ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

LOUIS F. RIESENHUBER

APPELLANT

V.

RENTAL SERVICE CORPORATION AND SPECIALTY RISK SERVICES

APPELLEES

CA 00-1396

June 6, 2001

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION, [E907365]

AFFIRMED

Appellant, Louis Riesenhuber, suffered a compensable injury while working for appellee Rental Service Corporation. However, his subsequent claim for expenses for additional medical treatment and for additional temporary total disability benefits was denied by the Commission. He contends on appeal that the Commission erred in finding that his present condition is not causally related to the compensable injury, and in finding that the requested surgical medical expense is not reasonable and necessary. We affirm.

Appellant testified that he was sixty-five years old and that his job description at appellee Rental Service Corporation was that of service manager and field mechanic. He said that he was at work on November 26, 1998, when he was working on a piece of heavy equipment that required him to remove a sixty to seventy-pound battery. As he was doing so, one end slipped out of his hand, and as he tried to grab it he "got an extreme pain across

[his] neck." He said that it was a "sudden sharp pain" that "radiated in [his] body, . . . across [his] shoulders and down into [his] arms at that point." He reported the injury to the employer, and it was treated as a compensable injury for which he received benefits until August 22, 1999. He received no further compensation after that date and was terminated on December 31, 1999, because the employer could not accommodate the five-pound lifting restriction recommended by Dr. Kenneth Tonymon, a neurosurgeon.

The subject of the hearing underlying this appeal was the fact that appellant remains symptomatic, wishes to undergo surgery as recommended by Dr. Tonymon in his report of August 5, 1999, and seeks temporary total disability benefits from August 23, 1999, to a date yet to be determined. Appellees took the position that appellant's present condition is not causally related to the compensable injury, or alternatively that the additional treatment is unreasonable and unnecessary based on neurosurgeon Dr. John Brophy's report of August 9, 1999.

Appellant contends on appeal that 1) "the Commission's decision affirming the Administrative Law Judge in finding that the claimant's present condition is not causally related to the compensable injury is against and not supported by substantial evidence," and 2) "the Commission's decision affirming the Administrative Law Judge in finding that the requested surgical medical expense is not reasonable and necessary is against and not supported by substantial evidence." We disagree.

In determining the sufficiency of the evidence to support the findings of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we will affirm if those findings are supported by substantial evidence. Winslow v. D & B Mechanical Contractors, 69 Ark. App. 285, ____ S.W.3d ____ (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Id. The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995). Where the Commission denies a claim because of a failure to show entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Id.

Here, the ALJ's findings were affirmed and adopted by the Commission. The ALJ found that "based on the expert medical evidence, showing no objective evidence of a recenttraumatic injury, I find the claimant has failed to prove that further medical treatment is reasonable, necessary or causally related to the compensable injury. The lifting incident at work was a temporary aggravation of preexisting conditions (spondylosis, bone spurs, degenerative disc disease and stenosis), which are chronic conditions that have progressively worsened over time."

Appellant was seen by at least four doctors: Dr. Ronald Smith, a general practitioner, and Drs. John Brophy, Richard Kyle, and Kenneth Tonymon, neurosurgeons. In a report dated November, 30, 1998, Dr. Smith noted a cervical strain that was superimposed on preexisting degenerative disc disease. Smith's office report, dated December 16, 1998, interpreted an MRI scan as showing bone spurs at C3, C4 and degenerative disk disease at C5, C6 and C7.

Dr. Smith then referred appellant to Dr. Kyle, who interpreted the same MRI as showing an HNP (herniated nucleus pulposus) at C3-4. Dr. Halford, a radiologist, interpreted a cervical myelogram and a post myelogram CT scan that were conducted on July 19, 1999, as showing spondylosis at C3-4, C5-6, and C6-7. No HNP was found.

Dr. Kyle subsequently referred appellant to his associate, Dr. Tonymon, who recommended surgery at C6-7 in a report dated August 5, 1999, based on the myelogram and post myelogram CT scan, which he interpreted as showing "foraminal stenosis bilaterally, but a little bit worse on the left." Dr. Tonymon imposed a five-pound weight restriction in a certificate to return to work that was dated September 14, 1999.

Dr. Brophy interpreted the December 1998 MRI scan as showing spondylosis at C3-4, C5-6 and C6-7. Dr. Brophy agreed with the radiologist that the claimant was suffering from spondylosis at C5-6 and C6-7 with bilateral neural foraminal narrowing, greater on the left. He was not able to identify definite evidence of nerve root compression to justify surgery. In a report dated August 9, 1999, Dr. Brophy described appellant's condition as "chronic neck pain associated with cervical spondylosis without clinical evidence of radiculopathy." He also recommended in the report that appellant was to continue his light-duty status for the next two weeks, and then be cleared to return to work at full duty without restriction on August 23, 1999.

In assessing this medical evidence, the ALJ explained her basis for the denial of benefits:

We find that the Commission's opinion, adopting and affirming the ALJ's decision, displays a substantial basis for the denial of benefits and therefore affirm.

Affirmed.

Hart and Crabtree, JJ., agree.