ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION I

JOHNSON COUNTY, EMPLOYER and ASSOCIATION OF ARKANSAS COUNTIES, CARRIER

APPELLANTS

V.

CHARLES BEAVERS

APPELLEE

CA02-1049

April 30, 2003

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E803345]

AFFIRMED

Charles Beavers suffered admittedly compensable injuries when he was struck by an automobile being driven by a drunk driver on March 20, 1998, while he was employed by the Johnson County Sheriff's Department. The administrative law judge found that a home whirlpool was a reasonably necessary medical service, and the Commission affirmed that decision. On appeal, appellants argue that there is no substantial evidence to support the Commission's finding. We disagree and affirm.

Barbara Beavers, appellee's wife of thirty-three years, testified that appellee seemed more limber after using the whirlpool but that he felt better for only three or four hours. She stated that appellee did not like to take medication. Mrs. Beavers testified that her husband's

condition had deteriorated overall and that his back pain seemed to have worsened but that the whirlpool helped.

Appellee testified that his feet, ankles, legs, back, rectum, pelvis, ribs, and lungs were injured when he was struck by a car as he was standing outside of his vehicle. He stated that he was hospitalized for thirteen days and that he could not return to his work for the Sheriff's Department. He testified that Dr. Patterson had been his family physician for fifteen years and that he had treated him for the compensable injuries. According to appellee, Dr. Patterson was more familiar with his complaints than any other doctor involved. He testified that Dr. Patterson had recommended aqua therapy and that it had worked well. He stated that since the whirlpool had been installed at his home, he had used it regularly. Appellee stated that he is in a lot of pain but that the whirlpool helped considerably. He explained that the whirlpool was not a cure but only a quick fix. Appellee conceded that, even though he had purchased the whirlpool in early to mid-2000, his pain had worsened, but he concluded that the pain may have worsened because of the exercises he was required to do.

In a letter dated February 11, 2000, Dr. Jack T. Patterson noted that appellee was still in a lot of pain from the injuries he sustained as a result of the job-related incident. Dr. Patterson wrote, "[Mr. Beavers] does get relief with moist heat, and this works very well. He has to take less pain medicine when he has moist heat. For this reason, I think it is medically indicated that he have a whirlpool at his home."

Appellants sought an opinion from Dr. Michael E. Acuff, a spinal cord specialist and an assistant professor at the University of Missouri at Columbia. In a letter to appellantsdated August 23, 2001, Dr. Acuff responded that he had reviewed appellee's condition as well as the records appellants had sent and the questions contained in appellants' letter. He wrote:

"Question number 1 reads: Given the findings documented in claimant's prior diagnostic

exams, and considering his comments to Dr. Smelz on 10-7-99, is it your opinion that a

home whirlpool is reasonably necessary? It is my opinion that a home whirlpool is not

reasonably necessary.

Question number 2 will be skipped.

Question number 3 is: Are your responses given to the above questions stated within a

reasonable degree of medical certainty? Yes, my responses are given with a reasonable

degree of medical certainty."

In affirming the administrative law judge's decision, the Commission agreed with the ALJ's determination that Dr. Patterson's opinion on the medical necessity of a whirlpool was entitled to more weight than that of Dr. Acuff. The Commission noted that medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. According to Ark. Code Ann. § 11-9-508(a) (Repl. 1996), the employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee. Injured employees have the burden of proving, by a preponderance of the evidence, that medicaltreatment is reasonably necessary for the treatment of the 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). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). An employer may also remain liable for medical treatment reasonably necessary to maintain a claimant's condition after the healing period ends. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).

In challenging the sufficiency of the evidence supporting the Commission's decision, appellants do not contend that a home whirlpool does not fall within the services contemplated by Ark. Code Ann. § 11-9-508(a). Instead, they argue that Dr. Patterson's opinion should be entitled to little weight because he failed to even mention appellee's extensive history of back problems. Appellants argue that Dr. Acuff was a treating physician requested by appellee himself and that Dr. Patterson had deferred to him for an opinion. In addition, they maintain that appellee's testimony that the whirlpool had helped him considerably is inconsistent with what he told Dr. Smelz, who reported that appellee said that the whirlpool treatment had only helped a little and that it was similar to a pain pill in that the effect is gone after a few hours. Appellants point out that Dr. Smelz recommended that appellee's palliative intervention be discontinued. Moreover, appellants contend thatappellee's pain had worsened since he had purchased the whirlpool and that appellee was still taking pain medication a year after the whirlpool's installation.

When reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's decision and affirm if supported by substantial evidence. See Teague v. C & J Chem. Comp., 55 Ark. App. 335, 935 S.W.2d 605 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We also recognize that it is the Commission's duty to weigh the medical evidence as it does any other evidence, and the resolution of conflicting evidence is a fact question for the Commission. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).

Because the Commission was entitled to rely on the opinion of Dr. Patterson over that of Dr. Acuff, we affirm its decision that a home whirlpool constituted reasonably necessary medical treatment for this appellee's compensable injuries.

Affirmed.

Bird and Vaught, JJ., agree.