Wal-Mart Stores, Inc. and Claims Management, Inc. v. Suzanne Maguire

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

WAL-MART STORES, INC. AND

CLAIMS MANAGEMENT, INC.

APPELLANTS

V.

SUZANNE MAGUIRE

APPELLEE

CA 05-830

January 25 , 2006

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F312609]

AFFIRMED

Terry Crabtree, Judge

By order of January 10, 2005, the Workers' Compensation Commission affirmed and adopted the order of the ALJ finding Suzanne Maguire's back injury to be compensable and awarding reasonable and necessary medical treatment, temporary-total disability benefits from November 16, 2003 through March 26, 2004, and temporary-partial disability benefits from March 27, 2004 through August 6, 2004. Appellants argue on appeal that the Commission's decision is not supported by substantial evidence, because appellee did not prove BY objective medical findings that she sustained a compensable injury. Therefore, it is appellants' position that the awards for both medical treatment and disability payments are in error. Alternatively, appellants argue that, even assuming a compensable injury, the award of temporary-total and temporary-partial disability payments is in error because appellee did not prove that she is still in her healing period and totally incapacitated to earn wages. We hold that the Commission's decision is supported by substantial evidence and affirm.

Appellee was working for Wal-Mart when on November 15, 2003, she bent down to pick up a hand-held telzon scanner and printer and felt a sharp pain in her lower back radiating down her leg. Co-workers applied a heat wrap to appellee's back, and she rested in the break room before returning to the floor to answer the telephone for about an hour. When her lower back began to swell, she asked the assistant manager if she could go home due to the pain. She left work at about 7:00 p.m., and she stayed in bed throughout the next day. After speaking with the assistant manager the following Monday morning, a doctor's appointment was made for the next day. Appellee initially saw her family physician, Dr. Nick Cavaneau, who prescribed medication and took her off work. Dr. Cavaneau subsequently referred appellee to Dr. John Slater, an orthopedic surgeon.

In December 2003, Dr. Slater took appellee off work, and he suggested that she try returning to work in January 2004. In January, after working two and one-half days, appellee was again taken off work. She began treatment for her injury with a physical therapist, Mr. Randall Green, and she continued being treated by him until February 6, 2004. Appellee remained off work until March 26, 2004, when Dr. Slater said she could return to work for four to six hours per day. Appellee quit her job at Wal-Mart on August 6, 2004, and she was given a full release without restrictions from Dr. Slater effective September 13, 2004. It was Dr. Slater's opinion that appellee suffered an injury comparable to a sprain and that she would fully recover without permanent impairment.

At the hearing of this matter on November 10, 2004, appellants argued that there were no objective findings to support appellee's claim that she suffered a compensable injury. They also argued that appellee was not entitled to temporary-total or temporary-partial disability benefits. The ALJ found that appellee suffered a compensable injury and was entitled to medical treatment, temporary-total disability and temporary-partial disability benefits.

When reviewing a decision of the Workers' Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and affirms that decision if it is supported by substantial evidence. Searcy Indus. Laundry v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. A decision by the Workers' Compensation Commission is not to be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id.

Arkansas Code Annotated section 11-9-102(16) (Repl. 2002) provides that objective findings are "those findings which cannot come under the voluntary control of the patient." Appellants argue that, because Dr. Slater did not document or observe appellee's muscle spasms, appellee did not present objective findings. We disagree.

The Arkansas Supreme Court has held that observations of muscle spasms by a physical therapist can satisfy the objective findings requirement. Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999). See also Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000) (holding that back muscle spasms detected by someone other than a physician, such as a physical therapist, can be sufficient to support compensability). Appellee's physical therapist, Mr. Randall Green, testified during his deposition that, although he did not note muscle spasms on his report when he treated appellee, he remembered treating her and personally observing her muscle spasms. Further, in a letter to appellee's counsel, Mr. Green noted that "muscle spasms were present throughout her treatment." Appellants argue that the Commission should not have credited the testimony of Mr. Green, because he did not note the spasms on his initial written records. However, it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. The Commission has the duty of weighing the medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Searcy Indus. Laundry, supra. Here, the Commission found Mr. Green's testimony, that he observed appellee's muscle spasms, to be credible, thus satisfying the requirement that appellee present objective findings of her injury. There was substantial evidence to support the Commission's finding that appellee proved by a preponderance of the evidence that she sustained a compensable back injury, so we affirm on this point.

Appellants argue that appellee's failure to prove that she suffered a compensable injury precludes her entitlement to medical treatment or temporary-total and temporary-partial disability benefits. Because we hold that appellee suffered a compensable injury, these arguments are moot. Appellants also argue that appellee failed to prove that she was still in her healing period and incapacitated to earn wages. Although appellee tried on more than one occasion to return to work, she testified that she was unable to work until March 2004, when she went back to work part-time. The medical evidence reflects that appellee was advised not to work until March when she was returned to work an abbreviated work schedule with restrictions. The Commission found that appellee proved by a preponderance of the evidence that she remained in her healing period and was totally unable to earn wages from November 16, 2003 until March 26, 2004, and that she remained in her healing period and was unable to work full-time from March 27, 2004 through August 6, 2004. Because the Commission's decision is supported by substantial evidence, we affirm.

Affirmed.

Pittman, C.J., and Griffen, J., agree.