Dana Corporation, Specialty Risk Services v. Steven Baker

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-669

February 23, 2005

DANA CORPORATION,

SPECIALTY RISK SERVICES

APPELLANTS AN APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

v. COMMISSION

[F2014259]

STEVEN BAKER

APPELLEE REVERSED AND REMANDED

Olly Neal, Judge

Appellants DANA Corporation and Specialty Risk Services appeal from a decision of the Arkansas Workers' Compensation Commission awarding appellee Steven Baker benefits. On appeal, appellants argue that the Commission's decision awarding appellee benefits for the problems he experienced after November 26, 2001, is not supported by substantial evidence. We reverse the award of benefits and remand for an order consistent with this opinion.

The facts of this case are as follows. Appellee worked as a product technician for appellant DANA Corp. This position involved running bearing-grinding machines and sorting through old cores. On October 9, 2001, while sorting cores, appellee experienced a paralyzing pain in his lower back when he went to set a core in a rack. The pain caused appellee to drop to his knees for about two or three minutes. Afterwards, appellee informed his team-leader that he needed to see a doctor. Appellee filled out an accident report and went to Dr. Ken Turner at the Russellville Family Clinic. Appellee underwent a MRI on November 21, 2001. Dr. Turner diagnosed appellee as having a lumbar strain and released him to light duty.

Appellee was subsequently referred by Dr. Turner to Dr. Scott Schlesinger, a neurosurgeon. Dr. Schlesinger diagnosed appellee as having low-back pain secondary to spondylolisthesis and referred him to Dr. Marc Valley, a pain-management physician. Dr. Valley found that appellee was experiencing pain in his low back and right buttocks. Dr. Valley recommended that appellee undergo a series of three injections. Appellee completed the injections, and upon appellee's request, Dr. Valley released him to full duty on April 12, 2002. Following his release, appellee continued to experience pain. On August 2, 2002, appellee saw a chiropractor, who referred him to Dr. Wayne Bruffet, an orthopedic spine surgeon. Dr. Bruffet diagnosed appellee with having isthmic spondylolisthesis at L5-S1. On October 1, 2002, Dr. Bruffet performed surgery on appellee. Appellants controverted all treatment after November 26, 2001, and a hearing was held before an administrative law judge (ALJ).

At the hearing, appellee testified that he was still under Dr. Bruffet's care and had not been released to return to work. He said that he was also attending therapy. Appellee denied having sharp pains prior to October 9 and said that, prior to October 9, he was never told he needed back surgery. Appellee also said that prior to October 9, he had experienced "back soreness." He explained hat his back soreness was not the result of any type of back injury. However, during redirect and re-cross examination, appellee acknowledged that in his deposition he testified that, prior to October 9, he had seen a doctor due to back soreness. Appellee also testified that during his deposition he failed to testify about the fact that he had been written off from work on more than one occasion by his doctors, due to lumbar problems.

In his deposition, Dr. Scott Schlesinger testified that appellee suffered from low back pain secondary to spondylolisthesis. He explained that the condition usually developed over time. Dr. Schlesinger opined that, on October 9, appellee sustained an aggravation of a pre-existing condition.

Dr. Marc Valley testified that he initially diagnosed appellee as having low back pain. He said that he concurs in the diagnosis of spondylolisthesis. He also agreed that appellee's spondylolisthesis pre-dates appellee's work-related injury. Dr. Valley testified that, in appellee's history, appellee indicated that, prior to his work-related injury, he had never had a hospital or doctor's visit for low back pain. He said that his diagnosis was based upon the history provided by appellee. Dr. Valley said that, when appellee completed the injections, appellee said that he felt 75% improved and asked to be released so he could return to work. Dr. Valley said that he agreed that appellee could return to work but advised him that any type of activity could cause more inflammatory change and require further treatment.

Dr. Wayne Bruffet also testified that appellee suffered from spondylolisthesis. He explained that isthmic spondylolisthesis was a condition where there was a defect in one of the vertebrae in the lumbar spine causing instability between a vertebrae and the one below it. He said that appellee's was at L5-S1. Dr. Bruffet said that the purpose of the October 1 surgery was to "eradicate the disc to help with the back pain." He testified that his diagnosis was based upon a review of the MRIs and the x-rays and the history that appellee provided. Dr. Bruffet said that, in his history, appellee indicated that his pain was "fairly recent." He said that, at the time of appellee's visit, appellee was complaining of pain. Dr. Bruffet testified that appellee failed to inform him that, six months prior to his visit with Dr. Bruffet, Dr. Valley had given appellee a full release to return to work. Dr. Bruffet stated that in a November 27, 2002, letter, based on the history provided by appellee, he related the need for surgery to the work-related injury. He said that, when he wrote the letter, he had not seen Dr. Valley's report indicating that appellee's problems had resolved to the point where he could return to work. Dr. Bruffet opined that the condition pre-existed the October 9 injury. He said that the injections did not cure the appellee's problem and that surgery "probably" did not cure appellee. Dr. Bruffet stated that the surgery was just a treatment "to try to get him better."

The ALJ found that appellee's continued problems after November 26, 2001, were causally related to his October 9 compensable injury. The full Commission affirmed the decision of the ALJ. From that decision, appellants now bring this appeal.

When reviewing a decision of the 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. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence exists if reasonable minds could have reached the same conclusion without resort to speculation and conjecture. White Consol. Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001).

Appellants argue that the Commission erred when it found that the problems appellee experienced after November 26, 2001, were causally related to appellee's October 9 injury. Arkansas Code Annotated section 11-9-508 (a) (Supp. 2003) provides that an employer shall provide all medical treatment that is reasonable and necessary for the treatment of a compensable injury. See Geo Specialty Chem. v. Clingan, supra. The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Patchell v. Wal-Mart Stores, Inc., Ark. App. , S.W.3d (May 19, 2004). What constitutes reasonably necessary medical treatment is a question to be determined by the Commission. White Consol. Indus. v. Galloway, supra.

In its order awarding benefits, the Commission wrote:

We recognize that the claimant reported some previous soreness in his back, but the claimant credibly denied that he had sustained a prior accidental injury. The respondents agreed that the claimant sustained a compensable injury on October 9, 2001. We attach significant weight to the opinion of the medical experts that the compensable injury caused the "slippage" at L5-S1. Dr. Bruffet opined that the compensable injury had aggravated the claimant's spinal condition. During surgery, moreover, Dr. Bruffet explicitly noted "loose elements" around the spine. The determination of whether a causal connection exists is a question of fact for the Commission. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). The Full Commission finds in the present matter that the objectively-documented "slippage" and "loose elements" around the claimant's spine were the causal result of the claimant's compensable injury.

As a general rule, the appellate courts defer to the Commission on issues involving the weight of the evidence and the credibility of witnesses. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Furthermore, it is well-settled that the Commission has the authority to determine its medical soundness and probative force. Willaims v. Brown Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). The Commission has a duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Id. 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. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001).

That being said, when we view the evidence in a light most favorable to the Commission, we cannot say that, when confronted with the same evidence, reasonable minds could reach the same conclusion as the Commission without resorting to speculation and conjecture. Here, appellee admitted that he received treatment for his back prior to sustaining his compensable injury and that he had missed work due to back problems. However, appellee failed to convey this fact to Drs. Bruffet and Valley. Both doctors relied upon appellee's inaccurate medical history in rendering their diagnosis. Thus, the medical evidence relied upon by the Commission was based upon a falsehood. Based on these facts, we hold that appellee failed to establish causation. Therefore, we reverse the award of benefits and remand to the Commission for an order consistent with this opinion.

Reversed and remanded.

Gladwin and Robbins, JJ., agree.