Certified Systems and Credit General Insurance Company v. Michael Farris

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CERTIFIED SYSTEMS AND

CREDIT GENERAL INSURANCE COMPANY

APPELLANTS

V.

MICHAEL FARRIS

APPELLEE

CA03-955

May 19, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E614973]

AFFIRMED

Larry D. Vaught, Judge

Appellants, Certified Systems (employer) and Credit General Insurance Company (insurer), seek a reversal of the opinion of the Workers' Compensation Commission, which held that appellee Michael Farris's hammertoe surgery was reasonably necessary for the treatment of his compensable injury, and that appellants are liable for all expenses related to the treatment of appellee's condition, including the surgical procedure. On appeal, appellants argue that: (1) the Commission's decision that appellee did not unreasonably refuse to undergo a surgical procedure is not supported by substantial evidence; (2) the Commission gave appellee the benefit of the doubt in making its findings; (3) the Commission's decision that any delay in undergoing the hammertoe surgery did not expose them to any greater liability for benefits than they would have otherwise been exposed is not supported by substantial evidence; (4) appellee's delay in undergoing the recommended procedure was an independent intervening cause that relieved appellants of their liability for any benefits related to the January 24, 2000 surgery. We affirm.

Appellee fell twenty-six feet off of a roof on November 4, 1996, sustaining compensable injuries resulting in his right heel being shattered into approximately thirty pieces. Appellee was initially under the care of Dr. Fonte who performed surgery, including treating complications resulting from an infection in the bone. He underwent approximately twenty-six surgeries in connection with the injuries, including surgeries by Dr. Yuen, a plastic surgeon who rebuilt appellee's Achilles' tendon. Appellee was primarily under the care of Drs. Thomas and Gruenwald, who diagnosed him with a condition known as hammertoe and advised that he would eventually need surgery to correct the condition, but that the need for surgery was not immediate.

Dr. Kulik also evaluated appellee and determined that a bone fusion should be performed on his ankle. He advised appellee that the bone fusion should be performed first; however, Dr. Gruenwald had previously advised that cutting into the heel bone would involve substantial risk because of the previous bone infection. Appellee opted not to undergo the surgeries recommended by Dr. Kulik because of reservations stemming from Dr. Gruenwald's concerns and because he was more confident in Drs. Thomas and Gruenwald, his primary treating physicians.

Appellee eventually underwent a procedure, performed by Dr. Thomas, to correct the hammertoe condition on January 24, 2000. He argued that the January 24, 2000 surgery was reasonably necessary for the treatment of his compensable injury and should be paid for by appellants, along with various associated medical bills. Additionally, appellee contended that he had been paid the incorrect compensation rate, one calculated based on $7.25 per hour rather than $8.25 per hour. Finally, appellee alleged that appellants were liable for his attorney's fees because of their failure to correctly and timely pay benefits.

Appellants countered that appellee had been paid benefits at the correct compensation rate, and that he could not prove entitlement to payment of additional medical expenses or temporary total disability benefits in connection with the January 24, 2000 surgery and resulting treatment because appellee had repeatedly delayed surgery, thereby unreasonably and artificially prolonging his treatment. Appellants also rely on Ark. Code Ann. § 11-9-512 (Repl. 2002) for their contention that they were not liable for any benefits related to appellee's January 24, 2000 surgery.

A hearing was held before the administrative law judge (ALJ) on May 22, 2002. The ALJ filed an opinion on August 20, 2002, finding that: (1) appellee did not unreasonably refuse to undergo a surgical procedure recommended by three physicians; (2) any delay in surgery did not expose appellants to greater liability than they would have been exposed to otherwise; (3) appellee's hammertoe surgery was reasonably necessary for treatment of his compensable injury; (4) appellants were liable for all expenses related to treatment for appellee's hammertoe condition, including the surgical procedure. An appeal was timely filed with the Commission on September 16, 2002, and on May 14, 2003, the Commission affirmed and adopted the opinion of the ALJ. Appellants appeal from that decision.

In reviewing decisions from the Workers' Compensation Commission, the appellate court views 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. Swearengin v. Evergreen Lawns, __ Ark. App. __, __ S.W.3d __ (Feb. 11, 2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. The determination of the credibility and the weight to be given a witness's testimony is within the sole province of the Commission. Jim Walter Homes v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003). Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Id.

I. Whether substantial evidence supports the Commission's decision that
appellee did not unreasonably refuse to undergo a surgical procedure.

Arkansas Code Annotated section 11-9-512 provides:

Except in cases of hernia, which are specifically covered by § 11-9-523, where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two (2) qualified physicians and where the recommended operation does not involve unreasonable risk of life or additional serious physical impairment, the Workers' Compensation Commission, in fixing the amount of compensation, may take into consideration such refusal to submit to the advised operation.

Appellants maintain that this case meets the two elements that must be present in order to satisfy the statute, (1) the procedure in question must be recommended by two or more physicians, and (2) the procedure must not involve unreasonable risk to life or serious physical impairment. It is undisputed that the hammertoe procedure ultimately performed by Dr. Thomas was recommended first by Dr. Gruenwald and then by Dr. Kulik. Appellants contend additionally that Dr. Thomas's recommendation is evidenced by the fact that she ultimately performed the surgery.

Second, appellants assert that the evidence also establishes that the recommended procedure did not involve additional risk of life or serious physical impairment. They maintain that the procedure is routine in nature, and that even Dr. Thomas's operative notes did not indicate that appellee possessed any attributes that would make the surgery more difficult or dangerous than normal. There is no evidence that the physicians ever told appellee that the surgery posed any greater risk than that posed by any other minor surgical procedure. Moreover, appellants argue that his refusal to undergo the procedure for a period of more than two years was unreasonable under these particular circumstances. They cite the holding in Smelser v. S.H.&J. Drilling Corp., 267 Ark. 996, 998, 592 S.W.2d 61, 62 (Ark. App. 1980), wherein we stated "[i]f certain proven surgical procedures are available and there is an indication that the employee's disability could be diminished by the procedures and the employee declines to submit to them, then Commission certainly has the right to consider this in determining the employee's disability." Appellants argue that this reasoning applies and that the Commission erred in not taking appellee's refusal to submit to the procedure into account.

While appellee testified that Dr. Gruenwald recommended that the bone fusion be delayed while Dr. Kulik recommended going forward with it, appellants state that he failed to produce evidence aside from his own testimony showing how the two recommendations differ in any substantial respect. Dr. Kulik stated that appellee would most likely require the bone fusion at some point, but never reported that it must precede the hammertoe procedure or that he would refuse to do the hammertoe procedure until after the fusion had been performed, as appellee testified. Appellants also claim that they provided evidence refuting appellee's contention that he delayed the hammertoe surgery out of fear. He testified on cross-examination that the primary reason for his refusal to undergo the hammertoe procedure for such a long time was that it was not causing anyone discomfort but him, and that he chose to have it done when he wanted. There is also no evidence that appellee ever reported his alleged fear of undergoing a bone fusion to any of his physicians, including Dr. Kulik. He further claimed he did not have time to have the procedure until January 2000. Appellants contend that this cannot be considered a reasonable basis for refusing to undergo a low-risk procedure for such a long period.

Appellee maintains that appellants wanted him to risk another expensive and painful bone infection specifically against Dr. Gruenwald's advice. He refers us to specific language used by the ALJ in his opinion that was adopted by the Commission:

The claimant's reluctance to undergo the fusion surgery recommended by Dr. Kulik was understandable in light of the information that he had been provided by Dr. Gruenwald and Dr. Thomas, two physicians with whom he had a well established relationship and in whom he trusted. Furthermore, it is clear that there was no urgency in the need to undergo the surgery for the hammertoe. Furthermore, the respondents were unable to present any evidence whatsoever establishing that the delay in obtaining surgery for the hammertoe exposed them to any risks for the payment of benefits that they would not have otherwise been obligated to pay but for the delay in obtaining the surgery.

The Commission may not arbitrarily disregard medical testimony. See Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001); Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998); Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). However, there is substantial evidence to support that the ALJ and Commission did look at the evidence as a whole, not simply that they only believed appellee's testimony that Dr. Kulik required the bone-fusion surgery be done prior to the hammertoe procedure. While they may have given that testimony some weight, the language of the ALJ's opinion (subsequently affirmed and adopted by the Commission) shows that they clearly looked at all the evidence, not the least of which was that none of the doctors stated that the hammertoe procedure was needed immediately. It is clear that Ark. Code Ann. § 11-9-512 was taken into consideration when making their findings. Simply because the Commission did not find in appellants' favor does not mean the statute was disregarded, and the language in the ALJ's opinion specifically refers to the requirements in the statute. We affirm on this point.

II. Whether the Commission gave appellee the benefit of the doubt in making its findings.

Appellants argue that the Commission failed to weigh the evidence impartially, and improperly gave the benefit of the doubt to appellee in contravention of Ark. Code Ann. § 11-9-704(c)(4). They maintain that the only evidence presented by appellee to explain his unreasonable delay in obtaining surgery was his own testimony regarding Dr. Gruenwald's warning about having fusion surgery and that Dr. Kulik would not perform the hammertoe procedure until after the fusion surgery was performed. Appellants presented evidence from Dr. Kulik directly conflicting with appellee's assertion. They claim that appellee was very clear about his assertion at the hearing before the ALJ but was not certain as to Dr. Kulik's position in his deposition testimony taken some three months prior to that hearing. They assert that the great weight given to appellee's testimony on this point, despite its possibly inaccuracies, coupled with the directly conflicting testimony of Dr. Kulik, shows that the ALJ, and later the Commission through its adoption of the ALJ's opinion, incorrectly gave appellee the benefit of the doubt. Based upon our review of the record, the decision did not hinge on whether Dr. Kulik was requiring the bone-fusion surgery being performed first. It is undisputed that none of the physicians thought the hammertoe procedure needed to be done immediately, and appellants' argument on this issue is without merit.

III. Whether substantial evidence supports the Commission's decision that any delay in undergoing surgery
did not expose appellants to any greater liability for benefits than they would have otherwise been exposed.

Appellants assert that they were prejudiced by appellee delaying the surgical procedure because it resulted in errors in the computation and payment of appellee's indemnity benefits, as well as prolonged his healing period. Additionally, they argue that the delay resulted in appellee keeping his claim open for over a year after the procedure had been recommended to him. During that period of delay, appellee was entitled to additional indemnity benefits. They allege that the unreasonable delay possibly resulted in appellee being paid an incorrect amount of indemnity benefits.

Appellee would be entitled to temporary-total disability benefits until he either reaches the end of his healing period, or returns to work, whichever comes first. Ark. Code Ann. § 11-9-521(a). Appellants argue that the delay impeded efforts by the appellants to determine when appellee had reached maximum medical improvement, which signifies the end of the healing period. Appellants claim that Dr. Kulik had expressed the desire to assign a disability rating to appellee after the hammertoe procedure had been performed, but due to appellee repeatedly canceling appointments and delaying the procedure for so long, Dr. Kulik was forced to conclude that appellee had reached maximum medical improvement and to issue a disability rating prematurely. The result was that appellee underwent an unauthorized procedure that would have been authorized if undergone when it was initially recommended.

There was no evidence that any of the treating doctors said the procedure needed to be done immediately or within a short period of time. The Commission reviewed all the evidence and found that appellants had presented no evidence that established that the delay in surgery for his hammertoe condition exposed them to any risk for which they would not have otherwise been responsible. We agree and affirm on this point as well.

IV. Whether appellee's delay in undergoing the recommended procedure was an independent- intervening
cause that relieved appellants of their liability for any benefits related to the January 24, 2000 surgery.

Appellants state that appellee delayed, for more than a year, having a procedure that had been recommended by three physicians and that he admits alleviated his hammertoe condition. They claim he therefore artificially prolonged his condition and period of healing. They assert that the delay constitutes an independent intervening cause pursuant to Ark. Code Ann. § 11-9-102(5), and as such they should not be responsible for any costs or benefits related to the January 24, 2000 surgery.

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. Whether there is an independent intervening cause is a question of fact for the Commission to determine. Smith Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). While appellants argue that appellee's delay in undergoing the hammertoe procedure was unreasonable, the Commission specifically found otherwise - relying on the findings of the ALJ that: (1) any reluctance by appellant to undergo the fusion surgery recommended by Dr. Kulik was understandable in light of the information that he had been provided by Dr. Gruenwald and Dr. Thomas, two physicians with whom he had a well established relationship and in whom he trusted; (2) the undisputed fact there was no urgency in the need to undergo the surgery for the hammertoe; (3) appellants were unable to present any evidence whatsoever establishing that the delay in obtaining surgery for the hammertoe exposed them to any risks for the payment of benefits that they would not have otherwise been obligated to pay but for the delay in obtaining the surgery. Even though there was testimony and documentary evidence from Dr. Kulik stating that he never required the fusion surgery first, there is substantial additional evidence to support the decision of the Commission.

Finally, appellants argue that appellee failed to establish that he is entitled to temporary-total-disability benefits because he worked and derived income as a seasonal hunting and fishing guide and fished tournaments after his November 4, 1996 injury and prior to the January 24, 2000 surgery. Evidently, appellee was receiving temporary-total-disability benefits during that time, and appellants claim the benefits should have been terminated or at least reduced at such time as he returned to "work," pursuant to Ark. Code Ann. § 11-9-102(5)(F)(iii). There was neither a ruling nor discussion on this issue by either the ALJ or the Commission, and because appellants failed to obtain a ruling on this matter, we decline to address the merits of the argument. See W.W.C. Bingo v. Zwierzynski,53 Ark. App. 288, 921 S.W.2d 954 (1996).

Affirmed.

Bird and Crabtree, JJ., agree.