Marshall Milling Company, Inc. v. Brady Rorie

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

MARSHALL MILLING CO., INC.

APPELLANT

V.

BRADY RORIE

APPELLEE

CA04-352

December 8, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F210175]

AFFIRMED

Josephine Linker Hart, Judge

Appellant, Marshall Milling Company, appeals from the decision of the Arkansas Workers' Compensation Commission in which it found that appellee, Brady Rorie, suffered a compensable injury and awarded appellee temporary-total-disability (TTD) benefits. On appeal, appellant argues that the evidence establishing appellee's injury is not credible and that, even if his claim is compensable, he is not entitled to TTD benefits. We affirm.

Appellee testified that on August 29, 2002, he injured his back when he lifted a fifty-pound sack of feed while working for appellant. He immediately reported the incident to his supervisor, and on August 30, 2002, he went to a physician, Dr. Larry Jennings. Dr. Jennings's handwritten note from August 30, 2002, does not describe a finding of a muscle spasm. However, Dr. Jennings's typewritten note of that visit, which, according to the dates on the note, was dictated on August 30, 2002, and transcribed on September 11, 2002, describes a finding of a muscle spasm.

In its first argument, appellant notes that "[a] compensable injury must be established by medical evidence supported by objective findings," Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2003), and that "objective findings" are "findings which cannot come under the

voluntary control of the patient." Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 2003). While tacitly acknowledging that a muscle spasm can constitute an objective finding, see, e.g., Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002), appellant asserts that Dr. Jennings's handwritten note, which did not mention a finding of a muscle spasm, is more credible than Dr. Jennings's typewritten note indicating a finding of a muscle spasm. Appellant, however, fails to recognize that matters of the credibility and the weight to be given evidence are within the province of the Commission. See, e.g., Smith Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Consequently, we conclude that the Commission did not err in relying on the typewritten note indicating a finding of a muscle spasm.

In its second argument, appellant contends that the Commission erred in awarding TTD benefits to appellee from August 29, 2002, to February 13, 2003. Appellant asserts that, even if the claim is found to be compensable, appellee's testimony and his medical records do not support a finding that he is entitled to TTD benefits. Appellant states that appellee did not seek medical treatment from October 18, 2002, until January 30, 2003, that appellee's condition did not change, and that he cared for children and raised dogs during that time.

We note that TTD is that period within the healing period in which an employee suffers a total incapacity to earn wages. Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002). Further, 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. Id. 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.

On August 30, 2002, Dr. Jennings took appellee off work and ordered diagnostic tests. Diagnostic tests were performed, and Dr. Jennings left appellee off work until he could be evaluated by a neurosurgeon. Appellant, however, controverted appellee's claim, and appellee was unable to be evaluated by a neurosurgeon. Appellee began the process of obtaining free medical treatment from UAMS, but he was not permitted to see a UAMS neurosurgeon until January 30, 2003. On October 18, 2002, appellee was again seen by Dr. Jennings. He noted that appellee was taking Darvocet for pain, but not on a daily basis, and also Ibuprofen. The doctor noted that appellee had "[m]ild tenderness with palpitation in the thoracic and lumbosacral area." Further, he stated that appellee's "[r]ange of motion is intact but mildly painful," with "slower than normal range of motion due to discomfort." Dr. Jennings further observed that appellee had "symmetrical reflexes in the lower extremity and upper extremit[y] but much more prominent brisk reflexes in the lower extremity than the upper extremity." Dr. Jennings assessed appellee as having "continued low back pain that is related to the injury at work" and that there was concern "about the asymmetrical neurologic findings along with a mildly abnormal MRI." Dr. Jennings wrote that he wanted "clearance with the neurosurgeon" before he returned appellee to work. On February 13, 2003, after examining appellee and reviewing his MRI, the UAMS neurosurgeon discharged appellee from the clinic. Given appellee's medical records and his need for evaluation by a neurosurgeon, we conclude that the Commission's award of TTD benefits was supported by substantial evidence.

Affirmed.

Pittman and Vaught, JJ., agree.