Lily Crowley v. McKee Foods

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

LILY CROWLEY

APPELLANT

V.

McKEE FOODS

APPELLEE

CA04-125

October 27, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F012667]

AFFIRMED

Josephine Linker Hart, Judge

Appellant, Lily Crowley, appeals from the decision of the Arkansas Workers' Compensation Commission rejecting her claim that she was entitled to a functional capacity evaluation. On appeal, she contends that the Commission's decision was not supported by substantial evidence. We affirm.

In July of 1999, appellant suffered an injury to her left shoulder, and appellee accepted the injury as compensable and paid medical benefits. Appellee was also ordered to pay temporary-total-disability benefits from October 25, 2000, to November 16, 2000. Appellant underwent shoulder surgery on February 7, 2001. She was terminated from her employment with appellee on June 7, 2001.

Several documents relating to appellant's post-surgical treatment were submitted on her claim that she was entitled to a functional capacity evaluation. In a clinic note dated February 21, 2001, appellant's surgeon, Dr. John Park, noted that her incision was well healed. He stated that they discussed the "instability findings" and that she would be a candidate for "gleno-labral reconstruction for tightening of the shoulder, surgically...." He allowed her to return to "full duties." On April 19, 2001, Dr. Park noted that appellant had about ninety percent of her "assisted anterior flexion" and that she would begin physical therapy. In a clinic note dated December 5, 2001, Dr. Park stated that appellant had full range of motion with "some peri-scapular aching," but he saw "no major restriction to motion compared to the opposite side except increasing working on her rotation behind her back." Dr. Park recommended "gradually increasing activity status," and noted that appellant would "probably best be served in a work status that does not require significant forward reach or repetitive overhead activities." He discharged her and stated that he would "reassess her on a p.r.n. basis if problems arise."

In a letter dated January 28, 2002, Dr. Park wrote that he had last seen appellant on December 5, 2001, and that appellant had "full range of motion of the shoulder, other than some mild aching about the shoulder girdle." He concluded that, applying the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1993), "there would be no permanent partial impairment assessed to this patient on the basis of the injury." In a letter dated July 22, 2002, Dr. Park noted that he had last seen appellant onDecember 5, 2001, and that she had "full range of motion of her shoulder but no major restriction to motion except a few degrees perhaps behind her back." Dr. Park further stated, "I anticipate no permanent partial impairment to the shoulder or loss of use to this." He noted, however, that appellant would "probably best be served in a work status that does not require significant forward reach, repetitive overhead activities."

In a clinic note dated August 29, 2002, Dr. Park stated that appellant had gained as of that date "good use of her arm but she'll always have some para-scapular aching and discomfort." He recommended "vocational rehabilitation training" and limiting "repetitive motion to occasional lift[s] up to [fifty] pounds forward but no repetitive lifting over [twenty] pounds above [ninety degrees], avoidance of placing in the throwing position, which is known to increase the chance of recurrent instability."

In a letter dated November 6, 2002, Dr. Park wrote that appellant "would benefit from a true functional capacity evaluation in an attempt to find out what limitations she had from an independent basis and plan her future life...." But on January 17, 2003, Dr. Park wrote that because appellant was "presently employed and the case settled, I see no further need for the functional capacity evaluation." He noted that the "purpose of functional capacity evaluation is to not only assess where the patient is at at the time they take it but also mode of routing for what the patient might be best served doing in the future, which would have been important since she was unable to return to McKee Foods, apparently."

In her opinion, the ALJ noted both Dr. Park's determination that appellant did not have any permanent impairment and Dr. Park's recitation of appellant's limitations. The ALJ also noted the letter from Dr. Park opining that appellant would benefit from a functional capacity evaluation as well as the letter concluding that there was no need for a functional capacity evaluation. After considering this evidence, the ALJ concluded that appellant failed to prove her entitlement to a functional capacity evaluation. The Commission adopted the ALJ's opinion, and appellant appeals from that decision.

Employers are required by our workers' compensation statutes to provide medical services that are reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). The employee, however, has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). When the Commission denies benefits, we view the evidence in the light most favorable to the Commission's decision and affirm if the Commission's decision displays a substantial basis for the denial of relief. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). What constitutes reasonable and necessary treatment is a question of fact for the Commission. Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996).

On appeal, appellant argues that she was entitled to a functional capacity evaluation for the purpose of assessing her permanent impairment. She argues that by precluding her from obtaining a functional capacity evaluation, the Commission has put her in the untenableposition of not being able to prove any permanent impairment. We note, however, that contrary to appellant's argument, Dr. Park did assess her permanent impairment, concluding that "there would be no permanent partial impairment assessed to this patient on the basis of the injury."

We note that in Gansky, the Arkansas Supreme Court held that a claimant was entitled to a functional capacity evaluation where the treating physician's evaluation of the claimant depended upon the claimant obtaining a functional capacity evaluation. Appellant, however, has already obtained a permanent impairment rating. Accordingly, we conclude that there was a substantial basis for the denial of appellant's request for a functional capacity evaluation, and we affirm.

Affirmed.

Bird and Baker, JJ., agree.