Frost v. City of Rogers ( 2016 )

Cite as 2016 Ark. App. 273
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-699
ROBERT FROST Opinion Delivered MAY 18, 2016
APPELLANT APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION [NO. G202087]
CITY OF ROGERS, MUNICIPAL
LEAGUE WCT, AND DEATH &
PERMANENT TOTAL DISABILITY
TRUST FUND AFFIRMED
APPELLEES
DAVID M. GLOVER, Judge
This is a workers’ compensation case in which Robert Frost sustained a compensable
back injury on March 5, 2012, while employed by the City of Rogers (the City). On
December 10, 2014, the administrative law judge (ALJ) heard Frost’s contested claims for
additional medical treatment in the form of pain management and the surgical insertion of
a dorsal-column stimulator, permanent-total-disability (PTD) benefits, or, in the alternative,
wage-loss benefits, attorney’s fees, and compensation rate. Following the hearing, the ALJ
concluded Frost had failed to prove the additional medical treatment was reasonable and
necessary for his compensable injury; he failed to prove he was permanently, totally disabled;
he proved he was entitled to permanent-partial-disability (PPD) benefits in an amount equal
to twenty percent to the body as a whole for wage loss suffered as a result of the injury and
resulting in an additional fifteen percent over and above the five percent previously accepted
by the City; and Frost’s compensation rate equaled $269 for total-disability benefits and
Cite as 2016 Ark. App. 273
$202 for PPD benefits based upon an average weekly wage of $403. The Workers’
Compensation Commission (Commission) affirmed and adopted the ALJ’s decision,
including all findings and conclusions therein. Frost appeals from the Commission’s
decision, contending it is not supported by substantial evidence concerning 1) the denial of
additional medical benefits for continued pain management, 2) the denial of permanent-
total disability benefits, and 3) the failure to award additional PPD benefits. We affirm.
Robert Frost was fifty years old at the time of the December 2014 hearing. At the
time of his compensable injury on March 5, 2012, he was working as a recycling technician
in the City’s recycling center. As part of his job duties, he drove a pick-up truck pulling a
trailer to businesses, where he would put the full recycling bins onto the trailer and leave
empty bins behind.
Following his back injury, he was first treated by Dr. Richard Kyle but changed
physicians to Dr. James Blankenship by Commission order dated June 9, 2012.
Dr. Blankenship diagnosed Frost’s injury as a herniated disc at the L5–S1 level, with
spondylolisthesis. Initially, Dr. Blankenship treated Frost conservatively, but those efforts
were not successful, and on November 14, 2012, he performed a fusion at L4–5 and L5–
S1. Although the fusion resolved Frost’s leg pain, he continued to have pain in his lower
back and hip. A functional capacities evaluation (FCE) was performed on March 20, 2013;
it indicated that Frost gave a reliable effort and that he was capable of returning to work in
the medium classification of work, with the ability to occasionally lift up to fifty pounds.
Dr. Blankenship determined that Frost reached maximum-medical improvement
(MMI) on May 2, 2013, and assigned him a ten-percent impairment rating for his
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compensable injury and a permanent weight-lifting restriction of twenty pounds. At first,
the doctor continued to treat him with Lyrica and intermittent hydrocodone. The City
accepted the impairment rating and paid Frost PPD benefits in an amount equal to ten
percent to the body as a whole, with an additional five percent accepted for wage loss.
Shortly after the MMI determination, the City sent Dr. Blankenship a video, which
was never introduced into evidence. 1 It is undisputed that the video showed Frost in two
settings—first, performing activities at his house (changing a tire with the help of a wheeled
jack), and second, riding to a casino in a car driven by his wife. Both Frost and his wife
viewed the video and testified at length about the substance of the video. According to
Dr. Blankenship’s assessment of the video in a May 20, 2013 letter, Frost’s complaints to
him were not corroborated by the video. Dr. Blankenship then raised the weight-lifting
restriction from twenty to fifty pounds in accordance with the FCE and also subsequently
refused to prescribe any additional narcotic pain medication, although the medications were
reduced over time.
As a consequence of Dr. Blankenship’s decisions, Frost sought treatment from his
primary-care physician, Dr. Teresa Gatton. In a February 6, 2014 report, Dr. Gatton
prescribed Flexeril, hydrocodone, and Lyrica, and referred Frost to Dr. John Knudsen, a
pain-management physician. Dr. Knudsen evaluated Frost on February 25, 2014, and
prescribed methadone for him and recommended epidural steroid injections. These
additional efforts did not resolve Frost’s ailments; therefore, he sought treatment from
1
Neither party sought to introduce the video.
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Dr. Joseph Graham in Galena, Kansas, who performed a procedure on Frost on November
3, 2014, to implant a spinal-cord stimulator. 2
Frost sought compensation for the additional medical treatment in the form of pain
management and the spinal-cord stimulator implanted by Dr. Graham, and he also sought
payment of PTD benefits, or, in the alternative, additional wage-loss benefits. As mentioned
previously, the Commission affirmed and adopted the ALJ’s findings and conclusions that
denied the additional medical treatment and the PTD benefits, but determined that Frost
had proved he was entitled to PPD benefits in an amount equal to twenty percent to the
body as a whole for a loss in wage-earning capacity, which included the five percent
previously accepted by the City. This appeal followed.
We view the evidence and all reasonable inferences in the light most favorable to the
Commission’s findings and affirm if supported by substantial evidence. Pyle v. Woodfield,
Inc., 2009 Ark. App. 251, 306 S.W.3d 455. Substantial evidence is that which a reasonable
mind might find as adequate to support a conclusion. Id. We defer to the Commission on
issues involving credibility and the weight of evidence. Target Corp. v. Bumgarner, 2015 Ark.
App. 112, 455 S.W.3d 378. It is the Commission’s duty to weigh medical evidence and
resolve, as a question of fact, any conflicting evidence; however, the Commission may not
arbitrarily disregard medical evidence or the testimony of any witness. Pyle, supra. Where
the Commission has denied a claim because the claimant failed to meet his burden of proof,
2
The ALJ rejected the City’s position that the treatment Frost received from Drs.
Gatton, Knudsen, and Graham was not authorized, concluding that the City did not comply
with the statutory mandate of furnishing a copy of a notice of change-of-physician
procedures to Frost. The City did not appeal that finding.
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the substantial-evidence standard of review requires that we affirm if the Commission’s
opinion displays a substantial basis for the denial of relief. Id. On review of workers’
compensation cases, the question is not whether the evidence would have supported
findings contrary to the ones made by the Commission; rather, it is whether there is
substantial evidence to support the Commission’s decision even though we might have
reached a different conclusion if we sat as the trier of fact. Burris v. L & B Moving Storage,
83 Ark. App. 290, 123 S.W.3d 123 (2003).
For his first point of appeal, Frost contends the Commission decision denying him
medical benefits for continued pain management is not supported by substantial evidence.
He argues in large part that the Commission arbitrarily disregarded the majority of the
medical evidence in the record, including the reports of other physicians and positive notes
in the FCE, and also challenges the absence of the video in the record. We disagree with
his arguments.
The Commission did not arbitrarily disregard the other medical evidence or the FCE.
The decision specifically noted reports and treatment by Drs. Gatton, Knudsen, and
Graham, and also discussed the results of the FCE. The Commission concluded, however,
that Dr. Blankenship’s medical opinion was entitled to greater weight. That conclusion was
based in part on the fact Dr. Blankenship had treated Frost for over a year; he had ordered
the FCE that showed Frost capable of performing work in the medium classification and
occasionally lifting fifty pounds; he had determined Frost had reached MMI for his injury
from a surgical intervention standpoint based on clinical findings and the failure to respond
to different injections and medications; he initially set a lifting restriction of twenty pounds
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and continued Lyrica and intermittent hydrocodone until he viewed the video; he was a
neurosurgeon; he determined Frost needed to wean off the medications if he was going to
go back to work; and he determined narcotics were not the answer. The decision
acknowledged the spinal-cord stimulator was fairly new because Frost had not even healed
from the surgery and was to return for some adjustments but concluded that Frost was taking
the same amount of pain medications he had taken prior to the implant procedure,
demonstrating that the procedure was not reasonable or necessary.
Frost acknowledges that the Commission is not bound by the rules of evidence but
argues further that, nevertheless, the “rules of fair play” required the video to be part of the
record for the Commission to evaluate the evidence, and it was not. The argument is not
convincing. In addition to Dr. Blankenship’s assessment of the video, Frost and his wife
viewed and testified at length about the contents of the video, expressing their opinions
about what the video showed with respect to Frost’s physical capabilities. Neither party
sought to introduce the video itself. The rules of fair play were firmly in place.
In short, it was Frost’s burden to prove that the additional medical treatment in the
form of pain management and the implanting of a dorsal-column stimulator was reasonable
and necessary to treat his compensable back injury. The Commission gave more weight to
Dr. Blankenship’s opinion that additional medical intervention would not help Frost’s
situation, but it did not arbitrarily disregard the conflicting medical evidence. We cannot
say the Commission’s explanation for its decision did not constitute a substantial basis for
the denial of the additional medical treatment sought by Frost.
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For his second point, Frost contends the Commission decision denying PTD benefits
is not supported by substantial evidence. For this issue, Frost bore the burden of proving
he was not able to earn any meaningful wages in the same or other employment because of
his compensable injury. The Commission concluded he did not meet his burden of proving
permanent total disability. Frost argues he is fifty years old; he has only a tenth-grade
education and no computer skills; he is disqualified from resuming his prior employment
because he can no longer engage in frequent heavy lifting; he cannot perform prolonged
stooping or bending activities; his work history was that of heavy labor; he requires narcotic
pain medications and therefore cannot drive or operate machinery; and the vocational
counselor gave him twelve leads on jobs, for most of which he applied, 3 and he did not get
any of them.
The Commission focused on the following facts, weighing them differently as is in
its realm to do: Frost was assigned only a ten-percent impairment rating by Dr. Blankenship
for his injury; he has a tenth-grade education and can read; he can ride his three-wheel
vehicle around town; he can do some meal preparation and is able to dress himself; he had
not looked for any jobs beyond the ones identified by the counselor; and the FCE indicated
he could perform jobs in the medium classification and occasionally lift up to fifty pounds.
Based on these facts, the Commission concluded that Frost had suffered a loss in wage-
earning capacity in an amount equal to twenty percent to the body as a whole. Again, we
cannot say the Commission’s explanation for its decision did not constitute a substantial basis
for the denial of PTD benefits sought by Frost.
3
He did not apply for a Pizza Hut delivery-driver job because it was too far away.
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Finally, Frost contends the Commission’s failure to award additional PPD benefits is
not supported by substantial evidence. He contends, alternatively, that if our court does
not reverse for an award of PTD benefits, he is still entitled to a higher percentage for wage-
loss disability. The Commission’s explanation for its denial of assignment of a higher
percentage included the following facts: Dr. Blankenship assigned Frost a ten-percent
impairment rating; the FCE reported Frost was capable of working in the medium
classification and capable of occasionally lifting up to fifty pounds; he is only fifty years old;
he has a tenth-grade education; and he is able to read. This explanation constitutes a
substantial basis for the Commission’s denial of a higher disability percentage.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.
Hatfield Law Firm, by: Jason M. Hatfield; and Cullen & Co., PLC, by: Tim J. Cullen,
for appellant.
Katie Bodenhamer, for appellant.
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