Linda K. White v. Remington Arms Company and State of Pennsylvania Insurance Company

Annotate this Case
ca03-927

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

LINDA K. WHITE

APPELLANT

V.

REMINGTON ARMS COMPANY and

STATE OF PENNSYLVANIA INS. CO.

APPELLEES

CA 03-927

MARCH 10, 2004

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E907915, E907716]

AFFIRMED

John B. Robbins, Judge

Appellant Linda K. White brought a workers' compensation claim against appellee Remington Arms Company, alleging that she sustained compensable back injuries on February 27, 1999, and June 10, 1999. The Workers' Compensation Commission found that Ms. White failed to prove a compensable injury on February 27, 1999, but found that she suffered a compensable injury on June 10, 1999. The Commission awarded temporary total disability benefits through September 28, 1999, which was the date that Dr. Robert Valentine performed the first of two intradiscal electrothermal (IDET) procedures. The Commission determined that the IDET procedures were not reasonably necessary for treatment of Ms. White's compensable injury. Accordingly, the Commission limited Ms. White's medical benefits to those received prior to September 28, 1999.

Ms. White appealed from the Commission's decision, raising the following three arguments: (1) the Commission erred in failing to find that she sustained a compensable injury on February 27, 1999; (2) the Commission erred in refusing to award benefits for medical treatment given by Dr. Valentine, which included the IDET procedures; and (3) the Commission erroneously found that she was not entitled to any TTD or medical benefits beyond September 28, 1999. In an unpublished opinion, White v. Remington Arms Co., CA01-1229 (Ark. App. May 8, 2002), we affirmed the first two points. However, we remanded the case to the Commission for further findings of fact on the issue of additional TTD and medical benefits. We noted in our opinion that the Commission denied additional benefits based solely on its finding that the IDET procedures were not reasonably necessary. The Commission failed to make any findings on whether Ms. White was entitled to additional conservative treatment as suggested by Dr. Jim Moore, or whether she remained in her healing period or was totally disabled after September 28, 1999.

On remand, the Commission made additional findings of fact as directed. It found that the need for additional conservative treatment was not related to the compensable injury, but rather was the result of muscle atrophy associated with the non-compensable IDET procedures. The Commission further found that Ms. White failed to prove that she remained in her healing period for her compensable sprain/strain injury beyond September 28, 1999. Pursuant to these findings, the Commission denied additional medical and TTD benefits.

Ms. White now appeals from the Commission's decision on remand. She argues that the Commission's denial of additional TTD benefits and medical treatment beyond September 28, 1999, was arbitrary, capricious, and not supported by substantial evidence.

Where the Commission denies benefits because the claimant has failed to meet her burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). A substantial basis exists if fair-minded persons could reach the same conclusion if presented with the same facts. Id. We hold that the Commission's opinion displays a substantial basis for the denial of relief, and therefore we affirm.

Ms. White argues on appeal that, although not stated in its decision, the Commission essentially denied additional benefits on the basis that the first IDET procedure constituted an independent intervening cause. Arkansas Code Annotated section 11-9-102(4)(F)(iii) (Supp. 2003) provides:

Under this subdivision (4)(F), benefits 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.

In Hislip v. Helena/West Helena Schools., 74 Ark. App. 395, 48 S.W.3d 566 (2001), we held that the question is whether there is a causal connection between the primary injury and the subsequent disability; and if there is such a connection, there is no independent intervening cause unless the subsequent disability was triggered by activity on the part of the claimant that was unreasonable under the circumstances. (citing Guidry v. J.R. Eads Constr. Co., 1 Ark. App. 219, 669 S.W.2d 483 (1984)). Ms. White asserts that her decision to undergo the IDET procedures pursuant to the advice of her treating physician was not unreasonable, even if the procedures were not reasonably necessary for treatment of her compensable condition, and even if they exacerbated her condition. Thus, she contends that the IDET procedure performed on September 28, 1999, did not constitute an independent intervening cause and her benefits should not have been terminated.

Ms. White notes that even Dr. Moore, a physician selected by the appellee, gave the opinion that she would benefit from conservative treatment such as a TENS unit, electric muscle stimulation, and strengthening exercises. In its opinion, the Commission noted that Ms. White never requested any of the conservative treatments suggested by Dr. Moore, but instead testified that she planned to go to Dr. Anthony Russell on November 2, 2000, to have a morphine pump installed. Ms. White contends that this reliance was misplaced because the appellee controverted the claim in its entirety, and the conservative treatment was neither available or offered. Ms. White argues that conservative treatment is reasonably necessary for the treatment of her compensable injury, and that the Commission erred in ruling otherwise.

In this case the Commission found that Ms. White's need for additional conservative treatment was made necessary by atrophy associated with the IDET procedures and degenerative changes, and not the compensable sprain/strain injury, which had resolved. In reaching this decision the Commission relied on the medical opinion of Dr. Moore, which it was entitled to do. It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Hope Livestock Auction Co. v. Knighton, 67 Ark. App. 165, 992 S.W.2d 826 (1999).

Pursuant to Hislip v. Helena/West Helena Schs., supra, a claimant must prove a causal connection between the primary injury and subsequent disability, or else the subsequent disability is noncompensable. In the present case, the Commission found that Ms. White failed to prove such a causal connection, and thus it did not deny benefits on the basis that the initial IDET procedure was an independent intervening cause. Rather, the Commission found that Ms. White's healing period for her compensable injury had ended when the first IDET procedure was performed on September 28, 1999, and that any disability or need for treatment beyond that date was not causally related to the compensable injury. This finding was supported by substantial evidence. Thus, for purposes of assessing compensability, it is immaterial that Ms. White's decision to undergo the IDET procedures may have been reasonable conduct.

While the Commission does state in its opinion that Ms. White did not seek additional medical care in the form of conservative treatment, this was not the crux of its decision. The Commission did not deny Ms. White's claim for additional medical benefits because she did not need conservative treatment; it denied medical benefits because she failed to prove that any further necessary treatment was the result of her compensable injury as opposed to other factors. The Commission further found that Ms. White failed to prove her healing period for her compensable sprain/strain injury extended beyond September 28, 1999, and relied in part on the opinions of both Drs. Valentine and Moore in reaching this conclusion. Dr. Valentine indicated in a June 1, 2000, deposition that the sprain/strain had surely resolved, and Dr. Moore assessed a permanent impairment rating in his March 2000 deposition.

In our remand, we instructed the Commission to make specific findings of fact on the issues of additional medical and TTD benefits. Upon review of the Commission's opinion on remand, we conclude that the Commission made sufficient findings to support its decision to deny these benefits.

Affirmed.

Griffen and Neal, JJ., agree.