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Mills v. Aerocare Holdings, Inc.

Court of Appeals of Arkansas, Division II

March 8, 2017



          Frederick S. "Rick" Spencer, for appellant.

          James M. Ryburn, for appellees.

          RITA W. GRUBER, Chief Judge

         This is a workers' compensation case. Daniel R. Mills, a respiratory therapist for Aerocare Holdings, Inc., sustained a compensable injury to his left shoulder in June 2012 while lifting a 200-pound tank of liquid oxygen. On September 25, 2012, he underwent left-shoulder arthroscopic surgery with subacromial decompression and distal clavicle resection by orthopedic surgeon Dr. Russ B. Rauls. Mr. Mills later received occupational therapy, was released by Dr. Rauls to work with lifting restrictions, and-on March 20, 2013-was released to full duty without restrictions. Mr. Mills's work with Aerocare ended a month later due to staffing changes. He was granted a one-time change of physicians to Dr. Christopher A. Arnold, who saw him in November 2013 for an initial office visit.

         On November 18, 2015, an administrative law judge conducted a hearing on controverted issues in this case. By written opinion, the law judge rejected Mr. Mills's claims that the Arkansas Workers' Compensation Act is unconstitutional and that he was entitled to additional medical treatment for the left shoulder and to related benefits. The Arkansas Workers' Compensation Commission adopted and affirmed the law judge's opinion. Mr. Mills appeals, raising two points: (1) a second left-shoulder procedure, as recommended by Dr. Arnold, is reasonable and necessary medical treatment, and (2) our workers' compensation law is unconstitutional. We affirm.

         I. Additional Medical Treatment

         The employer shall promptly provide for an injured employee such medical services as may be reasonably necessary in connection with the employee's injury. Ark. Code Ann. § 11-9-508(a) (Repl. 2012). What constitutes reasonably necessary treatment is a question of fact for the Commission, whose duty is to use its expertise to determine the soundness of medical evidence and to translate it into findings of fact. Bennett v. Tyson Poultry, Inc., 2016 Ark.App. 479, at 3-4, 504 S.W.3d 653, 656.[1] When the primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for any natural consequence that flows from that injury. Nichols v. Omaha Sch. Dist., 2010 Ark.App. 194, at 5, 374 S.W.3d 148, 151.

         The burden is on the employee to establish, by a preponderance of the evidence, a causal connection between the injury and the consequences of such. Id. at 5-6, 374 S.W.3d at 151; see Ark. Code Ann. § 11-9-705(a)(3). When the Commission denies benefits because the claimant has failed to meet his or her burden of proof by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. Jordan v. Home Depot, Inc., 2013 Ark.App. 572, 430 S.W.3d 136. We review the evidence in the light most favorable to the Commission's findings and will affirm if those findings are supported by substantial evidence; we defer to the Commission's findings of credibility and the resolution of conflicting evidence. Bennett, 2016 Ark.App. 479, at 2-3, 504 S.W.3d at 656; We Get Rid of It Ark. v. Graham, 2016 Ark.App. 88, at 10.

         In denying Mills's claim for additional treatment by Dr. Arnold, the Commission reasoned as follows:

Dr. Rauls, the treating physician released the claimant with full duty and no restrictions on the 20th day of March, 2013, after a left shoulder injury. Dr. Arnold opined on November 19, [2013], in referring to the left shoulder, that I would do surgery if the claimant returns "but" if he gets relief [from an injection administered that day] and it stays away for good, I would not do surgery. It then appears from the record that the claimant did have the opportunity to return to Dr. Arnold, but the discussion with Dr. Arnold was about the right shoulder and there appears to be no record regarding the left shoulder. Also, claimant's testimony states that he went to the VA and there was inflammation of the shoulder but apparently they felt that there was not sufficient findings to go ahead and perform an MRI. Finally, the bilateral strength evaluation that was performed with a side to side comparison actually showed the left side to be stronger.

         The Commission's opinion summarized Mr. Mills's medical treatment from the June 2012 injury through return visits to Dr. Arnold in August 2014. Dr. Rauls ordered an MRI, which was performed on June 19, 2012, and interpreted by Dr. Kyle McAlister. In his radiology report, Dr. McAlister dictated this impression: "Impingement on the rotator cuff by degenerative changes of the acromioclavicular (AC) joint and large inferior bony spurs, but I do not see a tear of the rotator cuff, although there is certainly tendonosis of the rotator cuff present." Dr. Rauls wrote on July 12, 2012, that Mr. Mills had "impingement syndrome, biceps tendonitis, and a SLAP (superior labrum anterior to posterior) tear, " which Dr. Rauls believed to be a direct result of an on-the-job injury. Dr. Rauls's surgical report of September 25, 2012, stated that "superior labrum had some mild fraying but overall looked pretty good. Had some mild inflammation of his capsule. His articular and bursal rotator cuff looked good. We did a decompression of the distal clavicle." Both Dr. Rauls and the occupational therapist signed the notes of a May 23, 2013 impairment examination: "A bilateral static strength evaluation was performed for a side to side strength comparison. The left side was found to be stronger that the non-affected right. No strength impairment was, therefore, assigned." The Commission reviewed an office visit of November 19, 2013:

[T]he claimant presented to Dr. Chris Arnold with left-shoulder pain. Dr. Arnold's report provided negative for crepitus, joint instability, joint locking, joint tenderness, limping, popping and spasms but positive for decreased mobility and weakness. The report further provided that right shoulder strength was normal but there was weakness in the left shoulder and consequently, an arthrocentesis was performed for rotator cuff tendonitis and Doctor Arnold stated that if he gets complete relief and it stays away for good then I would not do surgery, but if it comes back as anticipated, I would recommend repeat arthroscopy, acromioplasty, and distal clavical resection.

         Finally, the Commission noted Mr. Mills's complaints of right-shoulder pain at his August 5, 2014 visit to Dr. Arnold, which Dr. ...

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