FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
& Brooks, P.A., by: Evelyn E. Brooks, for appellant.
Ledbetter, Cogbill, Arnold & Harrison, LLP, by: James A.
Arnold II and Joseph Karl Luebke, for appellees.
F. VIRDEN, JUDGE.
Falcon appeals from the decision of the Arkansas Workers'
Compensation Commission ("Commission") denying her
claim for temporary total-disability (TTD) benefits following
treatment for a neck, shoulder, and arm injury while working
for Northwest Medical Center ("Northwest"). We
August 22, 2014, Falcon suffered a compensable injury to her
neck, shoulder, and left arm while assisting a patient.
Falcon reported the injury immediately. On the day of the
accident, Falcon went to the emergency room, and attending
physician Dr. Diedre Bass prescribed medication for pain and
muscle spasms. On August 29, Falcon was seen by Dr. Shawn
Holcomb who placed her on light duty with a ten-pound lifting
restriction. Falcon was also given conservative treatment,
including a course of steroids, pain medication, and physical
therapy. Falcon continued to have pain in the affected areas,
and Dr. Holcomb ordered an MRI scan of her cervical spine
area and referred her to orthopedic surgeon Dr. John Marcus
Heim. Dr. Heim concluded that Falcon had a small disc
herniation at the C4-5 level and that surgery was not
recommended. Falcon next saw Dr. George Deimel who, over the
course of several appointments, treated her with medication,
physical-activity modification, modified physical therapy,
and steroid injections, none of which alleviated her pain.
Dr. Deimel stated in his report that he was managing
Falcon's symptoms but could not offer her any further
treatment options. He referred her to a neurosurgeon, Dr.
Barry Katz, and while Dr. Katz's patient, she became
pregnant. During her October 19, 2015 appointment Dr. Katz
concluded that Falcon should follow up with him after she had
given birth. Dr. Katz opined that Falcon was "a good
candidate for ACDF" (discectomy and fusion surgery), and
he would reevaluate her after the birth of her child. Dr.
Katz also recommended that Falcon perform only light duty and
that she lift no more than ten pounds. In 2016, Dr. Katz
moved his practice to Joplin, Missouri.
Falcon was still Dr. Katz's patient, Northwest referred
Falcon to its physician, Dr. Chuck Nalley, who ordered an MRI
on Falcon's neck and shoulder. On November 22, 2015,
after he had reviewed Falcon's MRI results, Dr. Nalley
ordered a steroid injection. Dr. Nalley opined that if the
steroid injection did not relieve Falcon's symptoms, then
surgery would also be ineffective, and he would have no
further treatment to offer her. Falcon gave birth to her
child in February 2016. On March 17, she saw Dr. Nalley
again, and he noted that Falcon's symptoms were basically
unchanged except that her pain was possibly worse due to
having to lift her newborn. Dr. Nalley ordered that the
steroid injection take place now that she was not pregnant,
and he noted that he would not recommend surgery if the
injection did not alleviate her symptoms. He further opined
that if there was no relief from the injection, she should be
determined to have reached maximum medical improvement and
given a disability rating. On April 13, 2016, she received
the injection. On May 5, 2016, Falcon returned to Dr. Nalley
and reported that the injection had made her symptoms worse.
He concluded that if the injection made her feel worse, then
surgery would do the same.
3, 2016, after a functional-capacity evaluation, Falcon was
found to be at maximum medical improvement with work status
consistent with sedentary work with occasional lifting of up
to fifteen pounds. Falcon was assigned a 4 percent impairment
rating, and Northwest accepted the rating. Northwest paid
Falcon TTD benefits up to the date Dr. Nalley declared her at
maximum medical improvement.
October 19, 2016, Falcon requested a change in physician from
Dr. Nalley to Dr. Luke Knox, which was approved. On November
22, 2016, Dr. Knox recommended another steroid injection, but
he noted that the injection might provide relief for only
five to six hours. Dr. Knox issued the same caveat that if
the injection did not afford her some pain relief, surgery
would not be in her best interest. From November 2016 to
April 2017, Dr. Knox recommended a ten-pound weight-lifting
restriction for work.
requested a hearing on the issue of whether she was entitled
to TTD benefits from October 15, 2016, to a date to be
determined. At the hearing, Falcon argued that she had
reentered the healing period when she began seeing Dr. Knox,
who recommended surgery. Falcon testified that Dr. Knox
performed a steroid injection as a diagnostic tool to
ascertain whether surgery would be successful and that the
injection made her pain worse. Falcon also contended that Dr.
Knox had scheduled her surgery for July 20, 2017.
administrative law judge ("ALJ") found that Falcon
had failed to prove by a preponderance of the evidence that
she was entitled to additional TTD benefits or attorney's
fees. Specifically, the ALJ found that each doctor reported
that conservative treatment had not alleviated her symptoms.
The ALJ agreed with Dr. Nalley's assessment that Falcon
had reached maximum medical improvement on June 3, 2016. The
ALJ found that there was no evidence that Falcon reentered a
healing period after June 3 and noted that Falcon's
assertion that Dr. Knox planned to perform surgery for her
symptoms was unfounded and not supported by the record.
Falcon appealed to the Commission, which affirmed and adopted
the ALJ's opinion. Falcon filed a timely notice of
appeal, Falcon argues that sufficient evidence does not
support the Commission's finding that she did not prove
that she reentered a healing period and that she was entitled
to TTD benefits from October 15, 2016, when Dr. Knox
"clearly had more testing and treatment for her."
Falcon's argument is without merit, and we affirm.
reviewing a decision of the Commission, we view the evidence
and all reasonable inferences deducible therefrom in the
light most favorable to the findings of the Commission.
Evans v. Bemis Co., Inc., 2010 Ark.App. 65, 374
S.W.3d 51. This court must affirm the decision of the
Commission if it is supported by substantial evidence.
Id. Substantial evidence is that evidence which a
reasonable mind might accept as adequate to support a
conclusion of the Commission. Id. We reverse the
Commission's decision only if we are convinced that
fair-minded persons could not have reached the same
conclusion with the same facts before them. Id.
Questions regarding the credibility of witnesses and the
weight to be given to their testimony are within the
exclusive province of the Commission. Id.
receive TTD benefits, the claimant must prove by a
preponderance of the evidence that he or she is within the
healing period and is totally incapacitated from earning
wages. Union Drilling, Inc. v. Griffith, 2015
Ark.App. 273. The healing period ends when the employee is as
far restored as the permanent nature of the injury permits;
thus, if the underlying condition causing the disability has
become stable and nothing in the way of treatment will
improve that condition, the healing period has ended.
Id. The determination of when the healing ...