Cossey v. Pepsi Beverage Co.

2015 Ark. App. 265, 460 S.W.3d 814, 2015 Ark. App. LEXIS 337
CourtCourt of Appeals of Arkansas
DecidedApril 22, 2015
DocketNo. CV-14-1037
StatusPublished
Cited by8 cases

This text of 2015 Ark. App. 265 (Cossey v. Pepsi Beverage Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cossey v. Pepsi Beverage Co., 2015 Ark. App. 265, 460 S.W.3d 814, 2015 Ark. App. LEXIS 337 (Ark. Ct. App. 2015).

Opinion

KENNETH S. HIXSON, Judge

| Appellant Jerry Cossey suffered an admittedly compensable low-back injury on August 9, 1993, while working for appellee Pepsi Beverage Company, as he was moving a case of Pepsi in a convenience-store cooler. At that time, Cossey was in his mid-thirties. He was treated conservatively for an extended period of time, and eventually he was issued an eleven-percent anatomical impairment rating, which is not at issue on appeal. At issue in the current appeal is Cossey’s entitlement to additional medical treatment for pain management and to wage-loss benefits in excess of the anatomical impairment rating. The administrative law judge found that Cossey was entitled to additional medical treatment and to twelve-percent in wage-loss disability benefits. On de novo review by the Commission, it found that Cossey | awas not entitled to any additional medical treatment but that Cossey was entitled to twenty-five percent wage loss disability.1

Cossey appeals, and Pepsi cross-appeals. Cossey contends that there lacks substantial evidence to support denial of his request for additional medical treatment in the form of pain management, and that ’ there lacks substantial evidence to support the inadequate award of wage-loss disability benefits. Pepsi cross-appeals, contending that there lacks substantial evidence to support any award of wage-loss disability benefits. We affirm on direct appeal and on cross-appeal.

In reviewing Commission decisions, we view the evidence in the light most favorable to the Commission’s decision and affirm it if it is supported by substantial evidence. Hill v. Treadaway, 2014 Ark. App. 185, 433 S.W.3d 285. Substantial evidence exists, if reasonable, minds could reach the Commission’s conclusion, and we will not reverse unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Questions concerning the credibility of witnesses and weight of evidence, as well as the probative value of any medical evidence, are for the Commission to decidé. Id. The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it | adeems worthy of belief. Id. When the Commission denies benefits because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Howell v. Scroll Techs., 343 Ark. 297, 35 S.W.3d 800 (2001).

The first issue on appeal concerns the denial of Cossey’s request for additional medical treatment in the form of pain management. Arkansas Code Annotated section ll-9-508(a) requires employers to provide medical services that are reasonably necessary in connection with the compensable injury. A claimant bears the burden to establish by a preponderance of the evidence that the treatment is reasonable and necessary and bears a causal connection to the work injury; it is a question of fact. Cole v. Commerce & Indus. Ins. Co., 2009 Ark. App. 617, 2009 WL 3153322. A claimant may be entitled to additional treatment after the healing period has ended if it is geared toward management of the compensable injury. Santillan v. Tyson Sales & Distribution, 2011 Ark. App. 634, 386 S.W.3d 566. Here, the question is focused on whether there is a causal connection between the 1993 injury and the present need for pain management treatment. We hold that substantial evidence supports the finding that Cossey failed to prove entitlement to additional medical treatment.

Our review of the evidence shows that Cossey, now in his mid-fifties, began working for Pepsi in the late 1970s. As a route driver, he sold soft drinks, loaded a truck, and stocked shelves, which required lifting, bending, and stooping. It was undisputed that in August 1993, when Cossey was in his mid-thirties, he was stocking a convenience store cooler with cases |4of Pepsi when he experienced a “pop” in his back and the onset of low back pain. It was also undisputed that Cossey had a history of intermittent lumbar pain.

Cossey at first saw the company doctor but then was referred to Dr. Standefer, a neurosurgeon. X-rays taken around the time of this work injury showed multilevel degenerative disc disease and some associated disc space narrowing, osteophyte formation, and focal disc protrusion in the lumbar levels. He had mild muscle spasms. It was a nonsurgical injury; he was treated with analgesic medication and muscle relaxers, as well as a work-hardening exercise plan to strengthen his low back.

By December 1993, a functional capacity evaluation indicated that Cossey was capable of light work with some lifting restrictions. His physician opined in January 1994 that Cossey needed to avoid heavy lifting and repeated bending and probably should consider vocational training or higher education to enter into a different kind of work. With his multilevel lumbar disc disease, Cossey was expected to have low back pain and intermittent lower-extremity pain. Although given narcotic medication in the beginning, Dr. Standefer wanted Cossey to take as little as possible of that medicine and wean himself off of it.

In May 1995, a follow up visit to the doctor showed substantial improvement in regard to pain in his low back. His physician prescribed a physical therapy regimen, massage therapy, and ultrasound therapy for about a month, although Cos-sey “feels that he is back to his baseline level of activity.” Cossey remained off work.

Cossey was the subject of surveillance in the summer of 1995, and he was observed repeatedly bending, working on his vehicle, carrying heavy objects, and weed-eating his yard. |sIn October 1995, Cossey followed up with his doctor where his condition was deemed unchanged from prior months, having “done reasonably well.” He was noted to be taking classes at Wes-tark. He was recommended to use over-the-counter anti-inflammatory medication and to be careful with lifting and bending. Dr. Standefer noted that prior radiographic studies showed “findings consistent with degenerative disc disease at multiple levels,” which was sufficiently severe “to account for his pain.” In January 1996, he. was assessed a ten-percent permanent partial impairment rating by Dr. Stande-fer.

Over the next several years, Cossey would return for a follow up examination with his physician, who consistently recommended conservative care for his nonsurgical low-back pain. The treatments included epidural steroid injections, exercise programs, and over-the-counter medications as needed. Another functional capacity evaluation in 2000 indicated that Cossey could perform light duty in a part time capacity. In 2002, Dr. Standefer opined that his chronic back pain was based on his underlying degenerative changes.

By June 2003, Cossey was seen for an independent medical evaluation by Dr. Knox. At that time, Cossey was forty-four years old. Dr. Knox gave Cossey an eleven-percent anatomical impairment rating. Intermittent steroid injections were given to Cossey in his lumbar spine. His primary physician opined in February 2007 that Cossey was not able to work in any capacity.

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Bluebook (online)
2015 Ark. App. 265, 460 S.W.3d 814, 2015 Ark. App. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cossey-v-pepsi-beverage-co-arkctapp-2015.