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Kroger Ltd. P'ship, I v. Fee

Court of Appeals of Arkansas, Division I

October 29, 2014

KROGER LIMITED PARTNERSHIP I, APPELLANT
v.
JOSEPH L. FEE, APPELLEE

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION. NO. G008938.

Barber, McCaskill, Jones & Hale, P.A., by: Gail Ponder Gaines, for appellant.

The McNeely Law Firm, PLLC, by: Steven R. McNeely, for appellee.

JOHN MAUZY PITTMAN, Judge. GLADWIN, C.J., and WYNNE, J., agree.

OPINION

Page 629

JOHN MAUZY PITTMAN, Judge

This is an appeal and cross-appeal from an order of the Arkansas Workers' Compensation Commission. Appellee, Joseph Fee, was employed by appellant, Kroger, when he sustained an admittedly compensable injury. After a hearing on appellee's claim for benefits, the Commission issued a decision finding that all treatment received by appellee through November 15, 2012, was reasonably necessary; that replacement therapy for low testosterone was reasonably necessary to counteract side effects of medicine prescribed for appellee's compensable injury; that appellee proved entitlement to additional temporary-total-disability through December 27, 2011; and that appellee proved that he had sustained a compensable mental injury pursuant to Ark. Code Ann. § 11-9-113 (Repl. 2012).

Appellant Kroger argues that there is no substantial evidence to support the findings that appellee's treatment through November 15, 2012, was reasonably necessary; that the need for testosterone therapy resulted from the compensable injury; or that appellee had sustained a compensable mental injury. On cross-appeal, appellee argues that there is no substantial evidence to support the Commission's findings that he was not entitled to additional medical treatment after November 15, 2012, or to additional temporary-total-disability benefits after December 27, 2011. We affirm in part and reverse in part on direct appeal, and we affirm on cross-appeal.

In reviewing workers' compensation decisions, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Loar v. Cooper Tire & Rubber Co., 2014 Ark.App. 240. Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). 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 conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission; the Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Cooperative v. Biles, 77 Ark.App. 1, 69 S.W.3d 899 (2002). The Commission has the duty of weighing medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Continental Express v. Harris, 61 Ark.App. 198, 965 S.W.2d 811 (1998).

Appellee, who was forty-two years old at the time of the Commission's 2013 decision,

Page 630

was employed by appellant as a meat cutter in February 2000, and continued in that employment through October 7, 2010. It was stipulated that, on that date in 2010, appellee tripped and fell while unloading a truck, resulting in injury to many body parts, including his neck and back. Initial radiology testing of his neck and spine by x-ray and CT scans revealed no fractures or gross abnormalities. Suffering from low back pain and neck pain with numbness in his right hand, he was initially diagnosed by Dr. Bernard Crowell with cervical and lumbar strain and radiculopathy into the right upper extremity.

Dr. Crowell took appellee off work and ordered physical therapy on October 19, 2010. After several physical-therapy sessions and pain treatment with hydrocodone, Flexeril, and naproxen, a follow-up visit on November 2, 2010, led Dr. Crowell to conclude that appellee's symptoms remained unchanged and that his pain cycle was unbroken. Dr. Crowell renewed appellee's prescriptions, kept him off work, and ordered an MRI of his spine. The MRI was performed on December 2, 2010, by Dr. David Harshfield, Jr., who reported various abnormalities of appellee's cervical and lumbar spine, the most significant being broad-based posterior-disc protrusion of the cervical spine.

Appellee returned to Dr. Crowell for a follow-up examination on January 13, 2011. Noting that, despite continued physical therapy, appellee was still complaining of neck pain with pain radiating into both arms, with pain, numbness, and tingling into the small finger of the right hand, Dr. Crowell recorded his impression as " [f]all with lumbar strain, along with broad-based disc herniations at C5-C6 and C6-C7." Dr. Crowell noted that he was attempting to obtain approval for an epidural steroid injection to ...


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