Brian Sabinske v. Morgan Buildings & Spas, Inc., and Liberty Mutual Insurance Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-695

DIVISION II

CA05-695

January 4, 2006

BRIAN SABINSKE AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [F305634]

V.

MORGAN BUILDINGS & SPAS, INC., and

LIBERTY MUTUAL INSURANCE CO.

APPELLEES AFFIRMED

Wendell L. Griffen, Judge

Brian Sabinske argues that the Workers' Compensation Commission erred in determining that the surgery he requested is not causally related to his compensable wrist injury and in denying his request for additional medical benefits. We affirm the Commission's order.

Sabinske fractured his right wrist approximately twenty years ago. If this fracture had healed properly, the bone would have fused against itself. Instead, the bone healed with a fibrous union that is referred to in his medical records as a "scaphoid nonunion." On April 17, 2003, Sabinske sustained an admittedly compensable injury to his right wrist while in the employ of appellee Morgan Buildings & Spas, Incorporated. He was injured when he tripped and fell while carrying a piece of metal and used his hands to break his fall. He experienced immediate pain and swelling and received medical treatment that same day; he was initially diagnosed with a right-wrist fracture.

The next day, Sabinske received treatment from Dr. Thomas Day, an orthopedic doctor. Dr. Day noted mild swelling and noted that x-rays of Sabinske's right wrist revealeda mid-pole scaphoid fracture that was displaced. He placed Sabinske in a splint and prescribed pain medication. Dr. Day thought that Sabinske's condition would require open reduction and internal fixation. Due to Dr. Day's lack of experience in performing this procedure, he referred the claimant to a hand specialist and kept him off work, pending the results of his examination by the specialist (Sabinske ultimately missed five days of work).

Sabinske next saw the orthopedic hand specialist, Dr. R. Jeffrey Cole, on April 22, 2003. Dr. Cole noted Sabinske's chief complaint as "right wrist injury with fracture." He further noted that x-rays revealed a scaphoid fracture. Dr. Cole assessed the claimant with scaphoid nonunion of the right wrist, "age indeterminate." He specifically found that the x-rays were "clearly indicative of a nonunion rather than an acute fracture." He thought it was possible that "a short course of casting would allow fibrous healing of his nonunion and return to his prefall status." Dr. Cole further opined that it was possible that Sabinske had developed post-traumatic arthritis in his wrist and that a "salvage procedure" in the form of scaphoid excision with a four-corner fusion might be recommended in the future. Dr. Cole concluded that Sabinske's "original scaphoid fracture would not be work related [sic] however his fall resulted in an exacerbation of a pre-existing problem." The doctor scheduled an MRI and placed Sabinske on restricted work duty. He did not view Sabinske as a surgical candidate at that time because he had suffered a recent heart attack.

The next day, Sabinske saw Dr. Thomas Joseph, another orthopedic doctor, for "further assessment." X-rays taken on that date confirmed the nonunion of the scaphoid fracture, which Dr. Joseph concluded was an "old fracture." Dr. Joseph informed Sabinske that his treatment options included bone grafting and screw fixation and if that failed, an excision and intercarpal fusion would be required.

An MRI taken on May 3, 2003, ordered by Dr. Cole, revealed an abnormal signal in the proximal and distal folds of the scaphoid. According to the report, the abnormality couldhave been caused by anemia, marrow edema (swelling), or healing. However, in his clinic notes dated May 13, 2003, Dr. Cole noted that the swelling had resolved. Dr. Cole further stated that Sabinske returned for "a follow-up of his scaphoid nonunion. He sustained a fall at work calling attention to his previous scaphoid union. This had potentially healed in a fibrous fashion ... swelling has resolved and he has slight residual tenderness. ..." In addition, Dr. Cole noted:

I have discussed treatment options with Mr. Sabinske recommending conversion to a removable thumb spica splint. This would be worn in a weaning fashion over the next three weeks. Based upon the MRI findings, I would not recommend efforts at repair of his longstanding scaphoid nonunion. Instead, if pain were persistent, excision of the scaphoid with a four-corner (partial wrist) arthrodesis would be recommended. This would likely not be covered under his work comp[.] plan. He also understands that this procedure can be delayed for several years, if not indefinitely. The indication would be pain which fails to respond to other conservative efforts. The patient will continue a light duty work status with a pushing, pulling and lifting limit of 5 lbs. on the right. He will then be released to full duty dated 6/2/03. Due to the fact that his scaphoid nonunion was preexisting, I do not feel that he sustained permanent or partial impairment associated with his fall. MMI will also be dated 6/2/03. Return to the office on a PRN basis.

While appellee admitted the compensability of Sabinske's right-wrist injury, it refused to provide the recommended surgery. A hearing was held on February 27, 2004, before an Administrative Law Judge (ALJ). Sabinske testified that he had been generally healthy and had not experienced pain or swelling in his right wrist after the swelling from his prior injury had healed. He further stated that he had not received any medical treatment for his right wrist since his prior injury had healed. He maintained that he had worn his wrist splint as recommended, but that he still experienced pain and swelling as of the day of the hearing.

The ALJ specifically found that Sabinske was highly motivated and credible. He noted that, while Sabinske experienced a prior injury to his right wrist, there was no evidence that he experienced any pain or swelling prior to the April 2003 injury. The ALJ found that Sabinske had sustained a compensable aggravation of a preexisting condition, and therefore, was entitled to receive additional medical treatment including, but not limited to, the surgicalrepair of his right wrist.

The Commission reversed, finding that Sabinske failed to prove the causal connection between his injury and the proposed treatment. First, the Commission noted that the medical records "did not specifically state the exact nature" of Sabinske's April 2003 wrist injury, although Dr. Cole described the injury as an exacerbation of a preexisting injury. The Commission also relied on the fact that Dr. Cole did not opine that the claimant suffered a new or acute fracture, but merely exacerbated the prior scaphoid nonunion. It assumed that Dr. Cole considered the exacerbation to be temporary because he determined that Sabinske would reach maximum medical improvement on June 2, 2003.

In addition, the Commission determined that Sabinske's April 2003 injury had "completely resolved" by June 2, 2003, and that he had suffered no permanent impairment from his fall. It also noted that Dr. Cole "stated unequivocally that the claimant's scaphoid nonunion is unrelated to his injury of 2003, and that the claimant's proposed wrist surgery would be a `salvage procedure' to repair that nonunion."

Based on the foregoing, the Commission found that the claimant failed to prove that the proposed surgery is causally related to his April 2003 injury. Instead, it found that the evidence preponderated in favor of a finding that the surgery was proposed to repair the old fracture that did not heal properly and which would "likely ... cause the claimant future problems in the form of arthritis if not corrected." The Commission noted that Sabinske's April 2003 injury caused temporary pain and swelling of his old injury but did not combine with the preexisting injury to produce a permanent disability that requires surgery because Sabinske has been restored to the condition that existed prior to his injury. Accordingly, it determined that Sabinske was not entitled to any additional medical treatment.

The sole issue on appeal is whether the Commission erred in denying Sabinske further benefits in the form of additional medical treatment. In reviewing decisions from theWorkers' 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. Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Id. The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission may accept or reject medical opinions and determine their medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

An employer shall provide medical services that are reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Supp. 2005). 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). Whether treatment is reasonable and necessary is a finding of fact for the Commission to decide and that issue naturally turns on the sufficiency of the evidence. Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996).

Sabinske argues that the Commission erred in finding that he failed to prove a causal connection between his April 2003 injury and his need for additional medical treatment, specifically, the scaphoid-excision surgery recommended by Dr. Cole. He maintains that the causal connection is proved by the fact that he had been asymptomatic in his right wrist for over twenty years; that his immediate swelling in his right wrist was confirmed by x-rays; andthat surgery was required because the pain and swelling had not subsided. Sabinske asserts that the Commission misinterpreted Dr. Cole's May 13 office notes in determining that he reached maximum medical improvement on June 2, 2003, and, that under the proper interpretation, Dr. Cole opined that he would reach maximum medical improvement on June 2, 2003, only if the conservative use of the splint was successful. He further asserts that it is "without argument" that the conservative treatment was not successful, as evidenced by his own testimony that his pain and swelling still persisted despite wearing the splint for several months.1 Therefore, Sabinske maintains that the Commission's finding that his aggravation was temporary and had resolved by June 2, 2003 is inexplicable and is not supported by any evidence.

Further, Sabinske argues that the medical evidence supports that the recommended surgery is reasonable and necessary. He notes that Dr. Day, who saw him the day after his injury, believed that surgery would be required and further, that two of Dr. Cole's original treatment options involved surgery, and that Dr. Cole has twice recommended the excision surgery. Sabinske also notes that Dr. Joseph opined that surgery was necessary in the form of a bone graft and reduction and a screw fixation and if that was not successful, in the form of an excision and intracarpal fusion.

We agree with the Commission's conclusion the Sabinske failed to prove that theproposed surgery is related to his compensable injury. First, the case upon which the claimant relies, Williams v. Ellen W. Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004), is inapposite. In that case, we reversed the denial of additional benefits in the form of a second knee-replacement surgery where it was clear that the doctors believed that it was necessary that the knee injury be considered the "major cause" of that claimant's need for knee surgery in order to be covered under worker's compensation. Id. However, because that case involved a specific-incident injury, the major-cause analysis was not applicable. We reversed because the medical evidence established a causal connection between the claimant's injury and her need for surgery, even though the medical evidence did not establish that the claimant's knee injury was the major cause of her need for surgery. Id.

In the instant case, by contrast, the doctors were not under any mistaken belief regarding causation and the medical evidence does not establish the causal connection between Sabinske's injury and his need for wrist surgery. It is undisputed that Sabinske injured himself and aggravated his prior condition when he fell. However, the Commission was correct in concluding that the aggravation had resolved and did not require surgery and that the doctors recommended treatment for the underlying, preexisting problem - the scaphoid nonunion.

The initial x-ray showed a right-wrist fracture. However, Dr. Thomas concluded that the fracture was an "old fracture" and Dr. Cole concluded that the age of the scaphoid nonunion was "longstanding" and "indeterminate." Thus, reasonable minds could have concluded as the Commission did, that there was no evidence of a new fracture and that the only fracture revealed was that caused by Sabinske's prior injury. As such, the only evidence of a new injury was the pain and swelling caused by Sabinske's fall. Dr. Day, who saw Sabinske the day after his injury, noted the presence of mild swelling. However, based on the May 3, 2003 MRI results, Dr. Cole concluded that the swelling had resolved. WhileSabinske testified that the swelling and pain were recurrent, the Commission was not required to believe his testimony, even though the ALJ made a specific credibility finding, because the Commission is not bound by the ALJ's findings. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). Rather, it is the function of the Commission to determine the credibility of witnesses. Holloway, supra. Moreover, in the absence of proof of swelling, the Commission was left only with Sabinske's testimony regarding his continued pain. It is well-settled that a claimant's continued complaints of pain are not sufficient to extend his healing period. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

Finally, Dr. Cole's May 13 notes may not be fairly read as indicating that Sabinske would reach maximum medical improvement by June 2, 2003, only if the conservative treatment worked. Rather, these notes clearly indicate different courses of treatment for Sabinske's temporary aggravation and his previous condition. Because Dr. Cole opined that a short course of casting could possibly "allow fibrous healing of his nonunion and a return to his prefall status," Sabinske asserts that the April 2003 fall tore apart the fibrous union that resulted after his prior injury and that, because no fibrous healing has occurred, he is entitled to continued medical treatment. However, even if Sabinske suffered a temporary aggravation in the form of a torn fibrous union, it is clear that Dr. Cole found that it would be healed by June 2, 2003. On May 15, he recommended that Sabinske convert to a removable splint and wean himself from the splint over a three-week period (from May 15 to June 2).

In a different vein, Dr. Cole then discussed the treatment options for Sabinske's "longstanding scaphoid nonunion." (Emphasis added.) He recommended the excision surgery for the underlying scaphoid nonunion rather than repair of the scaphoid nonunion and opined that such surgery would be indicated based on whether the pain was alleviated by conservative treatments and that such surgery could be delayed for several years, if not indefinitely.

Dr. Cole then specified the conditions under which Sabinske could return to work on June 2, 2003, and "also" determined that the healing period would end on June 2, 2003. Given that Dr. Cole stated that the recommended surgery for the scaphoid nonunion could be postponed indefinitely, but that Sabinske was to wean himself from use of the splint over a three-week period, we are convinced that the end of the healing period as determined by Dr. Cole was in no manner dependent upon or related to the proposed treatment for the scaphoid nonunion.

Thus, a straightforward reading of Dr. Cole's May 13 notes reveal that he indicated different treatment for Sabinske's temporary aggravation of his previous condition and the previous condition itself and that the surgery was recommended to treat only his previous noncompensable condition. Accordingly, the Commission did not err in determining that Sabinske was not entitled to additional medical treatment.

Affirmed.

Pittman, C.J. and Crabtree, J., agree.

1 Both Sabinske and Commissioner Shelby Turner, who dissented, seized upon the ALJ's comment that Sabinske "stated that he continued to experience swelling involving his right wrist with activities which was readily observable." They maintain that the ALJ's statement means that the ALJ personally observed the swelling in Sabinske's right wrist at the hearing. However, the record supports that the ALJ was merely summarizing Sabinske's testimony that his wrist remained swollen as of the date of the hearing. It is clear from the transcript that Sabinske was wearing a glove and plastic splint at the hearing and there is no indication that he removed either during the hearing. In fact, when questioned by the employer's counsel regarding his present swelling, Sabinske offered to remove the glove and splint, but did not do so, and he was never directed by his own attorney or by the ALJ to do so. Thus, the record simply does not support that the ALJ personally witnessed swelling in Sabinske's right wrist.