Hosey v. Wal-Mart Associates, Inc. , 2016 Ark. App. LEXIS 213 ( 2016 )

Cite as 2016 Ark. App. 189
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-893
OPINION DELIVERED APRIL 6, 2016
JENNIFER LEA HOSEY
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G108727 & G209123]
WAL-MART ASSOCIATES, INC.
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Jennifer Lea Hosey appeals from the Arkansas Workers’ Compensation
Commission’s (“Commission’s”) denial of her claim for medical benefits for her neck and
shoulder injuries. Appellant contends that her injuries were caused by accidents while in
the employ of appellee Wal-Mart Associates, Inc. (Wal-Mart), thus requiring Wal-Mart to
provide the medical care for both problems and entitling her to temporary total-disability
benefits (TTD). Because the Commission had a substantial basis for the denial of relief, we
affirm.
I. Facts
Appellant worked for Wal-Mart as an overnight stocker on October 6, 2011, when
she manually pulled a pallet of juice backward and ran the pallet into a stack of milk crates.
She was facing the pallet of juice and pulling the pallet jack with both hands when she hit
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the milk crates, coming to a dead stop. She was jerked forward, and her right shoulder
popped. She immediately had burning pain and sharpness from her shoulder down to her
hand on her right side.
Appellant reported the incident to a supervisor, describing it as having caused her
arm to have “shooting pains [that] run from the shoulder to [her] fingers on the right side.”
On October 11, 2011, she described her injury on the Form AR-N as “Rt shoulder, Rt
arm all the way down to fingers, Rt side of neck.” Dr. Hasmukh Patel treated her for right-
arm and shoulder pain on that date, ordered an MRI, and placed her on light duty.
Appellant performed light-duty work for Wal-Mart and was referred to Dr. Charles Pearce.
Dr. Pearce noted in his initial evaluation on November 29, 2011,
She had an MR arthrogram performed on November 7, 2011, which by report
showed a posterior superior labral tear, she had previously had an anterior labral
repair done by me on August 13, 2008, and this was intact. I reviewed her scan I
do not see a definite posterior superior labral tear as described. The anterior labral repair
is intact.
(Emphasis added.) His assessment was that her right-shoulder pain was consistent with
possible nerve irritation, and there were no physical findings consistent with a posterior
labral tear. He found that appellant was not at maximum-medical improvement (MMI) and
that she should continue light duties. Appellant followed up with Dr. Pearce on December
29, 2011, and he found that she was still not at MMI, but that she could resume her regular
work duties.
Appellant requested a change of physician, and on February 15, 2012, appellant saw
Dr. Jason Stewart for a second opinion. His assessment was as follows:
1) Based on the lack of findings on her physical exam, I believe that the slight loss
of motion she has is a residual of the 2008 surgery. At that time she says that she
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had lost approximately 25% of her function of the arm. I would not estimate it
to be that great today. I would say that she has 10% or less deficit in range of
motion of the right arm, but I believe this to be a residual still from 2008 and not
a new finding. She does not symptomatically show any signs of a posterior superior labral
tear and I would not recommend any surgery on the shoulder for this problem.
2) Cervical radiculopathy, most likely C5, symptomatic. I would recommend an
MRI of the C-spine. It does not sound like this injury is being covered by Worker’s
Comp. If it is, I would recommend an MRI of the C-spine. If not, I have advised
her to contact her personal family physician, Dr. Robert Sykes in Nashville,
Arkansas, and I would recommend that he get an MRI for her of her neck to see
if she does have a symmetric disc bulge causing cervical symptoms that could
cause the lateral shoulder pain and arm pain and numbness in the hands.
3) Regarding her right shoulder, she is at [MMI]. There is no impairment rating
for this diagnosis, and she can return to her regular duties without restriction.
(Emphasis added.)
At Dr. Stewart’s recommendation, Dr. Robert Sykes referred appellant to a
neurosurgeon, Dr. Fred Contreras, on May 10, 2012, and his nurse noted the following:
[Appellant] went round and round with the doctor of their choice, who told her that
the MRI of her right shoulder, which was done at Texarkana MRI, was negative.
She states that her thumb and first two fingers on each hand go numb when she raises
her arms or drives. Her right elbow aches all the time and she rates it as a 9/10. She
also states that her right shoulder and arm just really hurt all the time and she rates
that as a 9/10. She is currently on full duty at work at Walmart at this time. She
comes to us for further evaluation and management to rule out a possibility of a
problem with her neck.
An MRI of her neck was performed on June 4, 2012, and Dr. Contreras found that
appellant appeared to have “disc protrusions, although they appear to be on the left rather
than the right. She appears to have a small disc herniation at C7,T1 on the left and C6-7
on the left.” His impression/plan states,
[G]iven the degree of atrophy and weakness, this probably needs to be worked up.
I have indicated that her current study does not demonstrate an obvious source for
her pain. I have recommended a myelo-CT which we will get done and then have
her follow back up with us.
A nerve-conduction study was done on June 25, 2012, and the results indicated
carpal-tunnel syndrome grade 3 (moderately severe) bilaterally, worse on the left. A CT
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exam of the C-spine was performed on June 25, 2012, and the only defects found were at
the C5-C6 level, where mild bulging of the annulus fibrosis versus a small central disc
protrusion was revealed. At the C6-C7 level, axial images demonstrated a small left
paracentral disc protrusion. And, at the C7-T1 level, a small left paracentral disc protrusion
was found.
Dr. Contreras’s nurse reported on July 17, 2012, that appellant had brought her CT
exam results and that Dr. Contreras felt strongly that she had nerve-root defects at C6-7-
T1. The nurse noted, “Going back to her initial visit in May, definitely her neck problem
could be related to work secondary to the fact that she was pulling a pallet of juice and ran
into a pallet of milk and pinched the nerves.” Appellant was returned to work with a
weight-lifting restriction of no greater than twenty pounds.
Appellant underwent a right carpal tunnel release and an anterior-cervical discectomy
and fusion on May 6, 2013. After complaining of right-shoulder pain, on September 12,
2013, appellant underwent an MRI of her right shoulder, and the radiologist found a
suspected small full-thickness tear of the supraspinatus tendon anteriorly in the region of the
rotator interval, finding, “Additional small intrasubstance tear versus postop change is seen
more posteriorly in the region of the infraspinatus tendon.”
Dr. Charles Daniels examined appellant on March 27, 2014, and summarized
appellant’s medical history as follows:
[Appellant] comes in complaining of right shoulder pain. Her problems began in
2008 when she was formerly employed with Wal-Mart National Arkansas. She was
seen by Dr. Charles Pearce in Little Rock and had orthoscopic right surgical
procedure. She does not know what was done. I do have a copy of an MRI that
was done of her right shoulder after that on 11/07/2011, which shows evidence of
a labral repair, but no acute pathology. She states that this MRI was obtained after
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a reinjury in 2009. She further re-injured her shoulder by her report moving pallets
in 2012. She changed from Dr. Pearce along the way to Dr. Jason Stewart. When
he saw her he thought she had cervical radiculopathy. She was subsequently referred
to a spine surgeon at Texarkana, Texas, and reports she underwent C6-C7 cervical
arthrodesis followed up by right carpal tunnel release. She has not been able to see
that surgeon after that. She has currently been laid off because of her inability to
work due to her right shoulder debility. She had another MRI on 09/12/2013,
which possibly demonstrates a small full-thickness rotator cuff tear in rotator interval
and has some AC joint DJD.
Dr. Daniels’s impression was that she had a small rotator-cuff tear that was full thickness,
and he recommended outpatient arthroscopy and mini-open rotator-cuff repair if the MRI
findings were borne out.
Appellant filed for medical leave from Wal-Mart beginning July 19, 2012, and the
leave was extended, according to her testimony, for about a year. Thereafter, Wal-Mart
terminated her employment. At the same time, appellant’s long-term disability benefits ran
out. Appellant filed a claim with the Commission for her neck, right shoulder, and bilateral
carpal-tunnel injuries on September 12, 2012, and Wal-Mart controverted her claims related
to her neck and carpal tunnel and refused any further treatment for the right shoulder.
After a hearing, the administrative law judge (ALJ) determined that appellant had
sustained a compensable injury to her right shoulder on October 6, 2011. However, he
found that she failed to establish by a preponderance of the evidence that (1) she had
sustained a compensable neck injury or a compensable carpal-tunnel-syndrome injury; (2)
the rotator-cuff repair proposed by Dr. Daniels was related to her compensable right-
shoulder injury; and (3) she was entitled to TTD after July 19, 2012.
This decision was appealed to the Commission, and the Commission affirmed and
adopted the ALJ’s decision on September 30, 2015. Appellant filed her notice of appeal on
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October 15, 2015, and this appeal timely followed. On appeal, appellant is abandoning her
claim for a right-carpal-tunnel injury.
Typically, on appeal to this court, we review only the decision of the Commission,
not that of the ALJ. Smith v. Commercial Metals Co., 2011 Ark. App. 218, 382 S.W.3d 764.
In this case, the Commission affirmed and adopted the ALJ’s opinion as its own, which it is
permitted to do under Arkansas law. Id. Moreover, in so doing, the Commission makes
the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id.
Therefore, for purposes of our review, we consider both the ALJ’s order and the
Commission’s majority order.
II. Standard of Review
To prove a compensable injury as a result of a specific incident which is identifiable
by time and place of occurrence, the claimant must establish by a preponderance of the
evidence (1) an injury arising out of and in the course of employment; (2) that the injury
caused internal or external harm to the body which required medical services or resulted in
disability or death; (3) medical evidence supported by objective findings, as defined in Ark.
Code Ann. § 11-9-102(16) (Repl. 2012), establishing the injury; and (4) that the injury was
caused by a specific incident identifiable by time and place of occurrence. Ark. Code Ann.
§ 11-9-102(4)(A)(i).
In reviewing decisions from the Commission, we view the evidence and all
reasonable inferences deducible therefrom in the light most favorable to the Commission’s
findings. Ganus v. St. Bernard’s Hosp., LLC, 2015 Ark. App. 163, 457 S.W.3d 683. When
the Commission denies benefits because the claimant has failed to meet his burden of proof,
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the substantial-evidence standard of review requires that we affirm if the Commission’s
decision displays a substantial basis for the denial of relief. Willis v. Great Dane Trailers, 2014
Ark. App. 547, 444 S.W.3d 423. 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; if so, the appellate court must affirm. Id.
III. Neck and Shoulder Claims
Appellant claims that the decision denying benefits for her neck and shoulder injuries
is not supported by substantial evidence. The ALJ denied her benefits for her neck, finding
that she did not sustain a neck injury for three reasons: (1) Her testimony and written
accounts about what happened provided no indication that she received neck trauma; (2)
She pursued neck surgery under private insurance; and (3) No doctor had identified any
neck or spine trauma that she might have sustained in the incident.
Appellant contends that she reported a neck injury only five days after the at-work
incident. She cites Dr. Stewart’s recommendation on February 15, 2012, that she obtain an
MRI of the C-spine and the findings of the MRI performed on June 4, 2012, which were
a small left paracentral disc protrusion at C7-T1 and C6-C7, and a minimal central disc
protrusion at C5-C6. She also points to the cervical myelogram on June 25, 2012. Based
on that test, Dr. Contreras’s nurse wrote on July 17, 2012, that appellant had nerve-root
defects at C6-7, T1. 1 The nurse also wrote, “Going back to her initial visit in May,
definitely her neck problem could be related to work secondary to the fact that she was
The report of July 17, 2012, was written by Sherry Missildine, RN, ACNP and
1
reviewed by Dr. Contreras.
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pulling a pallet of juice and ran into the pallet of milk and pinched the nerves.” Thus,
appellant contends that she presented objective-medical evidence of a neck injury and an
opinion from a treating specialist that the condition was related to her on-the-job incident
in October 2011.
Regarding her shoulder, appellant had another MRI in September 2013, and Dr.
Daniels wrote that she had a possible small rotator-cuff tear. Appellant argues that despite
the medical evidence, the ALJ concluded that there was no causal connection between the
rotator-cuff tear in 2013 and the October 2011 accident.
She also contends that the ALJ erred as a matter of law by requiring a medical opinion
on causation because he erroneously based his determination on compensability of the neck
injury on what he called a lack of a physician’s opinion that appellant “sustained a neck
injury while pulling a pallet on October 6, 2011.” She cites Wal-Mart Stores, Inc. v.
VanWagner, 337 Ark. 443, 447, 990 S.W.2d 522, 524 (1999), for the proposition that
objective medical evidence is not essential to establish the causal relationship between the
injury and a work-related accident in a workers’ compensation case. She contends that
there are scans showing definite disc and neck injuries. She also claims that the record
contains Dr. Contreras’s opinion that the neck injury was associated with the accident at
work. Thus, she argues that the ALJ erred as a matter of law by requiring an opinion from
a physician that appellant sustained a neck injury while pulling a pallet.
She also contends that her shoulder and neck injuries are compensable based on the
accident having aggravated her preexisting conditions. Ozark Nat’l Food v. Pierson, 2012
Ark. App. 133, 389 S.W.3d 105. She claims that the accident made her shoulder problems
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worse, and the same holds true for her neck injury. She claims that if she had issues with
her neck before the 2011 accident, she was not symptomatic, but she became symptomatic
afterward, necessitating medical treatment. Williams v. L&W Janitorial, Inc., 85 Ark. App.
1, 145 S.W.3d 383 (2004).
Further citing Williams, supra, she contends that the compensable injury here was a
factor in the resulting need for medical treatment, and this was the opinion of Dr. Contreras.
She argues that after Dr. Contreras performed the neck surgery, most of her symptoms
disappeared, save for the continuing pain in her shoulder. This postsurgical improvement
is a proper consideration in determining whether surgery was reasonable and necessary. Hill
v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001).
Appellant claims that Arkansas courts have long recognized that a causal relationship
may be established between an employment-related incident and a subsequent physical
injury based on evidence that the injury manifested itself within a reasonable period of time
following the incident so that the injury is logically attributable to the incident, where there
is no other reasonable explanation for the injury, citing Hall v. Pittman Constr. Co., 235 Ark.
104, 357 S.W.2d 263 (1962). 2 She contends that she complained of neck, shoulder, and
arm pain within five days of the accident and asserts that this was a reasonable period of time
following the incident. Thus, as Dr. Contreras pointed out, appellant maintains that her
injury is logically attributable to the incident.
2
We note that Act 10 of 1986, Second Extraordinary Session, codified as Ark. Code
Ann. § 11-9-704(c)(4) (1987), changed the law to provide that in determining whether a
party has met its burden of proof, ALJs and the Commission shall weigh the evidence
impartially and without giving the benefit of the doubt to any party. Wade v. Mr. C.
Cavenaugh’s, 298 Ark. 363, 367, 768 S.W.2d 521, 522–23 (1989).
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We disagree with appellant’s contention that the ALJ required objective medical
evidence to establish the causal relationship between the alleged neck injury and the work-
related accident. The ALJ’s opinion regarding appellant’s claimed neck injury states as
follows:
First, Ms. Hosey’s account of what happened with the pallet jack provides no
indication to this examiner that she received any trauma whatsoever to her neck and
cervical spine simply by walking backward five feet dragging a pallet of juice until
the pallet hit a stack of milk crates. Her attorney at one point described the incident
as involving “this jerking sensation and her grabbing a hold of and holding onto that
and the jerking and the holding back and forth . . .” Again, however, there is no
indication from either Ms. Hosey’s written accounts or her hearing testimony
indicating that while pulling the jack five feet and then hitting the milk crates with
the pallet she either slipped, fell, hit her head, or sustained any other identifiable
trauma to her head, neck or spine.
Second, when Ms. Hosey pursued neck surgery with Dr. Contreras, she did
so using private insurance. Third, neither Dr. Contreras nor any other physician has
ever identified any type of head, neck, or spine trauma that Ms. Hosey might have
sustained in the incident that she described, and no physician has opined that Ms.
Hosey sustained a neck injury while pulling a pallet on October 6, 2011. On this
record, Ms. Hosey has failed to establish a work related neck injury by either a
preponderance of the medical evidence or a preponderance of the non-medical
evidence. I find that the respondent is not liable for any of the treatment that Ms.
Hosey has received related to her neck.
The determination of whether a causal connection exists is a question of fact for the
Commission to determine. Smith v. Sw. Ark. Food Bank, 2011 Ark. App. 181, 381 S.W.3d
889. A claim for workers’ compensation benefits must be based on proof. Id. Credibility
of witnesses and the weight to be given to their testimony are within the exclusive province
of the Commission. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
Based on our review, all of appellant’s arguments are resolved by acknowledging that
the Commission did not give weight to Dr. Contreras’s report, scribed by his nurse
practitioner, which stated that the possible nerve-root defect “definitely” could be related
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to the 2011 work incident. The opinion was based on subjective information from
appellant; however, the Commission is not bound by a doctor’s opinion that is based on
facts related to him by the claimant. Beliew v. Lenox Indus., 2010 Ark. App. 112.
With our standard of review in mind, we hold that the Commission had a substantial
basis for the denial of relief, and the Commission did not err as a matter of law. The
Commission found, based on the evidence in the record, that it was not credible that the
minor incident described by appellant caused all the fairly serious injuries as alleged. The
evidence was that appellant had reported problems with her neck and numbness, pain, and
tingling in her hands for years prior to the work-related incident. Wal-Mart points to
appellant’s complaint of neck pain that extended into her hands “in a stocking glove
fashion,” on May 29, 2008, and again in November 2009. She testified that she had a
tingling in her hands for about a year prior to the October 2011 injury. She also testified
that she had previously used wrist splints due to pain in her hands, like a needle sensation,
since before 2008, when she worked at the Days Inn. The medical records indicate
degeneration in the left side of the neck, and she testified that she hurt her right arm and
right shoulder.
Regarding appellant’s right shoulder, the MRI taken soon after the incident on
November 7, 2011, did not show any indication of a rotator-cuff tear. Further, neither Dr.
Pearce nor Dr. Stewart reported any indication that appellant’s complaints of pain could be
associated with a rotator-cuff tear. The Commission gave weight to Dr. Pearce’s opinion,
as he had been treating appellant since 2008 when he had performed a previous right-
shoulder surgery on her. Both Dr. Pearce and Dr. Stewart concluded that the right-shoulder
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injury on October 6, 2011, did not cause any permanent impairment. The Commission
considered Dr. Daniels’s proposal of rotator-cuff surgery and determined that he had been
given a materially inaccurate history. The ALJ noted that Dr. Daniels had been told that
the pallet incident occurred in 2012, which was after the 2011 shoulder MRI.
The Commission is not required to believe the testimony of the claimant or any
other witness, but may accept and translate into findings of fact only those portions of the
testimony it deems worthy of belief; this court is foreclosed from determining the credibility
and weight to be accorded to each witness’s testimony. Jackson v. O’Reilly Auto. Inc., 2013
Ark. App. 755. The Commission has the authority to accept or reject a medical opinion
and the authority to determine its probative value. Id. While it is within the province of
the Commission to weigh conflicting evidence, the Commission may not arbitrarily
disregard medical evidence. Id. Accordingly, we hold that substantial evidence supports
the Commission’s determination denying appellant’s claims for her neck and shoulder
injuries. The Commission was well within its authority in giving greater weight to Dr.
Pearce’s and Dr. Stewart’s opinions rather than relying on the opinions of Dr. Daniels and
Dr. Contreras.
IV. TTD
To receive TTD benefits, the claimant must prove by a preponderance of the
evidence that he is within the healing period and is totally incapacitated from earning
wages. Union Drilling, Inc. v. Griffith, 2015 Ark. App. 273, 2015 WL 1952691. The
healing period ends when the employee is as far restored as the permanent nature of
the injury permits; thus, if the underlying condition causing the disability has become
stable and nothing in the way of treatment will improve that condition, the healing
period has ended. Id. The determination of when the healing period has ended is a
factual determination for the Commission. Smallwood v. Ark. Dep’t of Human
Servs., 2010 Ark. App. 466, 375 S.W.3d 747.
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Ark. Dep’t of Parks & Tourism v. Price, 2016 Ark. App. 109, at 10, ___ S.W.3d ___, ___.
Appellant argues that she has been unable to work for a long time, first taking short-
term and then long-term disability, until Wal-Mart terminated her employment. Her
doctors told her not to work, at least until a few weeks after the neck surgery. Thus, she
contends that she is entitled to TTD for that time period.
Wal-Mart contends that the Commission found Dr. Stewart credible and gave great
weight to his indication that appellant had reached MMI for her compensable right-shoulder
injury and could return to regular-duty work on February 15, 2012. Appellant wrote on
her leave request that her reason was her “own serious health condition.” Because we
affirm the Commission’s determination that the various injuries for which appellant sought
treatment after July 19, 2012, were not causally related to the October 6, 2011 work
incident, we affirm the Commission’s decision to deny TTD on or after July 19, 2012.
Affirmed.
HARRISON and WHITEAKER, JJ., agree.
Moore, Giles & Matteson, L.L.P., by: Greg Giles, for appellant.
Bassett Law Firm LLP, by: Curtis L. Nebben, for appellee.
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