Bobby Smith v. Great Lakes Chemical Corporation

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

BOBBY SMITH

APPELLANT

V.

GREAT LAKES CHEMICAL

CORPORATION

APPELLEE

CA 03-945

May 19, 2004

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [E704933]

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Bobby Smith, suffered an admittedly compensable injury on April 9, 1997, while working for appellee, Great Lakes Chemical Corporation. The Commission reversed the ALJ's award of certain benefits. Appellant raises three points of appeal: 1) "whether the Commission erred when it reversed the decision of the ALJ and found that the complaints relative to the claimant's lumbar and cervical spine were not causally related to the 1997 accident and that the medical services rendered by Dr. Hart and Dr. Giles relative to those spinal complaints were not reasonably necessary for the treatment of the claimant's compensable injuries"; 2) whether the Commission erred when it found that the claimant was not entitled to permanent physical impairment benefits; 3) whether the Commission erred when it determined that the claimant was not entitled to any amount of wage loss. We affirm.

When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and we affirm that decision if it is supported by substantial evidence. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). 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). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; rather, it is whether there is substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact. Burris v. L & B Moving Storage, ____ Ark. App. ____, 123 S.W.3d 123 (2003). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001). Furthermore, 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. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Daniels v. Arkansas Waffles, Inc., ____ Ark. App. ____, 117 S.W.3d 653 (2003).

Appellant, Bobby Smith, testified about the events surrounding his work injury and the medical history surrounding the spinal and cervical pain that he maintains is causally related to that injury. He stated that he has not been free of pain since the accident.

Rick Byrd, who performed a functional-capacity evaluation on appellant, testified that his overall conclusion was that appellant was capable of performing work at the light-work level. He also testified that appellant's compensatory movements noted outside of testing did not correlate with those observed during functional testing.

In his January 17, 2000 deposition, Dr. Thomas Hart testified that he has a sub-specialty in pain management. He said that he first saw appellant on September 2, 1999, and that his chief complaint was pain over his entire body, mainly his head, back, and legs. He stated that since appellant's pain had been going on beyond four months and was not delineated by other imaging studies, it fell under the protocol for discography, by which "the goal is to subjectively reproduce the pain at the same time that you are looking at the morphology of the disk and looking at objective signs or symptoms in order to come up with a better diagnosis for continuing back pain complaints." He explained that a discography actually puts dye in the disk, that you can see it leak out, and that you can see where the actual rents and tears occur. He said that appellant's test showed that he had four levels that were very painful, and that during the production of the discography the dye leaked out of that nucleus, went through that annulus, and reproduced his pain. He stated that in summary, appellant has four bad disks, that he was able to substantiate an injury at those levels where appellant was complaining of pain, and that appellant reported that the pain started with his 1997 accident. He also explained different treatment options. On cross-examination, Hart acknowledged that an annular tear can happen almost immediately and that it was conceivable that it could have happened any time between April 1997 and September 1999.

In his April 27, 2001 deposition, Dr. Hart testified that appellant was referred back to his care after being seen again by Drs. German and Giles; that Giles had done an additional surgical procedure on appellant's upper back; and that Giles's notes indicated that there was not much else that could be done from a surgical standpoint. He explained the procedures that he had performed in an effort to alleviate appellant's pain. He also explained that the "gold standard" for looking for discogenic pain or annular disruption is discography and that being "blown off a truck," as appellant was, can cause the type of injury that appellant has. He stated that there was no way that appellant was faking his pain complaints. He stated that he totally disagreed with Dr. Safman's comments that appellant seemed to be exaggerating or inducing his own symptoms. Dr. Hart acknowledged that he does not know, to a reasonable degree of medical probability, whether appellant's very painful "Schmorl's nodes" were caused by the 1997 accident.

Dr. Wilber Giles, a neurological surgeon, testified in his June 28, 2000 deposition that appellant was referred to him by Dr. Robert German, and that he first saw appellant on January 3, 2000. He said that he determined during that visit that appellant needed surgery. He said that it was fairly common for someone to have a degenerative problem that is asymptomatic until a traumatic event and then to have problems and symptoms, and that such a person is more susceptible to an injury than the average person. He stated that assuming appellant had surgery in 1975, was able to return to his job, worked pain free, had the 1997 accident, and has been in constant pain since, he would to a reasonable medical certainty relate it to his work-related injury.

In his April 23, 2001 deposition, Dr. Giles testified about subsequent surgery that he conducted on appellant on July 17, 2000; that appellant continued to have pain; and that from a neurosurgeon's point of view, appellant had reached his maximum improvement. He expressed his continued opinion that the problems appellant has today are directly related and caused by the 1997 accident. Dr. Giles acknowledged that the large bone spur at the C5-6 level was not caused by the 1997 accident. He said that the C7-level osteoma might or might not have caused some of appellant's radiating arm pain, and that it was not related to the 1997 accident.

Bob White, a vocational counselor, testified that he interviewed appellant for one and one-half hours; that he reviewed other reports; and that in his opinion, appellant was pretty much eliminated from the work force.

The Commissions' opinion rejected the conclusions of Drs. Hart and Giles, and placed more emphasis on other doctors' opinions, which were based on degenerative changes rather than trauma. For example, Dr. Safman suspected that emotional factors and anxiety played the largest role in appellant's symptomatology, that he reached maximum healing on April 21, 1999, and that he could return to full-duty employment. Moreover, Dr. Schlesinger reported that he saw no signs of acute-traumatic injury.

In denying the claim, the Commission's opinion displayed a substantial basis for the denial of relief, and we are not convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. This is true even though we might not have reached the decision reached by the Commission. Our affirmance of the Commission's decision on this first point of appeal dictates our affirmance of the remaining two points of appeal.

Affirmed.

Gladwin and Robbins, JJ., agree.