NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION I

PATHFINDER SCHOOL, INC.

APPELLANT

V.

EASTER FISHER

APPELLEE

CA00-1346

June 6, 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. E700997]

AFFIRMED

As admitted by both parties, appellee, Easter Fisher, sustained a compensable injury to her back on October 29, 1996, while employed by appellant, Pathfinder School, Inc. She reached maximum medical improvement on June 10, 1997, was awarded a fifteen-percent wage-loss disability, and was assigned a five-percent whole-body impairment. Appellant, however, appeals a subsequent decision of the Workers' Compensation Commission ordering appellant to pay for back surgery recommended for appellee in 1999 along with all continued reasonably necessary medical treatments. Specifically, appellant argues that appellee failed to establish to a reasonable degree of medical certainty that her need for surgery in 1999 was causally related to her compensable 1996 injury. We affirm.

The Commission adopted the findings of the administrative law judge, so we must review that decision in this case. According to a report dated May 9, 1997, Dr. Reginald Rutherford determined that appellee's diagnostic studies revealed a disc herniation at L4-L5,

eccentric to the left. A report of May 20, 1997, however, stated that there was not any evidence of lumbar radiculopathy. An independent medical evaluation report from Dr. Joe Crow dated August 13, 1997, interpreted the diagnostic studies as revealing a bulging disc to the left at the L4-L5 level with central indentation of the thecal sac at the same level "butnerve root impingement could not definitely be visualized." On October 31, 1997, Dr. Anthony Russell stated that according to the diagnostic studies, appellee had a mild bulging disc, but no surgical lesion.

Appellee moved to Illinois and came under the care of Dr. Paul Sheenan and Dr. David Kennedy. An MRI report dated December 9, 1998, revealed disc herniation to the left at L4-L5, "considered small to moderate in size" along with "[m]ild to moderate impression upon the thecal sac." In a letter dated December 16, 1998, Dr. Sheehan noted the MRI report and discussed a surgical lumbar discectomy. In a report dated June 9, 1999, Dr. Kennedy reviewed the MRI and noted that the "more recent MRI seems somewhat more prominent than compared to prior studies." Further diagnostic studies performed July 29, 1999, revealed a disc herniation to the left at L4-L5 with an abutment of the left L5 nerve root. In a letter dated August 3, 1999, Dr. Kennedy recommended a discectomy with fusion.

However, in a letter dated October 12, 1999, Dr. Kennedy stated that appellee's job injuries "are not directly related to her current condition but represent an aggravation which, as far as I can tell, was not caused by a specific activity." Dr. Kennedy also opined that further treatment would be "dictated by the results of the myelogram but if this shows a disc herniation I think it is not likely to be directly related to the job injuries ...." In a letter dated March 17, 2000, Dr. Kennedy stated that "[w]hile it is possible that her work injury aggravated her condition, I do not think that it reached the level of operative intervention until a more recent myleogram demonstrated this." In the letter, Dr. Kennedy further stated that "[i]t is possible that she could have had a weakening of the disc previously but I do not think that she actually ruptured it until some time well after the events of 1996."

After noting Dr. Kennedy's letters, the administrative law judge concluded that appellee's need for the recommended surgery was causally related to her 1996 compensable injury. She observed that the only disabling injury which appellee sustained was her work-related lower-back injury and that despite conservative treatment, appellee's back never improved. She also noted that "[d]iagnostic tests from 1997 show essentially the same abnormality at L4[-]L5 as the tests performed in 1999, the only difference being the degree of herniation," changing from a mild bulging herniated disc to a more prominent herniated discnow impinging on the nerve root. She concluded that "[t]he medical records, as well as [appellee's] testimony, show that [appellee's] bulging disc has never healed and has been a source of continuous pain."

Appellant argues that appellee failed to establish to a reasonable degree of medical certainty that her need for surgery was causally related to her compensable 1996 injury. A compensable injury must be established by medical evidence supported by "objective findings." Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999). "Objective findings" are defined as "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 1999). Further, "[m]edical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty ...." Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999). However, as the Arkansas Supreme Court has recently noted in regards to causation, "[M]edical evidence supported by objective findings is not essential in every case, but if medical opinions are offered, they must do more than state that the causal relationship between work and the injury is merely a possibility." Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 303, 40 S.W.3d 760, 765 (2001); see also Wal-Mart Stores, Inc. v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999). We affirm the Commission's decision if it is supported by substantial evidence. See Freeman, 344 Ark. at 303, 40 S.W.3d at 765-66.

As noted by the administrative law judge, the diagnostic tests from 1997 showed the same abnormality on the left at L4-L5 as the tests performed in 1999, the only difference being the degree of herniation, changing from a mild bulging herniated disc with no visualized root impingement to a more prominent herniated disc that impinged on the nerve root. Thus, the medical records indicate that appellee suffers from the same bulging disc that was the basis of her initial impairment and that the disc has not improved but instead worsened, now clearly involving a nerve-root compression. Moreover, as found by the administrative law judge, there was no testimony regarding any intervening trauma to appellee's back. Therefore, even if we do not consider Dr. Kennedy's letters, the medical records and the testimony presented established a causal relationship between appellee's 1996 injury and her need for surgery in 1999, as she wasessentially suffering from the same injury. Thus, we cannot say that the Commission erred in finding a causal connection between the injury and the need for surgery.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.