Bobby Stewart v. Arkansas Glass Container; Risk Management Resources

Annotate this Case

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-363

DIVISION IV

BOBBY STEWART

APPELLANT

V.

ARKANSAS GLASS CONTAINER; Risk Management Resources

APPELLEES

CA05-363

November 16, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F109543]

AFFIRMED

Josephine Linker Hart, Judge

Appellant, Bobby Stewart, argues that substantial evidence does not support the Arkansas Workers' Compensation Commission's decision to deny him additional medical treatment. Specifically, he contends that the Commission arbitrarily disregarded evidence showing his need for additional medical treatment. We affirm the Commission.

In considering this issue, we note that an employer must promptly provide an injured employee such medical services as may be reasonably necessary in connection with the employee's injury. Ark. Code Ann. ยง 11-9-508(a) (Supp. 2005). The employee, however, has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary, and what constitutes reasonably necessary treatment under the statute is a question of fact for the Commission. Hamilton v. Gregory Trucking, ___ Ark. App. ___, ___ S.W.3d ___ (March 16, 2005). On appeal from a denial of benefits, after viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, we determine whether there was a substantial basis

for the denial. Patchell v. Wal-Mart Stores, ___ Ark. App. ___, ___ S.W.3d ___ (May 19, 2004). The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Stone v. Dollar Gen. Stores, ___ Ark. App. ___, ___ S.W.3d ___ (June 8, 2005). Moreover, the Commission can reject or accept medical evidence and determine the probative value to assign to medical testimony. Hamilton, supra. The Commission, however, may not arbitrarily disregard medical evidence or the testimony of any witness. Patchell, supra.

In denying additional medical treatment, the Commission reviewed the following facts in its opinion. On August 8, 2001, in his employment with appellee Arkansas Glass Container, appellant "felt something pull" in his back. Appellees provided medical treatment and temporary total disability compensation. On August 17, 2001, a CT of appellant's lumbar spine showed a "[b]road based HNP at L5-S1 with compression of both S1 nerve roots," along with a "[d]isc bulge at the other levels with slightly small canals but not the same degree of nerve compression as at L5-S1." On April 12, 2002, a CT of appellant's lumbar spine showed "[m]ild degenerative circumferential disc bulging, L2 through S1, without significant spinal canal or neuroforaminal stenosis."

On April 25, 2002, Dr. Edward Cooper, Jr., an orthopedic surgeon, opined that appellant had "[d]isc bulging L5-S1 with some lateral recess stenosis worse on the left than on the right which appears to be mild enough that he should be able to get over this without surgery." On June 27, 2002, Dr. Earl Peeples, an orthopedist, concluded that appellant was not a surgical candidate, that appellant's L5-S1 level "is near normal," that appellant's tests of April 12, 2002, did not indicate major compression of the exiting nerve roots at L5-S1, that appellant had "an unusual affect," and that appellant should undergo psychological testing. On July 28, 2002, appellant was seen by a psychologist, Dr. Winston Wilson, whodiagnosed hypochondriasis. On November 12, 2002, Dr. Moacir Schnapp, a pain clinician, opined that appellant had reached maximum medical improvement and had no objective permanent physical impairment. Dr. Cooper concluded on December 12, 2002, that appellant was not a surgical candidate. He further noted that appellant had "no significant objective findings" and that his "impairment rating is 0." He stated that appellant's "options have played out" and recommended treatment with a psychiatrist. His impression was "[l]ow back pain with hypochondriasis."

A February 17, 2003, report from Dr. Gregory Ricca, a neurosurgeon, concluded that appellant had "[d]egenerative disc disease with a central HNP at L5-S1 eccentric to the left." Upon reviewing the results of appellant's lumbar discography, Dr. Ricca concluded on July 1, 2003, that appellant had "severe degenerative disc at L5-S1" along with compression of the left S1 root. Dr. Ricca explained that surgery at L5-S1 would improve his pain from thirty to seventy percent but might also "do him no good at all."

On March 9, 2004, Dr. Jim Moore opined that appellant had degenerative disc disease but was neurologically intact. He also noted that appellant had an "intensely exquisite trigger in the right sacroiliac and quadratus lumborum insertion as well as at the iliolumbar angle." He also recognized the "possibility of false nerve pain," noted that he did not believe that there had been any direct investigation of appellant's trigger, stated his lack of certainty that surgery would help, and recommended EMG and NCV studies because "[i]t may give some direction." He concluded that "a great deal of this patient's pain is pseudoneurologic, pseudoradicular based upon my findings on examination today." He noted that there was "absolutely no abnormality neurologically nor is there any particular range of motion restriction that would suggest primary spinal axis disease." He further stated that "the majority of the patient's findings of degenerative disk disease likely precededthe episode in 2001."

Appellant sought and obtained an award of additional medical treatment from the administrative law judge, and on review of the award, the Commission reversed. On appeal to this court, appellant argues that the Commission's decision was not supported by substantial evidence, and he urges that the Commission arbitrarily disregarded not only Dr. Moore's recommendation that appellant have EMG and NCV studies, but also the results of a discography that formed the basis of Dr. Ricca's conclusions.

Contrary to appellant's position on appeal, there is no indication that the Commission arbitrarily disregarded Dr. Moore's recommendation of EMG and NCV studies or the discography relied upon by Dr. Ricca. Rather, as is apparent from the facts set out in the Commission's opinion and which we recite above, the Commission denied additional medical treatment because it gave greater weight to medical evidence establishing that appellant, as indicated by Dr. Cooper, had no significant objective findings and that his impairment rating was 0; that appellant, as indicated by Dr. Schnapp, had reached maximum medical improvement and had no objective permanent physical impairment; that appellant, as indicated by Dr. Moore, had "absolutely no abnormality neurologically"; and that appellant, as found by Dr. Wilson, suffered from hypochondriasis. We affirm the Commission.

Affirmed.

Pittman, C.J., and Gladwin, J., agree.