Riggs v. B & S Contractors, Inc.

377 S.W.3d 466, 2010 Ark. App. 554, 2010 Ark. App. LEXIS 610
CourtCourt of Appeals of Arkansas
DecidedSeptember 1, 2010
DocketNo. CA 10-24
StatusPublished
Cited by5 cases

This text of 377 S.W.3d 466 (Riggs v. B & S Contractors, Inc.) 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
Riggs v. B & S Contractors, Inc., 377 S.W.3d 466, 2010 Ark. App. 554, 2010 Ark. App. LEXIS 610 (Ark. Ct. App. 2010).

Opinion

LARRY D. VAUGHT, Chief Judge.

| Appellant Michael Riggs suffered a compensable injury while working for ap-pellee B & S Contractors. He previously sought temporary-total disability (TTD) benefits for a period of time, but an administrative law judge (ALJ) denied his claim. After a change of physician and additional treatment, he went before another ALJ, seeking additional medical benefits and additional TTD; the ALJ denied his claims in their entirety, and the Commission affirmed and adopted the ALJ’s opinion. Riggs now brings this appeal, challenging only the denial of TTD benefits.1 He also appeals from the Commission’s dismissing his claim “in its entirety.” Because the Commission’s decision displays a substantial basis for the denial of relief and the dismissal, we affirm.

IsRiggs was a mason for B & S.2 He was injured in September 2006 when coworkers dropped a heavy ladder on him. He presented to the Northwest Medical Center with shoulder and back pain. He was diagnosed with a contusion, prescribed medication, and excused from work for two days. A radiation report dated September 14, 2006, showed disc-space narrowing at L3-4, L4-5, and L5-S1, and some degenerative changes, but no evidence of an acute injury.

On February 8, 2007, Riggs began seeing Dr. Kostantin Berestnev. He diagnosed Riggs with low back pain “and some psychosocial circumstance with the way his injury was handled which, in my opinion, also contributes to and exacerbates patient’s condition.” He released Riggs to work on February 8, 2007, with a twenty-pound lifting restriction. An x-ray on that date showed degenerative changes with anterior bone spurring throughout the lumbar spine and anterior bone spurring throughout the thoracic spine. An MRI also revealed degenerative changes throughout the lumbar spine. A week later, Dr. Berestnev noted that Riggs had positive Waddell signs (indicating pain symptoms, which are usually psychological not organic). The doctor recommended medication and physical therapy. On March 1, 2007, Dr. Berestnev wrote that Riggs’s low-back pain was healing and released him to his regular duties as a mason. Despite this, Riggs continued to complain of back and leg pain.

At a hearing held August 14, 2007, Riggs sought TTD from October 6, 2006, to February 8, 2007, and from March 1, 2007, to a date to be determined. The parties reserved the issue of additional medical treatment. An ALJ ultimately ruled that Riggs was not entitled to additional TTD. In finding that he was not entitled to TTD from October 2006 to February |s2007, the ALJ noted that Riggs had been laid off by B & S, that he collected maximum unemployment benefits, and that he was returned to work without restrictions two days after his initial visit to the emergency room. Regarding the period after March 2007, the ALJ noted that Riggs was released from Dr. Berestnev on March 1, 2007, and that Dr. Berestnev opined that Riggs could return to his duties as a mason. Riggs did not appeal the ruling.

Riggs then sought and received a change of physician. He presented to Dr. Cyril Rabin in November 2007. Dr. Rabin treated Riggs conservatively. Subsequent MRI and CT scans in March 2008 revealed annular tears and disc derangement at four lumbar levels. Dr. Rabin wrote that Riggs would not be released back to heavy construction again.

Riggs presented to Dr. Luke Knox for an independent medical evaluation on April 14, 2008. He opined that Riggs’s current problems were related to the workplace accident and that, while Riggs had degenerative changes, his current complaints were secondary to his injury. Dr. Knox thought that the current course of treatment was reasonable, but he opined that no further treatment was required, that there would be some permanency to the claim, and that Riggs had reached maximum medical improvement.

In a letter to counsel on May 8, 2008, Dr. Rabin wrote that Riggs would never return to work in the heavy construction industry. Four days later, he wrote that Riggs was disabled from the time he first saw Riggs until present. He did not believe that Riggs had reached maximum medical improvement, because surgical intervention had been suggested for Riggs’s back.

A hearing was held before another ALJ on January 20, 2009, where the parties litigated Riggs’s entitlement to surgical treatment and to TTD from August 14, 2007, to a date to be |4determined. Riggs testified that his condition had not changed since August 2007 and that he was currently taking Percocet, Celebrex, Ultram, Oxyeontin, Celexa, Soma, and Flexeril. Riggs explained that the medications cause him to be intoxicated, and he was hoping to have surgery so he could discontinue his medication regime. During the hearing, Riggs was shown two videos. The videos showed him carrying ladders, handing sheet rock to his wife on a ladder, and generally moving without distress. In response to the footage, Riggs testified that he was on medication while doing that work, that he was confined to couch rest for a few days thereafter, and that he had not tried anything so vigorous since.

The ALJ also considered deposition testimony from Dr. Rabin. His first recommendation was conservative, non-operative care. His second recommendation was surgery, including a 860-degree fusion of the lumbar spine and decompression dis-cectomy. Since seeing Riggs, he had not noted any Waddell signs. But Dr. Rabin was further concerned about doing surgery in light of Dr. Berestnev’s exam, Dr. Knox’s exam, and the video surveillance.

In light of the video and the evidence of positive Waddell signs, the ALJ opined that Riggs was overstating his difficulties to his doctors and found that Riggs was entitled to neither surgical treatment nor additional TTD. Regarding TTD, the ALJ stated that Riggs failed to prove either that he had reentered his healing period or that he was rendered totally disabled. In so finding, the ALJ relied on Dr. Knox’s opinion that Riggs had reached maximum medical improvement, evidence from the videos, and positive Waddell signs identified by two physicians. The Commission affirmed and adopted the opinion of the ALJ, and this appeal followed.

| .¡Riggs brings two points on appeal. First, he argues that the Commission erred in not finding that he was entitled to additional TTD benefits. He contends that he is still within his healing period, and thus is entitled to TTD. While he goes over the medical records multiple times in his argument, he mostly relies on Dr. Rabin’s assessment that he is disabled and will be until he has surgery. He also relies on evidence that part of his disability will be permanent. Second, he argues that the Commission erred in dismissing his claim in its entirety. He contends that he has a right to file claims as long as they are filed within the statute of limitations and that he should not be foreclosed from making claims for additional benefits in the future.

In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirm if that decision is supported by substantial evidence. Smith v. City of Ft. Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark.

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Bluebook (online)
377 S.W.3d 466, 2010 Ark. App. 554, 2010 Ark. App. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riggs-v-b-s-contractors-inc-arkctapp-2010.