Emergency Ambulance Service, Inc. v. Burnett

Cite as 2015 Ark. App. 288

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-925

EMERGENCY AMBULANCE OPINION DELIVERED MAY 6, 2015
SERVICE, INC., and AIG CLAIMS, INC.
APPELLANTS APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G106949]

CARLA BURNETT
APPELLEE
AFFIRMED

ROBERT J. GLADWIN, Chief Judge

Emergency Ambulance Service, Inc., and AIG Claims, Inc., appeal the Arkansas

Workers’ Compensation Commission’s (Commission) September 15, 2014 opinion finding

that appellee Carla Burnett was entitled to additional medical treatment but finding her

claims for permanent total-disability benefits and wage loss and appellant’s entitlement to

credit for overpayment of temporary total-disability benefits premature and not ripe for

determination.1 Appellants contend that substantial evidence does not support the

1
The Commission affirmed and adopted the opinion of the administrative law judge
(ALJ). Typically, on appeal to our court, we review only the decision of the Commission,
not that of the ALJ. Death & Permanent Total Disability Trust Fund v. Myers, 2014 Ark. App.
102. However, when the Commission affirms and adopts the ALJ’s opinion, thereby making
the findings and conclusions of the ALJ the Commission’s findings and conclusions, our
court considers both the ALJ’s opinion and the Commission’s opinion. Id.
Cite as 2015 Ark. App. 288

Commission’s decision to award additional treatment and that the Commission erred when

it reserved issues on behalf of appellee. We affirm.

At the hearing before the ALJ, appellee testified that she was a sixty-year-old high

school graduate. After high school, she attended two years of college studying physical

education, and completed a two-year vo-tech program in one year, obtaining a certificate

in computerized accounting. Appellee then worked in a CPA’s office performing computer

work until her husband asked her to stop working. She then went to EMT school in 1997

and obtained a certificate to work as an emergency medical technician (EMT). She began

working as an EMT in 1997–98 at DeWitt Hospital. Appellee had been working for

Emergency Ambulance Services, Inc., for almost sixteen years which, on August 6, 2011,

when she suffered a compensable low-back injury while unloading a patient by stretcher

from an ambulance.

Appellee testified that she had prior back problems as early as 1992. She explained

that her symptoms after the August 6, 2011 incident were different than the ones she had

before the incident. She said that the incident caused shaking, trembling, and the inability

to lift. She testified that her prior back problems had never prevented her from working.

She had a back injury in April 2002 and was treated by Dr. Barry Baskin but was not ever

off work due to that injury. After the injury in August 2011, she could no longer mow the

yard. She explained that it initially affected one side of her body—the outside of the right

side of her leg—but that it now affects both sides of her leg. She testified that she cannot lift

or squat; requires help getting dressed and getting in and out of the shower at times; can no

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longer get in the bathtub; is limited on how long she can stand to cook; can lift a gallon of

milk or an iron skillet at the most; and is able to go grocery shopping but cannot carry the

groceries. She said that her husband helps with these issues. Appellee testified that she

currently had problems in her legs, low back, and bottoms of her feet. She explained that

she had no problems in those areas prior to the August 6, 2011 injury. She said that she had

previously undergone a nerve-conduction test, but could not recall the date.

Appellee said that she had not worked since August 6, 2011. She testified that she was

only able to sit comfortably for approximately thirty minutes, she could stand for five-to-ten

minutes, and she was no longer able to garden or play with her grandchildren. She described

a good day as going outside to swing in the yard. She claims that on a bad day she could not

get up at all because she had no feeling in her legs.

She testified that she could not work at a cleaners because she could not stand for

extended periods of time. She testified that she could not work at the desk job for a CPA

because she was not able to sit for extended periods of time. She could not work as an EMT

because she could not lift, push, or pull. She was able to drive but was unable to ride in a

car for an extended period of time.

On cross-examination, appellee testified that she had let her EMT certificates lapse,

but not her CPR certification. She said that she was also injured in April 2002 when lifting

a pregnant woman who weighed over 400 pounds. She explained that she injured her low

back and was initially seen by a company doctor, who ordered an MRI and referred her to

Dr. Reza Shahim and Dr. Baskin. Dr. Baskin ordered a TENS unit and prescribed muscle

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relaxers and pain pills. She had muscle spasms and numbness in her right leg. She testified

that she had recovered one hundred percent and had no continuing symptoms or complaints

from that injury. Appellee testified that she began drawing social security disability benefits

of $980 per month due to her back problems and depression in October 2013.

The parties stipulated that Randy Burnett’s testimony would be that he was appellee’s

spouse and had known her well several years before August 6, 2011. He had the opportunity

to observe her during that period of time and did not see her demonstrate any limitations

related to physical problems at that time. Since August 6, 2011, he had seen her demonstrate

the limitations consistent with her testimony.

Medical records reflect that appellee sought treatment with Dr. Stan Burleson with

complaints of persistent back pain after twisting on October 19, 1992. He noted that she had

a pop and was experiencing muscle spasms. He also noted that she had been seen by a

chiropractor that morning and had undergone x-rays. She returned to Dr. Burleson on

October 26, 2001, with complaints of severe lower-back pain and numbness in her legs.

On September 19, 2002, appellee was seen by Dr. Baskin after a work injury on April

6, 2002. She complained of persistent numbness down her right leg and pain in her low

back. She underwent an MRI on September 28, 2002, which revealed “leftward eccentric

diffuse annular disc bulging at L4-5 with a small left posterclateral annular fissure and no

neural impingement. Mild degenerative changes in the facets bilaterally at L4-5 and L5-S1.”

She returned for a follow-up with Dr. Baskin on October 10, 2002, and reported that the

therapist had done only a few exercises with her and was less than adequate. She also

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reported that Bextra had not helped and that she had also taken Darvocet. He noted that she

had an annular tear at L4-5 and discogenic pain syndrome. Dr. Baskin referred her for a

steroid injection, which she had on October 18, 2002. She returned to Dr. Baskin on

November 5, 2002, and he noted that the injection had been beneficial for a few days but

the pain had come back and was severe. She admitted to severe depression. He administered

an injection and prescribed Zoloft, Darvocet, and Xanax. He noted that her tear and bulge

were on the left side but that her pain was in the right low back and leg.

Appellee underwent another MRI on March 6, 2003, which revealed

mild degenerative disc disease with asymmetric broad based bulge to the left L4-5
level as before. Associated posterior lateral annular tear to the left is seen. The neural
foramen and central canal are grossly patent. Mild degenerative disc disease at L5-S1
level without significant central canal stenosis or foraminal narrowing as above.

Appellee returned to Dr. Baskin on June 19, 2003, and reported that she was worse

than she had been in November 2002. She continued to complain of low-back pain, right-

hip pain, and right-leg numbness. She also reported that there had been several occasions

over the last few months where her leg had given way. Dr. Baskin referred her to Dr.

Shahim.

Appellee was evaluated by Dr. Shahim on July 28, 2003. She reported low-back pain,

numbness in her right leg to her foot, and pain in her entire right leg. He referred her for

a CT lumbar myelogram. On October 7, 2003, she returned to Dr. Shahim, who reviewed

the MRI and myelogram and noted that the myelogram revealed no evidence of nerve-root

compression or canal stenosis. He noted that the MRI revealed an annular tear but no disc

herniation. Dr. Shahim opined that he did not think appellee was a surgical candidate and

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the test results did not explain the leg numbness. He noted that the annular tear could cause

back and hip pain and recommended pain management. Dr. Shahim noted that appellee did

not want to be evaluated by pain management at that time.

Appellee returned to Dr. Burleson on September 22, 2004, with complaints of

persistent numbness and pain in her leg and foot. She underwent another MRI on October

4, 2004, which revealed “no significant degenerative disc disease. There is minimal focal

subligamentous disk protrusion at L4-5. There is no evidence of central canal or foraminal

stenosis.”

Appellee underwent another MRI on January 6, 2006, at Stuttgart Regional as a result

of complaints of back pain due to a fall. The January 2006 MRI revealed “[m]ild disc

desiccation noted at L4/5. No evidence of traumatic injury. No evidence of significant disc

pathology.”

Appellee underwent a nerve-conduction study on June 16, 2009. At that time, she

reported that she had fallen out of an ambulance and landed on her back in 2000. On

October 12, 2009, she was treated by Dr. Richard Wilson for problems of anxiety due to

family issues and chronic back pain. She was prescribed Prozac and Ultram.

Appellant returned to Dr. Wilson on January 28, 2011, with complaints of depression

and chronic back pain. He prescribed Effexor, Flexeril, Klonopin, and Ultram. He had a

long discussion with her about bipolar disorder.

Appellee began treating with a nurse practitioner, Suzette Boyd, on March 17, 2011,

with complaints of lower leg pain on both the left and right sides with aching and tingling

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in her legs. She returned to Ms. Boyd on April 4, 2011, with complaints of chronic back

pain that was moderately limiting her activities. She was given a Toradol injection.

On August 19, 2011, appellee underwent another MRI due to a “lifting injury,”

which revealed “[n]o acute abnormalities visualized.” On September 12, 2011, Dr. Shahim

stated in a report that appellee’s symptoms had been ongoing since August and she had a pain

level of 9/10. Her symptoms were a headache; palpations; change in bowel habits; difficulty

controlling urination; muscle extremity weakness; painful, swollen joints; anxiety and

depression. She returned to Ms. Boyd on September 13, 2011, with complaints of back pain

and depression.

On October 7, 2011, Dr. Shahim referred her for a CT scan and a myelogram. The

CT scan revealed “[v]ery mild multilevel spondylolytic changes of the lumbar spine

manifesting most prominently as moderate facet degeneration at L4-5 without significant

mass effect on the canal or foramen at this or any other level.” The myelogram revealed

“L4-5 facet degeneration without significant canal or foraminal stenosis demonstrated.”

On October 10, 2011, Dr. Shahim noted that appellee had lumbar radiculopathy. He

noted that the CT myelogram revealed that there was significant foraminal stenosis at right

L4-5 with facet arthropathy and facet disease at L3-4, L4-5, and L5-S1 with lateral recess

stenosis at L4-5. He recommended a multilevel facet injection and noted that she may

ultimately require surgical decompression. He issued a return-to-work slip indicating that she

could return to full duty on November 11, 2011.

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On November 16, 2011, appellee returned to Dr. Shahim for follow-up. He noted

that he would send authorization for epidural injections and facet blocks. He opined, “I do

believe that her pain is a result from a work-related injury. She denies any previous pain

prior to the injury. She was not having any back or leg symptoms prior to the injury and her

symptoms are primarily due to the work-related injury.”

On December 1, 2011, appellee returned to Dr. Shahim for evaluation. He noted

that he had reviewed the MRI of the lumbar spine and disagreed with the interpretation.

He noted that appellee had “lateral recess stenosis and facet disease,” and he noted that there

was not an acute disc herniation, but there was foraminal stenosis at L4-5 and L5-S1 due to

facet arthropathy. He noted that the CT lumbar myelogram showed “lateral recess stenosis

and facet arthropathy, particularly at L4-5 and L5-S1.”

Appellee returned to Dr. Shahim for evaluation on December 15, 2011. He noted,

“Unfortunately her MRI was misread as a normal MRI.” He noted that the myelogram

showed significant facet disease and foraminal stenosis at L4-5 and L5-S1. They were still

waiting for authorization for the injections. He also recommended physical therapy. On

January 16, 2012, Dr. Shahim issued a return-to-work slip indicating that appellee could

return to regular duty on March 17, 2012.

On February 28, 2012, appellee underwent a functional capacity evaluation (FCE).

The evaluator noted that appellee gave a near full, though not entirely full, effort, and that

she could do more physically at times than was demonstrated. He noted that she

demonstrated the ability to sit for up to two hours and thirty-eight minutes, and dynamic

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standing time was tested at thirty-seven minutes. She tested at the sedentary physical-

demand level with lifting on an occasional basis. She tested at the medium physical-demand

category for pushing and pulling over twenty feet on an occasional basis. The report

concluded, “Overall, Ms. Burnett demonstrated the ability to perform work in the LIGHT

classification of work as defined by the US Dept. of Labor’s Guidelines.”

On May 22, 2012, Dr. Reginald Rutherford noted that, based on appellee’s FCE, she

could work in a restricted capacity as defined by the details of the FCE. He noted that

clinically she had “L5 radiculopathy right leg .” He recommended a selective right L5 nerve-

root block for diagnostic confirmation and a series of lumbar epidural steroid injections with

physical therapy. The recommended injections and follow-up MRI were denied by the

workers’ compensation carrier.

Appellee was evaluated by Dr. Kevin Collins on August 10, 2012. He noted that the

only MRI that he reviewed in determining a five-percent impairment rating was dated

August 19, 2011. He did not review the earlier MRI reports. He stated that if the earlier

tests revealed a disc bulge that predated the August 2011 injury, then “obviously we cannot

say the injury caused the disc bulge. If no bulge then indeed she developed this after her

injury, then it would relate.”

Based on the evidence as set forth above, the ALJ found as follows:

In the instant case, the preponderance of the evidence demonstrates that the
claimant suffered a compensable injury to her low back supported by objective
medical findings. The claimant testified that she continues to have problems with her
low back with radicular pain, numbness, and tingling in her lower extremities.
Notwithstanding conservative treatment, the claimant contends she is worse off and
is in need of further medical treatment. The medical evidence in this case reveals that

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the claimant had a preexisting disc bulge, which is revealed in MRI reports as early
as 2002. All subsequent MRI reports are consistent with the 2002 findings. However,
Dr. Shahim has opined that the MRI report from August 19, 2011, has been misread
in light of his interpretation of the CT Scan and Lumbar Myelogram, which he
contends reveals new objective findings of lateral recess stenosis and facet disease. He
also notes there is foraminal stenosis at L4-5 and L5-S1 due to facet arthropathy. In
light of these medical opinions, I find that the claimant has proven by a
preponderance of the evidence that her request to return to Dr. Shahim for additional
medical treatment is reasonable and necessary to reduce and alleviate her symptoms
of pain and to maintain her healing and prevent further deterioration from any
damage sustained by her compensable injury.

The ALJ also found that the issue of appellee’s entitlement to permanent total-disability

benefits and/or wage loss was premature and not ripe for determination because further

medical treatment could alleviate some of appellee’s symptoms. Also, because appellee was

seeking to continue medical treatment, the ALJ found that appellants’ entitlement to a credit

for overpayment of temporary total-disability benefits was premature and not ripe for

determination. Appellee appealed to the Commission, which affirmed and adopted the ALJ’s

decision. This appeal timely followed.

In appeals involving claims for workers’ compensation, the appellate court views the

evidence in the light most favorable to the Commission’s decision and affirms the decision

if it is supported by substantial evidence. Target Corp. v. Bumgarner, 2015 Ark. App. 112, ___

S.W.3d ___. Substantial evidence is evidence that a reasonable mind might accept as

adequate to support a conclusion. Id. The issue is not whether the appellate court might

have reached a different result from the Commission, but whether reasonable minds could

reach the result found by the Commission. Id. Additionally, questions concerning the

credibility of witnesses and the weight to be given to their testimony are within the exclusive

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province of the Commission. Id. When there are contradictions in the evidence, it is within

the Commission’s province to reconcile conflicting evidence and determine the facts. Id.

Finally, the court will reverse the Commission’s decision only if it is convinced that fair-

minded persons with the same facts before them could not have reached the conclusions

arrived at by the Commission. Id.

Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an employer to

provide an employee with medical and surgical treatment “as may be reasonably necessary

in connection with the injury received by the employee.” A claimant bears the burden of

proving entitlement to additional medical treatment. Bumgarner, supra. What constitutes

reasonably necessary treatment is a question of fact for the Commission. Id. The Commission

has authority to accept or reject medical opinion and to determine its medical soundness and

probative force. Id. Furthermore, it is the Commission’s duty to use its experience and

expertise in translating the testimony of medical experts into findings of fact and to draw

inferences when testimony is open to more than a single interpretation. Id.

I. Additional Medical Treatment

Appellants contend that appellee has had back problems for many years, as established

by her medical records, and is not entitled to additional medical treatment. She reported

back pain with muscle spasms dating back to 1992. An MRI on September 28, 2001,

showed facet degenerative changes at L4-5 and L5-S1, with a disc bulge at L4-5 with annular

fissure. An MRI on March 6, 2003, showed that she had degenerative disc disease at L4-5

and L5-S1 as well as a bulge at L4-5 with an annular tear. Another MRI on October 4,

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2004, showed a disc protrusion at L4-5, and she continued to complain of back pain on

January 6, 2006, where another MRI showed disc desiccation at L4-5. In 2009, she

complained of pain with muscle spasms and numbness in her right leg and in October 2009

she reported to Dr. Richard Wilson that she had chronic back pain as well as stress and

anxiety. The January 2011 records also establish her back pain and tingling in her leg. In

October 2012, Dr. Stan Burleson opined that appellee had discogenic pain syndrome. Thus,

appellants contend that the records indicate that appellee suffered from back problems for

almost twenty years prior to her work-related injury, and she was taking pain medications

even up to the time of her injury.

Appellants stress that Dr. Collins stated that “if the disc bulge predated the injury, then

obviously we cannot say the injury caused the disc bulge.” Appellants argue that four MRIs

prior to her work-related injury showed a disc bulge at L4-5, and her work-related accident

did not cause the disc bulge. Appellants argue that the additional medical treatment that she

seeks is to address her preexisting back conditions that have been documented since 2002.

Appellee maintains that the Commission’s finding that she is entitled to additional

medical treatment is supported by substantial evidence. She contends that her testimony and

the medical records document that she experiences extremely severe pain in her low back,

which radiates into both lower extremities, causes instability in her ambulatory ability, and

affects her bowels and bladder function. She argues that the problems that she experienced

prior to August 6, 2011, differ from the problems that she began to experience immediately

after the incident and continues to experience since the injury occurred.

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A preexisting disease or infirmity does not disqualify a claim if the employment

aggravated, accelerated, or combined with the disease or infirmity to produce the disability

for which compensation is sought. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30,

917 S.W.2d 550 (1996). The test is whether the injury aggravates, accelerates, or combines

with the condition. Here, the evidence was that, prior to the occurrence, appellee was able

to perform the heavy manual requirements of her job; take care of household chores; provide

for her own personal grooming; play with her grandchildren; play with her dogs; work in

the yard; and maintain a relationship with her husband. Since the injury, she can no longer

do these things. Thus, substantial evidence was presented that the injury aggravated,

accelerated, or combined with the condition to cause her current disabling condition and

need for medical treatment. We hold that fair-minded persons with the same facts before

them could have reached the conclusions arrived at by the Commission—the injury

combined with her preexisting condition, which was the disc bulge, to produce the disabling

condition and need for medical treatment. The Commission gave credence to Dr. Shahim’s

note on November 16, 2011, that he believed appellee’s pain was the result of a work-related

injury and that appellee was not having any back or leg symptoms prior to the injury.

Because questions concerning the credibility of witnesses and the weight to be given to their

testimony are within the exclusive province of the Commission, the decision to award

additional medical treatment is affirmed.

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II. Remaining Issues

Appellants cite Sea Ark Marine, Inc. v. Pippinger, 2009 Ark. App. 223, 303 S.W.3d

102, Burkett v. Exxon Tiger Mart, Inc., 2009 Ark. App. 93, 304 S.W.3d 2, and Gencorp Polymer

Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991), in support of their argument

that the Commission erred when it did not decide all the issues that were litigated; instead,

appellants claim that, as in the cases cited, the Commission erred by reserving issues after the

hearing was held. They contend that the ALJ should have made a determination whether

appellee sustained her burden of proof with the evidence on the record submitted by the

parties.

We disagree. The ALJ made specific findings of fact that these issues were premature

and not ripe for adjudication. The issues of appellee’s entitlement to permanent total-

disability benefits and/or wage loss were premature and not ripe for determination because

further medical treatment could alleviate some of appellee’s symptoms. Also, because

appellee was seeking to continue medical treatment, the ALJ found that appellants’

entitlement to a credit for overpayment of temporary total-disability benefits was premature

and not ripe for determination. Accordingly, we find no error in the Commission’s

determination. See Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. App. 322, at 12,

436 S.W.3d 164, 172 (not reaching the merits on the impairment-rating issue because it was

premature based on holdings affirming the compensability of entitlement to additional

medical treatment); Serv. Chevrolet v. Atwood, 61 Ark. App. 190, 197–98, 966 S.W.2d 909,

913–14 (1998) (where reservation of the issue of permanent disability for later determination

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was justified in case of claimant who was splashed in the eye with acidic solution, where

medical expert had not yet determined the degree of correctable impairment to eye)(overruled

on other grounds by Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000));

and Cross v. Crawford Cnty. Memorial Hosp., 54 Ark. App. 130, 133, 923 S.W.2d 886, 888

(1996) (where appellate court found error in ALJ’s denial of wage-loss disability benefits after

it was determined that the issue was premature).

Affirmed.

ABRAMSON and HARRISON , JJ., agree.

Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellant.

C. Michael White, for appellee.

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