NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION II

ST. JOSEPH'S REGIONAL HEALTH CENTER and SISTERS OF MERCY HEALTH SYSTEM

APPELLANT

v.

RONALD TADLOCK

APPELLEE

CA02-1385

JUNE 11, 2003

APPEAL FROM THE WORKERS COMPENSATION COMMISSION

[E802168]

AFFIRMED

This is an appeal from the Workers' Compensation Commission's award of benefits. The case has two decisions and appeals, including a remand to the Administrative Law Judge (ALJ) by the Commission. The initial ALJ hearing on this case was held April 16, 1999. On June 10, 1999, the ALJ found that Mr. Tadlock was temporarily totally disabled from a compensable injury sustained on February 5, 1998 through March 13, 1998, and from March 23, 1998, to an unspecified time. On appeal, the Commission affirmed, but concluded that the healing period ended as of December 15, 1998.

In the case before us, Mr. Tadlock claimed to have entered a new healing period on April 15, 1999, continuing to a date to be determined, and that his attorney had never been paid the attorney fees ordered by the original ALJ computed on controverted medicals in an amount of $42,884. After a January 26, 2001 hearing, a different ALJ in a March 5, 2001 opinion found that Mr. Tadlock had failed to prove entitlement to benefits, but that appellants were responsible for attorney fees pursuant

to the original order. The Commission initially vacated the ALJ's decisiondenying benefits to Mr. Tadlock and remanded the case back to the ALJ for his failure to indicate what part of the record he was relying upon in rendering his decision. In remanding the case, the Commission noted that the ALJ's conclusion regarding the lack of muscle spasm appeared to be inconsistent with testimony provided by Mr. Tadlock's treating physician, Dr. Hardy. The remand order also identified confusion in the briefs on appeal as to whether or not the ALJ awarded Mr. Tadlock's attorney a fee on $42,884 in medical benefits and directed the ALJ to clarify his findings on that point as well.

On remand, in an opinion filed Dec. 13, 2001, the ALJ awarded benefits to Mr. Tadlock and directed appellants to pay Mr. Tadlock's attorney the maximum attorney's fee, including on the unpaid medical incurred prior to the June 10, 1999 order in the amount of $42,884.

The Commission affirmed and adopted the ALJ's award of additional temporary total disability benefits to Mr. Tadlock. This is an appeal of that decision.

Medical condition history

Mr. Tadlock sustained injuries to the cervical area of his spine as a result of a work-related motor vehicle accident on February 5, 1998. Appellants controverted Mr. Tadlock's original claim, characterizing his injury as minor and asserting no need for medical treatment beyond four days, of the injury to February 9, 1998. Mr. Tadlock has not worked since the day of the injury and testified that he experiences constant pain in his neck which radiates down into both upper extremeties. He has, however, attended two fifty-minute morning classes and one hour-long afternoon class at a community college, three days per week. He testified that he is able to take these classes because the Americans With Disabilities Act requires the college to allow him extra time for class work and testing and that he is allowed to move around the classroom during the class. He also testified that he is taking the computer-science courses so that he may begin a career that will allow him to workwith his limitations.

Dr. Arthur, a neurosurgeon, performed an anterior cervical fusion on Mr. Tadlock in August, 1998, and testified that from a neurological perspective, the surgery was successful from the standpoint of decompressing the nerve root and lessening the pain resulting from injury to the nerve root. In his opinion, from a neurological viewpoint, Mr. Tadlock should have been able to work after December 15, 1998. However, the neurological repair did not address the pain caused by mechanical sources. Although he did not identify the source of Mr. Tadlock's pain, he offered possible sources of the pain as uncovertebral joints in the neck, developing arthritic changes that rub together and lose joint fluid, or osteophyte formation. Dr. Arthur stated that Mr. Tadlock's emotional problems, attributed to the pain from his injury, were life-threatening and precluded him from returning to work. Because he was aware of Mr. Tadlock's threats of suicide, Dr. Arthur referred him to a psychiatrist. He also referred Mr. Tadlock to Dr. Abraham and a pain clinic, which is his normal practice for patients with myofascial pain. Dr. Arthur explained that in March 1999, Mr. Tadlock, although experiencing severe pain, was worried about becoming addicted to pain medications and was taking herbal remedies for the pain. When questioned about the effect Mr. Tadlock's weight contributed to his present condition, Dr. Arthur stated that while obesity was not good for a person's low back, he was not sure Mr. Tadlock's obesity would play a role in his neck pain.

Two other treating physicians, Dr. Abraham and Dr. Hardy, testified that the pain suffered by Mr. Tadlock prevented him from returning to work. Dr. Abraham clarified this testimony and stated that he believed that Mr. Tadlock was not completely unemployable, but would require a sedentary job with numerous breaks and he would be unable to sit for long periods. Dr. Abraham confirmed that the computer work for which Mr. Tadlock was taking courses fell within the type ofsendentary work he contemplated as a possibility for Mr. Tadlock.

Dr. Abraham explained that Mr. Tadlock had been under his care since April of 1999. He described mechanical pain emanating from the muscles and joints in the affected area. He reconciled the success of Dr. Arthur's surgery with Mr. Tadlock's continued pain, explaining that many patients still have persistent pain, some with severe numbness and incredible pain, after successful surgery. He also discussed the fact that surgery is more effective in relieving of pain related to compression of the nerve because a surgeon can typically cut out the disc and relieve the nerve pressure, but often the mechanical aspect of the pain may remain and may not be amenable to a surgical solution.

Dr. Hardy's medical specialty is psychiatry, physical medicine, and rehabilitation. He maintained that throughout his treatment of Mr. Tadlock, he found muscle-spasm trigger points in his neck and that he noticed muscle spasms on nearly every visit. He testified that these findings were from palpations that he could identify through touch.

Dr. Rutherford also saw Mr. Tadlock for one examination that lasted approximately an hour to an hour and a half and based his opinion upon that examination. He diagnosed Mr. Tadlock with morbid obesity, uncontrolled hypertension, and sensory changes at the C-8 nerve root. He characterized Mr. Tadlock's obesity as pre-existing and contributing to the hypertension but playing no significant role in the neck pain. Dr. Rutherford stated that working is a personal decision that can be influenced by psychological and social factors, medical factors and litigation concerns. He expressed his belief that whether or not to work with chronic pain was a personal decision. Dr. Rutherford concluded that nothing was preventing Mr. Tadlock from gainful employment.

Standard of Review

In appeals involving claims for workers' compensation, we view the evidence in a light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence. Ester v. National Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). There may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972); see also Arnold v. Tyson Foods, Inc., 64 Ark.App. 245, 983 S.W.2d 444 (1998). In other words, we will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Matthews v. Jefferson Hospital Ass'n, 341 Ark. 5, 14 S.W.3d 482 (2000).

Substantial Evidence

The Commission found that Mr. Tadlock was entitled to additional temporary total disability benefits commencing with his treatment with Dr. Abraham on April 15, 1999, through his last facet injection given by Dr. Abraham on July 10, 2000. This date is based upon the medical reports of Dr. Abraham, Dr. Hardy, and the testimony of Mr. Tadlock indicating that Mr. Tadlock's medical condition had plateaued on that date. The Commission also found that appellants were responsible for attorney fees on unpaid and controverted medical bills in the amount of $42,884, which were initally the subject of the June 10, 1999, opinion.

Dr. Hardy observed muscle spasms on nearly every treatment session with Mr. Tadlock, and these findings were from palpations that he could feel by touching the affected areas. Muscle spasm and trigger points constitute objective findings. High Capacity Products v. Moore, 61 Ark. App.1, 962 S.W.2d 831 (1998). Given the fact that Dr. Hardy continued to observe muscle spasm and trigger points during the time he treated Mr. Tadlock, and that both he and Dr. Abraham were treating Mr. Tadlock for pain management, sufficient evidence supports the finding that both doctors' treatment was reasonable and necessary.

In the original hearing on April 16, 1999, the ALJ found that appellants were responsible for all hospital, medical and related treatment arising out of Mr. Tadlock's February 5, 1998, injuries, and remained responsible for continued reasonably necessary medical treatment. Mr. Tadlock's counsel argued that the figure from which fees should be calculated was $42,884, and counsel submitted documentation listing medical payments made. Appellants' counsel argued that they had paid some fees, conceded they owed more, but stated they had no way to prove or disprove the figure of $42,884. They offered nothing to rebut Mr. Tadlock's exhibits.

The totals on the submitted documentation actually yield a sum of $39,700.73. Although appellants argue that they had no way to prove or disprove the $42,884 figure, the exhibits themselves afforded a starting point for confirming or disproving the total of the unpaid medical bills. Despite the fact that appellants conceded they owe more attorney fees that were ordered to be paid four years ago, they offer no alternative to the figure provided by appellee and make no argument identifying specific flaws in appellee's figures. Given the lack of any convincing argument or legal authority, we affirm the Commission's decision. See, e.g., Matthews v. Jefferson Hosp. Ass'n, 341 Ark. 5, 8, 14 S.W.3d 482, 485 (2000); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999).

Accordingly, we find no error and affirm.

Stroud, C.J., and Pittman, J., agree.