Darrell Caudle v. Hatfield Lumber Company and LMA - Arkansas

ca04-778

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DARRELL CAUDLE

APPELLANT

V.

HATFIELD LUMBER COMPANY and LMA - ARKANSAS

APPELLEES

CA 04-778

March 2, 2005

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [F206001]

AFFIRMED

David M. Glover, Judge

Appellant, Darrell Caudle, was employed as a truck driver by appellee Hatfield Lumber Company. He was involved in a vehicular accident on May 8, 2002, in which his truck ran off the road when he fell asleep at the wheel. He suffered compensable injuries to his back and to his right knee and received benefits regarding them. However, he later sought additional benefits, claiming that he suffered a subsequent back injury that was caused by his compensable right-knee injury giving way in October 2002. At the start of the hearing, the parties reserved issues concerning permanent-partial disability, so we make no findings in that regard. Following the hearing, the Administrative Law Judge denied his claim for benefits. He appeals from the Workers' Compensation Commission decision that affirmed and adopted the ALJ's opinion. We affirm.

Standard of Review

When a workers' compensation claim is denied, the substantial-evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for denial of the relief sought by the worker. Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission's findings and affirm if they are supported by substantial evidence. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Id. In making our review, we recognize that it is the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Id. Moreover, the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id.

Causal Connection

For his first point of appeal, appellant contends that the Commission's determination, i.e., that his current back problems were not causally related to his compensable knee injury, and that consequently, he was not entitled to additional medical treatment or compensation for his subsequent back injury, was not supported by the evidence. We disagree.

When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for any natural consequence that flows from that injury, and the basic test is whether there is a causal connection between the injury and the consequences of such. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). The determination of whether there is a causal connection between the injury and the disability is a question of fact for the Commission to determine. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Objective medical evidence is necessary to establish the existence and extent of an injury, but it is not essential to establish the causal relationship between the injury and a work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).

At the hearing before the ALJ, appellant recounted the history of his original May 8, 2002 accident and the resulting compensable knee injury. He described subsequent knee give-way falls and, in particular, an October 2002 porch-swing fall that he asserted gave rise to his current back problems. Examining appellant's testimony alone would support his contention that his need for the additional back treatment occurred as a result of continuing instability problems with his knee, making the back problems a compensable consequence of his compensable knee injury. However, we defer to the Commission's determinations of credibility, and the Commission, adopting the ALJ's opinion, clearly did not find appellant's testimony to be credible:

[I]t is the claimant's contention that even if his lower back and radicular difficulties, beginning in October of 2002, are the result of a "new" injury, which occurred subsequent to the compensable injury of May 8, 2002, this new injury was caused by the claimant's right knee "giving way," which in turn was due to the compensable right knee injury of May 8, 2002. Thus, he argues that this "new" back injury would represent a "compensable consequence" of the compensable right knee injury.

However, the only direct evidence presented by the claimant to relate any "new" physical injury to his lower back to the admittedly compensable right knee injury, is his own testimony. This is his testimony that he suffered a sudden and immediate onset of severe symptoms, involving his lower back and radicular symptoms involving his lower extremity and bladder, contemporaneous with a fall and twisting of his torso that occurred when his injured right knee "gave out on him" in October of 2002.

It is well established that the testimony of a party is never considered uncontradicted. However, this does not mean that such testimony can be arbitrarily disregarded. If such testimony is credible, it may be sufficient, in and of itself, to prove any fact it is legally competent to address.

Undoubtedly, the claimant's testimony would be legally competent to prove the actual occurrence of a fall and twisting of his torso in October of 2002. His testimony would also be legally competent to prove that this fall occurred when his right knee "gave way." Finally, his testimony would be legally competent to prove a close temporary [sic] relationship between this fall and the onset of symptoms in the form of pain in his lower back, radicular symptoms involving his right leg, and loss of bladder control. However, based upon the evidence presented I simply do not find his testimony to be sufficiently credible to prove these facts.

(Emphasis added.)

Moreover, in determining the sufficiency of the evidence to sustain the Commission's findings, we review the evidence in the light most favorable to those findings. The Commission's decision exhaustively integrated appellant's testimony with the medical evidence in order to provide a chronological history. Appellant himself acknowledged that the back injury from the May 8 wreck had resolved itself and that his back was doing fine until the porch-swing fall in October 2002. The Commission noted that appellant's testimony regarding the porch-swing fall in October 2002 was "not supported by, and in some instances, [was] directly contradicted by essentially all of the various histories which the claimant gave when seeking medical treatment for his current episode of back difficulties," and it was "impossible to believe that, if the claimant had related such an incident, all of these various physicians and medical providers would have failed to record such an obvious medically relevant piece of information."

The medical records support the Commission's assessment. None of appellant's medical records dated October 2002 and beyond mentioned a fall from a porch swing. Furthermore, while clinic notes dated October 10, 2002, described a fall the previous day, the primary emphasis remained on knee pain. The reference to back pain was not tied to the previous day's fall, but rather to the May 8 wreck:

SUBJECTIVE: 46 year old male here due to pain now in both knees. Pt. is now in w/c [wheelchair] to get around. Pt. states left knee went out yesterday. Pt. states back is in severe pain since injury in wreck. Pt. has been wearing knee brace until yesterday.

. . .

OBJECTIVE: ... GEN: No acute distress. ... NEURO: Alert, CN's WNL, DTR's equal, no sensory-motor-coordination changes. ... left knee slightly edematous.

. . .

MEDICATION: Methadone 10mg #90 one po every 8 hours for pain Cont with Vicodin for breakthrough pain.

(Emphasis added.)

In addition, the Commission noted that appellant's testimony and subjective complaints were the only direct evidence presented to prove that he was currently experiencing symptoms with his back and radicular symptoms involving his lower extremities and bladder:

One would logically expect that such severe and extensive subjective symptoms and complaints, particularly those of a radicular or neurological nature, would also produce objective findings that would be readily apparent on physical examination, such as abnormal reflexes, muscle atrophy, muscle spasms, etc.

However, the magnitude and nature of the claimant's subjective complaints is inconsistent with the various findings noted on numerous physical examinations, particularly those by his own family physician. As previously indicated, all of the physical examinations of the claimant's family physician, particularly those for his back pain and radicular symptoms, start off with the observation tha the claimant appears in "no acute distress." Repeated basic neurological testing is consistently indicated to be within normal limits. There is no observation of any recorded objective physical findings, such as muscle atrophy, abnormal reflexes, or muscle atrophy [sic].

Our review of the medical records supports this assessment by the Commission as well. While there is one notation of a muscle spasm concerning appellant's back, it was noted in a January 19, 2003 emergency-physician record from Mena Medical Center and consisted merely of circling the term "muscle spasm" on a form, with no further explanation. Aside from that, appellant's subjective complaints appear to be all there is to support his claim of a sudden-onset back injury in October 2002.

Finally, we cannot ignore the fact, highlighted by the Commission, that appellant's medical history is permeated with requests for narcotic pain medication. Dr. Kevin Rudder and Dr. James Mulhollan, appellant's orthopedists, were both clearly concerned about this facet of appellant's case.

In short, the Commission's decision displayed a substantial basis for denying appellant's claim regarding his purported subsequent back injury, and we are not convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission.

Additional temporary-total disability benefits

For his remaining point of appeal, appellant contends that he is entitled to additional temporary-total disability benefits from September 8, 2002, to a date yet to be determined because (1) he clearly had not achieved maximum medical improvement with respect to his knee as of the date set by Dr. Rudder, and (2) he has not yet reached maximum medical improvement with respect to his back symptoms either. We disagree.

Temporary disability is that period within the healing period in which an employee suffers a total or partial incapacity to earn wages. Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002). The healing period is defined as that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. Id. The determination of when the healing period ends is a factual determination to be made by the Commission. Id. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Id.

The back

Appellant's argument regarding additional temporary-total disability benefits for his back has been rendered moot. Our affirmance of the Commission's finding that any back symptoms that appellant may be experiencing are not causally related to his compensable injuries disposes of this argument, and we need not address it further.

The knee

Appellant contends that the disparity between an impairment rating assigned by Dr. Kevin Rudder and the subsequent rating assigned by Dr. James Mulhollan demonstrated that he could not have been at maximum improvement in August 2002. Appellant's counsel asked Dr. Rudder, the orthopedist who initially treated appellant's knee injury, to convert the thirteen-percent impairment rating to the body as a whole, which he had assigned to appellant in a letter report of September 16, 2002, to an impairment rating for the right lower extremity. In a return note to counsel dated March 3, 2003, Dr. Rudder assigned the right lower extremity a thirty-percent impairment rating. In a letter dated March 20, 2003, Dr. Mulhollan, appellant's second orthopedist, opined, "I think the impairment level in the knee is 2 percent of the extremity at most, based on weakness."

The Commission determined that appellant failed to prove that he continued within his healing period for his compensable right-knee injury after September 7, 2002, and that he was therefore not entitled to temporary-total disability benefits after that date. In reaching that conclusion, the Commission again provided an exhaustive integration of appellant's testimony and the medical records to show the chronological history of appellant's knee problems. The Commission noted that Dr. Rudder opined that appellant's right-knee injury had reached maximum medical improvement by August 22, 2002, with no erythema or swelling of the knee. The Commission also noted that within ten days of that visit with Dr. Rudder, appellant reported two falling incidents involving his knee; yet, when Dr. Rudder saw him again on September 4, 2002, his physical examination revealed no effusion or swelling of the knee, and no instability. Appellee terminated appellant's temporary-total disability benefits on or about September 7, 2002.

Appellant obtained a change of physicians, and was then evaluated by Dr. Mulhollan, an orthopaedic surgeon and knee specialist. The Commission recounted that "[t]he only objective finding noted by Dr. Mulhollan, was osteopenia of the right patella, which Dr. Mulhollan attributed to a lack of use of the right leg" and that "[o]therwise, the x-rays of the claimant's knee were normal." The Commission acknowledged that appellant continued to report a series of falls, which he claimed aggravated his knee and back, and that he was also seen on several occasions by his family physician and in the emergency room. The Commission noted, however, that "there continued to be a paucity of objective findings" to support appellant's extensive complaints of severe pain in his knee and that the "only real objective finding noted on any of these visits consists of abrasions involving the claimant's right knee and swelling in both legs." Moreover, the Commission noted that with respect to appellant's last visit with Dr. Mulhollan, on March 20, 2003, appellant reported that his knee was no better, but that x-rays made of the claimant's right knee showed a very definite improvement in the ossification, indicating improved strength.

Our review of the evidence in the light most favorable to the Commission's findings supports the Commission's conclusions. For example, in a clinical note dated August 22, 2002, Dr. Rudder reported that "[e]xam today shows that [Darrell Caudle] has no erythema or swelling of his knee. ... I think at this point Darrell has reached maximum medical improvement, and I am going to dictate a letter of impairment rating under a separate dictation." In a September 4, 2002 clinical note, Dr. Rudder reported:

I am basically at my wit's end with Darrell and his right knee. When I saw him last, I actually discharged him to F/U prn as he was doing very well. Several days after that, I got an urgent phone call saying that he needed to be seen right away because his knee had popped and swollen up. We made an appointment which he canceled and said that his knee was doing better. He evidently went out to try to go to work again and while he was getting ready at home, he said his knee popped and it swelled to a point where he can no longer walk on it. He called requesting copious amounts of pain medications and we basically denied this. He says at this point he is not taking anything. He also has not been back out on short runs.

PHYSICAL EXAM: I really see no evidence of an effusion. He does have significant pain with any light palpation over the medial aspect of his knee. Any specific motion that I make, he winces with pain. It is stable to Lachman's testing. It is stable to posterior drawer testing. It is stable to varus/valgus testing.

(Emphasis added.) Dr. Rudder further opined in a letter dated September 16, 2002:

On 8/22/02, I let [Darrell Caudle] go back to work and discharged him, and I felt that he had reached his maximum medical improvement. Prior to dictating his impairment rating, he states that he twisted his knee at home and had significant pain and tenderness. He came back to my office on 9/4/02 stating that he was not taking any medications, and that the knee was significantly painful.

My examination at that time showed significant pain with any palpation whatsoever. Given his history of a chondral defect seen on the arthroscopy, I felt like a cortisone injection may have helped. I gave him a cortisone injection, and he has since stated that he could no longer bear weight and is in significant pain. In fact, he is requesting more pain medications.

Darrell has sought care in multiple ERs initially, and he has sought, and evidently has been given pain medications by each of these physicians. He has called my office multiple times for pain medications.

At this point, I can find no medical evidence to support his ongoing pain. I cannot explain his continued symptomatology, given the minimal amount of chondromalacia that I saw on his knee. Furthermore, it is perplexing to me that he was in excellent condition on 8/22/02 without effusion, and was doing well. As my last examination and treatment, I feel that I have offered him everything that I have to offer, and at this point I recommend that he either be sent to another orthopaedic surgeon for a second opinion, or he go for pain management.

.... Range of motion of the knee is from 5 to 95 degrees, rated as 4% whole body impairment, thus giving him a whole person impairment of 13%.

Again, Darrell is free to seek a second opinion, or as directed by his company. It is unfortunate that I have been unable to render him pain-free. However, his pain medication intake from my office alone is above and beyond the normal amount required for this type of knee problem, and it is my understanding that he has had pain medication from multiple alternative sources.

(Emphasis added.)

Appellant was granted a change-of-physician order from the Commission, and he was subsequently seen by Dr. Mulhollan, who opined in a letter dated December 10, 2002:

This patient is very difficult to assess. He is obese at 240 lbs on a 5'8" frame. He uses a cane. He declines to lie down, so he could not have Merchant skyline x-rays. The only film study we could obtain was a standing AP. The film is normal besides osteopenia of the right patella, which confirms the fact that he is weaker than he should be. I think it also confirms the fact that his extremity was injured.

An MRI report and an operative report were included in the data I reviewed.

The patient has a strength deficit in his right lower extremity. He should make every effort to correct that. Theoretically, strength restoration will cause resolution of his pain. It is impossible to project any sort of timetable for that. We coached him in exercises and fitted him with an electrical stimulator. He seems to nicely understand how to work it. We want to see him again in about a month to find out if he is using the device properly. Some consideration should be given to buying this device because it will probably be necessary for quite an interval.

There is a letter from Dr. Rudder dated September 16. In it, the patient's physical impairment is estimated. I think the numericals are reasonable ballpark figures. I do not think his status will change in the immediate future.

I am very pessimistic about his being rehabilitated to work, although it is conceivable that he will gradually improve with additional time.

I do not think he needs additional orthopedic care. It will not hurt him to see a pain management physician. Indeed, that may be the only remedy for his back pain. I do not think his back problem is surgical.

There are multiple references in this patient's medical records regarding his affection for narcotic analgesics. Since his pain syndrome is chronic, I think that type of medication is contraindicated. He was not given prescriptions while in this office.

Despite the fact that Dr. Mulhollan did not provide appellant with additional narcotic pain medication, it is evident from his medical records that he continued to receive such medication from other medical providers. Moreover, in a March 20, 2003 letter, Dr. Mulhollan reported that there was "very definite improvement in the ossification, indicating improved strength since he was last x-rayed."

In short, the Commission's decision displays a substantial basis for the denial of additional temporary-total disability benefits, and its findings are supported by substantial evidence. We therefore affirm on this issue as well.

Affirmed.

Hart and Neal, JJ., agree.