ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION III

CA02-119

September 18, 2002

HALLEY OIL CO. and FEDERATED AN APPEAL FROM ARKANSAS

MUTUAL INSURANCE CO. WORKERS' COMPENSATION

APPELLANTS COMMISSION [E904412]

V.

EDITH F. PACCIO

APPELLEE AFFIRMED

This is an appeal from the Arkansas Workers' Compensation Commission. Appellee Edith Paccio suffered a compensable work injury and received treatment. However, she continued to complain about pain in her foot, even though physical examinations and treatments apparently have failed so far to provide improvement. An Administrative Law Judge (ALJ) found that appellee was not entitled to further compensable treatment because such treatment was not reasonable and necessary. Upon appeal, the Commission reversed. Halley Oil Co. and Federated Mutual Insurance Co. now bring this appeal. We affirm the Commission.

On April 8, 1999, appellee sustained burn injuries to her left foot in the course and scope of her employment with Halley Oil Co., in a convenience store. She accidentallyspilled hot grease on herself. Appellants accepted the injury as compensable. Appellee subsequently received treatment by a plastic and reconstructive surgeon, Dr. Stephen D. Antrobus, and a pain specialist, Dr. Ronald L. Ellis. Dr. Antrobus performed skin grafts. Dr. Ellis diagnosed appellee with "chronic left foot and leg pain" of "mixed etiology." However, Dr. Ellis's treatment provided only temporary minimal relief of appellee's pain. Oral pain medications failed to be effective as well. On October 27, 1999, Dr. Ellis reported that the skin graft had healed well, with no apparent swelling or temperature difference. Nonetheless, appellee still complained about pain. When Dr. Ellis recommended the use of a spinal cord stimulator, appellee indicated that she would prefer a second opinion instead.

Consequently, neurologist Dr. Reginald Rutherford examined appellee, starting in December 1999. Dr. Rutherford found no evidence of appellee's problem clinically on either manual muscle testing or functional testing. He found "no swelling, cutaneous change other than that related to the burn, altered hair and nail growth, altered sweat pattern, contracture formation, or mechanical hyperesthesia/alloydnia." Therefore, Dr. Rutherford recommended further diagnostic testing. He also opined that it was unknown at that time whether there was a causal relationship between appellee's work injury and her current pain. Dr. Rutherford performed a nerve condition study which failed to provide an explanation for appellee's chronic pain.

Appellee then underwent additional testings by yet another expert, equally unsuccessfully, upon which Dr. Rutherford recommended trial therapy with Mexilitine. Upon this prospect, appellee reacted hesitantly and advised Dr. Rutherford that she wasconcerned that the therapy might increase her chronic diarrhea. At that point, appellee also questioned Dr. Rutherford about the possibility of obtaining an impairment rating from him. Dr. Rutherford advised her that the proposed therapy was the last chance to provide appellee with some benefit concerning her residual pain. He also told appellee that he could not give her an impairment rating until it became clear that she had exhausted all potential therapy. Apparently, appellee accepted the Mexilitine treatment for two days, and then discontinued it due to an "intolerance."

Around that time, appellee petitioned the Commission for a change of physician to her family physician, general practitioner Dr. Barry Thompson. Appellants did not oppose treatment by Dr. Thompson. Appellants also provided temporary total disability benefits, markedly about five months after Dr. Rutherford had opined that appellee had reached maximum medical improvement. Dr. Thompson provided pain medication for appellee, but did not identify any objective findings supporting or explaining appellee's pain. He did not prescribe physical therapy, electrodiagnostic testing, or nerve testing. Appellee testified during her hearing that the prescribed pain medication did not do much good. During the hearing, appellee also stated that Dr. Thompson gave her a "thing to put on [her] ankle where [her] pain [is] so bad." It appears from the record that neither party has ever clarified this point.

The workers' compensation insurance carrier informed appellee and Dr. Thompson that it discontinued payment for Dr. Thompson's treatment in November 2001. Yet appellee's pain continued. After this notice, appellee once used the emergency room, wherethe attending physician could not provide a conclusive diagnosis for her pain, either. Appellee has taken up the habit of elevating her feet to combat the pain and taking Tylenol. She did not state, nor did anyone apparently ask her, whether this self-treatment was effective.

The ALJ denied appellee continued compensable treatment by Dr. Thompson because further treatment was not considered "reasonable and necessary." The Commission, upon appeal, ruled on October 12, 2001, that the treatment was reasonably necessary and compensable. From this determination, appellants appeal to this court. We affirm the Commission because we hold that the Commission's decision is supported by substantial evidence.

I. Reasonably Necessary Treatment

Appellants argue that there is no substantial evidence to support the Commission's opinion that treatment by Dr. Barry Thompson was reasonably necessary for appellee's compensable injury. We review Workers' Compensation Commission decisions by asking whether there is substantial evidence to support the decision of the Commission. Rice v. Georgia-Pacific Corp., 72 Ark. App. 149, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). We review the evidence and all reasonable inferences in the light most favorable to the Commission's findings and affirm the Commission if it is supported by substantial evidence. Geo Speciality Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue is notwhether we might have reached a different result or whether the evidence would have supported a contrary finding-rather, we should affirm if reasonable minds could reach the Commission's conclusion. Sharp County Sheriff's Dep't v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001). Additionally, we remind the parties that we generally defer to the Commission's conclusions in matters of witness credibility, particularly when those findings of fact pass the same substantive evidence standard of review as all other findings by the Commission. See Stiger v. State Line Tire Serv., 72 Ark. App. 250, 263, 35 S.W.3d 335, 343 (2000) (Robbins, C.J., concurring).

Arkansas Code Annotated section 11-9-508 (Repl. 1996) requires employers to provide such medical services as may be reasonably necessary in connection with the employee's injury. See also Cox v. Klipsch & Assoc., 71 Ark. App. 433, 30 S.W.3d 764 (2000). Injured employees have the burden of proving, by a preponderance of the evidence, that medical treatment is reasonably necessary for treatment of a compensable injury. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 1996); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). The Commission may accept or reject medical opinion and has the authority to determine its medical soundness and probative force, subject, however, to judicial review. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001).

Appellants contend that Dr. Thompson's treatment of appellee is random, non-specific, and non-goal-directed, unsupported by objective findings. Therefore, according to appellants, Dr. Thompson's treatment of appellee is not reasonably necessary, and the Commission's reliance on Dr. Thompson is not supported by substantial evidence. Instead,appellants argue that the Commission should have relied more on the previous specialists treating or examining appellee, all of whom were unable to pinpoint appellee's foot pain.

We hold that substantial evidence supports the Commission's determination that continued treatment is reasonably necessary. The Commission deemed credible Dr. Thompson's medical reports and opinion regarding appellee's need for continued pain management care as well as appellee's testimony regarding her pain symptoms. This constitutes substantial evidence, notwithstanding whether or not we might have reached a different conclusion or whether the evidence would also support a contrary finding. When viewing the evidence most favorably to the Commission's findings, we find that the Commission could base its decision on a number of facts before them. Going towards appellee's credibility, the record demonstrates that appellee did not request an impairment rating until February of 2000, almost ten months after her injury. During these ten months, appellee simply underwent all suggested treatments and diagnoses, and merely expressed an interest in having her residual pain cured or alleviated. Furthermore, while it is undisputed that none of the physicians involved in appellee's case were able to successfully diagnose the cause of pain, or truly effectively treat it, it is also undisputed that no one was able to prove that appellee's pain is not real. As noted above, this court pays deference to the Commission's findings of fact pertinent to witness credibility if those findings are supported by substantial evidence. There is nothing in the record to suggest that the Commission's findings on witness credibility are not supported by substantial evidence. Therefore, we pay deference to the Commission's conclusions and find no lack of substantial evidence.

Appellant appears to argue that because the cause of pain remains elusive, and no treatment plan so far has succeeded, appellee should be considered at maximum medical improvement and no further medical care should be deemed reasonably necessary. To counter this argument, counsel for appellee urges that we hold that it is well-settled law that merely palliative measures are still compensable. He cites Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984). However, neither the supreme court nor this court have ever held that Arkansas recognizes palliative measures as being compensable. The cited case merely states that palliative compensability is one of three foreign jurisdiction "schools of thought," with no clear indication where Arkansas stands. Appellee seems to suggest that we should declare that palliative measures are reasonably necessary and compensable, based upon this court's reasoning in the 1984 case. However, this argument ignores the fact that the Rogers case was decided under prior law, still enabling our courts to interpret Arkansas Workers' Compensation statutes liberally. Today, we must strictly construe those statutes, pursuant to Act 796 of 1993. See generally Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002). For this reason, and because our substantial evidence review has already determined that the Commission was correct in its findings, we decline to consider appellee's argument on that point.

On an additional note, we feel compelled to briefly address appellant's argument that appellee failed to prove a causal relationship between her foot pain and the work injury. We have held in the past that it is not essential that the causal relationship between the accident and the disability be established by medical evidence, or alternatively, that the evidence bemedically certain. Rogers, 12 Ark. App. at 248, 674 S.W.2d at 946; see also Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001) (adhering to established law that if a claimant's disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee's condition, there is substantial evidence to make an award). In the Rogers case, this court found substantial evidence where the claimant suffered a compensable back injury and consequently complained of impotence. The cost of impotence treatment was compensable despite a lack of medically certain causality because the claimant testified that he was thirty-two years old at the time of the injury, married, and had no problems of that nature prior to the accident. Id. at 247, 674 S.W.2d at 946. Instead, the impotence problem arose immediately after the injury. Id. In the present case, appellee complains of foot pain that apparently arose right after, or soon after, the injury to her foot. Contrary to appellants' contentions, this constitutes further substantial evidence in support of the Commission. Therefore, we affirm the Commission and hold that the Commission's decision was supported by substantial evidence.

II. Rule 30 of the Arkansas Workers' Compensation Commission

Appellants also cite Rule 30 of the Rules of the Arkansas Workers' Compensation Commission, which establishes a system for the evaluation by an insurance carrier of the appropriateness of health care and services provided to injured employees. A.W.C.C. Rule 30, Part I.A.1(e). Mainly, appellants seem to cite Rule 30 as an argument against the Commission's statement in its opinion that it was "not aware of any statute, rule, or Court decision indicating that all doctors must have in place treatment plans that are specific as tothe nature, duration, and extent of treatment." However, we find nothing to show that appellants argued Rule 30 before the Commission; rather, they appear to raise it now for the first time on appeal. Thus, we decline to address this argument.

Affirmed.

Roaf, J., agrees.

Pittman, J., concurs.