ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION III

CA 00-668

April 4, 2001

BRIDGETTE DAVIS AN APPEAL FROM THE ARKANSAS

APPELLANT WORKERS' COMPENSATION COMMISSION

E807652

VS.

ARKANSAS HEART HOSPITAL AFFIRMED

APPELLEE

Bridgette Davis sustained an admittedly compensable injury while employed at the Arkansas Heart Hospital on June 16, 1998. She testified that she was pulling on some laundry and fell backwards to the ground. She was treated conservatively for neck, back, and shoulder pain. On December 12, 1998, she was injured in an automobile accident, and on January 22, 1999, the workers' compensation insurance carrier notified her that they would pay no further benefits on the claim.

After a hearing, an administrative law judge found that Ms. Davis had failed to prove by a preponderance of the evidence that her need for medical treatment after December 12, 1998, was causally related to the June 16, 1998, injury and that she had not sustained any permanent disability as a result of her compensable injury. The Commission affirmed and adopted the law judge's opinion, and this appeal followed. For reversal, appellant contends that the Commission erred as a matter of law in finding that there was an independent intervening cause that precluded her entitlement to additional medical benefits after December 12, 1998, and that the Commission erred in finding that she did not sustain any permanent impairment as a result of her compensable injury. We affirm.

Bridgette Davis testified that at the time of the compensable injury she was thirty-five years old, had completed high school, and had received a vocational training certificate in clerical work. She testified that when she was injured at work she reported the accident immediately and was seen in the emergency room. She remembered that she was having back problems, neck spasms, and pain in her shoulder and right arm. She saw Dr. Derrick Lewis who treated her with physical therapy and prescribed medication. She had an MRI and a nerve conduction study, both of which were normal. She subsequently saw Dr. Gordon Newbern, an orthopaedic surgeon. She testified that he released her for full work duty on January 18, 1999. Fairly soon afterward she moved to Dallas, Texas.

Ms. Davis testified that she had been involved in an accident as a passenger on a Greyhound bus some years before. She testified that she saw a doctor for headaches afterwards and was under a doctor's care for approximately a month. In 1994 or 1995 she was injured in an automobile accident and was treated for neck and back problems and settled that case for $4,000.00 or $5,000.00.

On December 12, 1998, she was a passenger in an automobile that was rear ended in Little Rock. She testified that as a result of that accident she had headaches and a little neck and back pain. She testified that she missed a couple of weeks of work because of the accident and that she gave notice to her employer on January 4 or 5 of 1999 because she was planning to relocate out of state. She settled her claim in connection with this accident for $5,600.00.

Before she moved from Little Rock, her house was struck by a tornado, but she testified that she was not physically injured. After she moved to Dallas, she was injured in another automobile accident in August 1999. Again, her vehicle was struck from the rear. She testified that she was treated for neck and back complaints by Dr. Winn in Dallas. In November 1999 she wasshopping when a gallon of cranberry juice fell on her shoulder. She saw Dr. Hankins for this injury.

The initial emergency room note from the Arkansas Heart Hospital indicates that the appellant stated that she was lifting some linen when she felt a pulling sensation. The initial assessment was muscular low-back and left-groin strain. In his records on June 18, 1998, Dr. Lewis noted complaints of mid- and lower back pain, headaches, shortness of breath at night, and arthritic-like pains in her hands. She was advised to remain off work for one week.

On July 17, 1998, Dr. Lewis noted that the appellant stated that she had not gotten any better since the accident. His assessment was "lumbar strain with radiculopathy cervical strain." Two weeks later an MRI of her lumbar spine was described as unremarkable.

An August 11, 1998, report from Metro Center Physical Therapy noted that Ms. Davis reported an unremarkable past medical history. The therapist noted muscle spasms in both the neck and back. An EMG nerve conduction study on August 31, 1998, was normal.

Dr. Newbern's first report on September 25, 1998, assessed appellant as having a musculoligimentous strain injury. He believed that she had been slow to recover because of her obesity. On October 9, 1998, Dr. Newbern stated that she had neurologicsymptoms he could not explain and that there were no objective corroborating findings. Ms. Davis was x-rayed at Dr. Newbern's direction on November 9, 1998, and the x-rays were normal. He noted at that time that she had been off work for almost five months, and he returned her to work on a four-hour-per-day basis. Emergency room records on December 12, 1998, from St. Vincent Infirmary indicated that appellant provided a history of an automobile accident. The records noted complaints of cervical spine pain, right upper extremity tingles, bilateral shoulder/upper back pain, headache, and chest discomfort. X-rays were negative.

On December 14, a report from Dr. Newbern stated:

Ms. Bridgett Davis returns today reporting that this last round of physical therapy has definitely been helping her. Overall, her back pain, shoulder pain, and neck pain all is improving and her stamina is improving. She feels she is definitely making progress. She is tolerating increasing the number of hours of work gradually to be working well as well.

At this time, she relates won't be returning to see me as she will be moving to another location. I think she needs to seek ongoing follow up with an orthopaedic surgeon there to the point that she has reached MMI.

The report also noted that Ms. Davis had no objective findings to confirm a permanent impairment rating.

A December 12, 1998, progress note from Dr. Lewis recited that the appellant stated that she had been rear-ended and was complaining of pain in the chest, neck, head, knee, and upper back. In a January 18, 1999, report Dr. Newbern noted that Ms. Davis reported to him that she was in a motor vehicle accident after December 14, 1998, and not before. He performed an Adson's test for thoracic outlet syndrome, which was normal. He stated that she had not had full resolution of her symptoms but that there were not solid objective findings to support a permanent impairment rating. He released Ms. Davis to work at regular duty on a full-time basis. Ms. Davis saw Dr. A. J. Morris in Dallas after her move, and on June 21, 1999, Dr. Morris concluded that she had reached maximum medical improvement and assigned her an impairment rating of 14% to the body as a whole.

Appellant argues that a resolution of the case at bar requires the interpretation of Ark. Code Ann. § 11-9-102(5)(F)(iii):

Under this subdivision (5)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.

Appellant also relies on Guidry v. J & R Eades Const. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984), where we said:

When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from theinjury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own negligence or misconduct. (Quoting from 1 Larson, Workers' Compensation Law, § 13.00.)

. . .

[T]he question is whether there is a causal connection between the primary injury and the subsequent disability and if there is such a connection, there is not independent interven ing cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. [Citations omitted.]

Guidry, 11 Ark. App. at 222, 223. The appellant then argues:

According to Guidry, the issue should have been whether the additional medical treatment which the Appellant required after the automobile accident was necessary, and directly related and as a natural result of the initial primary compensable injury. If so, then a determination must be made concern ing the reasonableness of the Appellant's own conduct with regard to the intervening event. In this case, the question would be whether it was unreasonable for her to have been a passenger in the car, when the accident occurred.

We have recently held that Guidry was not legislatively overruled by Ark. Code Ann. § 11-9-102(5)(f)(iii) in Davis v. Old Dominum Freight Line, Inc., 69 Ark. App. 74, ____ S.W.3d ____ (2000). That decision was affirmed by the Arkansas Supreme Court in Davis v. Old Dominum Freight Line, Inc., 341 Ark. 751, ____ S.W.3d ____ (2000) (Glaze and Smith, JJ., dissenting).

In our opinion in Davis we said that the Guidry court determined that "the overriding issue in cases involving subsequent injury or disability is `whether there is a causal connection between the primary injury and the subsequent disability,' and only if such a connection exists does the question of the claimant's conduct need to be addressed." (Emphasis in original.) We noted in Davis that the Commission had not addressed the issue of causal connection.

In the case at bar, however, the Commission expressly found that appellant had failed to prove by a preponderance of the evidence that her need for medical treatment after December 12, 1998, was causally related to the June 16, 1998, injury. This finding of fact is supported by substantial evidence and is dispositive of the issue.

Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). When a claim is denied, the substantial evidence standard of review requires that we affirm if the Commission's opinion displays a substantial basis for the denial of the relief sought. Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). Certainly, there is evidence here to support a contrary finding, but that, of course, is not the question. See Ray v. Univ. ofArk., 66 Ark. App. 177, 990 S.W.2d 558 (1999). The Commission found the record to be replete with inconsistencies and contradic tions. That is not an unfair statement. At about the time she was released to work by Dr. Newbern, she was injured in an automobile accident on December 12, 1998. These injuries were to the same areas of the body affected by her compensable injury. She saw Dr. Lewis on December 12 for neck, head and back pain resulting from the car wreck. She saw Dr. Newbern on December 14. At that time she not only did not tell him of her automobile accident, she reported that her neck, back and shoulder were all improving. When she saw Dr. Newbern again, on January 18, 1999, she told him about the automobile accident but insisted that it had occurred after December 14.

We conclude that the Commission's determination that appel lant's need for medical treatment after December 12, 1998, was not causally connected to her June 1998 on-the-job injury is supported by substantial evidence.

Appellant also argues that the Commission erred in finding that she did not sustain a permanent disability. She argues that:

As a result of the Commission's flawed logic and reasoning with regard to the, `inde pendent intervening cause issue', the Court's determination with regard to the issue of whether the Appellant sustained any permanent impairment as a result of her admitted compensable injury of June 16, 1998 is also equally flawed.

As we have rejected appellant's first argument, the premise for her second argument is unsound.

The Commission's decision was based on the opinion of Dr. Newbern, who stated that there were no objective findings to support an assessment of permanent impairment. It is true, as appellant contends, that "recurrent muscle spasms" may constitute objective findings to support an award of permanent disability and that there is evidence in the record that the physical therapist reported detecting muscle spasms.

Ms. Davis suggests that it is clear that Dr. Newbern did not understand Arkansas law. We cannot agree. Dr. Newbern was neither called as a witness nor deposed. He knew that appellant's MRI, EMG, x-rays and Adson's tests were all normal or negative, but the basis for his conclusion that there were no "objective findings" was left unexplored.

It was appellant's burden to prove that she was permanently disabled. The Commission found that she had not carried that burden. We cannot say that reasonable minds could not so conclude.

Affirmed.

Hart and Crabtree, JJ., agree.