ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA02-1019

June 18, 2003

YOUTH HOME, INC. and AN APPEAL FROM ARKANSAS

ZENITH INSURANCE COMPANY WORKERS' COMPENSATION

APPELLANTS COMMISSION [E811905]

V.

REBECCA J. BOLAN AFFIRMED

APPELLEE

Appellant employer, Youth Home, Inc., and its insurer, Zenith Insurance Company, appeal the decision of the Workers' Compensation Commission finding that appellee, Rebecca Bolan, was entitled to medical treatment for her lower back and left foot and to additional temporary total and temporary partial disability benefits from December 14, 1999, to a date yet to be determined. For reversal, appellants contend that the Commission's decision was not supported by substantial evidence. We affirm the decision of the Commission.

Appellee began working as a residential treatment counselor for appellant employer's facility in August 1997. On September 7, 1998, appellee sustained an admittedly compensable injury to her left foot and back while trying to contain a violent patient whoattacked her while she was working. Appellant employer accepted the injury as compensable and paid all related benefits through September 7, 1999, as well as an evaluation by Dr. Bruce Safman on October 14, 1999. Appellee sought additional benefits beyond those already provided, which appellants denied. On March 9, 2001, a hearing was held before an administrative law judge (ALJ). The ALJ found that appellee was entitled to additional benefits, for both her left foot, her right foot, even though appellee had not sought benefits for the right foot, and her low back. The ALJ also awarded appellee temporary total disability benefits from December 14, 1999, to a date yet to be determined. On appeal, the Commission vacated the portion of the ALJ's order awarding benefits to appellee for her right foot, but affirmed the remainder of the ALJ's decision. This appeal followed.

On review of workers' compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Workers' Compensation Commission and we will affirm the Commission's decision if it is supported by substantial evidence. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We do not undertake a de novo review of the evidence. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). Therefore, on appeal, the issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds with the same facts before them could reach the Commission's conclusion, we must affirm its decision. Ulibarri v. JimWood Co. Inc., 79 Ark. App. 354, 87 S.W.3d 846 (2002).

Appellants first argue that the Commission's decision to award appellee additional benefits for her temporary back aggravation was erroneous and not supported by substantial evidence. Specifically, appellants argue that they paid all benefits to which appellee was entitled as of September 7, 1999, and that any back problems that appellee continued to suffer after that date were not traceable to her work injury but were associated with appellee's obesity, degenerative condition, and pre-existing medical maladies.

When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. Atkins Nursing Home v. Gary, 54 Ark. App. 125, 923 S.W.2d 897 (1996). If after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable. Id.

The record reflects that on October 14, 1999, Dr. Bruce Safman saw appellee for complaints relative to her low back. Dr. Safman's report stated that appellee had chronic pain syndrome, but that he did not think the small disc herniations were the etiology for her pain. He concluded that her pain was nonradicular in nature. On December 14, 1999, appellee was evaluated by Dr. Steven Cathey with regard to her foot injury as well as her low back pain. According to Dr. Cathey's report, appellee's low back pain stemmed from degenerative lumbar disc disease, and was not connected to the September 7, 1998, injury. However, Dr. Thomas Hart, another doctor referred by Dr. Hicks, opined in a letter datedJanuary 2, 2001, that "[w]ithin a reasonable degree of medical certainty, the majority of [appellee's] pain/annular disruption is related to the specific on the job injury when this event occurred causing her to have continuing pain ever since." The Commission accorded greater weight to Dr. Hart's opinion on causation and proposed medical treatment, because the opinions of the other doctors were all rendered significantly before Dr. Hart performed additional diagnostic tests on appellee.

Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). It is well established that it is within the Commission's province to weigh all the medical evidence and to determine what is most credible. 3M v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). Therefore, based on Dr. Hart's medical opinion, we hold that there was substantial evidence to support the Commission's decision to award additional benefits for appellee's back injury.

For appellants' second point, they argue that the decision of the Commission finding that appellee remained in her healing period and was entitled to temporary disability benefits beyond December 14, 1999, was erroneous and not supported by substantial evidence. Temporary total disability is that period within the healing period in which an employeesuffers a total or partial incapacity to earn wages. K II Constr. Co. v. Crabtree, supra; Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002). An employee who has suffered a worked-related injury is entitled to benefits for temporary total disability during her healing period or until she returns to work. Ark. Code Ann. § 11-9-521(a) (Repl. 2002). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). If the underlying condition causing the disability has become more stable and if there is nothing further in the way of treatment that will improve that condition, the healing period has ended. Id. Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Breakfield v. In & Out, Inc., supra. The question of when the healing period has ended is a factual determination for the Commission that will be affirmed if it is supported by substantial evidence. Id.

Appellants raise several arguments in support of their contention that appellee was no longer within her healing period: (1) appellee's May 17, 1999, motor vehicle accident was an independent intervening cause of appellee's low back problems after that date; (2) appellee voluntarily terminated her employment on August 15, 1999, to become a full-time student and pursue a master's degree; and (3) pursuant to Ark. Code Ann. § 11-9-526 (Repl. 2002), appellee was barred from receiving temporary disability benefits. These arguments are without merit.

First, as discussed in greater detail later in this opinion, based on our review of therecord, we were not persuaded by appellants' argument that the May 17, 1999, motor vehicle accident was an independent intervening cause. Second, although the record reflects that appellee resigned her employment effective August 15, 1999, because she wanted to pursue graduate school, she testified that she still was having chronic pain, which made it difficult to sit at work and at school, and she still was in physical therapy after August 15, 1999, at the direction of Dr. Hicks. Further, on December 14, 1999, Dr. Hicks placed appellee on "off work" status until a later determinable date; thus, as of December 14, appellee was disabled from working. Third, Ark. Code Ann. § 11-9-526 (Repl. 2002) is not applicable in the instant case.

Arkansas Code Annotated section 11-9-526 provides:

If any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers' Compensation Commission, the refusal is justifiable.

Here, although appellee resigned, she asked to be placed on the substitution pool list with the appellant employer. Appellants did not present any evidence that they offered appellee suitable employment which she refused. Appellants, however, contend that appellee earned significant income working as an intern at her college during the summer of 2000, which they claim would negate a claim of incapacity to earn. However, appellee testified that her internship was conditioned on her receiving accommodations for her restrictions. The Commission found that the fact that appellee was capable of participating in a school-related internship with accommodations did not mean she would be able to quit school and find equivalent employment outside the internship.

Accordingly, based on a review of these facts, we cannot hold that the Commission erred in finding that appellee was still in her healing period and awarding benefits beginning December 14, 1999, to a date to be determined.

For their third point on appeal, appellants argue that the decision of the Commission finding that appellee is entitled to additional benefits for her left foot injury is erroneous and not supported by substantial evidence. More particularly, appellants assert that appellee failed to establish that her left foot surgery on January 3, 2001, was causally connected to the left foot injury she suffered on September 7, 1998.

Questions of causation in compensation cases are to be answered in light of the facts particular to each case. Pace Corp. v. Burns, 251 Ark. 311, 472 S.W.2d 78 (1971); Smith v. Carrier Air Conditioning, 21 Ark. App. 162, 730 S.W.2d 509 (1987). Causation may be established by circumstantial evidence based upon reasonable inferences that arise from reasonable probabilities flowing from the evidence and absolute certainty in this regard is not required. Williams v. Gifford-Hill & Co., 227 Ark. 340, 298 S.W.2d 323 (1957); Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S.W.2d 252 (1943). The Commission's specialization and experience makes it better equipped than we are to analyze and translate evidence into findings of fact. Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998).

The record reveals that on November 10, 1998, appellee saw Dr. David Barnett, per referral from Dr. Hicks, for treatment of the pain she continued to experience in her left foot as a result of the September 7, 1998, injury. Dr. Barnett diagnosed appellee as having acontusion of the foot and fit her with an Aircast walker. As a result of appellee's continuing foot pain, a whole body bone scan was performed on December 31, 1998. According to Dr. Barnett's January 5, 1999, report, the bone scan revealed "no changes other than diffused arthritic changes in both feet." Dr. Barnett also mentioned that he could not differentiate a reason for her continued pain. Appellee last saw Dr. Barnett on February 3, 1999.

Appellee continued to complain of pain and on March 17, 1999, she was referred to Dr. Richard Bronfman by Dr. Hicks. Dr. Bronfman treated appellee for the problems she was experiencing with both feet, and on March 29, 2000, Dr. Bronfman performed surgery on her right foot for heel spur syndrome. In a letter dated October 18, 2000, Dr. Bronfman stated that with regard to appellee's left foot, her symptoms were consistent with plantar fasciitis and posterior tibial tendinitis which were the direct result of her September 7, 1998, injury. He opined that, within a reasonable degree of medical certainty, the September 7 incident "contributed more than fifty percent to the development of the injury" and was the major cause of her symptoms and need for surgical treatment.

Based on the facts of this case, we are persuaded that the Commission could logically and reasonably infer a causal connection between appellee's September 7, 1998, injury to her left foot and her left foot surgery.

Lastly, appellants argue that the decision of the Commission finding that the motor vehicle accidents on either May 17, 1999, or December 8, 2000, were not independent intervening events, was erroneous and not supported by substantial evidence. Specifically, appellants assert that they were not liable for any problems with appellee's back and left footbeyond September 7, 1999, because these motor vehicle accidents constituted independent intervening events; therefore, any problems or injuries that appellee suffered after this date were attributable to the accidents.

Arkansas Code Annotated section 11-9-102(4)(F)(iii) (Repl. 2002) provides that benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. However, when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to a claimant's own negligence or misconduct. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant. Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000).

The record reflects that on May 17, 1999, appellee was involved in a motor vehicle accident caused when another automobile hit her from behind. Appellee testified that the accident caused a temporary increase in pain to her lower back for three to four days afterwards, but thereafter, the pain returned to the level that it was prior to the accident. Appellee saw Dr. Hicks on May 26, 1999. In Dr. Hicks's progress report, he noted that appellee had a lumbar strain "with some setback secondary to MVA." However, there was no indication that the accident caused a new injury. In addition, the medical report from the Family Clinic, Ltd., where she was treated on May 17, 1999, after the accident, states thatappellee was being treated for cervical strain and mid-back strain secondary to a motor vehicle accident. In contrast, the September 7, 1998, work-related incident caused a low back injury.

On December 8, 2000, appellee was involved in another motor vehicle accident. According to Dr. Hick's report on December 11, 2000, appellee complained of "aggravation of her low back pain." He noted that appellee suffered with chronic back pain and that she had been in a motor vehicle accident. Dr. Hick's assessment of appellee's condition was "MVA with lumbar strain." However, Dr. Thomas Hart, another doctor referred by Dr. Hicks, evaluated appellee on November 22, 2000, and December 22, 2000. He opined in a letter dated January 2, 2001, that "[w]ithin a reasonable degree of medical certainty, the majority of [appellee's] pain/annular disruption is related to the specific on the job injury when this event occurred causing her to have continuing pain ever since."

Therefore, based on the information before the Commission, we cannot hold that it erred in finding that neither the May 17, 1999, nor the December 8, 2000, motor vehicle accidents were intervening causes absolving appellants of liability for appellee's continued back complaints and additional medical treatment.

Affirmed.

Gladwin and Bird, JJ., agree.