ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA00-1145

April 25, 2001

ARKANSAS ALUMINUM ALLOYS AN APPEAL FROM ARKANSAS

and WAUSAU INSURANCE COMPANY WORKERS' COMPENSATION

APPELLANTS COMMISSION [E804908]

V.

PHILLIP TAYLOR

APPELLEE AFFIRMED

Arkansas Aluminum Alloys (Alloys) and Wausau Insurance Company appeal from an order of the Worker's Compensation Commission in which the Commission found that Philip Taylor, a former employee and the appellee in this case, was entitled to additional treatment for an aggravation of a preexisting degenerative condition. They argue that no substantial evidence supports the Commission's findings. We disagree and affirm the Commission's order.

Appellee sustained an admittedly compensable injury on April 25, 1998, while in Alloys' employ. He injured his lower back while pulling a 250-pound cast iron piece of metal out of a furnace. A subsequent MRI revealed possible degenerative disc changes in the lumbar spine, generalized disc bulging at all levels, small annular tears, and small centraldisc protrusions from L3-4 through L5-S1. His condition was initially diagnosed by Dr. Ronald Williams as an aggravation of a preexisting degenerative condition. He was subsequently treated by Dr. Anthony Russell, a neurosurgeon, who performed various diagnostic tests, including an MRI, a myelogram, and a CT scan. Dr. Russell ruled out surgery and treated appellee conservatively with medications until October 1998.

Alloys terminated appellee during the period in which he was receiving medical treatment for his compensable injury, apparently for excessive absenteeism. Appellee initially returned to work as a part-time brick mason. He subsequently went to work for B & B Construction as a foreman, but was later discharged.1 At the time of the hearing, he again worked as a self-employed brick mason.

Appellee maintains that since his injury, his symptoms progressively worsened. When his health insurance with B & B became effective, he sought treatment from Dr. Lawrence Dodd, an orthopedic doctor, but he did not initially tell Dr. Dodd about his work-related injury. Appellee had developed a staph infection when he was two years old that required surgery and caused a hip deformity. He went to Dr. Dodd to determine whether his continuing problems were related to his hip condition, and he did not contend that appellants were responsible to pay for these visits. Dr. Dodd treated appellee with an injection to his hip; when that failed to alleviate his symptoms, Dr. Dodd opined that appellee's symptomswere caused by a problem with his back.

Appellants eventually authorized appellee to see Dr. Russell again, beginning on August 30, 1999. Appellee complained of the same symptoms that had persisted since he was first injured. Dr. Russell opined that he could find nothing surgically treatable with appellee, but noted that appellee still showed multiple-level disc bulging, accompanied by degenerative changes. He referred appellee to Dr. Robert Valentine at Little Rock Pain Management Services (pain clinic), for a possible diskogram or anuloplasty. Appellants controverted appellee's entitlement to additional treatment including but not limited to the referral to Dr. Valentine, and a hearing was held before an Administrative Law Judge (ALJ).

Appellee testified that he continued to have pain that radiated into his legs and groin area. He stated that he was only asking to be allowed to be tested as recommended by Dr. Russell. Appellee's wife, Patricia Taylor, testified that appellee's back had not improved since his injury.

Dr. Russell gave a deposition after the hearing, but by agreement of the parties, the deposition was made part of the record. He testified that he felt appellee was being truthful in relating his symptoms to him. He also testified that the purpose of the referral to Dr. Valentine was so to allow Dr. Valentine to determine whether appellee was a candidate for a diskogram or anuloplasty as "the last ditch thing you do before saying there's nothing else we can do." Dr. Russell stated that "[i]t may not be able to afford him relief, but it will be able to give him the assurance that there is nothing else that can be done."

Dr. Russell opined that appellee had a temporary aggravation of a preexistingdegenerative condition, and that the treatment could not be causally connected to his work-related injury. He further opined that the temporary aggravation "should have" ended after approximately three months following the injury. Dr. Russell also stated that there was no evidence that the bulging disc was compressing the nerves and he did not see how appellee's bilateral leg and testicle pain could be related to his injury. He indicated that he did not think it was necessary for appellee to have a diskogram or an anuloplasty, but stated that he did not order such procedures, and that "would be Dr. Valentine's call." With regard to the diskogram, he stated: "The jury is still out as far as I am concerned on a diskogram. With degenerative disc disease, it really doesn't tell you about what's going on."

The ALJ noted that the record showed appellee at all times continued to complain of lower back pain and bi-lateral lower extremity pain radiating into his groin and/or testicles, and that Dr. Russell remained his primary treating physician. He noted that Dr. Russell found appellee to be a truthful patient, and likewise concluded that appellee was "most credible" and "highly motivated." He further noted that appellee remained gainfully employed except during those periods when he was ordered not to work by his treating physicians. The ALJ found that Dr. Russell made a valid referral to Dr. Valentine. The ALJ further found that appellee had shown that his April 25, 1998 injury was the major cause of his need for additional treatment. Citing appellee's credible testimony and the medical evidence, the ALJ found that appellee proved his entitlement to additional treatment, including but not limited to, services by Dr. Valentine at the pain clinic.

Appellants appealed to the Commission. The Commission affirmed and adopted theALJ's findings except for his finding that appellee's work-related injury was the major cause of his need for additional treatment. The Commission noted that the major cause requirement is not an element of proof required to establish a claim for medical treatment pursuant to section 11-9-508(a) (Repl. 1996). See General Elec. Railcar Repair Serv. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998). Therefore, the Commission vacated the ALJ's finding in this respect, but otherwise affirmed and adopted the ALJ's decision.

In reaching its decision, the Commission also noted that medical treatment intended to reduce or enable a claimant to cope with chronic pain may constitute reasonably necessary medical treatment. It cited the ALJ's finding and Dr. Russell's belief that appellee was credible with regard to his continued complaints of pain, and it concluded that his referral for pain management constituted reasonable and necessary treatment in this case.

The Commission noted that Dr. Russell testified that appellee's symptoms should have resolved within three months, but further noted that he also stated there is no exact science in determining when a claimant's symptoms will resolve. The Commission stated that even though a claimant is not required to establish entitlement to reasonable and necessary medical treatment by objective medical evidence, see Williams v. Prostaff Temporaries, 64 Ark. App 128, 979 S.W.2d 911 (1998), the MRI performed on appellee shows a disc bulge at L5-S1. Finally, it stated that a causal connection is generally a matter of inference, that possibilities may play a proper and important role in establishing that relationship, see Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992), and that the record indicated no other credible source of appellee's pain. Therefore,the Commission affirmed the ALJ's findings.

In reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. See Geo. Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue on appeal is not whether we 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, we must affirm the Commission's decision. See Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). We hold that the Commission's decision that appellee was entitled to additional medical treatment, including but not limited to a referral to Dr. Valentine to determine if appellee could benefit from further treatment, is supported by substantial evidence.

Causal Connection

Appellants first argue that the Commission failed to address the issue of whether there was a causal connection between the treatment sought and appellee's original injury They argue that his need for treatment is related to his degenerative condition in his back instead of his injury. They maintain that the Commission ignored the fact that, according to Dr. Russell, the temporary aggravation had ceased and all treatment that appellee might need in the future was not related to his injury.

An employer is required to provide medical treatment that is reasonably necessary in connection with a compensable injury received by his employee. See Ark. Code Ann. § 11-9-508(a) (Repl. 1996). Appellants correctly argue that they are only liable for reasonable medical treatment that is causally related to the compensable injury. However, they incorrectly argue that the Commission failed to address this issue.

The stipulated issues before the ALJ were whether appellee's current problems and need for medical treatment were causally related to his injury, and whether further medical treatment was reasonably necessary. The ALJ specifically found that appellee's need for medical treatment was related to his injury, and noted that the purpose of his visits to Dr. Dodd were to rule out his hip problem as the source of his pain. In so finding, the ALJ cited Dr. Russell's deposition testimony in which he stated that degenerative changes can be accelerated by trauma; that a bulging disc can be caused by trauma; that he felt appellee was being truthful in relaying his complaints to him; and that it was reasonable to refer appellee to Dr. Valentine, given appellee's symptoms and history.

The Commission specifically noted that the ALJ found that appellee proved that his need for additional treatment was causally related to his compensable injury. Contrary to appellants' assertion, the Commission expressly considered Dr. Russell's testimony regarding the timing of the resolution of appellee's injury and whether his injury necessitated additional treatment. The Commission noted that Dr. Russell testified that appellee's symptoms should have resolved within three months, but also noted that he stated there is no exact science in determining when an claimant's symptoms will resolve. Finally, the Commission noted the MRI performed on appellee revealed a bulging disc. It stated that therecord indicates no other credible source of appellee's pain.2

Therefore, appellants' argument that the Commission failed to address the causal issue is not persuasive. A finding of causation is implicit where the Commission finds that a claimant has met his burden to prove that additional treatment needed is reasonably related to the injury. Moreover, both the ALJ and the Commission expressly addressed this issue and expressly found a causal connection between appellee's injury and his need for further treatment. Whether the Commission's decision that further treatment was needed is supported by substantial evidence is a separate issue.

Sufficiency of the Evidence

Appellants argue that no substantial evidence supports the Commission's finding because Dr. Russell opined that appellee had only a temporary aggravation of the preexisting condition and that condition alone was the need for future treatment. An aggravation is a new injury resulting from an independent incident. See Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). A temporary aggravation of a preexisting conditionis a compensable injury. See Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996). When an accidental injury aggravates a prior condition, an employer is liable for all of the consequences naturally flowing from that incident unless the aggravation is caused by an independent intervening event. See Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). We hold that the Commission did not err in finding that appellee's need for additional treatment was a result of his prior injury and that the proposed additional treatment in this case was reasonable.

Both appellants and appellee rely primarily on the testimony of Dr. Russell. Appellants maintain that "it is uncontradicted that the temporary aggravation of the preexisting condition has ceased prior to the referral to the pain clinic." They maintain that Dr. Russell testified appellee's temporary aggravation resolved three months after his injury; therefore, his need for additional treatment could not have been causally related to this injury.

Appellee points to Dr. Russell's testimony in which he indicated that trauma can cause bulging discs and can accelerate a degenerative condition, and in which he further indicated that a referral to Dr. Valentine was reasonable to determine if appellee's symptoms were related to his injury and if Dr. Valentine could offer treatment.

Appellants' characterization of Dr. Russell's testimony is misleading. Dr. Russell's testimony regarding the resolution of appellee's temporary aggravation and the connection between his injury and his need for treatment was inconclusive at best. Dr. Russell testified that he felt like appellee's maximum medical improvement "would be effective at threemonths based on what we felt was the injury there." He also testified that appellee's condition "should not be" related to or aggravated by his work-related injury. Dr. Russell indicated that he had "no idea" why appellee experienced bilateral leg and testicle pain, and stated that he "didn't see how it could be" related to his injury.

When asked if further treatment for appellee is necessary because of his work injury, Dr. Russell stated:

At this point, I believe you would have to consider the possibility that there is something else at work here. And as far as the work injury itself being the only thing involved, I don't think any further treatment would be directly related as much as the work injury as it would be to some other problem that is going on. . . He may have some other problem if indeed he's still experiencing the pain he says he is.

(Emphasis added.)

Thus, Dr. Russell's testimony with regard to the resolution of appellee's temporary aggravation was not as conclusory as alleged by appellants. Nor was his conclusion with regard to whether future treatment would be related to the accident as plain spoken as appellants allege. At best, Dr. Russell equivocated on those issues.

Appellants argue that the Commission accepted Dr. Russell's opinion as to appellee's need to be referred to Dr. Valentine, but "ignored his plain testimony that future treatment was not related to the work incident." However, the weighing of evidence is precisely the function of the Commission and its resolution of conflicting medical evidence has the force and effect of a jury verdict. See McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). While the Commission may not arbitrarily disregard the testimony of any witness, the Commission determines the weight to be given to testimony. See Williams v. ProstaffTemporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998). However, simply because the Commission did not did not agree with Dr. Russell's causation analysis does not mean that the Commission ignored it. To the contrary, as discussed above, the Commission expressly noted that Dr. Russell testified that appellee's symptoms should have resolved within three months, but that he also stated there is no exact science in determining when an claimant's symptoms will resolve. Therefore, the Commission obviously did not disregard Dr. Russell's testimony.

For the above reasons, we hold that the Commission did not err in finding that appellee's need for additional treatment was causally related to his compensable injury. We further hold that the referral to Dr. Valentine for pain management constituted reasonable treatment. Appellee testified during the hearing that all he wanted was "to go through with the test recommended by Dr. Russell." Dr. Russell indicated that the purpose of the referral was for Dr. Valentine to determine whether appellee was a candidate for an anuloplasty or a diskogram. An anuloplasty is a procedure in which the disc is shrunk, whereby also closing any ruptures in the disc. A diskogram is a process by which a radioactive dye is injected into the suspect disc, and the disc is monitored for leakage, which would indicate a rupture. Substantial evidence supports the Commission's finding that such proposed treatment would be reasonable in light of appellee's symptoms and his MRI results. While Dr. Russell expressed doubts about whether such procedures would be helpful, he conceded that would ultimately be Dr. Valentine's decision.

Further, in spite of his doubts about the procedures, Dr. Russell also felt the referralwas necessary, even in the event Dr. Valentine did not recommend an anuloplasty or diskogram, as a "last ditch thing" before determining that appellee cannot be aided by further medical treatment. During Dr. Russell's testimony, the following exchange took place: Q. [W]ould it not be a reasonable call to have this referral to Dr. Valentine to see what his opinion would be if this is a related situation and if he could help the man?

A. Yes. Again, I wouldn't have made the recommendation to Dr. Valentine if I hadn't felt like it - the information would be useful. It may not be able to afford him relief, but it would be able to give him that assurance that there is nothing else that can be done.

What constitutes reasonable and necessary treatment for an injured employee is a question of fact for the Workers' Compensation Commission. See Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997). Given appellee's consistent complaints of pain, the Commission's finding that appellee was a credible witness, that appellant's MRI findings indicated disc bulging all levels and annular tears in his lumbar spine, and Dr. Russell's opinion that a referral to a pain management in this case was reasonable, we are convinced that reasonable minds could have reached the Commission's conclusion. Therefore, we affirm the Commission's findings.

Affirmed.

Jennings and Bird, JJ., agree.

1 Appellee continued to work for B & B until October, 1999, when he sustained an unrelated right knee injury which required surgery. That injury is not related to this appeal.

2 It is worth noting that the evidence supports a finding that neither appellee's hip condition nor his later knee injury have caused his back pain. Appellee testified that prior to his back injury, he never had any back problems and that his symptoms remained the same, but progressively worsened. Dr. Olive, who treated appellee for his knee injury, opined that he did not think the knee injury would have exacerbated the back injury because there was such a short time period between appellee's knee injury, surgery, and improvement in his knee. Dr. Dodd indicated that he would treat appellee's hip to see if that would help his pain, and when it did not, the stated, "I really think we should address his back, at this point, since I don't think his hip is playing a major role. I think epidural steroid injections in his back would be a good way to go for diagnostic and treatment purposes."