Opinion
No. CA12-622
01-23-2013
SALINE MEMORIAL HOSPITAL AND RISK MANAGEMENT RESOURCES APPELLANTS v. DARLENA SMITH APPELLEE
Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Travis J. Fowler, for appellant. Daniel A. Webb, for appellee.
APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION
[NO. G008235]
AFFIRMED
RITA W. GRUBER, Judge
Saline Memorial Hospital and its insurer Risk Management Resources appeal from a decision of the Workers' Compensation Commission awarding claimant Darlena Smith additional and continued medical treatment, including a total knee replacement of the left knee, and temporary total disability benefits. Appellants contend that the Commission's determination that Smith is entitled to additional medical treatment is not supported by substantial evidence because her preexisting arthritis, not her work injury, caused her need for a knee replacement. We affirm the Commission's decision.
On September 15, 2010, Smith injured her left knee when she stepped into an open drain in the kitchen at Saline Memorial Hospital. Appellants accepted the injury as compensable and paid medical benefits and temporary total disability through December 21, 2010. The dispute arose when, on December 16, 2010, Smith's treating physician, Dr. Jerry Lorio, recommended a total knee replacement. Appellants terminated benefits, claiming that
Smith's need for a left knee replacement was the result of her preexisting arthritic condition and not related to her work injury.
The parties do not dispute that Smith had significant preexisting knee problems in both of her knees before she injured her left knee at Saline Memorial Hospital in September 2010. The evidence revealed that Smith had begun receiving cortisone injections in the knee on January 18, 2010, from Dr. Lorio to treat osteoarthritis. Dr. Lorio performed arthroscopy for a meniscal tear in the knee in April 2010. On September 14, 2010, the day before she sustained her work injury, Smith saw Dr. Lorio for a follow-up on the knee. His notes of that visit state that Smith had "osteoarthritis, stage 3," in her left knee and that he was giving her cortisone that day. His notes indicate that he planned to get her approved for SYNVISC-One because he did not think the cortisone would last. He also stated that he did not want to "rush towards a knee replacement."
After the accident on September 15, 2010, appellants sent Smith to Family Practice Associates, which referred her to her treating orthopedic surgeon, Dr. Lorio. On September 23, 2010, Dr. Lorio prescribed pain medication. Smith saw Dr. Lorio again on September 30, 2010. Dr. Lorio's notes from that visit state that his clinic was still waiting on insurance approval for SYNVISC-One, and he continued to recommend that she not work. Follow-up notes in October indicate that Smith continued to experience severe pain, locking, catching, and giving way in her left knee. On November 4, 2010, Dr. Lorio injected SYNVISC-One into Smith's left knee. On December 2, 2010, Dr. Lorio's notes state that Smith was still experiencing pain of "6 to 9 out of 10"; could not put much weight on her knee; and had not been able to go back to work. Dr. Lorio's notes from Smith's appointment on December 16, 2010, state that the SYNVISC-One had "really not helped her pain" and that she was a candidate for a knee replacement. He stated that while she already had arthritis and a knee replacement was "likely" in her future, her "event has sped that up."
The administrative law judge (ALJ) found that Smith's work injury aggravated a preexisting problem with her left knee and therefore found that appellants were responsible for additional medical treatment, including total knee replacement. The Commission affirmed the ALJ's decision and adopted his opinion as its own.
Where the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the findings of the Commission and will affirm if those findings are supported by substantial evidence. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 603, 120 S.W.3d 153, 155 (2003). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We recognize that it is the Commission's function to determine the credibility of the witnesses and the weight to be given their testimony, Powers v. City of Fayetteville, 97 Ark. App. 251, 254, 248 S.W.3d 516, 519 (2007), and that when the medical evidence is conflicting, the resolution of that conflict is a question for the Commission. Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 165, 258 S.W.3d 394, 396 (2007).
On appeal, appellants contend that the Commission's decision that Smith's need for a knee replacement was caused by her September 15, 2010, work injury is not supported by substantial evidence. They argue that Dr. Lorio did not opine within a reasonable degree of medical certainty that Smith's need was due to her injury rather than to her ongoing arthritic condition.
An employer must provide for an injured employee such medical services "as may be reasonably necessary in connection with the injury received by the employee." Ark. Code Ann. § 11-9-508(a) (Repl. 2012). Moreover, "an employer ‘takes the employee as he finds him,' and employment circumstances which aggravate pre-existing conditions are compensable." Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 464, 120 S.W.3d 150, 152 (2003) (quoting Nashville Livestock Comm'n v. Cox, 302 Ark. 69, 73, 787 S.W.2d 664, 666 (1990)). An aggravation of a preexisting, noncompensable condition by a compensable injury is, itself, compensable. Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 9, 145 S.W.3d 383, 388 (2004). An aggravation is a new injury resulting from an independent incident. Id.
In Williams, supra, a case similar to this one, this court clarified that an employee is not required to show that the aggravation of a preexisting condition is the major cause of the need for treatment when she is seeking medical benefits and temporary total disability. The majorcause analysis is applicable only in gradual-injury cases and when the employee is seeking permanent disability benefits. Id. at 10, 145 S.W.3d at 388. In Williams, the employee slipped on some stairs, injuring her knee. The employer did not dispute the compensability of the injury but rather disputed that knee-replacement surgery was reasonable and necessary in relation to the injury given the fact that the employee suffered from preexisting arthritis in her knee. Medical testimony indicated that the employee's fall at work was not the major cause of her need for knee surgery but was at least a factor. The Commission denied benefits. We reversed and awarded benefits, holding that the employer had to take the employee as it found her and that the compensable injury she suffered "was a factor" in her need for additional surgery. Id. at 11, 145 S.W.3d at 389.
There is no dispute in this case that Smith's knee injury was compensable. The complication is that Smith suffered with osteoarthritis in her left knee before the work injury occurred. The dispute is whether the injury aggravated this preexisting condition and whether knee replacement surgery is reasonably necessary in connection with that injury.
Dr. Lorio's notes from his last visit with Smith state that, while Smith already had arthritis and a knee replacement was "likely" in her future, her "event has sped that up." He testified that, while he could not say that Smith's work injury caused her need for a knee replacement, her fall at work "stirred-up/exacerbated her condition." He testified that she was already on the path to knee replacement and again stated that the injury "sped it up." He said that the arthritis was an evolving condition and he had not recommended a knee replacement before the work injury. He also said that there was no way to know whether a knee replacement would have been necessary or, if necessary, when. Finally, he said that SYNVISC is used to prolong the need for a knee replacement and that some people "can make it to the grave without a knee replacement."
Appellants provided a letter from Dr. Richard Nix, an orthopedic surgeon whom they hired to review Smith's records and provide an opinion. Dr. Nix did not treat or interview Smith. He concluded that it was "virtually certain" that Smith would have eventually needed a knee replacement and that the work injury offered temporary aggravation of a badly degenerated knee.
The ALJ, and by adoption the Commission, found that Smith was working at the time she sustained the compensable injury and had been unable to return to work after the injury, indicating that the injury was not merely a "temporary aggravation" of a preexisting condition. The ALJ also stated that, although Smith may very well have required a total knee replacement in the future, no such surgery had been recommended before her work injury. The ALJ credited Dr. Lorio's testimony and notes that the injury accelerated Smith's need for a knee replacement. The ALJ noted that major cause was not controlling in this case and found that Smith's work injury "aggravated, accelerated, and combined with" her preexisting condition, contributing to her need for a total knee replacement. The ALJ stated that Dr. Nix's report lacked credibility. The Commission affirmed the ALJ's decision, including all findings of fact and conclusions of law therein. Determinations of credibility lie with the Commission. Viewing the evidence in the light most favorable to the Commission's findings, we hold that substantial evidence supports its decision.
Affirmed.
HARRISON and WYNNE, JJ., agree.
Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Travis J. Fowler, for appellant.
Daniel A. Webb, for appellee.