ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

MARY BETH NICHOLSON

APPELLANT

TEAGUE CHEVROLET, INC and RISK MANAGEMENT RESOURCES

APPELLEES

CA02-1220

October 22, 2003

APPEAL FROM THE WORKERS’ COMPENSATION COMMISSION

[E907219]

AFFIRMED

Larry D. Vaught, Judge

This is an appeal from a decision of the Workers’ Compensation Commission finding that appellant was not entitled to additional temporary total disability (TTD) benefits or additional medical expenses in connection with an admittedly compensable injury. Appellant contends on appeal that the Commission’s decision is not supported by substantial evidence. We disagree and affirm.

Appellant Mary Beth Nicholson was employed as a new and used car salesperson for appellee Teague Chevrolet on June 11, 1999, when she sustained a work injury after falling down some stairs and landing on her hip. Appellant was treated by various health care providers for approximately one year, during which time appellant was off work and received workers’ compensation benefits, including TTD and payment of her medical expenses. Appellant was released to return to work on April 18, 2000, by Dr. Annette Meador, who reported that she had reached maximum medical improvement. Dr. D’Orsay Bryant arranged for appellant to make a gradual return to work, releasing her to light duty on April 27, 2000, and to full duty one month later. Five days after returning to full duty appellant was terminated for failure to follow company procedure by allegedly failing to report to work and to inform appellee of the reason for not reporting. Appellant claims that she did not return to work because she was experiencing severe back pain and that she informed her sales manager of her problems.

Appellant filed a claim for additional medical benefits for treatment received from a chiropractor, Dr. Green, and two neurosurgeons, Dr. Boudreaux and Dr. Scott Schlesinger. After a hearing before an administrative law judge, appellant was awarded additional TTD and payment of medical expenses. Upon appellees’ appeal to the Commission, the ALJ’s decision was reversed. The Commission found that the preponderance of the evidence indicated that appellant reached the end of her healing period no later than June 5, 2000, and reasoned that TTD benefits could not be awarded after an employee’s healing period ended. The Commission also found that the treatment from Dr. Green and from doctors appellant was referred to by him was not reasonably necessary in connection with appellant’s injury pursuant to Ark. Code Ann. § 11-9-508 because appellant’s healing period had ended.

Appellant contends on appeal that the Commission’s decision to reverse the ALJ’s decision to award additional medical treatment and TTD benefits for appellant was not supported by substantial evidence. In reviewing decisions of the Workers’ Compensation Commission, we affirm unless fair-minded persons with the same facts before them could not arrive at the same conclusions. Marshall v. Madison County, 81 Ark. App. 57, 98 S.W.3d 452 (2003). In cases where a claim is denied because a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission's opinion. Id.

Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001) (citing Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996)). Arkansas Code Annotated section 11-9-102(12) (Repl. 2002) defines “healing period” as that period for healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Emerson Elec., supra. The determination of when the healing period has ended is a factual determination for the Commission, which is affirmed on appeal if supported by substantial evidence. Id. In this case, there was ample evidence to support the Commission’s decision.

After appellant’s injury, which was accepted as compensable, she was diagnosed by Dr. D’Orsay Bryant on July 15, 1999, with “severe strain of the back, buttocks, and coccyx with possible fracture.” An MRI of the lumbar spine was taken on September 17, 1999. The conclusion of the report indicated:

Posterior disc bulging at L4-5 indenting the thecal sac with some narrowing of the neural foramina. Borderline disc herniation at L5-S1 indenting the extradural fat and not the thecal sac itself. The coccyx appears grossly unremarkable.

In a September 29, 1999 report, neurosurgeon Dr. Robert Dickins, Jr. indicated that he reviewed the MRI scan and found it to be essentially normal. He reported:

The L4-5 level is described as having a disc bulge. That is a normal disc with normal configuration and signal and I consider that the normal L4-5 level is normal.

The L5-S1 level has minimal degenerative changes. This is evidenced by signal change within the disc and a slight bulge of the disc.

To summarize, there are no significant structural abnormalities seen on her lumbar MRI scan.

Dr. Dickins’s diagnosis was post-traumatic low back pain. He reported that he had no additional treatment recommendations and that appellant did not have an abnormality for which surgery was appropriate. He added, however, that appellant had more recently developed thoracic and cervical spine pain, which could possibly be evaluated by an MRI scan of those areas.

Dr. Bryant then referred appellant to Dr. Annette Meador at the Arkansas Pain Centers. After seeing appellant on November 12, 1999, Dr. Meador reported to Dr. Bryant that appellant “did not have significant myofacial findings except for perhaps one trigger point in the right cervical region. She had mild tenderness of the sacroiliac joints.” Dr. Meador wrote, “I believe her pain is mainly myofacial in origin, but there is a possibility of some sacroiliac strain.” She recommended that appellant take water aerobics and undergo deep tissue massage on a limited basis; she also instructed appellant on some lumbar stretching exercises to be done three times per day. She prescribed Ultram for pain and indicated that appellant reported that she took only one or two per day. Dr. Meador indicated that she hoped appellant would be back to work in the next month.

Appellant was seen again by Dr. Meador on December 12, 1999, at which time she reported a new symptom of numbness of the left foot and pain that shot down her right leg. Dr. Meador’s progress note indicated minimal physical examination findings but that based on the symptoms there could be a possible lumbar radiculopathy. The recommendation for treatment was epidural steroid injection, which appellant testified she did not undergo due to fear. Appellant returned to Dr. Meador on February 14, 2000, reporting that her foot numbness had resolved, but that her pain was not any better. Based upon her examination, Dr. Meador found a “paucity of physical findings.” Her impression was low back pain with minimal physical exam findings. She did not recommend an epidural steroid injection because there were no radicular signs, but did recommend that appellant restart water aerobics and continue her current pain medication of Neurontin. In her letter to Dr. Bryant, Dr. Meador wrote that she regretted having nothing else to offer appellant.

On February 15, 2000, appellant underwent a functional capacity evaluation. Based on this evaluation and her February 14 physical examination of appellant, Dr. Meador, in an April 18, 2000 letter to appellees’ claims representative, found that appellant had reached maximum medical improvement and was able to return to work at that time without restrictions. Dr. Bryant, in an April 27, 2000 correspondence, noted that appellant had been informed of Dr. Meador’s release, but arranged a gradual return to full duty because appellant had been off of work for such a long period. The evidence reflected that appellee accommodated the graduated return to work by providing appellant with light duty within her restrictions and hours suggested by Dr. Bryant. A June 5, 2000 record of Dr. Bryant’s reflects that appellant reported that she was not doing well in her return to work and continued to have persistent low back pain. Acknowledging Dr. Meador’s release, Dr. Bryant wrote that the previous plan to return to full duty would proceed. The report noted follow-up in six weeks.

Appellant was terminated after returning to full duty for one week because she failed to call in and tell her employer why she was not at work, a fact which she disputed. She did not obtain other employment and she did not return to her authorized doctors. In October 2000, appellant began seeing a chiropractor, Dr. Timothy Green, who ordered an MRI of the lumbar spine, which was taken on October 27. The impression contained in the MRI report indicated:

Changes of degenerative disc disease L-5 and L5-S1. The diffuse bulges approximate the bilateral L4 and L5 nerve roots. The clinical significance of this is not entirely certain. No disc herniations are seen. The exit foramina for the L4 nerve roots are not well-seen. There may be mild exit foraminal narrowing.

Neurosurgeon Dr. Scott Schlesinger read the MRI scan and reported to Dr. Green that the scan was unremarkable. He wrote, “I did not see any explanation for all of her symptoms in her back pain, numbness in her feet and incontinence.” He stated that there was nothing he could do, but that he would recommend that she have neurology and pain management consultations.

In a May 2001 report, Dr. Green diagnosed chronic lumbar strain/sprain, chronic thoracic strain/sprain, L4-5 disc bulge, L5-S1 possible disc herniation, lumbar radiculopathy, and incontinence. The report stated that appellant had been seen sixteen times and that at this point Dr. Green was recommending that appellant consult with a neurologist to further explore the problem of incontinence and the continuing radicular symptoms. Dr. Green found appellant’s prognosis to be poor given the chronic nature of her complaints, along with the findings on the 1999 MRI of disc bulge and possible disc herniation.

At the hearing before the ALJ, appellant testified that she had no records indicating that she sought medical treatment between June and October 2000. She also testified that she did not go back to the doctor in June 2000 to get a note stating that she was unable to work, that she did not file a request for a change of physician, and that she did not contact the insurance company before she saw Dr. Green. Although appellant acknowledged that the insurance claims representative never told her she could not go back to Dr. Bryant, she was left with the impression that the insurance company was not going to do anything more for her. Her mother suggested that she see Dr. Green and paid for her medical treatment.

Based on the evidence set out above, there was ample evidence to support the Commission’s decision that appellant was not entitled to additional TTD. The 1999 MRI of appellant’s lumbar spine was interpreted as unremarkable and normal. Dr. Meador, after a physical examination and review of a functional capacity evaluation, found appellant to have reached maximum medical improvement and released her to full duty in her April 18, 2000 letter. Dr. Bryant apparently agreed that she had reached maximum medical improvement given that he facilitated and recommended appellant’s gradual return to work. Moreover, when appellant failed to return to work after five days of full duty claiming that she was in too much pain, she never sought medical treatment from her authorized physicians.

Appellant also contends that there is no substantial evidence to support the Commission’s finding that the treatment from Dr. Green and the doctors to whom he referred appellant was not reasonably necessary in connection with her injury. Employers must only provide medical services that are reasonably necessary for treatment of the compensable injury. See Ark. Code Ann. § 11-9-508(a) (Repl. 2002). What constitutes reasonably necessary medical treatment is a question to be determined by the Commission. White Consol. Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001).

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. Smith Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). 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. Id. Based on the same evidence mentioned above in connection with the Commission’s denial of additional TTD, we conclude that there is substantial evidence to support the Commission’s finding that the treatment from Dr. Green and the doctors to whom he referred appellant was not reasonably necessary in connection with her injury.

Affirmed.

Crabtree and Baker, JJ., agree.