Peggy Lindsey v. Thurl Lindsey and Hartford Underwriters Insurance Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

PEGGY LINDSEY

APPELLANT

V.

THURL LINDSEY and HARTFORD UNDERWRITERS INSURANCE CO.

APPELLEES

CA04-186

OCTOBER 27, 2004

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. F009787]

REVERSED AND REMANDED

John B. Robbins, Judge

Appellant Peggy Lindsey suffered an admittedly compensable injury that occurred while in the employ of her husband, appellee Thurl Lindsey. For more than ten years, Mr. and Mrs. Lindsey contracted their services as boundary markers to timber harvesting companies. On June 29, 2000, while assisting her husband with marking trees along a boundary, she stepped in a hole, twisting her left knee and falling to the ground. Appellant, a woman in her mid-fifties, sought medical treatment on July 26, 2000, and was diagnosed with an acute low-back strain. She was treated conservatively by several physicians until April 13, 2001, when neurologist Reginald Rutherford discharged her from his care, dating her maximum medical improvement at March 7, 2001. At this point, the workers' compensation insurance carrier declined to pay for any additional treatment. Appellant sought such benefits, arguing that she was still in her healing period and temporarily totally disabled. She prevailed before the administrative law judge, but did not prevail before the  Commission. The Commission, by a vote of two to one, concluded that there were no objective medical findings to support a need for continued treatment. The Commission relied heavily on Dr. Rutherford's opinion that she was exaggerating symptoms to continue treatment and was not abiding by his treatment plan. This appeal resulted. Because we hold that reasonable minds could not have concluded as the Commission did, we reverse and remand.

When deciding any issue, administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 2002); Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2002). We do not review the decision of the administrative law judge; we review the decision of the Commission. Daniels v. Affiliated Foods Southwest, 70 Ark. App. 319, 17 S.W.3d 817 (2000). Pertinent to this appeal, we analyze whether the Commission's decision to deny benefits contains a substantial basis for denial of relief. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if the findings are supported by substantial evidence. Id. The Commission's decision will not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000). However, these standards must not totally insulate the Commission from judicial review because this would render this court's function meaningless in workers' compensation cases. Inskeep v. Emerson Elec. Co., 64 Ark. App. 101, 983 S.W.2d 132 (1998).

The workers' compensation law provides that an employer shall provide the 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 has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).

With these parameters of review in mind, we examine the evidence presented to the Commission. The hearing took place on October 16, 2002, during which appellant testified that she had been married for forty-one years to her husband, with whom she worked in the family boundary-marking business based in Camden, Arkansas. Appellant said that on June 29, 2000, she and her husband were out marking a line when she stepped in a hole with her left foot, twisted her knee, and fell to her knees. Her husband assisted her back on her feet, but appellant said it was hurting badly such that they did not finish working that day. They returned to their house, and appellant took a hot bath in an attempt to relieve the pain in her hips and left leg.

Because the pain would not go away and settled into her low back and radiated down both legs, appellant went to her family doctor's clinic on July 26, 2000, where she was diagnosed with an acute low back strain with questionable radiculopathy. The doctor's office is about thirty miles away from their home. She was prescribed pain relievers and muscle relaxers, and an MRI was ordered. Appellant was later referred to Dr. Vora, a neurologist practicing in El Dorado, who prescribed physical therapy, bed rest, lifting restrictions, anti-inflammatory medication, and muscle relaxers. The MRI, evaluated in September, showed mild posterior displacement at L3-4. A nerve conduction study suggested a possible bilateral posterior tarsal tunnel syndrome. After her last visit with Dr. Vora on October 25, 2000, appellant complained to the nurse working for the insurance carrier that Dr. Vora was"hateful and ugly" to her, so the nurse referred her to Dr. Germann, a neurosurgeon practicing in El Dorado.

Appellant saw Dr. Germann in November 2000. Dr. Germann reviewed her diagnostic test results, concluding that she was not a candidate for surgical intervention, but instead a candidate for pain clinic care. Having nothing to offer in the way of neurosurgical intervention, Dr. Germann sent her back to her family physician, Dr. Floss. Appellant was ultimately referred to Dr. Reginald Rutherford, a neurologist whose office is in Little Rock.

During the first visit on February 15, 2001, Dr. Rutherford performed a thorough examination of appellant, concluding that she suffered from chronic pain syndrome. He ordered a repeat nerve conduction study and a bone scan and scheduled a follow-up visit. On the second visit, on March 7, 2001, he prescribed amitriptyline and a TENS unit, telling appellant to discontinue the muscle relaxers and narcotic pain medication. Dr. Rutherford believed that the muscle relaxers and pain medication were not indicated for her type of pain issues, and instead were susceptible to abuse and addiction. Appellant was scheduled for a return appointment on April 13, 2001, for clinical follow up on her condition.

Appellant acquired the TENS unit and amitriptyline on the Friday following her March 7 appointment. Appellant said that she had a bad reaction to her first dose of amitriptyline, which she described as throat constriction, dizziness, a racing heart rate, shortness of breath, nausea, and anxiety. She attempted to call Dr. Rutherford's office but could not make contact with anyone. Appellant ultimately made contact with Dr. Floss's office, whose office personnel told her to discontinue taking the medication until she next saw Dr. Rutherford. Appellant said that she did not take any prescription medication thereafter, in anticipation of her next doctor's appointment. Appellant believed that the TENS unit was improving her symptoms.

Dr. Rutherford's office called appellant on April 12 to remind her of the return appointment on April 13, which appellant confirmed. The next day, however, appellant was unable to attend her appointment due to her son's illness. When she called to cancel, she told Dr. Rutherford's office about her adverse reaction to amitriptyline, and in that conversation, the follow-up appointment was rescheduled for two weeks later. The office notes indicate that appellant also said she was receiving muscle relaxers and pain medication from Dr. Floss. That same day, Dr. Rutherford's office called appellant back to say that her treatment was being discontinued for non-compliance. The office notes reflect that Dr. Rutherford wanted them to tell appellant to follow up with Dr. Floss. Thereafter, the insurance carrier discontinued her medical benefits. At the insurance company's request, appellant returned the TENS unit.

After being discharged by Dr. Rutherford, appellant went back to her family physician, who prescribed muscle relaxers and over-the-counter pain medication. Appellant maintained that she could not work because she could not stay on her feet, she was unable to drive, her daily life was impaired, and her back pain was almost constant. Her husband testified that he had to hire someone else to do appellant's job since she fell. He also confirmed that she fell while they were working, that she could not work though she tried once, and that she cannot do housework like she did before.

The deposition testimony of Dr. Rutherford was admitted into evidence. Dr. Rutherford said that appellant first came to him on February 15, 2001, and he recalled that an MRI showed no significant abnormality and would not explain her complaints. He opined that about half of the population at appellant's age would have a small bulging lumbar disc, and hers showed no evidence of root irritation or impingement. He performed a general and neurologic examination of her. Dr. Rutherford concluded that she was neurologically intact, that she exhibited a lot of pain behaviors on examination, and that there was a significant emotional component to her symptoms. However, he ordered a bone scan and repeat nerve conduction study, which he performed himself during her return to his office on March 7. Also during that March 7, 2001, visit, he began to treat her for chronic musculoskeletal pain with the anti-depressant amitriptyline and a TENS unit.

When Dr. Rutherford learned that appellant had called and reported an adverse reaction to amitriptyline, Dr. Rutherford said that his office personnel told him that she was not taking his prescription but instead was being prescribed muscle relaxers and narcotic pain medication by Dr. Floss. For this reason, he discharged her from his care. Dr. Rutherford did not consult with Dr. Floss about the medication issue, but instead decided that "I would not get any further with Ms. Lindsey, and so I canceled her following appointment." He believed her reported reaction to amitriptyline was in reality an anxiety attack. Dr. Rutherford admitted that he did not speak with appellant himself, did not ask her whether she was using the TENS unit, and had no knowledge whether it was helping her symptoms. Dr. Rutherford stated that she had no serious abnormality, and she was not responding to his appropriate treatment.

In a letter to the insurance carrier dated April 20, 2001, Dr. Rutherford stated that appellant "has been released from care by virtue of non-compliance." Also in that letter, Dr. Rutherford declared appellant at maximum medical improvement on the date of his last appointment with her, March 7, 2001. Dr. Rutherford agreed that this was an arbitrary date, chosen because all her testing was complete by that date and there was no evidence of a serious abnormality. Dr. Rutherford also agreed that she had a work injury, just not a serious one. In response to appellant's attorney asking whether he would have continued the TENSunit and amitriptyline had her next appointment not been canceled, Dr. Rutherford said that he would have if she realized a benefit from those treatments.

Also admitted as evidence was the deposition testimony of Dr. Floss, who explained that he conducted a rural family practice and had treated appellant and her family for several years. Dr. Floss believed that from the first time appellant came to his clinic subsequent to her fall, her condition never really improved. Dr. Floss said he observed her gait deteriorate, noting that he would watch her walk when she was unaware that he was looking. Dr. Floss opined that appellant had been a very healthy woman, both psychologically and physically, prior to her work injury, for which he continued to treat her. He believed strongly that if appellant could work, she would, and that she was not a malingerer. He had seen the MRI, bone scan, and nerve conduction studies, none of which showed nerve impingement, but he said he would have ordered a myelogram if he were allowed to do so. Dr. Floss related her continued low back and leg pain with her work injury, opining so with certainty.

On this evidence, the Commission found that there were no objective findings in the medical tests to support her subjective complaints of pain, even though objective findings are not necessary to support an award of additional medical treatment. The Commission noted Dr. Rutherford's testimony that appellant's reported reaction "sounded like an anxiety attack" and was unlikely due to amitriptyline. The Commission then found, "Dr. Rutherford opined that it was most likely caused by the carisoprodol which the claimant was taking against his advice." It further found that appellant failed to follow her doctors' orders and has purely subjective symptoms at the present time. Therefore, the Commission found that appellant failed in her burden to show by a preponderance of the evidence that she was entitled to any more medical treatment for her compensable injury. This finding is not supported by substantial evidence.

The issue on appeal is not whether she sustained a compensable work-related injury because her fall was accepted as compensable. The issue is whether she is entitled to continuation of treatment. The Commission relied on the testimony of Dr. Rutherford to conclude that she was not entitled to continued treatment. To the contrary, Dr. Rutherford summarily discharged appellant after having himself prescribed continued treatment and scheduling a follow-up examination. It is revealing that Dr. Rutherford testified that had he not summarily dismissed her from his care, he would have continued his two prescribed treatments if they provided her any relief. Dr. Rutherford never inquired whether his treatment, particularly the TENS unit, provided her any relief from her chronic pain. Dr. Rutherford appears to have discharged appellant for reporting an adverse reaction to amitriptyline, attributing the real source as an anxiety attack.1 In short, there is no substantial basis to deny appellant continued care for her admittedly compensable injury.

Reversed and remanded for proceedings consistent with this opinion.

Gladwin and Vaught, JJ., agree.

1 The Commission inexplicably finds that appellant's reported episode was deemed by Dr. Rutherford as a reaction to the muscle relaxers, a conclusion with no basis whatsoever in the record before it.