Opinion
CA 09-1081
Opinion Delivered March 3, 2010
Appeal from the Arkansas Workers' Compensation Commission, [F307640], Reversed and Remanded.
Appellant Vicki Roberts appeals from a decision by the Workers' Compensation Commission, reversing the opinion of the ALJ and finding that she had failed to meet her burden of proof that she was entitled to additional medical treatment for her cervical spine injury; that she had failed to prove that she was entitled to an eleven-percent anatomical impairment; and that she had failed to prove that she was entitled to wage-loss disability benefits. Appellant presents four arguments on appeal: 1) that the Commission erred in finding that the surgery performed by Dr. Mason and her additional medical treatment were not reasonably necessary as a result of her admittedly compensable injury; 2) that the Commission erred in finding that she did not sustain a permanent anatomical impairment as a result of her compensable injuries; 3) that the Commission erred in failing to find that she had sustained wage-loss disability; 4) that the Commission erred in failing to award her temporary-total-disability benefits. We remand this case to the Commission for more specific findings.
Appellant worked as a licenced practical nurse for appellee, St. Vincent Health Systems. On June 24, 2003, appellant was in an automobile accident when the car she was driving was struck from behind by another vehicle. St. Vincent Health Systems accepted the accident as compensable. Appellant immediately sought treatment at the emergency room, as she was instructed to do by her employer. She was released from the emergency room with instructions to see her family physician if she was not better the next morning. Appellant testified that she had not improved by the next day, so she went to see Dr. Scott Carle. Dr. Carle ordered an MRI, and referred her to Dr. Cathey. In a letter to Dr. Carle, Dr. Cathey wrote that while appellant was "extremely anxious and tremulous," her neurological examination was otherwise negative. She showed no sign of cervical myeloradiculopathy, but exhibited pain with passive range of motion of the cervical spine. He stated that there was restriction of movement and mild paraspinous muscle spasm. He noted that the MRI of her cervical spine showed straightening of the cervical lordotic curve secondary to degenerative changes within multiple cervical discs, a very small midline disc protrusion at C4-5, and a left paracentral osteophyte disc protrusion at C6-7. The MRI also showed at C5-6 a fairly prominent, midline disc herniation, but with no significant cord or nerve-root compression. Dr. Cathey told appellant that her pain was "well explained on the basis of a musculoskeletal injury (i.e. whiplash) and that it was entirely possible that the degenerative changes noted in her cervical spine [were] preexisting despite the fact that she [denied] any prior neck trouble." Dr. Cathey did not see any indication for cervical-disc surgery or other neurosurgical intervention. He recommended conservative measures including physical therapy and medication. He changed her medication to hydrocodone and Skelaxin. Dr. Cathey noted that he would reevaluate appellant if necessary.
Appellant saw Dr. Carle the next day. On that day, Dr. Carle assessed appellant with cervical strain, cervicalgia, and low pain tolerance. His notes reflected that appellant refused to accept the Demerol prescription and the recommendation for physical therapy. Dr. Carle discussed trigger-point injections with appellant, but appellant declined to undergo the injections. Dr. Carle released appellant to regular activity and released her from his care to return to the clinic only as needed. Appellant returned to Dr. Carle on July 23, 2003, complaining that her symptoms had not improved. Dr. Carle's notes reflected that appellant had not been working "because she chose not to work." Records also show that appellant was complaining of right arm and hand numbness. Dr. Carle observed that appellant had cervical trapezial tenderness bilaterally "without evidence of involuntary muscle spasm or dermatomal radiculopathy." He assessed appellant with "neck pain s/p whiplash injury"; right-arm pain and paresthesias, etiology unclear; moderate illness behavior; and obesity. He recommended Tylenol three times a day and advised her to let Dr. Cathey know if her new symptoms worsened. Dr. Carle noted that appellant chose to hold off on any soft-tissue injections for the time being.
Appellant testified that she was told by her employer that she would not receive any more medical treatment, so she went to her personal physician, Dr. James Cooper. She testified that Dr. Cooper looked at her MRI and referred her to Dr. Zach Mason. Dr. Mason's report indicated that appellant was suffering from neck pain, headaches, occasional nausea and vomiting, and radiation to the bilateral shoulders and down the left arm, with numbness into the third and fourth fingers. He noted that appellant had attempted physical therapy, but that it had only increased her pain. He noted that a recent MRI of her cervical spine revealed a disc herniation with nerve-root compromise at C5-6 and C6-7. Dr. Mason noted that appellant had failed at conservative measures and wished to proceed with surgery. Dr. Mason performed a cervical fusion at C5-6 and C6-7 on August 15, 2003. Appellant was given an eleven-percent anatomical impairment rating to the body as a whole as a result of the surgery. On October 6, 2003, appellant returned to Dr. Mason for a follow-up and reported that she was "worse now than her [follow-up] visit on September 8, 2003." Appellant continued to see Dr. Mason with reports of continued pain. On July 7, 2004, Dr. Mason released appellant from his care and to full-duty work.
Upon release by Dr. Mason, appellant returned to work for appellee, although she testified that only a part-time job was available there. Appellant testified that she was making less money than before, so she worked for appellant until March 2005, when she quit and went to work for Hospice Home Care. Appellant testified that even after the surgery, she continued to have headaches as well as neck and shoulder pain. She said that the job at Hospice would be better for her condition because it was a desk job and there was also an increase in pay. Eventually, however, her job duties would require her to travel again. She testified that the pain "got to the point that it was intolerable." She testified that she attempted to see Dr. Mason again; however, Dr. Mason would not see her because she had an unpaid balance from her previous treatment/visit.
In an opinion filed October 21, 2008, the ALJ made the following findings: 1) that appellant proved by a preponderance of the evidence that all of the medical treatment contained in the record for her cervical spine injury was reasonable and necessary and related to her compensable neck injury; 2) that appellant proved by a preponderance of the evidence that she was entitled to the additional medical treatment in the form of pain management for her cervical problems; 3) that appellant proved by a preponderance of the evidence that she was entitled to temporary-total-disability benefits from August 15, 2003, through June 7, 2004; 4) that appellant proved by a preponderance of the evidence that she was entitled to permanent-partial-disability benefits in the form of an eleven-percent whole body anatomical impairment rating; 5) that appellant proved by a preponderance of the evidence that she was entitled to wage-loss-disability benefits in excess of her eleven-percent whole body anatomical impairment in the amount of ten percent; 6) that appellant had not been "made whole" by the proceeds of a third-party settlement; therefore, appellees were not entitled to a statutory lien on settlement proceeds from the third-party claim and settlement proceeds were to be released to appellant.
In reversing the decision of the ALJ, the Commission found that appellant failed to meet her burden of proof that she was entitled to the medical treatment she received for her cervical spine; that she failed to prove that she was entitled to additional medical treatment; that she failed to prove that she was entitled to an eleven-percent permanent anatomical impairment rating; and that she failed to prove that she was entitled to ten-percent wage-loss disability benefits. The Commission affirmed, however, the ALJ's determination that appellant was not made whole by the proceeds of the third-party settlement; therefore, appellee was not entitled to a statutory lien. The Commission's opinion was silent as to temporary-total-disability benefits. From that decision comes this appeal.
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, and we affirm if the decision is supported by substantial evidence. Crawford v. Superior Indus., 2009 Ark. App. 738, ___ S.W.3d ___ (citing Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002)). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. (citing Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)).
When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Flynn v. Southwest Catering Co., 2009 Ark. App. 641 (citing Whitlach v. Southland Land Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004)). This court, however, relies on the Commission to clearly articulate its findings of fact because we do not review the Commission's decisions de novo. Id. (citing Sonic Drive-In v. Wade, 36 Ark. App. 4, 816 S.W.2d 889 (1991)). When the Commission fails to make specific findings upon which it relies to support its decision, reversal and remand of the case is appropriate. Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986) (citing The Home Ins. Co. v. Meeker, 9 Ark. App. 201, 657 S.W.2d 215 (1983)).
In order that this case not be decided piecemeal on appeal, we conclude that it should be remanded to the Commission for a specific finding on the issue of appellant's entitlement to temporary-total-disability benefits before we decide any of the points presented. Flynn, supra.
Accordingly, we reverse and remand.
PITTMAN and HENRY, JJ., agree.