Oliver Pettis v. Southeastern Erectors, May Construction Company, and Crockett Adjustment

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ca05-556

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION I

OLIVER PETTIS

APPELLANT

V.

SOUTHEASTERN ERECTORS, MAY CONSTRUCTION COMPANY, AND CROCKETT ADJUSTMENT

APPELLEES

CA05-556

DECEMBER 14, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

[NO. F303489]

AFFIRMED

Sam Bird, Judge

Oliver Pettis suffered a compensable workers' compensation injury on the morning of April 2, 2003, when he was hit in the head by a bar joist at a commercial construction site in Fort Smith. He appeals a February 14, 2005, decision of the Workers' Compensation Commission that he had failed to prove that additional medical treatment, cervical surgery, was reasonably necessary for his compensable injury. On appeal Pettis contends (1) that the Commission erred in determining that he failed to prove entitlement to additional medical treatment, and (2) that there is not substantial evidence to support the findings of the Commission. Appellee May Construction Company and its insurance carrier, appellee Crockett Adjustment Company, respond that the denial of this claim is supported bysubstantial evidence. For the reasons stated below, we affirm the decision of the Commission.

The employer shall promptly provide for an injured employee such medical services and medicine as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. ยง 11-9-508(a) (Supp. 2003). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary treatment is a question of fact for the Commission. Hamilton v. Gregory Trucking, ___ Ark. App. ___, ___ S.W.3d ___ (Mar. 16, 2005).

On November 4, 2004, a hearing was conducted before the administrative law judge to determine whether Pettis was entitled to workers' compensation coverage for cervical surgery that had been proposed by his authorized treating physician, Dr. Bernie McCaskill of Dallas, Texas. The evidence included medical records, Pettis's testimony, and the deposition testimony of his wife, Billie Butterworth, who was separated from him at the time of the hearing. The medical evidence presented differing views of three doctors as to whether surgery was needed in relation to the compensable injury, and much of Butterworth's deposition focused on Pettis's extensive physical activities before and after the injury.

Pettis testified that his primary occupation for twenty years had been iron worker and crane operator. He denied having neck pain or numbness in his right arm or hand before the compensable injury of April 2, 2003. He testified to the following events. When the bar joisthit him in the head and knocked him to the ground, it shot his hard hat some ten feet and "about" rendered him unconscious. He wobbled around, got up, hung iron for an hour and a half, but then lay down and felt his neck stiffen. By the time he arrived home in Rogers, he could not get out of his car. He tried to go to work the next day but could not "make it" and instead went to the emergency room at Sparks Regional Medical Center in Fort Smith. Afterwards he requested light duty work but returned home when he was told that none was available.

The medical records from Sparks show that Pettis was seen on April 3, 2003, for numbness in his fingers and increasing symptoms of soreness and stiffness in his neck. An x-ray performed there revealed degenerative disc disease at C5-6 and C6-7, and he was diagnosed with neck and back strain. He was given pain medications, was directed to return if needed, and was told that he needed an MRI of the cervical spine. On April 6, 2003, he was seen at the Northwest Medical Center in Springdale for complaints of right-sided neck pain shooting to his shoulder accompanied by intermittent elbow pain and tingling fingers. He was given medication, was taken off work for three days, was put on lifting restrictions, and was referred to Dr. Cyril Raben. Pettis returned to the emergency room in Rogers before getting in to see Dr. Raben.

On April 14, 2003, an MRI of Pettis's cervical spine was performed at St. Mary's Hospital. The MRI report relates the following impression:

Findings of degenerative disc disease at C4 through C7 in which the findings are most prominent at C4-C5. At C4-C5, there is a right paracentral disc protrusion (herniated nucleus pulposis) which indents the right aspect of the cervical cord at that level.

In a clinic visit of April 21, 2003, Dr. Raben examined Pettis, took his history, and reviewed the x-rays and MRI performed earlier in the month. Dr. Raben wrote:

I think that he will require surgical intervention for this because of the large size of the disc herniation. We will give him an injection of corticosteroid today and a two-day oral corticosteroid dosage. ... If he is making little or no progress with this therapy and other modalities, I think that we will need to go ahead and get him on the schedule for an anterior cervical discectomy and fusion at at least C4/5. because of the degenerative and because of the osteophytosis and the bony changes around C5/6 and C6/7 and because we are expecting and anticipating heavy loading secondary to his occupation, I would recommend that we do these levels, as well.

In notes of April 21 and May 1, 2003, Dr. Raben took Pettis off work until May 29, 2003.

Pettis testified that he lost his apartment and moved back to Texas because paychecks he received after his injury "bounced for two weeks" and he had no workers' compensation coming in. At the request of Crockett Adjustment, he was sent to Little Rock for an independent medical evaluation by Dr. John Wilson on June 2, 2003. Dr. Wilson wrote:

Mr. Pettis has evidence of C6-7 radiculopathy and also has some triceps decrease on the right. I have suggested that he have a selective nerve block, which will give an idea as to the percentage of his problem that arises from C6-7, which, quite frankly, I anticipate being a large percentage. I would be extremely hesitant to recommend a three level anterior cervical fusion on this gentleman.

Dr. Wilson stated that Pettis could not presently work. On the same date Dr. William Deaton administered a right C6-7 transforaminal nerve block and steroid injection, noting in his report that the injection "did seem to improve patient's usual symptoms."

Pettis returned to Texas and was sent by Crockett Adjustment to Dr. Bernie McCaskill, who in turn referred him to Dr. Samuel Bierner for a nerve conduction study. In the office note of a return visit on August 12, 2003, Dr. McCaskill wrote:

[T]he patient has undergone a right upper extremity electrodiagnostic study said to be consistent with cervical radiculopathy and not showing any evidence of ulnar nerve entrapment in that extremity.

I have discussed the results of this study with the patient. I have told the patient that I believe that his symptoms are of cervical radicular origin. Because of this and the patient's persistent symptoms, I have discussed with him the option of anterior cervical compression and fusion. ... The alternative of continued non-surgical treatment is discussed and offered. I have told the patient that because his symptoms do not radiate in a C7 dermatome, that his prognosis for pain relief is slightly less an option. As a result of this discussion, the patient desires to proceed with surgical treatment.

Decisions Below

The administrative law judge, finding that Pettis had proven entitlement to the surgery recommended by Dr. McCaskill, set forth the following rationale in her opinion:

The claimant's MRI made on April 14, 2003, sets forth that he does have degenerative disc disease throughout his cervical spine but it is also noted that at the C4-C5 level there is a right para central disc protrusion which indents the right aspect of the cervical cord. Dr. Cyril Raben, the treating physician at the time, recommended surgery for the claimant's cervical area. Dr. McCaskill, the claimant's treating physician in Texas, has also recommended surgery for the claimant's compensable cervical spine injury. It is noted that Dr. Wilson disagrees with the suggested surgery but he does agree that the claimant does have a herniated disc at the C5 level and that, in his opinion, the claimant's symptoms are more related to his C7 level problems. It is not unnoticed that this claimant leads a very active and very physical life even though he has sustained a cervical spine injury. Just because a person acts foolishly and does not exercise good judgment does not eliminate them from the need for medical treatment for a compensable injury.

The Commission reversed the law judge's finding that Pettis was entitled to workers' compensation coverage for additional benefits regarding cervical spine surgery. The Commission evaluated the medical evidence as follows:

[I]n analyzing the proposed procedure, specifically the anterior cervical discectomy and fusion, and the condition it is sought to remedy, namely degenerative disc disease at levels C4-7, the claimant has failed in this claim to prove by a preponderance of the evidence that the proposed surgery is either reasonably necessary or causally related to his compensable injury for the following reasons:

First, Dr. Raben initially recommended surgical intervention in order to alleviate the claimant's condition approximately three weeks post-injury. Dr. Wilson, on the other hand, first examined the claimant some ten weeks subsequent to his compensable injury. At this juncture, Dr. Wilson was able to base his recommendation for a conservative treatment plan on more cumulative objective medical evidence than that available to Dr. Raben. By the time of his second examination of the claimant on August 28, 2003, Dr. Wilson determined the success of nerve block therapy and analyzed the results of further medical testing as compared to those initially performed, i.e., cervical myelogram and post myelogram CT performed on July 21, 2003. Based on objective medical findings, at no time has Dr. Wilson agreed that surgery is an appropriate treatment option for the claimant. In fact, as of his August 28th examination of the claimant, Dr. Wilson was strictly opposed to surgery, stating, "I could not recommend surgery on this gentleman." As detailed above, Dr. Wilson based his opinion on several objective findings, including a failure to find a neurological deficit. Moreover, Dr. Wilson pointed out that the claimant's symptoms relate to C7, and not C5, as originally thought by Dr. McCaskill. Furthermore, Dr. McCaskill discussed the claimant's treatment options with him, which included surgery. Doctor McCaskill did not, however, state definitively that surgery was the claimant's only, or even his best treatment option. Instead, Dr. McCaskill presented the claimant with his options and left the decision to the claimant.

Although finding that all of the treating physicians appeared to be credible, the Commission assigned Dr. Wilson's opinion greater weight "based upon the totality of the credible objective medical evidence."

The Commission also examined the non-medical evidence in this case, setting forth the following analysis:

The record reveals that the claimant has availed himself to several inherently dangerous activities, both before and after his compensable injury of April 2, 2003, any of which could have easily resulted in the type back condition from which the claimant now suffers. Moreover, and more importantly, the activities in which the claimant has participated are inconsistent with those typically engaged in by someone in need of cervical fusion surgery. For example, the claimant's girlfriend, Ms. Billie Butterworth, testified by deposition that subsequent to April 2, 2003, she either witnessed or the claimant told her of his involvement in the following activities; (1) bull riding at a rodeo on August 21, 2003; (2) painting the exterior of Ms. Butterworth's home during the summer of 2003; (3) assisting one of Ms. Butterworth's relatives put a drive-shaft and transfer case in a pick-up truck on the 4th of July weekend, 2003; (4) helping construct a building for pay in September of 2003; (5) camping, boating, swimming, and fishing for one week beginning on the 4th of July weekend, 2003; and, (6), helping his mother move from her large home at the end of August 2003.

Additionally, the Commission noted testimony by Pettis and his wife that he belonged to the Professional Bull Riders Association and was a long-time active participant in rodeo activities; photographs, his wife's testimony, and other evidence of various physical activities he had engaged in; his wife's statement that he never denied being physically able to engage in activities because of physical problems or limitations caused by his work-related injury; and Pettis's testimony that he did not inform Drs. Wilson or McCaskill of his recreational and non-work-related activities.

The Commission stated that the extrinsic non-medical evidence supported its finding that Pettis failed to prove that a cervical fusion was reasonable and necessary for the treatment of his compensable injury. Further, the Commission concluded, "The extrinsic non-medical evidence supports Dr. Wilson's objective medical opinion that the claimant is not in need of a cervical fusion, particularly at level C5."

Points on Appeal

Pettis contends (1) that the Commission erred in determining that he failed to prove entitlement to additional medical treatment, and (2) that there is not substantial evidence to support the findings of the Commission. Appellees combine these points into one in their response, contending that the Commission's finding was correct and is supported by substantial evidence. We also treat these two points as one.

Pettis argues that the Commission incorrectly assigned more weight to Dr. Wilson's opinion, "based on objective medical findings," that surgery was not an appropriate treatment. Pettis argues that the weight of the medical evidence should lie instead with Dr. McCaskill, who suggested surgery just after an electrodiagnostic study had been performed, and with Dr. Raben, who based his recommendation for surgery on an MRI and x-rays that had just been performed. Pettis asserts that Dr. Wilson conducted only a simple physical examination before rendering his opinion, that his opinion was based on inaccurate information, that his August opinion was written months after he saw Pettis and after misinterpreting the nerve-block procedure that Dr. Wilson himself had ordered, and that Dr. Wilson was not sure that the healing period had ended because he had not been following Pettis. Pettis asserts that the only dispute regards the extent to which surgery would be helpful.

Pettis contends that the following errors appear in the Commission's opinion. First, the Commission based its opinion on the findings of Dr. Wilson, which erroneously were based "on the fact" that Pettis did not respond to the block. Second, the Commission's determination was based on the erroneous contention that Dr. Wilson conducted an examination on the date that he wrote his opinion of August 28, 2003. Third, the Commission stated that Dr. McCaskill did not state definitively that surgery was the only or best option. Fourth, the Commission felt that Dr. Wilson's opinion should be given more weight than the opinions of Drs. McCaskill and Raben.

Appellees respond that the medical and non-medical evidence constitute substantial evidence supporting the Commission's finding that cervical-fusion surgery was not reasonable, necessary, or causally related to Pettis's compensable injury. They point to radiographic findings of degenerative changes that would have existed long before the work-related accident. They point to medical evidence in support of Dr. Wilson's opinion and the Commission's conclusion, and they note non-medical evidence "that Pettis has engaged in an active, physical, and demanding lifestyle totally inconsistent with a person in need of an anterior cervical decompression and fusion."

Where the Commission denies benefits, the substantial evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001). A substantial basis for denying relief exists if fair-minded persons could reach the same conclusion whenconsidering the same facts. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, then we must affirm. Hill v. Baptist Med. Ctr., supra.

What constitutes reasonably necessary treatment is a question of fact for the Commission. Hamilton v. Gregory Trucking, ___ Ark. App.___, ___S.W.3d___ (Mar. 16, 2005). The weight to be assigned evidence, including medical evidence, is within the discretion of the Commission: in deciding the weight and credibility of the opinion and medical evidence, the Commission is entitled to review the basis for a doctor's opinion. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).

The Commission, basing its decision on both medical and non-medical evidence presented in this case, found that Pettis failed to prove that a cervical fusion was reasonable and necessary for the treatment of his compensable injury. The Commission noted that Dr. Wilson had never recommended surgery; that his recommendation referred to medical testing that had not been available to Dr. Raben; and that Dr. Wilson opined that the symptoms were related to C-7 rather than C-5, as originally thought by Dr. McCaskill. The Commission also found that the activities in which Pettis participated were inconsistent with those typically engaged in by someone in need of cervical fusion surgery. Further, the Commission considered the evidence of Pettis's engagement in physical activities from July through September 2003 such as bull riding, camping, boating, swimming, and fishing.

We hold that there was substantial non-medical evidence before the Commission to support its finding that Pettis was not in need of a cervical fusion, which in turn supported medical evidence in the form of Dr. Wilson's opinion that the surgery was not needed in relation to the compensable injury. Therefore, we hold that the Commission's opinion displays a substantial basis for the denial of the claim for additional medical treatment.

Affirmed.

Robbins and Griffen, JJ., agree.