Rodriguez v. Superior Indus. , 491 S.W.3d 146 ( 2016 )

Cite as 2016 Ark. App. 235
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-977
FABIO RODRIGUEZ Opinion Delivered: April 27, 2016
APPELLANT
V. APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
SUPERIOR INDUSTRIES and COMMISSION
CENTRAL ADJUSTMENT [NO. G302911]
COMPANY
APPELLEES
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant appeals from the August 27, 2015 opinion of the Arkansas Workers’
Compensation Commission (Commission) affirming the opinion of the administrative law
judge (ALJ) that appellant failed to prove his entitlement to additional medical treatment
for a compensable low-back injury sustained on January 5, 2013. On appeal, appellant’s
sole argument is that substantial evidence does not support the Commission’s decision that
appellant failed to prove that he was entitled to additional medical treatment. We affirm.
Appellant suffered a compensable low-back injury on January 5, 2013. 1 On January
7, 2013, he received treatment from Dr. Konstantin Berestnev, who treated appellant with
a shot of Depo-Medrol and a prescription for Nalfon. Dr. Berestnev further
recommended stretching exercises for appellant and returned him to work with a lifting
1
Appellees accepted appellant’s injury as a compensable injury.
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restriction of no more than forty pounds. His assessment of appellant found “no acute
fractures or dislocations” in appellant’s lumbar spine, though lumbar scoliosis was present.
Dr. Berestnev saw appellant again on January 14, 2013. 2 He gave appellant another
shot of Depo-Medrol and recommended physical therapy. He noted that appellant had
stated that the Nalfon “did not help.”
Following a January 28, 2013 examination, Dr. Berestnev reported that appellant
said “the pain in his lower back is getting [worse]. Pain radiating down both legs.” He
assessed appellant as having “back pain with symptoms of nonorganic back pain.” He
returned appellant to work with a lifting restriction of no more than twenty pounds.
Appellant’s prescription for Nalfon was continued and physical therapy was ordered; a
prescription for Norco was added.
In his January 29, 2013 report following appellant’s first physical therapy treatment
on the same date, appellant’s physical therapist assessed appellant as demonstrating signs
“consistent with lumbar strain with radiculopathy and a possible SI joint dysfunction.” He
opined that appellant “would benefit” from physical therapy. The physical therapist’s notes
over the next four consecutive sessions stated that appellant respectively “tolerated the
treatment fairly well[,]” “[was] not progressing well with his exercises[,]” “tolerates
[certain] exercises moderately[,]” and “[was] making very slow progress.”
2
The ALJ’s opinion erroneously states that appellant saw Dr. Berestnev on January
17, 2013; however, Dr. Berestnev’s order form (for physical therapy), letter to appellee
Superior Industries (Superior), and physician’s report are all dated January 14, 2013.
Appellant’s three-times-per-week physical therapy was to begin on January 17, 2013,
according to the approval/authorization form.
2
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In his February 11, 2013 report, appellant’s physical therapist stated that he had
“made little progress” with appellant. After his visit with the physical therapist, appellant
had an examination with Dr. Berestnev on the same date. Dr. Berestnev reported
appellant’s statement that he still had pain and that his pain was “not any better” after
completing six physical therapy sessions. Dr. Berestnev stated that appellant’s “pain is out
of proportion to the clinical findings.” His notes go on to state that
The patient has what appears to be nonorganic back pain and since he has not
improved with physical therapy, we are going to order an MRI of his lower back
to look for an organic cause of his back pain. Otherwise, I am going to keep him
on medication which, according to the patient helps him.
Dr. Berestnev ordered an MRI, which was performed on February 22, 2013, and revealed
the following:
1. MILD DEGENERATIVE CHANGES INVOLVING THE LUMBAR
SPINE WITH DISC HERNIATIONS INVOLVING THE L3-4 AND L5-S1
LEVEL.
2. MODERATE CENTRAL CANAL STENOSIS INVOLVING THE L5-S1
LEVEL PREDOMINATELY SECONDARY TO PREVIOUSLY NOTED
DISC HERNIATION.
He continued treating appellant with prescriptions and physical therapy.
On February 28, 2013, Dr. Berestnev reported that appellant said he still had pain
in his lower back and a “numbness and tingling sensation down [his] right leg.” He
ordered the opinion of a neurosurgeon. Claimant was terminated at an undefined time for
a sexual-harassment matter unrelated to his compensable injury. 3
3
Appellant testified, “I think I worked there about six months after the January
injury of 2013.” It appears that he was terminated around the month of July based on this
testimony. No other evidence exists of appellant’s termination date. Accordingly, the
Commission’s assertion in its opinion that he testified that he was terminated “in about
January 2014” is incorrect.
3
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Despite his termination, his medical treatment continued at appellees’ expense and
appellant was seen by a neurosurgeon’s assistant on April 2, 2013. She ordered a repeat
MRI due to the poor quality of a prior MRI, noting that she would “offer an opinion
regarding surgery vs. continued conservative care” after receipt of the new MRI. The
impression from appellant’s April 5, 2013 MRI was:
1. L3-4 CENTRAL ANNULAR TEAR WITH MODERATE DISC
PROTRUSION RESULTING IN MODERATE CENTRAL CANAL
STENOSIS.
2. L5-S1 CENTRAL ANNULAR TEAR WITH MODERATE DISC
PROTRUSION BUT NO HIGH-GRADE CENTRAL CANAL
STENOSIS.
3. SEVERE RIGHT NEUROFORAMINAL NARROWING WITH
IMPINGEMENT OF THE EXITING L5 NERVE ROOT DUE TO
FACET HYPERTROPHY AND FORAMINAL DISC COMPONENT.
The neurosurgeon and his assistant reviewed the findings on April 8, 2013, and found that
appellant’s “MRI findings are inconsistent with the patient’s pain pattern and physical
exam. Therefore, no surgery is recommended.” 4
On April 19, 2013, Dr. Berestnev reported that appellant said his lower back pain
was getting worse so that he “cannot even sleep now.” Dr. Berestnev reported that despite
appellant’s assertions of worsened pain, Dr. Berestnev’s understanding was that the
neurosurgeon “found [appellant] to be a nonsurgical candidate[.]” He stated that appellant
was advised to “continue conservative management” and that he, accordingly, would
continue physical therapy with prescriptions for pain management, to which appellant was
“agreeable.”
4
The medical notes state that the MRI “was reviewed by Dr. Armstrong as well.”
Dr. Armstrong was the neurosurgeon.
4
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The physical therapist’s April 26, 2013 report states that appellant said “his leg pain
isn’t as bad” and noted that appellant was able to walk “a little more.” He also stated that
appellant said he was continuing to have pain down his lower right extremity that
increased after exercises, but noted that appellant “declines modalities stating he is in a
hurry[.]”
Dr. Berestnev reported on May 6, 2013, that appellant had completed only three of
six therapy treatments due to lack of transportation. He noted that appellant continued to
have signs of nonorganic back pain and stated his belief that appellant “needs to complete
his physical therapy” and to “continue doing home exercises.” Dr. Berestnev reported on
May 20, 2013, that appellant said his lower back pain was worse “with more pain than use
to.” He also reported that appellant told the physical therapist that he can do the exercises
at home and “doesn’t really need to come to physical therapy.” He noted that the physical
therapist stated that appellant had not made “any” progress.
Dr. Berestnev further stated that appellant continued to have signs and symptoms of
nonorganic back pain, but again opined that “[appellant’s] pain is out of proportion to the
clinical findings” with some continued “inconsistencies.” He provided the example that
appellant had back pain from “lifting his right big toe up.” He noted that he did not see
“any” objective findings, stating that “[i]t is pretty much a subjective pain which
[appellant] is reporting.” He found the discrepancy “highly suspicious for nonorganic
pain” and further opined that appellant’s subjective belief that he was not getting better
and transportation issues with physical therapy meant he was “left pretty much with just
[the option of] a functional capacity evaluation [FCE] of his back at [that] point.”
5
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On a date after his termination, but before his FCE was scheduled, appellant
moved to Houston, Texas. 5 Once there, he was employed by a school district as a
custodian sweeping floors approximately seven hours per day. 6
Appellant’s FCE was scheduled for May 8, 2014, in Deer Park, Texas. Appellant’s
attorney was notified of the appointment by letter and email on April 25, 2014, with the
instruction that she notify appellant as well as notice that the therapist’s office would
contact appellant. Appellant’s attorney contacted the attorney for appellee Superior via
email on May 7, 2014, advising that appellant had only learned of the appointment on
May 7, 2014, and requesting that the FCE be rescheduled for June 3, 2014. She also
requested that Superior pay for appellant’s transportation, noting that appellant “takes the
bus everywhere” and the appointment was “about a 45 minute walk” from the bus stop.
In a May 13, 2014 letter to Superior’s attorney, appellant’s attorney advised that appellant’s
appointment had been rescheduled to June 3, 2014. In a May 29, 2014 email, Superior’s
attorney advised appellant’s attorney that Superior would not pay for transportation, but
would pay mileage after appellant attended the appointment. Appellant did not show up
for the June 3, 2014 appointment.
A pre-hearing order was filed on August 22, 2014. Appellant’s contention was “On
January 5, 2013, the claimant injured his low-back when he slipped and twisted to catch
5
Appellant testified “I moved in January, February, March—March 20, I think. 21.
A month or two after I was fired I moved.” This testimony makes it clear that appellant
did not give a definite date for his move to Texas; therefore, the Commission’s assertion
in its opinion that he testified that he moved to Texas in March of 2014 is inaccurate.
6
Appellant testified that he is “on [his] feet for seven hours because [they] get an
hour lunch.”
6
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himself and then lifted a heavy rim. He has since moved to Houston, Texas.” Appellees’
contention was that:
[T]hey have not denied any medical treatment. The respondents have scheduled
three functional capacity evaluations and the claimant has failed to appear due to
transportation issues. The respondents contend that they are not required to pre-
pay transportation expenses prior to a scheduled appointment.
A hearing before the ALJ was held on November 4, 2014. The parties had
previously stipulated that appellant sustained a compensable back injury on January 5,
2013. They further stipulated that the issues to be litigated before the ALJ were whether
(1) appellant was entitled to additional medical treatment in Houston, Texas; and (2)
appellees were required to provide transportation to appellant’s medical appointments
related to his compensable low-back injury. The only pertinent facts not addressed above
included when appellant received notice of the FCE appointment and whether the
treatment he received helped his back pain. Appellant testified that he received notice the
day before the appointment at one point in his testimony, then later testified that he
“[thought] it was a week” before the appointment that he was given notice thereof.
When asked, he stated that “nothing [had] helped [his] back.” The ALJ issued an opinion
on January 27, 2015, finding that appellant failed to prove his entitlement to additional
medical treatment by a preponderance of the evidence, specifically noting that he “[found]
that no additional medical treatment [had] been recommended by any medical provider.”
The ALJ noted that this ruling mooted the issue of whether appellees were required to
provide transportation for appellant to his medical appointments related to his
compensable low-back injury. Appellant timely appealed to the Commission.
7
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In its August 27, 2015 opinion, the Commission noted that appellant (1) was
treated by Dr. Berestnev with injections, prescriptions, and physical therapy; (2) had no
medical opinion of record indicating that he required surgery as a result of his
compensable injury, but on the contrary, was specifically found not to be a candidate for
surgery; (3) did not appear for his scheduled FCE, allegedly for lack of transportation and
lack of financial ability to obtain transportation, though he “was able to financially afford
commercial air transportation to travel from Houston to Springdale for the November 3,
2014 hearing”; and (4) “does not contend that he is entitled to a Functional Capacity
Evaluation.” Accordingly, the Commission affirmed the ALJ, finding that appellant failed
to prove his entitlement to additional medical treatment. It further found that appellant
“received reasonably necessary medical treatment in the form of medication, injections,
and physical therapy.” This timely appeal 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. 7 Substantial evidence is evidence that a
reasonable mind might accept as adequate to support a conclusion. 8 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. 9
7
Target Corp. v. Bumgarner, 2015 Ark. App. 112, at 5, 455 S.W.3d 378, 380 (citing
Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858).
8
Id.
9
Id.
8
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Questions concerning the credibility of witnesses and weight of evidence, as well as the
probative value of any medical evidence, are for the Commission to decide. 10 We will not
reverse the Commission’s decision unless we are convinced that fair-minded persons with
the same facts before them could not have reached the conclusions arrived at by the
Commission. 11
“An employer shall promptly provide for an injured employee such medical . . .
services . . . as may be reasonably necessary in connection with the injury received by the
employee.” 12 What constitutes reasonably necessary treatment is a question of fact for the
Commission, which has the duty to use its expertise to determine the soundness of
medical evidence and to translate it into findings of fact. 13 The claimant may be entitled to
ongoing medical treatment after the healing period has ended if the treatment is geared
toward management of the compensable injury. 14 However, it is the claimant’s burden to
10
Cossey v. Pepsi Beverage Co., 2015 Ark. App. 265, at 3, 460 S.W.3d 824, 816
(citing Hill v. Treadaway, 2014 Ark. App. 185, 433 S.W.3d 285).
11
Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. App. 322, at 9, 436
S.W.3d 164, 170 (citing Templeton v. Dollar Gen. Store, 2014 Ark. App. 248, at 7–8, 434
S.W.3d 417, 421–22).
12
Tyson Foods, Inc. v. Turcios, 2015 Ark. App. 647, at 4, 476 S.W.3d 177, 180
(quoting Ark. Code Ann. § 11-9-508(a) (Repl. 2013)).
13
Univ. of Ark. Public Employee Claims Div. v. Tocci, 2015 Ark. App. 505, at 3, 471
S.W.3d 218, 220 (citing Hamilton v. Gregory Trucking, 90 Ark. App. 248, 205 S.W.3d 181
(2005)).
14
Id. (citing Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31
(2004)).
9
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establish by a preponderance of the evidence that he is entitled to additional medical
treatment. 15
On appeal, appellant argues that the Commission erred in finding that he is not
entitled to additional medical treatment for his compensable low-back injury. Specifically,
he argues that the continued pain stemming from his compensable injury requires an
appointment with a neurosurgeon, as he asserts that he only saw the neurosurgeon’s
assistant; an FCE; and transportation to that FCE. Appellant points to the contradiction
between Dr. Berestnev’s notes that he “did not find any objective findings” beyond
appellant’s “subjective pain”—which appellant found to be “baffling” given the MRI
results—and his own testimony regarding continued pain from his compensable injury as
evidence that he “clearly needs” additional medical treatment.
We first note that, based on the brief before this court, appellant either did not raise
his claim for an FCE before the Commission or abandoned it before the Commission as
the Commission expressly stated in its opinion that appellant “[did] not contend that he
[was] entitled to a Functional Capacity Evaluation.” Because his argument that he is
entitled to an FCE was not before the Commission, we do not address it here. 16
15
Hopkins v. Harness Roofing, Inc., 2015 Ark. App. 62, at 7, 454 S.W.3d 751, 756
(citing Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999)).
16
See Smith v. Commercial Metals Co., 2011 Ark. App. 218, at 13, 382 S.W.3d 764,
771 (citing Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998) (“We
do not consider issues that are raised for the first time on appeal.”); Michael v. Keep &
Teach, Inc., 87 Ark. App. 48, 51, 185 S.W.3d 158, 161 (“We cannot perform appellate
review until the issue raised and litigated is answered by the Commission.”).
10
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Regarding his argument that his injury requires that he see a neurosurgeon, we
agree with the Commission that no additional treatment by a neurosurgeon is necessary as
a neurosurgeon, and his assistant, have already ordered and reviewed an MRI of
appellant’s lower back and determined that he is not a candidate for surgery. Surgery,
therefore, is not a reasonably necessary additional medical treatment.
We agree with the Commission that while there was medical evidence that
appellant had a compensable injury—which the appellees accepted—there was no medical
evidence of continued pain or injury that needed management by additional medical
treatment. Furthermore, this court agrees with the Commission that all evidence showed
that the treatment given did not work and that there was no indication from any of
appellant’s medical treatment providers that he needed or would improve from additional
treatment. With there being no medical evidence supporting a need for additional medical
treatment, the only evidence of such a need came from appellant’s own testimony, which
the Commission apparently did not find credible. This court has stated that we defer to
the Commission’s authority to disregard the testimony of any witness, even a claimant, as
not credible. 17 Making credibility determinations and deciding what weight to give to
particular pieces of evidence are within the Commission’s province. 18 Where there are
17
Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 80, 250 S.W.3d 263, 272 (2007)
(citing Bray v. Int’l Wire Group, 95 Ark. App. 206, 235 S.W.3d 548 (2006)).
18
Shiloh Nursing & Rehab, LLC v. Lawson, 2014 Ark. App. 433, at 3–4, 439 S.W.3d
696, 698 (citing Adams v. Bemis Co., 2010 Ark. App. 859).
11
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contradictions in the evidence, it is within the Commission’s province to reconcile
conflicting evidence and to determine the true facts. 19
Because appellant presented no evidence showing that he was entitled to additional
medical treatment beyond his own testimony, which the Commission apparently deemed
not credible, we affirm.
Affirmed.
GRUBER and GLOVER, JJ., agree.
Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellant.
Bassett Law Firm LLP, by: Curtis L. Nebben, for appellees.
19
Walker, 2014 Ark. App. 322, at 9, 436 S.W.3d at 170 (citing Templeton, 2014
Ark. App. 248, at 7, 434 S.W.3d at 421–22).
12