Arvest Bank Group, Inc. and Clarendon National Insurance Company v. Karen Ashcraft

ca04-971

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

ARVEST BANK GROUP, INC. and

CLARENDON NATIONAL INSURANCE. CO.

APPELLANTS

V.

KAREN ASHCRAFT

APPELLEE

CA04-971

May 11, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F106463]

AFFIRMED ON DIRECT APPEAL AND ON CROSS APPEAL

Larry D. Vaught, Judge

In January of 2001 Karen Ashcraft sustained a back injury lifting boxes in the course of her employment with Arvest Bank Group, Inc ("Arvest"). Arvest accepted Ashcraft's injury as compensable but disputed the reasonableness and necessity of certain continuing medical treatments administered to Ashcraft. The Arkansas Workers' Compensation Commission-affirming the decision of the Administrative Law Judge (ALJ)-concluded that Ashcraft was entitled to continuing medical treatment and to temporary total disability benefits from the date such benefits ceased to a date that is yet to be determined. On appeal Arvest contends that the Commission's decision is not supported by substantial evidence and should be reversed. On cross appeal Ashcraft argues that the Commission erred in its determination that she abandoned her claim of error relating to the ALJ's determination that Arvest was not responsible for any benefits received by Ashcraft from November 26, 2002,until December 5, 2002, because the treatments were not authorized by the ALJ. We affirm on direct appeal and do not reach the merits of Ashcraft's cross appeal because the record presented by Ashcraft is insufficient to demonstrate error.

As to Arvest's claim of error, it is well-settled law that an employer must promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 857 (1987). The Commission has the duty of weighing medical evidence, and, if the evidence is in conflict, determining its resolution is a question of fact for the Commission. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995). Additionally, the determination of the credibility and weight to be given a witness's testimony is solely within the province of the Commission. Am. Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). If reasonable minds could reach the conclusion of the Commission then substantial evidence exists and the Commission's decision must be affirmed. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). We cannot undertake a de novo review of the evidence and are limited by the standard of review in these cases. Id. at 225, 79 S.W.3d at 416.

There is no dispute that Ashcraft received a compensable injury in January of 2001. After the injury, Ashcraft initially believed she had merely pulled a muscle and continued to work at the bank until May of 2001. She first sought medical treatment on February 18, 2001, when she presented to the emergency room complaining of low-back pain and abdominal pain. She underwent an MRI study that showed a herniated pulposus at L4-L5 and L5-S1. On or about May 17, 2001, she underwent a bilateral diskectomy performed by Dr. Richard Peek. On July 17, 2001, Ashcraft complained to Dr. Peek that she was having "increased pain in her back and down her leg as she did prior to surgery." The complaint prompted Dr. Peek to order a lumbar MRI. This second MRI, performed on July 18, 2001, revealed evidence of epidural scar or granulation tissue at L4-L5 and a persistent diffuse bulge of the disc material at the same level. A mild diffuse bulge was also observed at the L5-S1 level. Dr. Peek described these MRI findings as evidence of degenerative disc disease. Dr. Peek ordered additional physical therapy and a caudal lumbar epidural injection on July 19, 2001. After appellee was advised of the risks associated with this procedure, Dr. Randall Middaugh administered a lumbar epidural injection on July 26, 2001. The third in the series of three such injections was performed on August 2, 2001. In his August 31, 2001, office report, Dr. Peek noted that Ashcraft was making progress but that she still had some symptoms in her legs. Dr. Peek ordered more physical therapy and prescribed Neurontin.

On October 1, 2001, Ashcraft had a Nerve Conduction Study/EMG. These diagnosticstudies revealed an abnormal EMG in both lower extremities. In his office report dated October 12, 2001, Dr. Peek noted that Ashcraft's symptoms correlated with these findings. Dr. Peek further noted that "The patient is going to have a prolonged rehabilitation, so we got our rehab doctor, Dr. Reddy, involved with her to do a follow-up epidural and get her in some type of treatment for post laminectomy syndrome." Pursuant to Dr. Peek's recommendation, Ashcraft was seen by Dr. Yeshwant Reddy on October 25, 2001, for a left L4-L5 transforaminal epidural steroid injection and an L5-S1 lumbar epidural steroid injection. She returned to Dr. Reddy for repeat injections on November 7, 2001. Dr. Peek ordered additional MRI studies of Ashcraft's lumbar spine, which were performed on November 7, 2001. In his report dated November 30, 2001, Dr. Peek stated that the MRI scan did not show a recurrence, therefore, Ashcraft was not a candidate for additional surgery despite her continued complaints of bilateral leg pain. Dr. Peek removed Ashcraft from work and referred her to Dr. Reddy for the treatment of her pain.

Following his examination of Ashcraft on December 20, 2001, Dr. Reddy described her as being in a pain cycle. Dr. Reddy outlined a course of treatment that included body mechanics, as well as low-level lumbar stabilization program, and pain medications. Dr. Reddy instructed Ashcraft to remain off work until "she has completely rehabilitated her back at least for four weeks." Dr. Reddy further noted that a discography would be helpful to identify Ashcraft's pain generator. On January 24, 2002, she returned to Dr. Reddy, and he noted that her condition had not improved. Dr. Reddy specifically stated in his report:

This is a very difficult situation. Mrs. Ashcraft does have a very difficult lumbar spine problem. She is seven months following discectomy at L4-5 and L5-S1. She continues to experience back and variable bilateral leg symptoms, including numbness. Her back pain may be discogenic, and leg symptoms may be secondary to epidural scarring. Her situation is further complicated by the poor coping skills she has shown thus far and her minimal tolerance to pain. In addition, she has an attitude for getting fixed and being pain free. Today, I have taken an extended period of time in explaining to her that the causes of her back and bilateral leg symptoms are not entirely clear. Today, I have tried to answer all the questions Mr. & Mrs. Ashcraft had to the best of my medical knowledge.

Ashcraft was also examined by Dr. Reginald Rutherford, a neurologist, on January 15, 2002. After conducting a physical exam and reviewing her medical records, Dr. Rutherford stated:

Ms. Ashcraft's history and medical documentation are indicative of a large disc herniation at the L4/5 level with attendant bilateral lumbar nerve root as defined by her persisting symptom complex and electromyography study from early October, 2001. Follow up postoperative imaging is negative for evidence of recurrent disk herniation or other structural abnormality which would clearly lend itself to further surgery. Follow up EMG/Nerve Conduction Study is recommended to ascertain whether or not any healing has transpired from the prior study. Anticipated further treatment in Ms. Ashcraft's case comprises use of medication for neuropathy and nociceptive pain and a TENS which to date has not been used in her case. This will be addressed pending completion of the electrodiagnostic study and clinical follow up.

The record does not indicate that Ashcraft returned to Dr. Rutherford for a clinical follow up. However, she did undergo a limited EMG study on January 22, 2002, which revealed mild active denervation from the S1 supplied myotomes bilaterally. She returned to Dr. Reddy on January 24, 2002, at which time he adjusted her pain medication and instituted a TENS unit as advised by Dr. Rutherford. In his report, Dr. Reddy stated:

Further anticipated treatments may include working her up for discogenic pain. Thismay involve discography. I am reluctant to proceed with this test at the present time. Discography will evaluate back pain but will not give her any clue about her bilateral lower extremity symptomatology. Once we subject her to discography, we do have to act upon the results. In postsurgical situations minimally invasive surgery will not be effective. The only alternative would be surgery, and that would be fusion. If discography is positive. At this time, I do not think Mrs. Ashcraft is in a situation to cope with another extensive surgery and come out as a winner. As regards to her bilateral lower extremity symptoms, it could be because of epidural scarring and fibrosis. It is only 7 months following surgery. It may be worthwhile at some point to consider epidural lysis using Racz method. I also think that prior to subjecting her to further investigations and treatment we need to have a psychological evaluation so that her coping skills could be improved....

Dr. Reddy also requested a neurosurgical consultation to determine if there was a need for discography, epidural lysis, and possible further surgery.

Ashcraft returned to Dr. Peek on January 31, 2002. In his notes, Dr. Peek stated: "She asked about further surgery, including fusion, and I did discuss surgery is of benefit if there is nerve root impingement, which MRI did not show. Will get a myelogram and maybe it will show on this." Dr. Peek further noted that Ashcraft's healing period and date of maximum medical improvement would be deferred for a few more months while she continued under Dr. Reddy's treatment.

Ashcraft's lumbar myelogram was performed on February 11, 2002. This test revealed findings of a ventral defect at the L4-L5 level consistent with findings of a posterior disc bulges at L4-L5 and L5-S1. The test also revealed a vacuum disc at L5-S1. Following her examinations by Dr. Reddy on February 28, 2002, and March 21, 2002, Dr. Reddy noted that Ashcraft was making some progress. Dr. Reddy further noted that the TENS unit provided her with extended periods of pain relief that caused him to consider whether she might be a candidate for a spinal cord stimulator. On her April 4, 2002, return visit, Dr. Reddy stated that he wanted to increase Ashcraft's therapy to three times a week, and he ordered a Functional Capacity Evaluation, which was performed on May 7, 2002. The Functional Capacity evaluator concluded that Ashcraft was physically capable of performing work in the sedentary category as defined by the United States Department of Labor for eight hours per day.

She returned to Dr. Reddy on May 9, 2002, at which time he stated that her clinical situation had not changed and that he had nothing further to offer Ashcraft to improve her condition. Dr. Reddy further stated, "She is at MMI pending another neurosurgical opinion if she needs to...." Dr. Reddy assigned Ashcraft a thirteen-percent physical anatomical impairment to the body as whole pursuant to the DRE Category III of the AMA Guides to the Evaluation of Permanent Impairment. In addition, Dr. Reddy stated:

She does require future treatments. This will include chronic pain management, intermittent spinal injections, physical therapy, possibly psychotherapy, and I cannot rule out future surgery. I will be able to see her, as she has a lot of confidence in me, once she has her neurosurgical consultation. At that point we will find a physician who will be able to care for her long term. Duragesic 25 mcg is not helping her. We will try increasing it to 50 mcg and see how she does. As regards to depression, I would like for her to see a psychiatrist.

In his June 11, 2002, report, Dr. Reddy stated that Ashcraft had been unsuccessful in getting into a neurosurgical clinic due to her previous lumbar surgery, and he was placing Ashcraft at maximum medical improvement.

On July 30, 2002, Ashcraft was evaluated by Dr. Jim J. Moore, a neurosurgeon. Dr. Moore reviewed her medical records and confirmed the thirteen-percent impairment ratingassigned by Dr. Reddy. Like Dr. Reddy, he concluded that she required ongoing support, but he did not find her to be a surgical candidate. She returned to Dr. Peek on September 16, 2002, after Dr. Reddy advised her that he was moving out of state. Dr. Peek noted that she had not improved-at all-since his last examination. Moreover, Dr. Peek stated:

She asked me some questions about the long-term use of Duragesic patches. Since this is not a part of my practice, we will need pain management experts to help in managing this. Since the Celebrex is not helping, I will increase this to b.i.d. dosage. The question is how to treat this. The treatment options for failed back syndrome are a lumbar fusion and chronic pain medication, which she is currently on. We will need someone who specializes in chronic pain management or a medical provider to help with this, including a pain pump or spinal cord stimulator. I would also recommend massage and therapy exercises to manage her condition. We will have to see about who we are going to get her in with to do the discogram and further pain management evaluation. We will see if Dr. Hart or one of the other doctors can start working with her. Tentatively, I did ask, when I found out that Dr. Reddy was leaving the state, a consult for another pain management doctor, and this was initially denied, but hopefully we will be able to find somebody else to help, since there are still a number still present in the state in Little Rock and North Little Rock in her locale, as long as we can get approval from workers' comp to allow us proper treatment. Discography will be necessary to determine whether fusion is an option.

Dr. Peek authored a letter dated September 16, 2002, stating that Ashcraft was unable to return to work due to her condition of failed back syndrome and severe degeneration. On September 19, 2002, Dr. Peek wrote Ashcraft a letter stating that the workers' compensation carrier had refused any further treatment from his office and that she needed to contact the carrier and seek a referral for a new doctor.

On November 11, 2002, claimant was examined by Dr. Thomas Hart, a pain management specialist, upon referral from Dr. Peek. After conducting his examination, Dr. Hart noted:

I do agree with Dr. Peek. I think that the gold standard once and for all to determine does she or does she not have continued discogenic pain is discography, not an MRI and not a CT myelogram. According to the North American Spine Society's Protocol/Commission, as well as International Spinal Injection Society's Protocol discography would be the gold standard. This will help to subjectively and objectively delineate does she have continuing discogenic pain. If so, she may be an appropriate candidate at this time for decompression and infusion [sic] of these levels to have a significant relief in her back pain complaints. As to the arachnoiditis, whether or not this will be benefitted? That may be an issue if it continues to cause pain for other modalities including possible spinal cord stimulation. To say that she has reached MMI, I do not agree with and she did not have the appropriate studies performed. The arachnoiditis has not been addressed. So to simply tell Ms. Ashcraft to get up and go back to work without these issues being resolved was not medically appropriate...

Dr. Hart performed the discogram on November 13, 2002, and followed up with Dr. Peek on November 18, 2002. Dr. Peek discussed a spinal cord stimulator and a morphine pump with Ashcraft. He also discussed the pros and cons of a spinal fusion. Ashcraft agreed to proceed with a fusion, and arrangements were made to schedule the surgical procedure.

On November 19, 2002, counsel for Arvest wrote to Ashcraft's counsel advising that a psychological evaluation, to be conducted by Dr. Winston Wilson, was scheduled for Ashcraft. The evaluation was set to take place on Wednesday, December 5, 2002. Ashcraft testified that when she learned of this appointment, she contacted her attorney's office and advised that she had surgery scheduled for December 3, 2002. The attorney for Arvest responded by letter that was faxed on November 26, 2002:

It is [Arvest's] position that, before any spinal cord stimulator could be authorized, [Ashcraft] must undergo a psychological evaluation. In fact, Dr. Moore recommended an evaluation in his report.

On November 26th, when the initial attempts to conference had failed, the ALJ issued an order stating that "no further medical procedures shall be considered `authorized' untilsuch time as" Ashcraft submits to a psychological examination. However, despite the order, Ashcraft underwent a spinal fusion on Tuesday, December 3, 2002. Dr. Wilson attempted to evaluate her on December 5, 2002. However, because her energy level and stamina were low due to her recent surgery, Dr. Wilson conducted only an abbreviated evaluation. Dr. Wilson was "reluctant to conclude any definite impressions" at that time and stated in his report that he was hopeful that the evaluation could be "conducted in its entirety on January 16, 2003."

The post-operative notes in Dr. Peek's medical record dated January 27, 2003, indicate that Ashcraft's overall health had improved with the fusion surgery. Both Ashcraft and her husband confirmed this opinion.

At the benefits hearing, the parties deposed Dr. Peek and Dr. Moore regarding the necessity of the fusion surgery. Dr. Peek outlined the course of treatment that he administered to Ashcraft following her initial injury and stated that a year and a half of pain management coupled with Ashcraft's reliance on a strong, schedule-two narcotics for pain relief produced few options for recovery-continuing chronic narcotic medications for the rest of her life, a spinal cord stimulator, a morphine pump, or a spinal fusion. After the discogram revealed discogenic problems at the L4-L5, and L5-S1 level, Ashcraft opted to have a fusion. In this regard, Dr. Peek testified, "So, that's how we ended up with the fusion because she had a failed back syndrome which was caused by severe degeneration and discogenic pain."

When asked if Ashcraft's compensable injury and initial surgery were related to her segmental collapse and discogenic pain, Dr. Peek unequivocally replied, "Yes." Dr. Peek stated that Ashcraft was still in her healing period from the fusion as it takes approximately one year for a fusion to fully heal.

On appeal, Arvest contends that Ashcraft's lengthy course of treatment should have ended on May 9, 2002, when Dr. Reddy found that she had reached maximum medical improvement and released her to return to work with a thirteen-percent impairment rating. Arvest maintains that any treatment after May 9th was neither necessary nor reasonable. However, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). The Commission properly reviewed the record and testimony of Ashcraft's various physicians and came to a conclusion that her continuing medical treatment and fusion surgery were medically necessary. Because this conclusion is supported by substantial evidence, as outlined above, the award of continuing medical benefits is affirmed.

Arvest also disputes the period of temporary total disability that the Commission assigned to Ashcraft. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Supp. 2003). The healing period continues until the employee is as restored as the permanent character of her injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Id. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Id. Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Id.

Here, Ashcraft returned to work following her first surgery for a short period of time. In November of 2001, Dr. Peek removed Ashcraft from work. Likewise, Dr. Reddy noted in his December 20, 2001, report that Ashcraft should remain off work until "she has completely rehabilitated her back[.]" Temporary total disability benefits resumed until Dr. Reddy declared that Ashcraft had reached maximum medical improvement and assigned her a thirteen-percent impairment rating. However, the Commission concluded that Dr. Reddy's placement of Ashcraft at maximum medical improvement in June 2002 was premature. It noted that Dr. Reddy had previously ordered a Functional Capacity Evaluation that determined that Ashcraft was capable of working eight hours per day in a sedentary position. Dr. Reddy noted this finding but never stated in his medical reports that he found Ashcraft capable of returning to gainful employment. He also failed to release Ashcraft from his care to return to work. The Commission concluded that-despite the Functional Capacity Evaluation-Ashcraft was not capable of earning wages during this period of time due to the extensive doses of narcotic medication she took to help control her pain. Further, the Commission noted that in his May 9, 2002, report Dr. Reddy specifically outlined additional medical treatment, including a possible surgery. In his report dated November 11, 2002, Dr. Hart specifically stated that he disagreed with Dr. Reddy's assessment of maximum medical improvement. Dr. Hart also noted that Ashcraft's arachnoiditis had not been addressed, and additional appropriate studies were necessary. Dr. Hart criticized Dr. Reddy's conclusion by stating, "So to simply tell Ms. Ashcraft to get up and go back to work without these issues being resolved was not medically appropriate...." Finally, under the care of Dr. Peek, Ashcraft underwent additional diagnostic testing and a lumbar fusion.

Based on the testimony of medical experts, the Commission concluded that these additional medical treatments were reasonable and necessary and that Ashcraft was still within her healing period and totally incapacitated from earning wages. Therefore, the Commission concluded that Ashcraft was entitled to temporary total disability benefits from the date such benefits ceased until she reaches the end of her healing period, a date which is yet to be determined, including the period of time that she received the unauthorized medical treatment. There is more than substantial evidence to support this conclusion. Accordingly, the Commission's decision is affirmed.

Finally, we turn to Ashcraft's allegation of error on cross appeal. She presents an interesting question for our review involving the power of the ALJ to impose punitive measures against Ashcraft-in the form of a denial of otherwise compensable benefits-for failing to obey an order of the ALJ. The "order" in question was filed on November 26, 2002, and commanded Ashcraft to undergo an evaluation by Dr. Winston Wilson. This order further stated that "no further medical procedures shall be considered `authorized' until such time as the claimant presents for the examination as ordered herein." The ALJ construed this provision as a temporary restraining order on additional medical treatment until the parties had the benefit of a psychological evaluation. Ashcraft was examined by Dr. Wilson on December 5, 2002.

However, despite the order, Ashcraft continued with her scheduled surgery on December 3, 2002. In response, the ALJ deemed the treatment Ashcraft received between November 26, 2002, and December 5, 2002, as "not authorized." The ALJ determined that Arvest was not liable for any medical treatment Ashcraft received during this period, including her medically necessary fusion surgery. Although Ashcraft indicated that she was appealing the ALJ's contempt finding, the opinion filed by the Commission indicated that Ashcraft had abandoned the issue on appeal. As such, the Commission did not consider the merits of Ashcraft's claim of error. Now, Ashcraft attempts to raise the issue on cross appeal to our court. However, she failed to present our court with a record sufficient to support her allegation of error. At a minimum, we would need to examine the claim that she presented-or specifically abandoned-in her appeal to the Commission.

It is the appellant's burden to produce a record sufficient to demonstrate error. Johnson v. State, 342 Ark. 357, 361, 28 S.W.3d 286, 288 (2000). Here, Ashcraft has failed to present us with a record containing sufficient evidence to resolve the question of whether the Commission properly concluded that she abandoned the issue. Without such a record, it is impossible for us to reach the merits of the issue on appeal. Therefore, the decision of the Commission is affirmed in all respects.

Affirmed.

Glover and Baker, JJ., agree.