ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CA 00-1024

June 6, 2001

KENNETH ALLEN DINGER AN APPEAL FROM THE ARKANSAS

APPELLANT WORKERS' COMPENSATION COMMISSION

VS.

KEITH WATERCARE, INC. AFFIRMED

APPELLEE

Kenneth Allen Dinger injured his lower back while employed by appellee on October 24, 1997, when a backhoe he was driving slid off a trailer and fell to the ground. The injury was initially accepted as compensable, but appellee controverted benefits in January 1998. A law judge ordered appellee to pay temporary total disability benefits from January 1998 to a date yet to be deter mined and ordered that appellee pay for all reasonable and necessary medical treatment by Dr. Ron Williams. On March 5, 1999,before appellant had received treatment by Dr. Williams or Dr. Preston Ross Bandy to whom he was referred by Dr. Williams, appellee ceased paying benefits due to a lack of objective findings. After a hearing the law judge found that appellant had failed to prove his entitlement to additional temporary total disability benefits after March 4, 1999, and that he had failed to prove that additional medical treatment was reasonable and necessary for his compensable injury. The Commission affirmed the law judge's decision.

For reversal appellant argues that the Commission erred in allowing evidence into the record that had not been provided to claimant's counsel at least seven days prior to the hearing and that Dr. Williams's report should be given no weight as it was contradictory and was based on conjecture. Appellant also argues that the Commission's opinion is not supported by substantial evidence. We affirm.

On appeal in workers' compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and will affirm if those findings are supported by substantial evidence. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; ifreasonable minds could reach the Commission's conclusion, we must affirm its decision. Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998).

The Commission found that it was within the law judge's discretion to admit Dr. Williams's report that was submitted to the law judge five days prior to the hearing instead of the required seven days. The Commission noted that appellee immediately faxed the report to opposing counsel and the law judge the day that appellee received it from Dr. Williams and that it specifically addressed the issues to be determined at the hearing. The Commission found that appellant was not prejudiced by the admission of the report and noted that appellant had objected to the continuance offered by appellee which would have allowed appellant the opportunity to depose Dr. Williams. The Commission also found that even without the report there was ample evidence that appellant was not entitled to further benefits. The Commission noted that three MRI's, a bone scan, and numerous x-rays showed that appellant's condition was stabilized and had plateaued and that no report was submitted recommending any further treatment for his underlying condition. The Commission found that the physical therapy recommended by Dr. Bandy was not reasonable nor necessary since appellant had already undergone six weeks of physical therapy that did not make him better but rather, by his own testimony, hadworsened his condition. The Commission pointed out that a referral is not an endorsement of any potential treatment recommended. The Commission found that appellant was no longer within his healing period after March 4, 1999, and that the persistence of pain was not sufficient in itself to extend the healing period. The Commission noted that the evidence supported that appellant had reached the end of his healing period because all the tests performed on him had normal or negative results. Further, the Commission found that, although muscle spasms were present in some earlier medical reports and are considered objective findings, neither Dr. Williams nor Dr. Bandy noted them. Finally, the Commission found that the lack of objective findings can be considered in determining whether a claimant's healing period has ended.

Appellant argues that Dr. Williams's report should not have been allowed into evidence and that the Commission failed to make findings of good cause why it should be admitted after the seven-day requirement. Arkansas Code Annotated section 11-9-705(c)(2)(A)(Repl. 1996) provides that any party proposing to introduce medical reports or testimony of physicians at the hearing of a controverted claim shall, as a condition precedent to the right to do so, furnish to the opposing party and to the commission copies of the written reports of the physicians of their findingsand opinions at least seven days prior to the date of the hearing. However, subsection (3) of the Code provides that a party failing to observe the requirements of this subsection may not be allowed to introduce medical reports or testimony of physicians at a hearing, except in the discretion of the hearing officer or the commission. We conclude that the Commission did not abuse its discretion in admitting Dr. Williams' report under the circum stances shown.

Next, appellant argues that Dr. Williams' report should be entitled to no weight because it was speculative in that Dr. Williams states that his condition "probably" has plateaued. Appellant argues that Dr. Williams' opinion is undermined by the fact that he referred appellant for additional treatment by Dr. Bandy.

As the Commission pointed out, a referral is not an endorse ment of any potential treatment recommended. Furthermore, we cannot conclude that Dr. Williams' statement was so inherently vague as to be worthless. The weight to be given the testimony of the witnesses is for the Commission to decide, as trier of fact. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995).

Finally, appellant argues that because the law judge's December 1998 opinion found that he was entitled to additional medical treatment by Dr. Williams and his referrals and becausethat opinion was not appealed, it became res judicata. We will not consider issues raised for the first time on appeal. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). The Commission's decision is supported by substantial evidence.

Affirmed.

Robbins and Crabtree, JJ., agree.