Hill v. Baptist Medical Center

48 S.W.3d 544 (2001) 74 Ark.App. 250 Sheila HILL v. BAPTIST MEDICAL CENTER. No. CA 00-1177. Court of Appeals of Arkansas, Division III. June 20, 2001. *545 M. Keith Wren, Little Rock, for appellant. Barber, McCaskill, Jones & Hale, P.A., by Gail Ponder Gaines and Wendy S. Wood, Little Rock, for appellee. JOHN B. ROBBINS, Judge. Appellant Sheila Hill appeals the denial of workers' compensation benefits by the Workers' Compensation Commission in her claim against her employer, appellee Baptist Medical Center. Appellant raises two points on appeal: (1) that the Commission erred as a matter of law by refusing to consider appellant's post-surgical improvement when determining whether surgery was reasonable and necessary; and (2) that the Commission's denial of further benefits is not supported by substantial evidence. We reverse and remand. The standard of review of appeals from the Workers' Compensation Commission is well-settled. On appeal, this court will view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Id. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. The issue is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, then we must affirm. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Green Bay Packaging v. Bartlett, supra. The Commission has the duty to use its expertise in translating evidence of medical experts into findings of fact. Id. However, these standards must not totally insulate the Commission from judicial review because this would render this court's function meaningless in workers' compensation cases. Inskeep v. Emerson Elec. Co., 64 Ark.App. 101, 983 S.W.2d 132 (1998). On February 4, 1999, appellant suffered an admittedly compensable back injury, a herniation at L4-5, while at work for appellee in her capacity as a certified nurse's assistant as she escorted a psychiatric patient to his room. She sought medical treatment in the emergency room of her employer the following day, and she received *546 a Toradol injection to relieve the discomfort she felt in her low back and radiating down her left leg. She returned to the emergency room three days later complaining of pain radiating down her lower left thigh. Appellant next presented to Dr. Barg, her family doctor, on February 11, who treated her conservatively and referred her to physical therapy. Dr. Barg ordered an MRI, but the workers' compensation insurance carrier would not approve this diagnostic test because Dr. Barg was not an approved provider. The insurance carrier referred appellant to a neurosurgeon, Dr. Russell, who noted in his report of March 19 the lack of improvement in her symptoms. Dr. Russell opined that her symptoms and history were consistent with nerve root irritation, which is typically secondary to a ruptured disc. He ordered an MRI, and this test revealed the presence of a herniated disc at L4-5 that was compromising the nerve root at the left L4. In Dr. Russell's clinic note dated April 7, he stated that her pain had actually worsened somewhat and she continued to have quite a bit of pain behavior while sitting for the examination. Dr. Russell did not think that appellant was a surgical candidate, so he referred her for further conservative treatment under the care of Dr. Meador. Dr. Russell explained that the symptoms she expressed on April 7 did not match the expected distribution as shown by the MRI, but that, even so, not one of his patients in the last five years who was workers' compensation claimant got any better after surgical intervention. Dr. Russell went so far as to state that even the patients he had seen who were "perfectly suited for surgical intervention do not seem to have a significant improvement." Dr. Russell opined that she was better suited for pain management, and that if this course was unsuccessful, then she would need an impairment rating and release from treatment. Appellant saw Dr. Meador of Arkansas Pain Centers, Ltd., on April 15, whose evaluation of appellant indicated a sacroiliac strain. Dr. Meador made no mention of herniation. She prescribed an injection at the pain site and physical therapy. Throughout the course of physical therapy, which consisted of approximately six sessions, appellant complained of low back and lower extremity pain. However, there were notes of improvement in her condition during the course of physical therapy. In Dr. Meador's progress note dated May 13, she stated that the strain had improved with the injection and physical therapy and that a work-conditioning program would be implemented. A physical therapist's progress report dated June 2 noted that appellant cried throughout her session, though the therapist could not find a sacral or lumbar problem. The therapist requested that Dr. Meador advise her how to proceed with the patient. Appellant presented on June 3 to Dr. Meador, who stated that by her physical examination the sacroiliac strain had resolved. At that time, Dr. Meador released appellant to work with restrictions, but that kind of work was unavailable, so appellant stayed off work. Dr. Meador anticipated that appellant would be released to work full duty in two months. No further medical care was administered, nor would the carrier authorize any upon written request because there were "no objective findings" and "Ms. Hill is seeking treatment for pain," per a letter from the carrier dated July 16. On August 2, Dr. Meador recommended that appellant begin water aerobics for her general fitness and, as the doctor had earlier indicated, she released appellant to work without restrictions. Dr. Meador also remarked on that date that appellant exhibited exaggerated pain behavior. *547 Appellant maintained that she could not work due to pain. She presented to the UAMS emergency room on September 15 and was referred to a UAMS neurosurgeon and professor of neurosurgery, Dr. Fox. Dr. Fox recommended that she undergo a laminectomy, and appellant wanted to proceed as soon as possible. Dr. Fox explained to appellant the risks of the surgery, including death, paralysis, hemorrhage, infection, failure of pain relief, and spinal fluid leak. Appellant decided to undergo surgery, which was performed on September 17, 1999. In his surgical report, Dr. Fox noted that the disc at L4-5 was obviously bulging and impinging both nerve roots per his visual exam of her spine during surgery. In a follow-up examination on November 10, Dr. Fox noted that appellant's leg pain was absent on that date and that he expected gradual but continued improvement in her back pain. In a December 1 letter in response to appellant's counsel, Dr. Fox expressed disagreement with Dr. Russell's opinion that appellant was not a surgical candidate to treat her herniation. Dr. Fox noted moderate back pain after surgery that required pain medication and the potential of physical therapy, as she healed from the laminectomy. Appellant requested a hearing to consider her claim for additional temporary total disability, additional medical treatment, and attorney's fees. Appellee contended that appellant's healing period ended on August 3 and that no treatment was reasonable or necessary after that date nor was any temporary total disability warranted after that date. The hearing was conducted on December 14, in which appellant testified that her back and leg pain was much improved after surgery and that she no longer suffered any falling incidents due to weakness in her leg as she had prior to surgery. On this evidence, the Administrative Law Judge (ALJ) found that the physicians' opinions were, at best, equal evidence of whether the surgery was reasonable and necessary, and that because appellant had the burden of proving by a preponderance of the evidence that this was reasonable and necessary treatment, she had failed to do so. The ALJ further found that appellant failed to prove that she was still in her healing period subsequent to her release by Dr. Meador. A motion to reconsider and a notice of appeal were lodged with the Commission. The motion to reconsider asked that the ALJ be ordered to reconsider the claim in light of appellant's post-surgical improvement as a relevant consideration in determining whether the surgery was reasonable and necessary, citing to Winslow v. D & B Mech. Contractors, 69 Ark.App. 285, 13 S.W.3d 180 (2000), a case handed down by our court subsequent to the hearing. Appellant's counsel stated that there was new evidence to consider in that she had been able to return to work since the hearing, further supporting the validity of the surgery. The Commission issued an order denying the motion for reconsideration. It subsequently rendered a majority opinion affirming and adopting the opinion of the ALJ; Commissioner Humphrey authored a dissent that described Dr. Russell as biased toward employers' interests and whose opinion deserved little weight. It is from this order that appellant lodged the instant appeal. We reverse because the finding that surgery was not reasonable and necessary treatment is not supported by substantial evidence. Arkansas Code Annotated section 11-9-508 (Repl.1996) states that employers must provide all medical treatment that is reasonably necessary for the treatment of a compensable injury. What constitutes reasonable and necessary treatment under *548 this statute is a question of fact for the Commission. Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996); Geo Specialty Chem., Inc. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). First, we disagree with the finding that Drs. Fox and Russell had opinions that were, at best, even, as characterized by the ALJ. Dr. Russell, chosen by the insurance carrier, specifically recognized the herniation as depicted on the MRI that he ordered and initially noted that appellant's symptoms were consistent with a herniation. He simply did not advocate surgical intervention. Then, Dr. Meador failed to recognize that appellant was referred to her for treatment of a herniation; Dr. Meador diagnosed appellant with a simple sacroiliac strain and treated her accordingly. That appellant presented again to the emergency room when no further medical care was authorized is no surprise. This resulted in a referral to a professor of neurosurgery at UAMS, whose recommended surgery provided relief from her ongoing symptoms, and whose visual exam revealed more extensive nerve-root compression than did the MRI. Furthermore, the Commission failed to make any comment about the uncontroverted evidence that appellant's symptoms significantly improved post-surgery. This is a relevant consideration when deciding whether treatment is reasonable and necessary. See Winslow, supra. We cannot ignore this compelling evidence that was present before the ALJ and the Commission as it relates to appellant's admittedly compensable injury. While the Commission is empowered with the authority to weigh medical evidence and to examine the basis of an expert's opinion in deciding what weight to give it, it may not arbitrarily disregard the testimony of any witness. See Crow v. Weyerhaeuser Co., 46 Ark.App. 295, 880 S.W.2d 320 (1994). It appears to have done just that by disregarding the substantial improvement enjoyed by appellant post-surgery. In sum, there is simply no substantial evidence that surgery was not the best course of treatment to relieve her symptoms. We do not believe that fairminded persons with the same facts before them could have reached the conclusion arrived at by the Commission. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Finally, we reject the contention of appellee that because appellant did not request a change of physician prior to her presentation to the emergency room and to Dr. Fox, she was not entitled to payment for any services rendered, even if they were reasonable and necessary. This issue was not raised to the ALJ or to the Commission when appellee controverted the claim. It is not the function of the courts to make findings of fact with respect to issues raised for the first time on appeal by an appellee. Moore v. King, 328 Ark. 639, 945 S.W.2d 358 (1997). To do so would deny the agency the opportunity to consider the matter, make a ruling on it, and express its reasons for doing so. Id; see also Cook v. Alcoa, 35 Ark.App. 16, 811 S.W.2d 329 (1991) (holding that on appeal from the Commission we cannot indulge in the presumption used in appeals from trial courts that we will affirm the trial court even if the wrong reason is used if the right result is reached). We are convinced that fair-minded persons with the same facts could not have come to the conclusion reached by the Commission in this instance. We reverse because there is no substantial evidence to find that the surgery was not reasonable and necessary treatment for appellant's herniation. Inasmuch as her entitlement *549 to additional temporary total disability benefits is dependent upon the resolution of facts not before us, we remand for proceedings consistent with our opinion. GRIFFEN and CRABTREE, JJ., agree.