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Northwest Arkansas Community College v. Migliori

Court of Appeals of Arkansas, Division II

May 2, 2018



          Robert H. Montgomery, Public Employee Claims Division, for appellants.

          Cottrell Law Office, by: Wesley A. Cottrell, for appellee.


         Appellants Northwest Arkansas Community College (NWACC) and the Public Employee Claims Division (collectively "appellants") appeal the opinion of the Arkansas Workers' Compensation Commission (Commission) affirming and adopting the opinion of the administrative law judge (ALJ) that found appellee Heidi Migliori sustained a compensable head injury on July 28, 2016, entitling her to medical benefits, temporary total-disability benefits, and an attorney's fee. On appeal, appellants argue that substantial evidence fails to support the Commission's opinion. We affirm.

         Migliori is employed as an administrative analyst for the vice president of learning at NWACC. On July 28, 2016, she arrived at work, retrieved a yoga ball from a coworker's office, placed the ball on the ground in front her desk, sat down on the ball, and began to work at her computer. She had never sat on a yoga ball before. When she needed a book behind her, she turned and instinctively pushed off from her desk, which caused her to fall off the ball and hit the left side of her head on the desk. She reported the injury to NWACC, sought medical treatment for a head injury, and later requested workers'-compensation benefits. Appellants controverted the claim, contending that Migliori did not sustain a compensable injury within the meaning of Arkansas Code Annotated § 11-9-102 and that her need for medical treatment was not related to the alleged injury but rather to preexisting medical issues.

         At the April 6, 2017 hearing before the ALJ, Migliori testified that after she fell off the ball, she rolled to her knees, picked up the phone, and called a coworker, Lindsey White. Migliori stated that White, along with coworker Cheryl Wagner, came to Migliori's office to check on her and that Wagner retrieved a bag of ice for Migliori's head. According to Migliori, Wagner also called Beverly Hill, NWACC human-resources representative, who filled out the first report of injury.[1] Migliori testified that she also emailed her supervisor, Dr. Ricky Tompkins, to report the incident; she signed the employee's report of accident, which stated that her injury occurred when she fell off the yoga ball; and she called her husband. Migliori said that as a result of the accident, she experienced left-side facial numbness, left-ear ringing, neck pain, vertigo (dizziness), and headaches.

         Migliori testified that soon after she fell, she was seen by a NWACC nurse, who diagnosed her with a contusion and sent her to Mercy Clinic for treatment. Migliori's husband drove her to Mercy Clinic, where she was treated by APN Tu Phan. The July 28, 2016 Mercy Clinic medical report states that Migliori "hit back of head at 07:16 this morning falling off a yoga ball chair, HA, struggling to read forms here, left ear pain/pressure/numbness/tingling, shaky, denies other symptoms."

         Migliori returned to Mercy Clinic on August 1, 2016, and was seen by Dr. David Sitzes. In his August 1 report, Dr. Sitzes stated that Migliori was experiencing ringing in the left ear and eye twitching. He stated that Migliori reported that the "bump is gone, " but she still feels pain, and the left side of her face feels swollen. Dr. Sitzes requested head and face CT scans, which were performed on August 2, 2016. The radiology reports provide that the head and face CT scans were normal. One of the radiology reports reflects that Migliori had been diagnosed with postconcussion headache; pressure, hearing loss, and tinnitus in the left ear; vertigo; contusion of the scalp; and visual impairment.

         Migliori returned to Dr. Sitzes on August 3, 2016, with continued complaints of left-ear ringing, left-eye draining, and pain in her head. She requested a referral to her chiropractor, Dr. Kent Moore. Migliori saw Dr. Moore six times from August 4, 2016, to September 6, 2016. Dr. Moore opined in an April 6, 2017 report that Migliori's head injury was work related and was supported by objective findings; the work-related injury was the major cause for the need of his treatment; and she had reached maximum medical improvement.

         Migliori admitted that she had been a patient of Dr. Moore's for cervical-, thoracic-, and lumbar-spine issues, along with headache and migraine complaints, following a car accident in April 2012 that gave her severe whiplash and headaches. She said that she had been released from Dr. Moore's treatment in April 2013 but continued to see him as needed for headaches. She said that the problems she experienced after falling off the yoga ball were "most certainly different" than the problems she had before.

         Migliori stated that Dr. Moore referred her to Dr. Shawn Key, an audiologist, [2] for her concussion symptoms: ringing in her ear and vertigo. Dr. Key evaluated Migliori on March 22, 2017. In his report of the same date, he stated that she had been diagnosed with a concussion after she fell off a yoga ball and hit her head with force on a desk. Dr. Key diagnosed her with mild left-unilateral sensory hearing loss. He acknowledged that she suffered from mild hearing loss in her left ear in 2012, yet he also opined that Migliori's change in tinnitus, postconcussion, could be due to swelling around the nerves and that her vertigo "is more likely than not a result of the impact to her head, which resulted in a concussion." According to Migliori's testimony, Dr. Key's treatment improved her condition greatly.

         Migliori stated that Dr. Sitzes restricted her from work for two weeks. Thereafter, he released her for light-duty work for two weeks. She said that Dr. Sitzes released her to return to work full duty on August 28, 2016. She stated that she was no longer experiencing problems related to the accident and has been working full time since September 1, 2016. Finally, Migliori testified that before the July 28 incident, she was not having any problems and was functioning at full capacity.

         Lindsey White, executive assistant to the president of NWACC, testified that on July 28, 2016, she received a call from Migliori that she had fallen and needed help. White, along with Cheryl Wagner, went into Migliori's office and found her on her knees on the ground with her hands on the back of her head. Migliori reported that she had fallen off the yoga ball. White said Migliori looked like she had been crying "a little bit." White stated that Migliori ...

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