Pat Weber v. Shirpat Corporation d/b/a Best Western and Fremont Indemnity CompanyAnnotate this Case
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DECEMBER 8, 2004
V. AN APPEAL FROM THE WORKERS' COMPENSATION COMMISSION [F100472]
SHIRPAT CORP. d/b/a
BEST WESTERN and FREMONT
Olly Neal, Judge
This pro se appeal arises from decisions of the Workers' Compensation Commission (Commission) that appellant is entitled to a change of physician to neurologist Dr. Jim Moore; that her applicable weekly indemnity rate is seventy dollars; that she is entitled to reasonably necessary medical treatment for her thoracic spine, left foot, and right-knee injuries; that she is not entitled to medical treatment for her vision problems; that she sustained a three percent anatomical impairment rating to the body as a whole; and that she sustained a ten percent wage loss. Appellees cross-appeal, arguing that appellant is not entitled to the anatomical impairment rating or wage-loss benefits nor is she entitled to any additional medical treatment for her injuries. We affirm.
The facts are as follows. Since 1996, appellant Pat Weber had worked for the Area Agency on Aging (now Senior Specialists) as a certified care provider for seniors and for appellee Best Western Hotel as a housekeeper. On January 1, 2001, appellant sustained a compensable injury when she fell from the second floor of the hotel, resulting in a head laceration, a fractured thoracic vertebrae, an injured knee, and a broken great toe on her left foot. The x-ray taken immediately following the accident diagnosed a fractured T3 vertebrae with approximately forty to fifty percent loss of height. On January 4, 2001, Dr. Gary P. Gehrki consulted with appellant and assessed that, in addition to her other injuries, she had indeed suffered a T3 compression fracture. A note dated January 18, 2001, stated that a CT scan taken while appellant was in the hospital did not reveal any intra-cranial abnormality. Thereafter, a subsequent MRI showed an acute fifty percent anterior compression fracture of the T2 rather than the T3 vertebrae.
Appellees began paying temporary-total disability compensation on or about January 15, 2001, but ceased those payments after August 14, 2001. They also gratuitously paid appellant's salary from her job at Senior Specialists, but ceased to so pay on or about April 2, 2001. In a letter to appellant dated April 2, 2001, appellees offered to "assist [appellant] in anyway we can, by providing transportation, or by holding your position until the time you choose to return."
In March 2001, Dr. Kevin McLeod, an orthopedist, released appellant to return to work with the restriction that she do "sit down work only." In April 2001, appellant saw doctors for vision problems. In a letter dated April 30, 2001, Dr. Frank S. Teed opined that he saw appellant on April 19, 2001, "when she complained of having had a fall early this year in which she suffered multiple fractures, hearing loss and some decreased vision. She complains of seeing double and has bright spots in her vision, along with having trouble with depth perception." Dr. Teed determined that appellant had a "probable decompensated phoria." He thought it best that she see Dr. A. Henry Thomas. Dr. Thomas noted in a letter dated June 8, 2001, that he saw the appellant and that she "has double vision which apparently was caused by her fall this past January." He gave her a prescription for prism glasses to help with her complaints of double vision.
The administrative law judge (ALJ) appointed Dr. John Wilson for an independent medical examination (IME). In a letter dated December 5, 2001, Dr. Wilson stated:
Ms. Webber [sic] was seen in our office on December 5, 2001. She related that while working at Best Western as a housekeeper she was doing some work on the second floor where there was a ribbon present across a walkway rather than a railing. She fell off the second floor and her housekeeping car fell on her when she hit the pavement. Apparently the housekeeping cart spared her head and feet, but fell on her trunk. Ms. Webber [sic] was taken to the hospital and admitted and remained there for ten days. She had a fracture of D2 [same as a T2], a fracture of the patella, and a fracture of her foot. She was subsequently discharged from the hospital and placed on out patient physical therapy. Subsequently, in June, she went to Hot Springs for further therapy.
Currently she has pain in the upper dorsal spine as well as neck pain. She has intermittent jerking of her entire body, and also has neck pain.
Ms. Webber [sic] denies difficulty, really of any kind, before the insult [sic]. She relates she was an actress and did spiritual plays.
During the course of the examination Ms. Webber [sic] had jerking episodes. There was no loss of bowel or bladder and she was fully conscious during theses episodes. She did not appear to be post ictal [sic] following the episodes.
Examination today reveals mild restriction of motion of the cervical spine. There is no muscle spasm present. There is tenderness present. The deep tendon reflexes are present and equal in both upper extremities. Adson's sign is not present.
Examination of the dorsal spine reveals tenderness. There is no muscle spasm present. The deep tendon reflexes are present and equal in both upper extremities.
Examination of the lumbar spine reveals no muscle spasm. There is a good range of motion. Straight leg raising is negative. Neurological examination is normal.
On palpation of the knee, underneath the patella with the knee going through a full range of motion, there is no difference between the right knee and left knee as far as crepitation is concerned.
X-rays reveals [sic] a fracture of D2 with 50% loss of height and a fracture of the third metatarsal that is healed.
IMPRESSION: Ms. Webber [sic] has a history of a fracture of D2 with at least 50% loss of height. She has some type of jerking episodes that I am unable to comment on. Her permanent impairment is 10% to the body as a result of this injury[.]
Appellant sought benefits. The ALJ determined that she was entitled to a change of physician; weekly indemnity benefits of seventy dollars; ongoing reasonable, necessary, and related medical treatment, including treatment for her vision problems but not including treatment for complaints of difficulties with her feet; a whole body impairment of ten percent; and wage loss disability of twenty percent. On appeal, the Commission affirmed in part and reversed in part the ALJ's decision, instead determining that appellant was entitled to a change of physician; weekly indemnity benefits of seventy dollars; ongoing reasonable, necessary, and related medical treatment, including treatment for her spine, left foot, and right knee, but not including treatment for her vision problems; a whole body impairment of three percent rather than ten percent; and wage loss disability of ten percent rather than twenty percent. This appeal followed.
In reviewing a decision of the Workers' Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Magnet Cove Sch. Dist. v. Barnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003). These findings will be affirmed if supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.; Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001). 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. Williams v. L & W Janitorial Inc., 85 Ark. App. 1, 127 S.W.3d 486 (2004). Furthermore, the Commission has the duty of weighing medical evidence. Id.
A compensable injury is defined, in part, as an accidental injury "arising out of and in the course of employment and which requires medical services or results in disability or death." Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2003). A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2003). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16) (Supp. 2003). Further, medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Speculation and conjecture cannot substitute for credible evidence. Id. The burden of proof of a compensable injury shall be on the employee and shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E) (Supp. 2003).
Appellant's pro se points on appeal are numerous. In appellant's first point on appeal, she argues that "[t]his appeal respectfully asserts that the Commission has erred when it arbitrarily disregarded all evidence of the major disabling injury from the accident, thereby obstructing the burden of proof of permanent disability." Sub-points of appellant's argument include:
1. The Commission should not arbitrarily disregard a physician's opinion, especially when based on objective and measurable findings.
2. The disregarded evidence was necessary to establish the extent of the injury.
3. The appellant was entitled to have facts submitted (and by implication, reviewed) on any provision of law which would justify award in their favor.
4. The question of permanent total disability is an issue of fact and all relevant evidence should be considered by the Commission.
5. The Commission is not granted leeway to disregard any witnesses testimony.
6. The characterization of claimant's injury affects the burden of proof.
Many of appellant's sub-points indulge us in general statements of law; however, they in no way advance her argument. While it is true that the Commission cannot arbitrarily disregard any witness's testimony, see Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003), there is no evidence in this record to indicate that appellant had a collapsed spine. Appellant argues that the Commission disregarded MRI evidence that indicated she suffered from an acute angular kyphosis, which she deems to be a collapsed spine. There is evidence that appellant suffered from acute angular kyphosis, which according to The Sloane-Dorland Annotated Medical-Legal Dictionary (West 1987) is an abnormal increased curvature of the thoracic spine; however, we found no medical evidence relating that the injury was the equivalent of a collapsed spine.
Appellant's second argument is "Disability Denied." In support of this argument, she argues ten sub-points:
1. The Commission has erred when it denied permanent total disability without substantial evidence.
2. Whether there is substantial evidence to support a finding of the Workers' Compensation Commission is a matter of law.
3. When compensation is denied the Commission must make findings sufficient to justify that denial.
4. It is the duty of the Commission to make a finding to a preponderance of the evidence.
5. The Commission has erred by denying benefits where the medical evidence was uncontroverted, the appellant gave good account of the injury, and the Commission gave inconsistent findings of fact.
6. The Commission has erred in considering certain reports in isolation instead of being given such weight as may be warranted from all the evidence of the case.
7. The Workers' Compensation Commission has a duty and statutory obligation to make specific findings of fact on de novo review on the record as a whole before deciding if the burden of proof is met.
8. The Commission erred when it improperly referred to a healing period.
a. A healing period must be based on substantial evidence.
b. A healing period must be specified.
c. A healing cannot be implied if the injury is unstable.
9. The Commission did err by disregarding the evidence of the entire damaged spine when denying disability.
10. Testimony Rejected
a. The Commission has erred by rejected the claimant's testimony about symptoms, pain, and the effect of activity upon those symptoms since the record also contains objective and measurable findings to support that testimony.
b. The Commission erred when denying disability when appellant is unable to perform remunerative labor with consistency and without pain. The Commission erred in finding that being able to take care of oneself is grounds for denying permanent total disability.
c. The Commission has erred in finding that job offers were evidence that the jobs were "suitable to her capacity."
Appellees cross-appeal, arguing that appellant failed to prove she was entitled to wage- loss disability benefits. Again, appellant advances many blanket statements of law, but we discern that the ultimate issues to be decided under this point are the Commission's denial of permanent total disability benefits and the Commission's wage-loss determinations.
Appellant's entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-519 (e)(1) (Repl. 2002), which provides that "permanent total disability means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment." Appellant bears the burden of proving her inability to earn any meaningful wage in the same or other employment. Ark. Code Ann. § 11-9-519 (e)(2) (Repl. 2002).
In determining that appellant was not entitled to permanent total disability, the Commission wrote:
The claimant in the present matter argues that she is permanently and totally disabled. The record does not support the claimant's argument. There were no permanent restrictions assigned by any treating physician, although Dr. McLeod did recommend "sit-down work only" while the claimant was still within her healing period in March 2001. Dr. Wilson in December 2001 did not keep the claimant off work.
As substantial evidence supports the Commission's determination, we affirm on this point. With regard to her wage-loss claim, it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Williams v. L & W Janitorial Inc., supra. A claimant must prove a specific percentage of permanent impairment before she is eligible for permanent disability and wage-loss benefits. Wren v. Sanders Plumbing Supply, 83 Ark. App. 111, 117 S.W.3d 657 (2003). Furthermore, a claimant's entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522 (Repl. 2002), which states in pertinent part:
(b)(1) In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Workers' Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity.
Whitlatch v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Pursuant to this statute, when a claimant has been assigned an anatomical impairment rating to the body as a whole, the Commission has the authority to increase the anatomical rating, and it can find a claimant totally and permanently disabled based upon wage-loss factors. Id. The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Id. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant's age, education, and work experience. Id. In considering factors that may affect an employee's future earning capacity, the court considers the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant's loss of earning capacity. Id.
Despite the ALJ's determination that appellant suffered a twenty percent wage loss, the Commission determined that the wage loss was only ten percent, stating:
The claimant in the present matter argues that she is permanently and totally disabled. The record does not support the claimant's argument. There were no permanent restrictions assigned by any treating physician, although Dr. McLeod did recommend "sit-down work only" while the claimant was still within her healing period in March 2001. Dr. Wilson in December 2001 did not keep the claimant off work. There was no evidence before the Commission which would support a finding of permanent total disability.
The Full Commission has determined supra that the claimant sustained anatomical impairment in the amount of 3%. We do not affirm the [ALJ's] award of 20% wage-loss disability. The claimant is age 61 and has an undergraduate degree in English. The evidence before us indicates that claimant could find remunerative employment. The claimant testified, "I could get a job tomorrow. I'd have no trouble." We also note the [appellee's] April 2001 letter, where the employer explicitly informed the claimant her job was still available. We agree with [appellees] that the claimant is not motivated to find gainful employment. A claimant's lack of motivation is an appropriate factor for the Commissionto consider in assessing wage-loss disability. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). However, the Full Commission does not agree with the [appellee's] argument that the claimant is entitled to no wage-loss disability. In considering the claimant's age, advanced education, work experience, lack of motivation, and the type of compensable injury she sustained, the Full Commission finds that the claimant proved she was entitled to wage-loss disability in the amount of 10%.
The Commission misquotes appellant's testimony above where it states that appellant said she could get a job tomorrow. Rather, appellant testified that, "If I could work, I could get a job tomorrow. I'd have no trouble." (Emphasis added.) While it is true that Dr. McLeod released appellant to sit-down work only and that appellees wrote appellant to inform her that her housekeeping job was still available, she would not have been able to perform that job because it requires constant movement. Additionally, as to appellant's testimony that she had received offers to work as a care provider in some private homes, she would not have been able to sit down with those offers either. Nevertheless, substantial evidence supports its findings. The Commission failed to note appellant's testimony that she had previously had poetry published; that her sister was going to publish more of her poetry; that an art dealer in Hot Springs agreed to sell some of appellant's paintings for her, but that she didn't have any more because she had not felt well enough since her apartment had caught on fire; and that she could type. Given her age, education, and skills, appellant is capable of some remunerative employment. Therefore, as substantial evidence supports the Commission's ten percent wage-loss rating, we affirm on this point.
Appellant also asserts in her sub-points that the court did not determine a specified healing period for her. The healing period is that period for healing of an accidental injury that continues until the employee is as far restored as the permanent character of his injury will permit, and that ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Id.
In determining that appellant had failed to show that she was permanently and totally disabled, the Commission mentioned that there were no permanent restrictions assigned by any treating physician, "although Dr. McLeod did recommend `sit-down work only' while the claimant was still within her healing period in March 2001." The Commission did not address whether or not appellant was still within her healing period.
Appellant's third argument on appeal is "Impairment Rating." Her sub-points include:
1. The Commission did err by rejecting a doctor's opinion because of an unspecified procedural technicality about the guides that were used.
2. The Commission did err when it arbitrarily disregarded conflicting medical reports instead of weighing those reports.
3. The Commission did err when they made a determination of physical impairment that was not supported by objective and measurable physical findings.
Appellees cross-appeal, arguing that appellant has not established, with substantial evidence, entitlement to permanent-partial disability benefits. We affirm the Commission.
The Commission determined that appellant was entitled to a three percent impairment rating to the body as a whole. In awarding a three percent impairment rating, the Commission wrote:
In the present matter, Dr. Wilson assigned the claimant a 10% permanent impairment in December 2001. Dr. Wilson did not indicate that he consulted the Guides in assigning anatomical impairment. The [ALJ] did not reference the Guides in awarding the claimant a 10% anatomical impairment rating. The Commission must reference the Guides in assigning anatomical impairment. The record shows that the claimant sustained a "Compression fracture of T3 with a 40%-50% loss of height" as a result of her compensable injury. Table 75 of the Guides, for whole-person impairment percents due to specific spine disorders, assigns a 3% impairment of the whole person for a 26%-50% compression in the thoracic spine. The Full Commission therefore finds that the claimant is entitled to a 3% rating for her thoracic compression fracture.
It is the duty of the Commission to translate evidence into findings of fact. Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001). In the instant case, the Commission was authorized to decide which portions of the medical evidence to credit and translate that medical evidence into a finding of permanent impairment using the AMA Guides.
Appellees argue that even the three percent awarded by the Commission was not supported by substantial evidence. While it is true that its physician, Dr. McLeod, released appellant without assessing any permanent impairment, Dr. Wilson did assign appellant a permanent-impairmentrating. There was no conflicting evidence as it relates to the impairment rating given by Dr. Wilson; nevertheless, because the Commission could not determine whether the ALJ or Dr. Wilson consulted the Guides in determining the rating assigned, the Commission was required to consult the Guides in the assessment of anatomical impairment. See Ark. Code Ann. § 11-9-522(g)(1)(A) (Repl. 2002). Appellant's fourth point on appeal is "Change of Physician." Her sub-points include:
1. The Commission did err by the significant delay in the change of doctor process instead of that petition being "expedited."
2. The Commission did err by not finding employer liable for medical bills and disability benefits incurred in interim between employee's petition for change of physician and it's approval.
Appellant argues that the Commission erred in delaying the change of physician process and in not finding appellees liable for medical bills and disability benefits incurred between her petition for a change of physician and the approval of the change. We find nowhere in the record where these arguments were raised to the Commission. The appellate court does not address issues raised for the first time on appeal. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998). Appellant also argues before us that the doctor the ALJ assigned to her, Dr. Jim Moore, is the doctor that the insurance company originally wanted her to see and that she no longer wishes to see him. In addressing this issue on appeal, the Commission determined that the ALJ:
found in the present matter that the claimant was entitled to a change of physician to Dr. Jim Moore. The claimant does not directly challenge this finding. The claimant does characterize Dr. Moore as an "insurance" doctor, but the claimant does not argue that she should be able to see someone else. The Full Commission affirms the [ALJ's] finding, "The claimant is entitled to a change of physician to Dr. Jim Moore, a neurosurgeon in Little Rock."
It is not the function of the courts to make findings of fact with respect to issues raised for the first time on appeal by an appellant; to do so would deny the agency the opportunity to consider the matter, make a ruling on it, and express its reasons for doing so. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001).
Moreover, appellant was given the opportunity to choose a physician. During the hearing, the ALJ asked whether or not appellant had a particular physician in mind:
ALJ: Relative to the petition that's outstanding here to change physicians, do you have a particular physician in mind?
Appellant: No, I don't. In a couple of months I get on federal disability from the accident. Medicaid starts in a couple of months. So I was going to wait until then and do some more research about surgery and stuff.
ALJ: Do you have a particular specialist field -
Appellant: I don't have one in mind at this time. And then, also, I was thinking maybe, if I could get a specialist, to get a back brace because it's been suggested to me a couple of times that, if I had a back brace, I might be able to do more with less pain.
ALJ: Well, Ms. Weber, if I found - - if I find that you are entitled to a change of physician, without a specific recommendation from you, I will tell you that I would be inclined to, in all likelihood, suggest a neurosurgeon to see you - - if I approve the petition to change. So, without some specific input from you - - And the reason I ask you that is that there is some case law that is relevant to that. But, without a specific recommendation from you, if I allow change of physician, a neurosurgeon would probably be my pick.
Appellant: I see.
ALJ: So just to tell you that - - that that's probably what I would be inclined to do if the petition is approved. So, if you think that you would benefit from some other speciality, then now is the time you need to tell me that.
Appellant: I don't have that decision prepared at this time.
ALJ: Ms. Weber, I've seen lots of injuries in the almost twenty-six years that I've been doing this, so a neurosurgeon would be my pick for the type of problems you have if the petition is approved.
Fifth, appellant argues "Vision Injury Denied." Her sub-points for this argument include:
1. The Commission has erred by denying compensation for an injury that was reported but not diagnosed correctly by the injured worker.
2. The Commission has erred in not finding that a physician's statement that an injury "could well be" the result of injury satisfied the statue requirement.
3. The Commission has erred in finding that a statement of reasonable medical certainty was necessary in speaking of a causal connection when there was supplemental evidence supporting that causal connection.
Appellees cross-appeal, arguing that appellant is not entitled to any additional medical treatment.
An employer is only required to provide medical services that are reasonably necessary in treatment of the compensable injury; what constitutes reasonably necessary medical treatment is a question to be determined by the Workers' Compensation Commission. White Consolidated Indus.v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001).
The Commission determined that:
In the present matter, the [ALJ] found that the claimant was entitled to ongoing medical treatment, "including treatment for vision problems but not including treatment for complaints of difficulties with her feet." Based on our review of the record, the Full Commission finds that the claimant proved she was entitled to reasonably necessary medical treatment provided in connection with the compensable injuries to her thoracic spine, left foot, and right knee. The claimant failed to prove she was entitled to treatment for alleged "vision problems."
The claimant injured her left foot, right knee, and thoracic spine in the specific incident occurring on January 1, 2001. There are objective medical findings establishing an accidental injury to each of these anatomic regions, although there are no specific additional treatment recommendations in the record. However, the Full Commission does not affirm the [ALJ's] finding that the claimant's "vision problems" are related to her compensable injury. The claimant testified that she began having these vision problems immediately after the injury, but the record does not corroborate her testimony. The claimant did suffer a laceration to her scalp in January 2001, but there is no evidence that she sustained any sort of ophthalmologic injury or bony skull injury. A CT scan taken January 18, 2001 showed "no intra-cranial abnormality." An MRI of the brain in February 2001 was normal. We also note that the claimant began reporting "vertigo" and "hearing loss" in April 2001. Dr. Thomas and Dr. Teed subsequently began treating the claimant for "double vision." Nevertheless, their attempts to causally relate this alleged condition to the claimant's injury are not supported by the record and are not stated with a reasonable degree of medical certainty, as is required by Act 796 of 1993. The Full Commission finds that the claimant failed to prove that treatment for her "vision problems" was reasonably necessary in connection with the claimant's compensable injury.
As substantial evidence supports the Commission's finding with regard to reasonably necessary medical treatment as it relates to appellant's "vision problems," we affirm on this point.
Appellees' cross-appeal regarding this point is without merit. With regard to the left foot, Dr. Wilson opined in his December 5, 2001, individual medical examination that appellant's fracture to her great left toe had healed. However, there was no finding that appellant had reached the end of her healing period, and any care she receives would be limited to that which is reasonably necessary. Appellees further argue that Dr. Wilson's account that "[o]n palpation of the knee, underneath the patella with the knee going through a full range of motion, there is no difference between the right knee and left knee as far as crepitation is concerned" indicates no need for additional knee treatment. Crepitation refers to the noise made by rubbing together the ends of a fractured bone, see The Sloane-Dorland Annotated Medical-Legal Dictionary (West 1987), and does not indicate that appellant no longer suffers from knee problems. Morever, Dr. Wilson'sletter directly addresses some of the neurological problems from which appellant is suffering. He makes note of the "jerking episodes" that he witnessed during his visit with appellant and he noted that he could not comment on those. Accordingly, as substantial evidence supports the Commission's grant of reasonably necessary medical treatment for appellant's knee, spine, and left foot, we affirm.
Sixth, appellant argues "Controversion." In support of this argument, she argues that "[t]he Commission did err by not requiring the employer's controversion of benefits." Appellant argues that the Commission erred by not requiring appellees to essentially defend (or controvert) their denial of benefits after August of 2001. Although this issue appears to be raised in her pre-hearing information filing to the Commission, it was not addressed by the Commission. Failure to obtain a ruling is a procedural bar to our consideration of the issue. See Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). We have held on many occasions that we will not address the merits of an argument where the appellant has failed to obtain a ruling from the Commission. See id.
Appellant's seventh and final argument is that the Commission erred by not figuring her weekly wage rate based on her joint employment. Because appellant worked for both Senior Specialists and Best Western at the time of her injury, she contends that the Commission should have determined her weekly indemnity wage rate based on both places of employment. She relies on Cook v. Recovery Corp., 50 Ark. App. 49, 900 S.W.2d 212 (1995), and Great Central Insurance Co. v. Mel's Texaco, 8 Ark. App. 236, 651 S.W.2d 101 (1983), to support her contention. Unlike the situations in Cook and Great Central Insurance Company where the claimants were jointly employed, appellant in the case at hand was concurrently employed by Senior Specialists and Best Western.
Our courts have generally held that wages from a concurrent employment are not to be considered in computing a claimant's wage rate to determine benefits. See Curtis v. Ermert Funeral Home & Ins. Co. of N. Am., 4 Ark. App. 274, 630 S.W.2d 57 (1982); Hart's Exxon Serv. Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ark. App. 1980). In both Curtis and Hart's Exxon, the injured claimant worked two jobs for two different companies when injured. The court in both cases determined that the employer for whom the employees were providing services at the time of the accident were responsible but that the second employer was not. Those decisions were based on statutory language, now codified in Ark. Code Ann. §§ 11-9-102(19) (Supp. 2003) and 11-9-518(a)(1) (Repl. 2002), referring to the "average weekly wage" as that "earned by the employee under the contract of hire in force at the time of the accident." Here, because appellant was the employee of Best Western at the time of her injury, only Best Western is responsible for providing benefits to her. Accordingly, substantial evidence supports the Commission's determination of weekly indemnity benefits based solely on appellant's average weekly wages from Best Western, and we affirm.
Stroud, C.J., and Gladwin, J., agree.