "soft and mildly protuberant." Dr. Garrett ultimately requested a bone scan to determine if an occult fracture was present. He indicated again in his report that the injury was "now eight weeks old," and since appellant had been at essentially normal work since the injury, he did not feel compelled to provide any limitations to her activities. Appellant was also released during this visit for any injury to her back that had resolved.

Appellee, Kroger, asserted that the appellant had recovered from any injury and that the additional bone scan requested by Dr. Garrett was not reasonably necessary. Following a hearing on May 31, 2002, the ALJ filed an opinion on July 5, 2002, finding that the preponderance of the evidence showed that the bone scan was reasonably necessary in connection with her compensable injury and should be performed at Kroger's expense. Kroger appealed to the full Commission, which reversed the ALJ's decision in its June 5, 2003 opinion and found that appellant failed to prove by a preponderance of the evidence that a bone scan was reasonably necessary treatment in connection with the abdominal wall contusion she sustained. From that decision comes this appeal. In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Daniels v. Arkansas Dep't of Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002). Substantial evidence exists if reasonable minds could reach the same conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue on appeal 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 the Commission's decision. Hayes v. Wal-Mart Stores, Inc., 71 Ark. App. 207, 29 S.W.3d 751 (2000). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001).

The appellee correctly asserts that it is only required to provide medical services that are reasonably necessary in treatment of the compensable injury. See Ark. Code Ann. ยง 11-9-508(a) (Repl. 1996). What constitutes reasonably necessary medical treatment is a question to be determined by the Commission. White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001) (citing Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996)). The Commission found appellant's credibility to be suspect in that it was contradictory to the testimony of her supervisor and co-manager and was not supported by the medical evidence. Both Ms. Dodd and Mr. Fountain testified that after appellant's emergency room visit, where she was diagnosed with abdominal wall contusion, she never made any further complaints of pain in her stomach. Mr. Fountain testified that, after the emergency room visit, appellant did not request an additional doctor's visit for stomach pain. On the other hand, appellant testified that after the first emergency room visit on September 28, 2001, she repeatedly asked to go to the doctor for recurring stomach pain. When appellant did finally see a doctor on January 2, 2002, her complaints of pain were focused solely on her back injury rather than a stomach injury. She specifically denied any abdominal pain on this date. Thus, more than three months after the stomach injury, she was not suffering from any abdominal pain, vomiting, nausea, or stool changes. It was not until the next follow-up visit on January 9, 2002, that appellant made complaints of stomach pain. Furthermore, the evidence showed that appellant had recovered from her injury to her stomach within a few days of the injury. Both appellant's testimony and the medical records indicate that appellant was struck in the stomach and, while struck near the sternum, was not struck on any bone. Appellant's testimony showed that she was able and had returned to full-duty work within a few days of the stomach injury through December 2001, when she terminated her employment with Kroger in search for a job that would provide her with more working hours.

In determining appellant's credibility, the Commission also relied on the fact that appellant was not truthful with Dr. Garrett regarding the timing of the injury to her stomach. The incident occurred on September 27, 2001, and she reported to Dr. Garrett on January 9, 2002, that the incident occurred "just before Thanksgiving of 2001." The Commission noted that this was not an error indictation on the part of Dr. Garrett because he later referred to the fact that the injury was "now eight weeks old," when in fact, the injury was several months old. Dr. Garrett's request for a bone scan based on appellant's complaint of pain from the September 2001 injury was thus based on incorrect information. Moreover, based on the case management note of January 2, 2002, which revealed appellant's true complaints regarding her employer, the Commission questioned appellant's motives for seeking continuing treatment.

The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Hill v. Baptist Medical Center, 74 Ark. App. 250, 48 S.W.3d 544 (2001) (citing Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999)). The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Id. The Commission has the duty to use its expertise in translating evidence of medical experts into findings of fact. Id. However, these standards must not totally insulate the Commission from judicial review because this would render this court's function meaningless in workers' compensation cases. Id. Nonetheless, the interpretation given to medical evidence by the Commission has the weight and force of a jury verdict. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000) (citing Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998)).

Appellant argues that the Commission's reliance on the case management note of January 2, 2002, was error because it was "nothing more than hearsay" and because Bill Lee, the registered nurse that prepared the case note, was just a case manager and did not work for Dr. Garrett. However, as this court has stated:

The Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant's injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as well as lay testimony and the testimony of the claimant himself. Further . . . while medical opinions are admissible and frequently helpful in workers' compensation cases, they are not conclusive.

Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996) (quoting Wade v. Mr. C.Cavenaugh's, 298 Ark. 363, 298 S.W.2d 521 (1989) (citations omitted)).

In the instant case, we hold that substantial evidence supports the Commission's decision that the bone scan was not reasonably necessary in treating appellant's compensable injury to her stomach.


Stroud, C.J., and Crabtree, J., agree.