Nichols v. Omaha School District

374 S.W.3d 148, 2010 Ark. App. 194, 2010 Ark. App. LEXIS 182
CourtCourt of Appeals of Arkansas
DecidedFebruary 24, 2010
DocketNo. CA 09-919
StatusPublished
Cited by7 cases

This text of 374 S.W.3d 148 (Nichols v. Omaha School District) 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
Nichols v. Omaha School District, 374 S.W.3d 148, 2010 Ark. App. 194, 2010 Ark. App. LEXIS 182 (Ark. Ct. App. 2010).

Opinions

COURTNEY HUDSON HENRY, Judge.

| Appellant Janice Nichols appeals the decision of the Arkansas Workers’ Compensation Commission denying her claim for additional medical benefits. For reversal, she challenges the Commission’s finding that she failed to sustain her burden of proving that additional medical treatment was reasonable and necessary for the treatment of her compensable injury. We affirm.

On October 1, 2004, appellant was working as an elementary school teacher for appellee, the Omaha School District, when she sustained a work-related injury to her left shoulder while moving a folding screen. Appellant saw Dr. Terry Sites for an orthopedic evaluation on October 18, 2004. His impression was “left shoulder rotator cuff strain/possible tendinopathy and chronic periscapular pain associated with fibromyalgia.” | ^Appellant underwent an MRI on October 26, 2004, and the report stated “there is at least a partial tear involving the anterior aspect of the supraspinatus tendon. A very minimal amount of fluid is present in the subacro-mial and the subdeltoid bursa regions. The presence of a small focal full thickness tear cannot be completely excluded.”

Appellant returned to Dr. Sites on October 28, 2004, and he wrote that the MRI was consistent with rotator cuff tendinopa-thy and possibly a small tear. He also opined that appellant’s longstanding fibro-myalgia confused the clinical interpretation. Dr. Sites administered a subacromial injection that provided appellant no immediate relief.

Appellant next came under the care of a shoulder specialist, Dr. Pat O’Brien. On December 30, 2004, he performed surgery on appellant’s left shoulder in the form of an open acromioplasty. Dr. O’Brien’s postoperative diagnosis was Stage II impingement of the left shoulder with anteri- or osteophyte and significant subacromial scarring. During the procedure, he found that appellant’s rotator cuff was bruised but not torn.

Appellant received follow-up treatment from Dr. O’Brien. He again assessed appellant as having impingement syndrome of the shoulder and ordered physical therapy. Dr. O’Brien issued appellant a conditional work release on March 16, 2005. In June 2005, he noted that appellant had multiple trigger points in her trapezius muscle bilaterally and tenderness over the AC joint that he attributed to fibromyal-gia. He then referred appellant to a fibro-myalgia clinic.

|sOn September 28, 2005, Dr. O’Brien reported that appellant had achieved maximum medical improvement. Appellee paid all medical expenses for the treatment of appellant’s shoulder, as well as benefits for a three-percent impairment rating.

On June 26, 2007, appellant saw Dr. Kevin Jackson, her family physician, with complaints of pain in her left shoulder, neck, and chest. Appellant returned to Dr. Jackson on November 2, 2007, and January 28, 2008, with complaints of shoulder pain. Dr. Jackson’s assessment was “joint pain shoulder.” At a visit on July 22, 2008, Dr. Jackson reported that x-rays of appellant’s left shoulder revealed no evidence of fracture or dislocation.

Thereafter, appellant filed a claim for additional benefits for the treatment of her then-existing shoulder problem. At the hearing before the administrative law judge, appellant testified that her shoulder improved following surgery but that she continued to have problems with her shoulder popping and grinding with movement. She stated that there were times when the muscles of her shoulder would tighten and go into spasm and that, on those occasions, Drs. O’Brien and Jackson recommended that she wear a sling. Appellant testified that Dr. Jackson also prescribed pain medication and muscle relaxants, and she said that she sleeps with a heating pad and uses a TENS unit and an RS Medical Unit on her shoulder. On cross-examination, appellant acknowledged that she has had fibromyalgia for twenty years.

14Appellant also testified that she did not return to Dr. O’Brien after August 2005 because he had retired. She introduced into evidence a September 5, 2007, letter that her attorney had written to appellee’s counsel requesting the name of another doctor who treated shoulders.

After reviewing the evidence, the law judge denied appellant’s claim, finding that she had failed to prove that additional medical treatment was reasonably necessary in connection with her compensable injury. The law judge noted that appellant did not seek treatment for shoulder problems from August 2005 to June 2007 or mention a shoulder problem to any physician, although she received extensive medical services for other maladies during that period of time. Based on this two-year gap without documented medical complaints regarding the shoulder, the law judge found that she would be required to speculate as to whether appellant’s current shoulder problems were causally related to her compensable injury.1 On appeal to the Commission, a majority of the commissioners affirmed and adopted the law judge’s opinion. This appeal followed.

For reversal, appellant argues that substantial evidence does not support the Commission’s decision. She contends that the record would support a finding that her current problems are related to her compensable injury because she had no problems with her |fishoulder before the accident and because she has continued to have problems since it occurred. She also asserts that there is no other explanation as to the cause of her pain. Further, appellant argues that it is appellee’s responsibility to provide treatment to determine the source of her pain and that she does not have the burden of proof because an employer is responsible for providing treatment for any natural consequences that flow from a compensable injury.

Arkansas Code Annotated section ll-9-508(a) (Supp.2009) requires an employer to provide an injured employee such medical services “as may be reasonably necessary in connection with the injury received by the employee.” However, the employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). What constitutes reasonable and necessary medical treatment is a question of fact to be determined by the Commission. Bohannon v. Walmart Stores, Inc., 102 ArkApp. 37, 279 S.W.3d 502 (2008).

It is also a familiar rule of law that, 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. K II Constr. Co. v. Crabtree, 78 Ark.App. 222, 79 S.W.3d 414 (2002). However, for this rule to apply, the basic test is whether there is a causal connection between the injury and the consequences of such. Id. The burden is on the | (¡employee to establish the necessary causal connection. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).

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Cite This Page — Counsel Stack

Bluebook (online)
374 S.W.3d 148, 2010 Ark. App. 194, 2010 Ark. App. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-omaha-school-district-arkctapp-2010.