Dimple Jennen v. Diamondhead Property Owners Association

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

DIMPLE JENNEN

APPELLANT

V.

DIAMONHEAD PROPERTY OWNERS ASSOCIATION

APPELLEE

CA04-103

September 29, 2004

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F010377]

AFFIRMED

Robert J. Gladwin, Judge

Appellant Dimple Jennen appeals from a decision by the Arkansas Workers' Compensation Commission that denied her request for benefits related to a controverted surgical procedure. She raises two points on appeal: 1) that the Commission's decision that the surgery was not a reasonably necessary medical treatment is not supported by substantial evidence; and 2) that the Commission erred in applying the wrong legal standard in its denial of additional temporary total disability (TTD) benefits. We disagree on both points and affirm.

The parties stipulated that appellant sustained a compensable injury to her lower back on July 8, 2000, which arose out of and during the course and scope of her employment with appellee. An MRI was performed on August 1, 2000, and appellant was referred to Dr. Steven Cathey. In a clinical note dated October 17, 2000, Dr. Cathey stated that appellant's neurological exam was negative with no signs of lumbar radiculopathy and that straight leg

raising was negative bilaterally. Dr. Cathey stated he did not feel that appellant was at that time a candidate for surgery. He released her and assigned a 5% permanent partial impairment rating.

Appellant continued to experience low back pain and was referred to Dr. Sunder Krishnan, who treated her with physical therapy and steroid injections. On March 16, 2001, Dr. Krishnan performed a fluoroscopy and discography, which procedures revealed disc herniations at L4-L5 and L5-S1. Dr. Krishnan agreed with Dr. Cathey that appellant was not a surgical candidate. On May 22, 2001, he performed an IDET procedure on appellant. On August 29, 2001, Dr. Krishnan released appellant to work, restricting her lifting to less than twenty pounds and advising her that she should continue wearing a back brace and taking physical therapy.

Appellant was referred to Dr. Reginald Rutherford, a neurologist, for a second opinion, and he recommended therapy and a TENS unit. She was then referred to Dr. Yeshwant Reddy for an additional opinion. On February 10, 2002, Dr. Reddy found appellant to be at maximum medical improvement, assigned an 11% impairment rating, and recommended an exercise program and medications. Dr. Reddy also said he did not believe that appellant was a candidate for surgical intervention.

Appellant continued to complain of low back pain and was referred back to Dr. Cathey for an additional surgical evaluation. On May 6, 2002, Dr. Cathey stated for the second time that he did not feel that appellant was a surgical candidate and that she had reached maximum medical improvement. He released her with a 5% impairment rating to the body as a whole, as he had previously done.

After the May 6, 2002, visit with Dr. Cathey, appellant sought treatment with her general physician, Dr. Elton Stecker, who referred her to Dr. Michael Young, an orthopedist. On September 9, 2002, Dr. Young performed a discectomy at the L5-S1 level. In a letter to appellant's attorney dated January 2, 2003, Dr. Young stated that he saw appellant six weeks after the operation and that she appeared to be doing well. He stated that he thought it was reasonable to assume that she had reached her maximum medical improvement.

Appellant sought workers' compensation benefits for the surgery performed by Dr. Young, contending that the surgery was reasonably necessary as it related to her compensable injury. She also contended that as a result of that surgery, she is entitled to a period of temporary total disability benefits commencing September 9, 2002, and continuing through a date yet to be determined. In response, appellees contended that the surgery performed by Dr. Young did not constitute reasonably necessary medical treatment as it related to the compensable injury, and that since the period of temporary total disability claimed was a result of the disallowed surgery, appellant was not entitled to that period of temporary total disability.

The administrative law judge (ALJ) found that the discectomy surgery performed by Dr. Young was not reasonably necessary medical treatment in relation to appellant's compensable injury. The ALJ also found that since the surgery was not reasonably necessary, the period of temporary total disability arising from the surgery was not compensable. The Commission affirmed and adopted the decision of the ALJ, and this appeal followed.

The standard of review in workers' compensation cases is well settled. When reviewing a decision of the Arkansas 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 affirm that decision if it is supported by substantial evidence. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). Substantialevidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. Roberson v. Waste Managem't, 58 Ark. App. 11, 944 S.W.2d 858 (1997). The issue is not whether this court might have reached a different result from the Commission; the Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Horticare Landscape Managem't v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002); Wheeler Constr., 73 Ark. App. 146, 41 S.W.3d 822 (2001). When a claim is denied because a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission's opinion. Marshall v. Madison County, 81 Ark. App. 57, 98 S.W.3d 452 (2003).

Arkansas Code Annotated section 11-9-508 (Repl. 1996) states that employers must provide medical services that are reasonably necessary for treatment of compensable injuries. Whether a medical procedure or device is reasonably necessary is a question of fact to be determined by the Commission. Cox v. Klipsch & Assocs., 71 Ark. App. 433, 30 S.W.3d 764 (2000).

The Commission, in affirming and adopting the decision of the ALJ, noted that four different doctors, Drs. Cathey, Krishnan, Reddy, and Rutherford, all agreed that appellant was not a candidate for surgery. Dr. Cathey opined on at least two separate occasions that appellant was not a surgical candidate and should be treated with non-steroidal anti-inflammatories and possibly analgesics. Dr. Krishnan and Dr. Reddy both agreed with Dr. Cathey, and following appellant's IDET procedure, both of these doctors were recommending physical therapy, a back brace, and oral medications for relief of pain. Dr.Rutherford agreed that appellant was not a surgical candidate, but rather might benefit from some physical therapy and a TENS unit.

The Commission noted that over three months after the surgery, Dr. Young stated that appellant had reached maximum medical improvement but needed to be continued on periodic oral medications or therapy. Physical therapy and oral medications were the recommendations being made by four of the doctors that appellant had seen before undergoing the surgery. Though appellant had fewer subjective complaints of pain following the surgery, the recommended course of action following the surgery was essentially the same as the recommended course of action before the surgery. Postsurgical improvement is a proper consideration in determining whether the surgery was reasonably necessary. Cox v. Klipsch, supra; Winslow v. D & B Mech. Contrs., 69 Ark. App. 285, 13 S.W.3d 180 (2000). Though this was not a case in which absolutely no postsurgical improvement took place, the Commission did not err in considering the fact that appellant's pre- and post-surgical treatment plans were basically the same.

On this record, where four of the five treating physicians were of the opinion that appellant was not a candidate for surgery, and where appellant's recommended treatment plan was basically the same both before and after the surgery in question, the Commission did not err in finding that the surgery performed by Dr. Young was not reasonably necessary in connection with appellant's compensable injury. The Commission's decision discussed the history of appellant's injury; the opinions and recommendations of the various doctors; and the similarity between the pre- and postsurgical treatment plans, thus displaying a substantial basis for the denial of relief.

Appellant also sought temporary total disability benefits for the time period during which she was recovering from the surgery performed by Dr. Young. Temporary total disability benefits are awarded during time periods in which a claimant is totally disabled and incapacitated from any gainful employment as the result of a compensable injury. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). A claimant must be within her healing period resulting from a work-related accident in order to qualify for TTD benefits. Ark. Code Ann. §11-9-102(12) (Repl. 1996). The Commission reasoned that since the claim for an additional period of TTD benefits arose from the September 2002 surgery performed by Dr. Young, which was found to be not reasonably necessary, it followed that the period of TTD caused by that surgery was not compensable.

Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). The healing period is defined as the period necessary for the healing of an injury resulting from an accident, which continues until the employee is as far restored as the permanent character of his injury will permit. Shepherd v. Van Ohlen Trucking, 49 Ark. App. 36, 895 S.W.2d 945 (1995). Both Dr. Reddy and Dr. Cathey specifically found, prior to the time appellant underwent the surgical procedure, that she had reached her maximum medical improvement. Appellant was therefore no longer within her healing period, and we find no error in the Commission's denial of benefits for a period of disability that resulted from a surgery found to be not reasonably necessary.

Affirmed.

Pittman and Neal, JJ., agree.