Emergency Ambulance Service, Inc. v. Burnett , 2015 Ark. App. LEXIS 381 ( 2015 )

Cite as 2015 Ark. App. 288
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-925
EMERGENCY AMBULANCE OPINION DELIVERED MAY 6, 2015
SERVICE, INC., and AIG CLAIMS, INC.
APPELLANTS APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G106949]
CARLA BURNETT
APPELLEE
AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Emergency Ambulance Service, Inc., and AIG Claims, Inc., appeal the Arkansas
Workers’ Compensation Commission’s (Commission) September 15, 2014 opinion finding
that appellee Carla Burnett was entitled to additional medical treatment but finding her
claims for permanent total-disability benefits and wage loss and appellant’s entitlement to
credit for overpayment of temporary total-disability benefits premature and not ripe for
determination.1 Appellants contend that substantial evidence does not support the
1
The Commission affirmed and adopted the opinion of the administrative law judge
(ALJ). Typically, on appeal to our court, we review only the decision of the Commission,
not that of the ALJ. Death & Permanent Total Disability Trust Fund v. Myers, 2014 Ark. App.
102. However, when the Commission affirms and adopts the ALJ’s opinion, thereby making
the findings and conclusions of the ALJ the Commission’s findings and conclusions, our
court considers both the ALJ’s opinion and the Commission’s opinion. Id.
Cite as 2015 Ark. App. 288
Commission’s decision to award additional treatment and that the Commission erred when
it reserved issues on behalf of appellee. We affirm.
At the hearing before the ALJ, appellee testified that she was a sixty-year-old high
school graduate. After high school, she attended two years of college studying physical
education, and completed a two-year vo-tech program in one year, obtaining a certificate
in computerized accounting. Appellee then worked in a CPA’s office performing computer
work until her husband asked her to stop working. She then went to EMT school in 1997
and obtained a certificate to work as an emergency medical technician (EMT). She began
working as an EMT in 1997–98 at DeWitt Hospital. Appellee had been working for
Emergency Ambulance Services, Inc., for almost sixteen years which, on August 6, 2011,
when she suffered a compensable low-back injury while unloading a patient by stretcher
from an ambulance.
Appellee testified that she had prior back problems as early as 1992. She explained
that her symptoms after the August 6, 2011 incident were different than the ones she had
before the incident. She said that the incident caused shaking, trembling, and the inability
to lift. She testified that her prior back problems had never prevented her from working.
She had a back injury in April 2002 and was treated by Dr. Barry Baskin but was not ever
off work due to that injury. After the injury in August 2011, she could no longer mow the
yard. She explained that it initially affected one side of her body—the outside of the right
side of her leg—but that it now affects both sides of her leg. She testified that she cannot lift
or squat; requires help getting dressed and getting in and out of the shower at times; can no
2
Cite as 2015 Ark. App. 288
longer get in the bathtub; is limited on how long she can stand to cook; can lift a gallon of
milk or an iron skillet at the most; and is able to go grocery shopping but cannot carry the
groceries. She said that her husband helps with these issues. Appellee testified that she
currently had problems in her legs, low back, and bottoms of her feet. She explained that
she had no problems in those areas prior to the August 6, 2011 injury. She said that she had
previously undergone a nerve-conduction test, but could not recall the date.
Appellee said that she had not worked since August 6, 2011. She testified that she was
only able to sit comfortably for approximately thirty minutes, she could stand for five-to-ten
minutes, and she was no longer able to garden or play with her grandchildren. She described
a good day as going outside to swing in the yard. She claims that on a bad day she could not
get up at all because she had no feeling in her legs.
She testified that she could not work at a cleaners because she could not stand for
extended periods of time. She testified that she could not work at the desk job for a CPA
because she was not able to sit for extended periods of time. She could not work as an EMT
because she could not lift, push, or pull. She was able to drive but was unable to ride in a
car for an extended period of time.
On cross-examination, appellee testified that she had let her EMT certificates lapse,
but not her CPR certification. She said that she was also injured in April 2002 when lifting
a pregnant woman who weighed over 400 pounds. She explained that she injured her low
back and was initially seen by a company doctor, who ordered an MRI and referred her to
Dr. Reza Shahim and Dr. Baskin. Dr. Baskin ordered a TENS unit and prescribed muscle
3
Cite as 2015 Ark. App. 288
relaxers and pain pills. She had muscle spasms and numbness in her right leg. She testified
that she had recovered one hundred percent and had no continuing symptoms or complaints
from that injury. Appellee testified that she began drawing social security disability benefits
of $980 per month due to her back problems and depression in October 2013.
The parties stipulated that Randy Burnett’s testimony would be that he was appellee’s
spouse and had known her well several years before August 6, 2011. He had the opportunity
to observe her during that period of time and did not see her demonstrate any limitations
related to physical problems at that time. Since August 6, 2011, he had seen her demonstrate
the limitations consistent with her testimony.
Medical records reflect that appellee sought treatment with Dr. Stan Burleson with
complaints of persistent back pain after twisting on October 19, 1992. He noted that she had
a pop and was experiencing muscle spasms. He also noted that she had been seen by a
chiropractor that morning and had undergone x-rays. She returned to Dr. Burleson on
October 26, 2001, with complaints of severe lower-back pain and numbness in her legs.
On September 19, 2002, appellee was seen by Dr. Baskin after a work injury on April
6, 2002. She complained of persistent numbness down her right leg and pain in her low
back. She underwent an MRI on September 28, 2002, which revealed “leftward eccentric
diffuse annular disc bulging at L4-5 with a small left posterclateral annular fissure and no
neural impingement. Mild degenerative changes in the facets bilaterally at L4-5 and L5-S1.”
She returned for a follow-up with Dr. Baskin on October 10, 2002, and reported that the
therapist had done only a few exercises with her and was less than adequate. She also
4
Cite as 2015 Ark. App. 288
reported that Bextra had not helped and that she had also taken Darvocet. He noted that she
had an annular tear at L4-5 and discogenic pain syndrome. Dr. Baskin referred her for a
steroid injection, which she had on October 18, 2002. She returned to Dr. Baskin on
November 5, 2002, and he noted that the injection had been beneficial for a few days but
the pain had come back and was severe. She admitted to severe depression. He administered
an injection and prescribed Zoloft, Darvocet, and Xanax. He noted that her tear and bulge
were on the left side but that her pain was in the right low back and leg.
Appellee underwent another MRI on March 6, 2003, which revealed
mild degenerative disc disease with asymmetric broad based bulge to the left L4-5
level as before. Associated posterior lateral annular tear to the left is seen. The neural
foramen and central canal are grossly patent. Mild degenerative disc disease at L5-S1
level without significant central canal stenosis or foraminal narrowing as above.
Appellee returned to Dr. Baskin on June 19, 2003, and reported that she was worse
than she had been in November 2002. She continued to complain of low-back pain, right-
hip pain, and right-leg numbness. She also reported that there had been several occasions
over the last few months where her leg had given way. Dr. Baskin referred her to Dr.
Shahim.
Appellee was evaluated by Dr. Shahim on July 28, 2003. She reported low-back pain,
numbness in her right leg to her foot, and pain in her entire right leg. He referred her for
a CT lumbar myelogram. On October 7, 2003, she returned to Dr. Shahim, who reviewed
the MRI and myelogram and noted that the myelogram revealed no evidence of nerve-root
compression or canal stenosis. He noted that the MRI revealed an annular tear but no disc
herniation. Dr. Shahim opined that he did not think appellee was a surgical candidate and
5
Cite as 2015 Ark. App. 288
the test results did not explain the leg numbness. He noted that the annular tear could cause
back and hip pain and recommended pain management. Dr. Shahim noted that appellee did
not want to be evaluated by pain management at that time.
Appellee returned to Dr. Burleson on September 22, 2004, with complaints of
persistent numbness and pain in her leg and foot. She underwent another MRI on October
4, 2004, which revealed “no significant degenerative disc disease. There is minimal focal
subligamentous disk protrusion at L4-5. There is no evidence of central canal or foraminal
stenosis.”
Appellee underwent another MRI on January 6, 2006, at Stuttgart Regional as a result
of complaints of back pain due to a fall. The January 2006 MRI revealed “[m]ild disc
desiccation noted at L4/5. No evidence of traumatic injury. No evidence of significant disc
pathology.”
Appellee underwent a nerve-conduction study on June 16, 2009. At that time, she
reported that she had fallen out of an ambulance and landed on her back in 2000. On
October 12, 2009, she was treated by Dr. Richard Wilson for problems of anxiety due to
family issues and chronic back pain. She was prescribed Prozac and Ultram.
Appellant returned to Dr. Wilson on January 28, 2011, with complaints of depression
and chronic back pain. He prescribed Effexor, Flexeril, Klonopin, and Ultram. He had a
long discussion with her about bipolar disorder.
Appellee began treating with a nurse practitioner, Suzette Boyd, on March 17, 2011,
with complaints of lower leg pain on both the left and right sides with aching and tingling
6
Cite as 2015 Ark. App. 288
in her legs. She returned to Ms. Boyd on April 4, 2011, with complaints of chronic back
pain that was moderately limiting her activities. She was given a Toradol injection.
On August 19, 2011, appellee underwent another MRI due to a “lifting injury,”
which revealed “[n]o acute abnormalities visualized.” On September 12, 2011, Dr. Shahim
stated in a report that appellee’s symptoms had been ongoing since August and she had a pain
level of 9/10. Her symptoms were a headache; palpations; change in bowel habits; difficulty
controlling urination; muscle extremity weakness; painful, swollen joints; anxiety and
depression. She returned to Ms. Boyd on September 13, 2011, with complaints of back pain
and depression.
On October 7, 2011, Dr. Shahim referred her for a CT scan and a myelogram. The
CT scan revealed “[v]ery mild multilevel spondylolytic changes of the lumbar spine
manifesting most prominently as moderate facet degeneration at L4-5 without significant
mass effect on the canal or foramen at this or any other level.” The myelogram revealed
“L4-5 facet degeneration without significant canal or foraminal stenosis demonstrated.”
On October 10, 2011, Dr. Shahim noted that appellee had lumbar radiculopathy. He
noted that the CT myelogram revealed that there was significant foraminal stenosis at right
L4-5 with facet arthropathy and facet disease at L3-4, L4-5, and L5-S1 with lateral recess
stenosis at L4-5. He recommended a multilevel facet injection and noted that she may
ultimately require surgical decompression. He issued a return-to-work slip indicating that she
could return to full duty on November 11, 2011.
7
Cite as 2015 Ark. App. 288
On November 16, 2011, appellee returned to Dr. Shahim for follow-up. He noted
that he would send authorization for epidural injections and facet blocks. He opined, “I do
believe that her pain is a result from a work-related injury. She denies any previous pain
prior to the injury. She was not having any back or leg symptoms prior to the injury and her
symptoms are primarily due to the work-related injury.”
On December 1, 2011, appellee returned to Dr. Shahim for evaluation. He noted
that he had reviewed the MRI of the lumbar spine and disagreed with the interpretation.
He noted that appellee had “lateral recess stenosis and facet disease,” and he noted that there
was not an acute disc herniation, but there was foraminal stenosis at L4-5 and L5-S1 due to
facet arthropathy. He noted that the CT lumbar myelogram showed “lateral recess stenosis
and facet arthropathy, particularly at L4-5 and L5-S1.”
Appellee returned to Dr. Shahim for evaluation on December 15, 2011. He noted,
“Unfortunately her MRI was misread as a normal MRI.” He noted that the myelogram
showed significant facet disease and foraminal stenosis at L4-5 and L5-S1. They were still
waiting for authorization for the injections. He also recommended physical therapy. On
January 16, 2012, Dr. Shahim issued a return-to-work slip indicating that appellee could
return to regular duty on March 17, 2012.
On February 28, 2012, appellee underwent a functional capacity evaluation (FCE).
The evaluator noted that appellee gave a near full, though not entirely full, effort, and that
she could do more physically at times than was demonstrated. He noted that she
demonstrated the ability to sit for up to two hours and thirty-eight minutes, and dynamic
8
Cite as 2015 Ark. App. 288
standing time was tested at thirty-seven minutes. She tested at the sedentary physical-
demand level with lifting on an occasional basis. She tested at the medium physical-demand
category for pushing and pulling over twenty feet on an occasional basis. The report
concluded, “Overall, Ms. Burnett demonstrated the ability to perform work in the LIGHT
classification of work as defined by the US Dept. of Labor’s Guidelines.”
On May 22, 2012, Dr. Reginald Rutherford noted that, based on appellee’s FCE, she
could work in a restricted capacity as defined by the details of the FCE. He noted that
clinically she had “L5 radiculopathy right leg .” He recommended a selective right L5 nerve-
root block for diagnostic confirmation and a series of lumbar epidural steroid injections with
physical therapy. The recommended injections and follow-up MRI were denied by the
workers’ compensation carrier.
Appellee was evaluated by Dr. Kevin Collins on August 10, 2012. He noted that the
only MRI that he reviewed in determining a five-percent impairment rating was dated
August 19, 2011. He did not review the earlier MRI reports. He stated that if the earlier
tests revealed a disc bulge that predated the August 2011 injury, then “obviously we cannot
say the injury caused the disc bulge. If no bulge then indeed she developed this after her
injury, then it would relate.”
Based on the evidence as set forth above, the ALJ found as follows:
In the instant case, the preponderance of the evidence demonstrates that the
claimant suffered a compensable injury to her low back supported by objective
medical findings. The claimant testified that she continues to have problems with her
low back with radicular pain, numbness, and tingling in her lower extremities.
Notwithstanding conservative treatment, the claimant contends she is worse off and
is in need of further medical treatment. The medical evidence in this case reveals that
9
Cite as 2015 Ark. App. 288
the claimant had a preexisting disc bulge, which is revealed in MRI reports as early
as 2002. All subsequent MRI reports are consistent with the 2002 findings. However,
Dr. Shahim has opined that the MRI report from August 19, 2011, has been misread
in light of his interpretation of the CT Scan and Lumbar Myelogram, which he
contends reveals new objective findings of lateral recess stenosis and facet disease. He
also notes there is foraminal stenosis at L4-5 and L5-S1 due to facet arthropathy. In
light of these medical opinions, I find that the claimant has proven by a
preponderance of the evidence that her request to return to Dr. Shahim for additional
medical treatment is reasonable and necessary to reduce and alleviate her symptoms
of pain and to maintain her healing and prevent further deterioration from any
damage sustained by her compensable injury.
The ALJ also found that the issue of appellee’s entitlement to permanent total-disability
benefits and/or wage loss was premature and not ripe for determination because further
medical treatment could alleviate some of appellee’s symptoms. Also, because appellee was
seeking to continue medical treatment, the ALJ found that appellants’ entitlement to a credit
for overpayment of temporary total-disability benefits was premature and not ripe for
determination. Appellee appealed to the Commission, which affirmed and adopted the ALJ’s
decision. This appeal timely followed.
In appeals involving claims for workers’ compensation, the appellate court views the
evidence in the light most favorable to the Commission’s decision and affirms the decision
if it is supported by substantial evidence. Target Corp. v. Bumgarner, 2015 Ark. App. 112, ___
S.W.3d ___. Substantial evidence is evidence that a reasonable mind might accept as
adequate to support a conclusion. Id. The issue is not whether the appellate court might
have reached a different result from the Commission, but whether reasonable minds could
reach the result found by the Commission. Id. Additionally, questions concerning the
credibility of witnesses and the weight to be given to their testimony are within the exclusive
10
Cite as 2015 Ark. App. 288
province of the Commission. Id. When there are contradictions in the evidence, it is within
the Commission’s province to reconcile conflicting evidence and determine the facts. Id.
Finally, the court will reverse the Commission’s decision only if it is convinced that fair-
minded persons with the same facts before them could not have reached the conclusions
arrived at by the Commission. Id.
Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an employer to
provide an employee with medical and surgical treatment “as may be reasonably necessary
in connection with the injury received by the employee.” A claimant bears the burden of
proving entitlement to additional medical treatment. Bumgarner, supra. What constitutes
reasonably necessary treatment is a question of fact for the Commission. Id. The Commission
has authority to accept or reject medical opinion and to determine its medical soundness and
probative force. Id. Furthermore, it is the Commission’s duty to use its experience and
expertise in translating the testimony of medical experts into findings of fact and to draw
inferences when testimony is open to more than a single interpretation. Id.
I. Additional Medical Treatment
Appellants contend that appellee has had back problems for many years, as established
by her medical records, and is not entitled to additional medical treatment. She reported
back pain with muscle spasms dating back to 1992. An MRI on September 28, 2001,
showed facet degenerative changes at L4-5 and L5-S1, with a disc bulge at L4-5 with annular
fissure. An MRI on March 6, 2003, showed that she had degenerative disc disease at L4-5
and L5-S1 as well as a bulge at L4-5 with an annular tear. Another MRI on October 4,
11
Cite as 2015 Ark. App. 288
2004, showed a disc protrusion at L4-5, and she continued to complain of back pain on
January 6, 2006, where another MRI showed disc desiccation at L4-5. In 2009, she
complained of pain with muscle spasms and numbness in her right leg and in October 2009
she reported to Dr. Richard Wilson that she had chronic back pain as well as stress and
anxiety. The January 2011 records also establish her back pain and tingling in her leg. In
October 2012, Dr. Stan Burleson opined that appellee had discogenic pain syndrome. Thus,
appellants contend that the records indicate that appellee suffered from back problems for
almost twenty years prior to her work-related injury, and she was taking pain medications
even up to the time of her injury.
Appellants stress that Dr. Collins stated that “if the disc bulge predated the injury, then
obviously we cannot say the injury caused the disc bulge.” Appellants argue that four MRIs
prior to her work-related injury showed a disc bulge at L4-5, and her work-related accident
did not cause the disc bulge. Appellants argue that the additional medical treatment that she
seeks is to address her preexisting back conditions that have been documented since 2002.
Appellee maintains that the Commission’s finding that she is entitled to additional
medical treatment is supported by substantial evidence. She contends that her testimony and
the medical records document that she experiences extremely severe pain in her low back,
which radiates into both lower extremities, causes instability in her ambulatory ability, and
affects her bowels and bladder function. She argues that the problems that she experienced
prior to August 6, 2011, differ from the problems that she began to experience immediately
after the incident and continues to experience since the injury occurred.
12
Cite as 2015 Ark. App. 288
A preexisting disease or infirmity does not disqualify a claim if the employment
aggravated, accelerated, or combined with the disease or infirmity to produce the disability
for which compensation is sought. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30,
917 S.W.2d 550 (1996). The test is whether the injury aggravates, accelerates, or combines
with the condition. Here, the evidence was that, prior to the occurrence, appellee was able
to perform the heavy manual requirements of her job; take care of household chores; provide
for her own personal grooming; play with her grandchildren; play with her dogs; work in
the yard; and maintain a relationship with her husband. Since the injury, she can no longer
do these things. Thus, substantial evidence was presented that the injury aggravated,
accelerated, or combined with the condition to cause her current disabling condition and
need for medical treatment. We hold that fair-minded persons with the same facts before
them could have reached the conclusions arrived at by the Commission—the injury
combined with her preexisting condition, which was the disc bulge, to produce the disabling
condition and need for medical treatment. The Commission gave credence to Dr. Shahim’s
note on November 16, 2011, that he believed appellee’s pain was the result of a work-related
injury and that appellee was not having any back or leg symptoms prior to the injury.
Because questions concerning the credibility of witnesses and the weight to be given to their
testimony are within the exclusive province of the Commission, the decision to award
additional medical treatment is affirmed.
13
Cite as 2015 Ark. App. 288
II. Remaining Issues
Appellants cite Sea Ark Marine, Inc. v. Pippinger, 2009 Ark. App. 223, 303 S.W.3d
102, Burkett v. Exxon Tiger Mart, Inc., 2009 Ark. App. 93, 304 S.W.3d 2, and Gencorp Polymer
Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991), in support of their argument
that the Commission erred when it did not decide all the issues that were litigated; instead,
appellants claim that, as in the cases cited, the Commission erred by reserving issues after the
hearing was held. They contend that the ALJ should have made a determination whether
appellee sustained her burden of proof with the evidence on the record submitted by the
parties.
We disagree. The ALJ made specific findings of fact that these issues were premature
and not ripe for adjudication. The issues of appellee’s entitlement to permanent total-
disability benefits and/or wage loss were premature and not ripe for determination because
further medical treatment could alleviate some of appellee’s symptoms. Also, because
appellee was seeking to continue medical treatment, the ALJ found that appellants’
entitlement to a credit for overpayment of temporary total-disability benefits was premature
and not ripe for determination. Accordingly, we find no error in the Commission’s
determination. See Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. App. 322, at 12,
436 S.W.3d 164, 172 (not reaching the merits on the impairment-rating issue because it was
premature based on holdings affirming the compensability of entitlement to additional
medical treatment); Serv. Chevrolet v. Atwood, 61 Ark. App. 190, 197–98, 966 S.W.2d 909,
913–14 (1998) (where reservation of the issue of permanent disability for later determination
14
Cite as 2015 Ark. App. 288
was justified in case of claimant who was splashed in the eye with acidic solution, where
medical expert had not yet determined the degree of correctable impairment to eye)(overruled
on other grounds by Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000));
and Cross v. Crawford Cnty. Memorial Hosp., 54 Ark. App. 130, 133, 923 S.W.2d 886, 888
(1996) (where appellate court found error in ALJ’s denial of wage-loss disability benefits after
it was determined that the issue was premature).
Affirmed.
ABRAMSON and HARRISON , JJ., agree.
Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellant.
C. Michael White, for appellee.
15