University of Arkansas Public Employee Claims Division v. Tocci ( 2015 )

Cite as 2015 Ark. App. 505
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-260
UNIVERSITY OF ARKANSAS PUBLIC Opinion Delivered September 23, 2015
EMPLOYEE CLAIMS DIVISION
APPELLANT APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G203172]
KYM TOCCI
APPELLEE
AFFIRMED
RITA W. GRUBER, Judge
The University of Arkansas (U of A) appeals the January 14, 2015 decision of the
Arkansas Workers’ Compensation Commission awarding additional medical treatment to
Kym Tocci for her compensable back injury. Ms. Tocci, a print-machine operator at the U
of A, sustained the injury on April 6, 2012, while moving a case of envelopes. Her treating
physician diagnosed the injury as a low-back sprain and referred her for chiropractic
manipulation, physical therapy, and orthopedic consultation. Dr. Regina Thurman eventually
undertook Ms. Tocci’s medical care for pain management, primarily through medication and
physical therapy. The U of A controverted her claim to any additional medical treatment in
the form of physical therapy after her last visit in March 2014.1
At a hearing before the administrative law judge in September 2014, Ms. Tocci
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In a previous opinion, entered on January 31, 2014, the Commission affirmed the law
judge’s 2013 decision regarding partial temporary disability.
Cite as 2015 Ark. App. 505
contended that she was entitled to deep aggressive massage and joint mobilizations as outlined
by Trinity Rehabilitation in an April 2014 report. The U of A contended that only in-home
physical therapy had been recommended. The law judge found in his written decision that
Ms. Tocci had met her burden of proving by a preponderance of the evidence that she was
entitled to additional medical treatment in the form of physical therapy at Trinity
Rehabilitation. The Commission adopted and affirmed the decision of the law judge as its
own. The U of A now appeals, raising two points. It contends that (1) the Commission
improperly construed Arkansas Code Annotated section 11-9-508(a) and (2) substantial
evidence does not support the award of additional physical therapy. We affirm.
Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an employer to
promptly provide for an injured employee such medical treatment “as may be reasonably
necessary in connection with the injury received by the employee.” The U of A has not
shown that it raised any argument regarding construction of reasonable and necessary to the
Commission, which prevents our addressing the issue on appeal. Vangilder v. Anchor Packaging,
Inc., 2011 Ark. App. 240. At any rate, we will not address an argument that is unconvincing
or that lacks convincing authority to support it. Stutzman v. Baxter Healthcare Corp., 99 Ark.
App. 19, 256 S.W.3d 524 (2007). Furthermore, despite arguing that the issue requires
“examination of the very meaning of the words reasonable and necessary,” the U of A is simply
questioning Ms. Tocci’s need for additional physical therapy and its appropriateness for her
injury. These were merely factual questions for the Commission, which are to be decided
under the substantial-evidence standard of review.
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What constitutes reasonably necessary treatment is a question of fact for the
Commission, which has the duty to use its expertise to determine the soundness of medical
evidence and to translate it into findings of fact. Hamilton v. Gregory Trucking, 90 Ark. App.
248, 205 S.W.3d 181 (2005). The claimant may be entitled to ongoing medical treatment
after the healing period has ended if the treatment is geared toward management of the
compensable injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31
(2004).
We defer to the Commission’s findings on what testimony it deems to be credible, and
the resolution of conflicting evidence is a question of fact for the Commission. Hargis Transp.
v. Chesser, 87 Ark. App. 301, 190 S.W.3d 309 (2004). The Commission has authority to
accept or reject medical opinion and to determine its medical soundness and probative force.
Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Where the
sufficiency of the evidence is challenged on appeal, we review the evidence in the light most
favorable to the findings of the Commission and will affirm if those findings are supported by
substantial evidence. Murphy v. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).
Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to
support a conclusion. Id.
The U of A does not dispute that Ms. Tocci received medical treatment and care from
the time of her April 6, 2012 compensable injury until she came under the care of Dr.
Thurman for pain management. Ms. Tocci was taken off work for a period of time after her
diagnosis of low-back sprain, and she returned to work with restrictions on April 16, 2012.
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On April 18, 2012, a chiropractor performed manipulative treatment and indicated that
resolution of her condition would take up to twelve weeks of care. On the same day, her
treating physician indicated that she should work only half days until further notice. He
subsequently ordered an MRI, referred her for physical therapy at Trinity Rehabilitation,
and—when her condition did not improve—referred her for an orthopedic consultation. The
consulting doctor diagnosed lumbago and lumbar spondylosis, stated that the MRI showed
mild stenosis and degenerative changes at L4-5, and recommended treatment in the form of
a steroid injection at L4-5. He continued to evaluate and treat Ms. Tocci and to prescribe
physical therapy.
The medical evidence in this case included Dr. Thurman’s written answers on January
17, 2014, to questions from the nurse case manager about Ms. Tocci’s condition and need for
additional treatment. Dr. Thurman wrote that Ms. Tocci had indicated that deep-tissue
massage and aquatic therapy were helping “tremendously.” Dr. Thurman also wrote that “[i]f
the therapist feels he can transition her to a home program with the equipment she needs,
then I feel she is ready for a home program.” In a February 28, 2014 report conducted for
U of A, a physician reviewer at the Medical Review Institute of America, Inc., opined that
additional physical therapy was not appropriate:
[T]he patient has completed over 100 physical therapy sessions over the last two years
since her injury. She has previously been instructed in a home exercise program and
should be more than capable of transitioning to a home exercise program at this time.
The clinical documentation from Regina Thurman specifies that the patient stated she
“must go to PT and get deep tissue massage as this helps tremendously with her pain.”
For perspective, the Official Disability Guidelines recommend 10 visits over 8 weeks
for the medical treatment of lumbar intervertebral disc disorders without myelopathy.
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Steve Flory, Ms. Tocci’s physical therapist at Trinity Rehabilitation, addressed the
question of whether she could move to a home exercise program:
When Kym is away from therapy she has a decline in her functional status. The
therapy provided to Kym consists of manual therapy, very deep aggressive massage and
joint mobilizations. Kym’s therapy also includes aquatic therapy and electric
stimulation . Kym has been given and performs a home exercise/stretching program,
which she has demonstrated independence. Kym has other medical conditions that
prevent her from receiving injections and other types of treatments. I believe Kym’s
pain is real. Kym would not request to continue physical therapy if there was no
benefit, based on the aggressive nature of the treatments, it’s not a “feel good”
massage. Kym has always been very diligent and compliant with her physical therapy.
I also understand the perspective of workman’s compensation, we at therapy are always
encouraged/ requested to move a patient to home exercises, as quickly as possible. .
. . Kym’s case may present with circumstances that are not within the normal for
treatment and outcomes. Kym digresses without physical therapy, but it has not
brought a complete resolution of her condition.
In a progress note of June 2, 2014, Dr. Thurman wrote that Ms. Tocci reported that
she was not doing as well, was unable to do her job full time due to her pain and type of job,
and had to take more medications because of not having therapy. Dr. Thurman wrote,
I also spoke with the therapist who recommends she continue with deep tissue massage
as this helps her pain and can keep her functioning. I recommend she have reduced
work duty if restrictions are not in place, no bending, no pulling, no pushing, no
lifting greater than 10 pounds, no stooping, no crouching. I will increase her
medications as she is having to take more medications due to her increased pain
without the therapy.
On July 29, 2014, Ms. Tocci’s case manager sent another letter asking Dr. Thurman
various questions. Dr. Thurman responded on September 4, 2014. Addressing the feasibility
of continuing home exercises, she wrote that Ms. Tocci could continue with home exercises
“if given suitable home exercise program with equipment.” Regarding the medical necessity
and anticipated long-term functional benefits of deep-tissue massage, Dr. Thurman wrote,
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“The patient reports deep tissue massage helps with mobility & pain. I feel we should find
a way patient can do deep tissue massage along with her home exercise program.”
Ms. Tocci testified that she could not undergo steroid injections in addition to the
Prednisone she took for her 2006 diagnosis of Sweet’s syndrome, a condition similar to Lupus.
She testified that she had not had back surgery because of her age and the steroids she took
for the syndrome, which sometimes caused her to miss work. She said that she did leg lifts,
bicycling, and jogging—all in the pool—as part of her physical therapy. She said that she was
physically able to work only five hours a day, although she had worked a couple of eight-hour
days in order to be paid when workers’ comp was not paying, and said that her doctor had
clarified that she should work only five-hour days and should be back in therapy. She further
testified, “I had pneumonia and I have flare-ups with my Sweet’s condition. Other than those
times I’ve been able to work since March [2014]. I’m doing my physical therapy, my
stretching at home since March of this year. My work hours are 8:30 to 1:30.” She testified
that she had bought and tried a deep-tissue massager for home use, but she had to lie on it or
push herself against it, and “it’s not the same as somebody who knows what they’re doing.”
The U of A argues that substantial evidence does not support the Commission’s
determination that additional medical treatment in the form of physical-therapy treatments
was reasonably necessary for Ms. Tocci’s compensable injury. It argues that her ongoing
physical therapy ceased long ago to be an effective treatment, that the medical records show
it will not improve her condition, but that she “could benefit from home based therapy,
which Dr. Thurman did recommend.” It concludes that additional therapy is contrary to
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established medical protocols, that Dr. Thurman’s recommendation is medically unjustified,
and that the physical therapist’s support for additional sessions is motivated by financial gain.
The Commission noted Ms. Tocci’s testimony that deep massage and pool therapy
were beneficial to her and helped her mobility, and that her condition had worsened since her
last appointment at Trinity Rehabilitation. It found that the medical evidence supported a
finding that she was entitled to receive physical therapy at the facility. It based its decision
upon the physical therapist’s opinion that the nature of Ms. Tocci’s condition caused her need
for continued physical therapy other than home exercises; Dr. Thurman’s subsequent opinion
that Ms. Tocci needed physical therapy, including deep-massage therapy; the fact that she (Dr.
Thurman) increased the prescribed medications because the pain increased without therapy;
and her recommendation for deep-tissue massage in conjunction with a suitably equipped
home-exercise program. The Commission gave greater weight to the opinions of the physical
therapist, who had provided multiple treatments to Ms. Tocci, and of Dr. Thurman, who had
evaluated her on a number of occasions, than to the opinion of the U of A’s reviewing
physician’s opinion, who indicated that additional physical therapy was not needed.
It is the Commission’s duty to make credibility determinations, to weigh the evidence,
and to resolve conflicts in the medical testimony and evidence. Tango Truck Servs., Inc. v.
Skinner, 2013 Ark. App. 682, at 2. The weight and interpretation of the medical evidence,
on which this decision turned, are matters for the Commission. Pyle v. Woodfield, Inc., 2009
Ark. App. 251, 306 S.W.3d 455. We hold that the evidence upon which the Commission
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based its decision constitutes substantial evidence to support the award of additional medical
treatment in the form of physical therapy at Trinity Rehabilitation.
Affirmed.
KINARD and HIXSON, JJ., agree.
Robert H. Montgomery, Public Employee Claims Division, for appellants.
Odom Law Firm, P.A., by: Conrad T. Odom, for appellee.
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