NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION I

MALVERN NURSING HOME

APPELLANT

V.

LEXIE McCALLISTER

APPELLEE

CA00-1178

August 29, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. E612742]

AFFIRMED

Malvern Nursing Center appeals a decision of the Arkansas Workers' Compensation Commission that affirmed the Administrative Law Judge's decision awarding appellee additional compensation. For reversal, appellant argues that the Commission's decision is not supported by substantial evidence inasmuch as the additional treatment awarded is not reasonably necessary in connection with the work-related injury sustained. We affirm.

On September 5, 1996, appellee suffered a compensable injury to her back when she carried a large recliner as a part of her employment with appellant. Dr. Marvin Kirk diagnosed her injury as a lumbar strain and treated appellee conservatively. Appellee filed a claim for compensation, requesting temporary total disability benefits ("TTD") and medical services. An A.L.J. found that appellee had suffered a compensable injury to her back and awarded TTD and reasonable and necessary medical treatment during the TTD

period. The full Commission affirmed this decision on de novo review, stating that "she is entitled to receive whatever reasonable and necessary expenses she has incurred as a result of that injury."1 The Commission's decision was not appealed, and, consequently, it is now the law of the case.

Thereafter, appellee filed a claim for additional compensation, alleging that appellant had opposed additional medical treatment. In particular, appellee sought an award that would finance the medical services provided by Dr. Kirk as well as other valid referrals he had made or may make. Dr. Kirk's referrals included but were not limited to referrals to Drs. Melody St. John, a rheumatologist who had examined appellee and observed a chronic hard muscle spasm, and Alonzo Burba, who also had examined appellee and diagnosed her condition as transverse myelitis. Appellant controverted this claim, alleging that appellee's healing period had long since ended and that her physical problems were not related to the compensable injury.

At the hearing on the claim, appellee testified that she could not move without Dr. Kirk's treatments, no medical treatment had relieved her condition, and her physical conditions were generally getting worse. Furthermore, a letter dated July 15, 1998, was offered into evidence wherein Dr. Kirk opined that with regard to appellee's injury, the "back pain . . . never really stopped. . . . [and] without . . . pain medicine, [appellee's] social functioning is non-existent." Following the hearing, the A.L.J. granted appellee's claim,concluding that "[appellee] has shown, by a preponderance of the credible evidence, that she is entitled to continued reasonably necessary medical treatment." From the full Commission's decision affirming the A.L.J.'s award comes this appeal.

On review, we affirm if the Commission's decision is supported by substantial evidence. See Ark. Code Ann. § 11-9-711(b)(4)(D) (Repl. 1996). A Commission's decision is supported by substantial evidence if reasonable minds could have reached the same conclusion. See Spencer v. Stone Container Corp., 72 Ark. App. 450, 453, 38 S.W.3d 909, 911 (2001).

Appellant contends that there is a lack of substantial evidence to support the Commission's decision. Specifically, it argues that the use of habituating narcotics three years following the initial work-related injury is not a reasonably necessary form of medical treatment for appellee's soft-tissue injury. In support of this argument, appellant highlights the fact that neither Dr. St. John nor Dr. Burba agreed with Dr. Kirk's diagnosis. Furthermore, appellant stresses that except for Dr. Kirk, none of the doctors that examined appellee - Drs. St. John and Burba, and a fourth doctor, Dr. Earl Peeples, an orthopedic surgeon -- specifically opined that appellee's current problems were related to her September 5, 1996, injury. The Commission committed legal error, appellant argues, by failing to base its decision on these facts, and as such, it arbitrarily disregarded relevant testimony, which it cannot do.

Once an injury is deemed compensable, "[t]he employer shall promptly provide for an injured employee such medical . . . services . . . as may be reasonably necessary inconnection with the injury received by the employee." Ark. Code Ann. § 11-9-508(a) (Repl. 1996). In addition, "[w]hat constitutes reasonable and necessary treatment under this section is a question of fact for the Commission." Gansky v. Hi-Tech Engineering, 325 Ark. 163, 168-169, 924 S.W.2d 790, 794 (1996).

Generally speaking, the determination of the credibility and weight to be given a witness's testimony is within the province of the Commission. See Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 317, 950 S.W.2d 468, 472 (1997). However, the Commission "may not arbitrarily disregard the testimony of any witness." Hapney v. Rheem Mfg. Co., 342 Ark. 11, 18, 26 S.W.3d 777, 781 (2000). Finally, it is well-established that "[t]he Commission has the duty of weighing the medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict." Williams v. Prostaff Temporaries, 336 Ark. 510, 514, 988 S.W.2d 1, 3 (1999).

We conclude that the Commission's decision is supported by substantial evidence. While it is true that Dr. Kirk may be the only physician to affirmatively opine that appellee's need of further medical services is reasonably related to the work-related injury sustained, it is also true that the majority of examining physicians do not reach the opposite conclusion.2 For this court to interpret a physician's failure to affirmatively state that an injury is work related as meaning that the injury was in fact not work related would betantamount to allowing compensation decisions to be based on speculation and conjecture, which is contrary to the law. See Dena Constr. Co, et al. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155, 158 (1979). Furthermore, it is important to note that the majority of the examining physicians do diagnose appellee as suffering from injuries based upon objective findings.3 As such, we do not conclude that the Commission arbitrarily disregarded any testimony. Instead, in our view, in keeping with its general authority, the Commission merely heard and weighed the various evidence presented and gave it the weight it thought was appropriate. In this instance, the Commission weighed the evidence in the claimant's favor. Consequently, we hold that the Commission's decision was supported by substantial evidence.

Affirmed.

NEAL and VAUGHT, JJ., agree.

1 On a collateral matter, however, the Commission reversed the A.L.J.'s order that appellee undergo an independent medical examination, concluding that such an order constituted an abuse of discretion.

2 Dr. Peeples reached an opposite conclusion. He performed an independent medical examination and opined that neither his examination of appellee nor his review of her medical records demonstrated any objective findings that she was suffering from a work-related injury.

3 In addition to Dr. Kirk's opinion, which has been stated above, the following was stated about appellee: Dr. St. John stated, "diagnose this as a chronic, but limited, muscle spasm of unknown etiology," and Dr. Burba stated, "Impression: Transverse myelitis."