WAL-MART ASSOCIATES, INC. AND CLAIMS MANAGEMENT, INC. APPELLANTS
DONALD ELLIS APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Bassett Law Firm LLP, by: Curtis L. Nebben, for appellants.
& Brooks, P.A., by: Evelyn E. Brooks, for appellee.
MARK KLAPPENBACH, JUDGE
Wal-Mart Associates, Inc. and Claims Management, Inc.
(Wal-Mart) appeal the order of the Arkansas Workers'
Compensation Commission awarding appellee Donald Ellis
additional medical treatment. Wal-Mart argues on appeal that
substantial evidence does not support the Commission's
findings. We affirm.
hearing was held before the administrative law judge (ALJ) on
February 1, 2018, concerning Ellis's entitlement to
additional medical treatment for a potential diagnosis of
complex regional pain syndrome (CRPS) subsequent to his
admittedly compensable injury. Ellis suffered a right
distal-biceps-tendon rupture while loading a truck for
Wal-Mart on February 1, 2016. Dr. Jeff Johnson performed
surgery to repair the tear, and Ellis thereafter participated
in physical therapy and continued to see Dr. Johnson. In
November 2016, a second MRI was performed that revealed a
re-rupture of the biceps tendon and led to a second surgery
by Dr. Johnson.
Michael Moore performed an independent medical examination of
Ellis on May 4, 2017, and authored an extensive report. Among
Dr. Moore's diagnoses was that Ellis was possibly
suffering from CRPS based on the swelling, discoloration, and
sweating Ellis had experienced in his hand. Dr. Moore
recommended that Ellis undergo further evaluation and
treatment for this possible diagnosis, specifically a
triphasic bone scan to determine whether there was any
objective evidence of CRPS. On June 14, 2017, Ellis again saw
Dr. Johnson, who observed a slight purplish discoloration of
Ellis's arm and noted that he possibly had CRPS in
addition to a partial tear of his distal biceps. Subsequent
to this visit with Dr. Johnson, Wal-Mart conducted
surveillance on Ellis and made a video of him doing various
activities on June 30 and July 1. After viewing the video,
Dr. Johnson wrote a letter stating, in part, as follows:
I am extraordinarily surprised by the degree of use of his
right [arm] that Mr. Ellis demonstrates in the video given
the fact that in the office he would not shake hands the last
several visits and would grimace as he moved his elbow. In
the video, he does such activities as chopping brush around a
trailer with a machete and an ax, lifting a pop-up camper,
shaking hands with individuals, opening and closing car doors
and carrying various items. Certainly, as he reported to me
that he was unable to use his right arm whatsoever because of
pain, I again am surprised by this activity noted on the
videos. Furthermore, if he was in fact doing any sort of
forcible activity with his arm, this certainly would
contribute to his inability for the biceps to heal. While he
reported that he was not doing such activities and we had
decreased his work load significantly after the re-repair, he
also reported to me that he was unable to use his arm which
in the videos is apparently not what he is able to do now.
Dr. Carlos Roman, who did not examine Ellis, gave his written
opinion after reviewing the medical records and surveillance
video that based on the use of his arm in the video, Ellis
did not have any symptoms of CRPS.
testified that since his second surgery, he had experienced
nerve pain and other symptoms in his arm that he did not
suffer from after the first surgery. These symptoms varied
and included a "tingly ant-bite feeling," a burning
sensation, a feeling "like a cold cup of water has been
poured on the inside of your arm," as well as swelling,
sweating, cramping, and changes in color. He said that the
pain level and symptoms varied from day to day and that
sometimes his arm was "perfectly fine" and
sometimes it was "awful." On a good day he could do
most things he did before the injury. Ellis acknowledged that
the surveillance video showed him cutting brush with an ax
and a machete, using a saw, and helping move an appliance. He
said that his arm was not hurting that day and although he
may have been foolhardy, he was doing the work for his ill
sister so she would not be cited by the city. Ellis said that
on June 14, the day of his previous visit with Dr. Johnson,
his arm was agitated, swollen, and discolored, and he did not
shake hands in that state because it hurt to touch.
Bell was Ellis's occupational therapist after both
surgeries and testified that Ellis was very motivated. Bell
said that after the second surgery, Ellis had quite a bit of
pain, decreased motion, and burning. Bell also observed lots
of swelling in his hand as well as changes in the hair on
Ellis's arm and changes in the color of his arm.
ALJ found that Ellis had proved by a preponderance of the
evidence that the additional medical treatment recommended by
Dr. Moore was reasonable and necessary. The Commission
affirmed and adopted the opinion of the ALJ, thereby making
the ALJ's findings and conclusions the findings and
conclusions of the Commission. White v. Butterball,
LLC, 2018 Ark.App. 7, 538 S.W.3d 240. In reviewing
decisions from the Arkansas Workers' Compensation
Commission, this court views the evidence and all reasonable
inferences deducible therefrom in the light most favorable to
the Commission's decision and affirms if that decision is
supported by substantial evidence. Sea Ark Marine, Inc.
v. Pippinger, 2010 Ark.App. 13. Substantial evidence is
evidence that a reasonable mind might accept as adequate to
support a conclusion. Id. The issue is not whether
the reviewing court might have reached a different result
from the Commission; if reasonable minds could reach the
result found by the Commission, we must affirm the decision.
Code Annotated section 11-9-508(a) (Supp. 2017) requires an
employer to promptly provide for an injured employee such
medical treatment "as may be reasonably necessary in
connection with the injury received by the employee."
What constitutes reasonably necessary treatment is a question
of fact for the Commission, which has the duty to use its
expertise to determine the soundness of medical evidence and
to translate it into findings of fact. Univ. of Ark. Pub.
Emp. Claims Div. v. Tocci, 2015 Ark.App. 505, 471 S.W.3d
218. We defer to the Commission's findings on what
testimony it deems credible, and the resolution of
conflicting evidence 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.
argues that based on the surveillance video and the reports
of Dr. Johnson and Dr. Roman, Ellis has no credibility and
substantial evidence does not support the Commission's
findings. Wal-Mart disputes the ALJ's and the
Commission's characterization of the video as depicting
Ellis performing daily activities as well as cleaning and
cutting brush; instead, it claims that Ellis was performing
heavy manual labor when he used a pressure washer at a car
wash, assisted in moving a small washer and dryer, and
cleared brush. Wal-Mart further argues that because Dr. Moore
did not have access to the video when he gave his
recommendation, his opinion was not based on the entire set
of facts and does not constitute ...