Tina L. Melius v. Chapel Ridge Nursing Center, LLC, and Amtrust North America Insurance

2021 Ark. App. 61, 618 S.W.3d 410

• Court: Court of Appeals of Arkansas
• Decided: February 10, 2021
• Status: Published

Opinion

Elizabeth Perry Cite as 2021 Ark. App. 61 I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION IV 2023.06.22 12:52:53 -05'00' No. CV-20-114 2023.001.20174 TINA L. MELIUS Opinion Delivered: February 10, 2021 APPELLANT APPEAL FROM THE ARKANSAS V. WORKERS’ COMPENSATION COMMISSION CHAPEL RIDGE NURSING CENTER, [NO. G807060] LLC, AND AMTRUST NORTH AMERICA INSURANCE APPELLEES REVERSED AND REMANDED

STEPHANIE POTTER BARRETT, Judge

Appellant Tina Melius brought a workers’-compensation claim against appellees Chapel

Ridge Nursing Center, LLC, and Amtrust North America Insurance alleging that she sustained

a compensable injury to her right buttock and thigh on July 11, 2018. An administrative law

judge (ALJ) denied compensability, specifically finding that Melius failed to provide evidence

in the form of objective medical findings. Melius appealed the ALJ’s decision to the Arkansas

Workers’ Compensation Commission (Commission), which affirmed and adopted the ALJ’s

opinion. From that finding comes this appeal. We reverse and remand for further proceedings.

I. Facts

On July 11, 2018, Melius, a treatment nurse at Chapel Ridge Nursing Center, reported

an on-the-job injury to her right thigh and buttock that occurred after helping lift a patient

who was being transferred to the emergency room. The relevant medical evidence provides

that the day of the injury, she was seen by Dr. Keith Holder at Mercy Clinic. According to

Dr. Holder’s notes, Melius complained of a sharp, shooting pain in her right gluteal area that began when she began to walk away after helping lift a patient from the bed to a gurney. Dr.

Holder’s examination notes indicated that Melius had pain to palpitation over the piriformis in

her right hip. Dr. Holder diagnosed Melius with a strain of muscle, fascia, and tendon of right

hip. She was given a prescription for tizanidine, which is used to treat muscle spasticity, and

placed on restricted-duty work status, which restricted lifting to twenty pounds or less and

limited bending, stooping, and twisting. It was also recommended that Melius alternate

between sitting, standing, and walking as tolerated. Dr. Holder additionally noted that Melius

suffered from rheumatoid arthritis and could continue to take naproxen as previously prescribed.

Melius was seen by Dr. Holder on July 19 for a follow-up appointment for continued

complaints of pain in her right gluteal area. Dr. Holder recommended physical therapy for the

pain. She was again seen by Dr. Holder on July 26 for continued complaints of her right gluteal

area and noted that Melius had tenderness over the right piriformis and there was pain to

palpation over that area. Melius was given additional prescriptions for Robaxin, a muscle

relaxer, and a TENS unit. Dr. Holder noted that physical therapy had been recommended, but

she had yet to schedule. Melius returned to see Dr. Holder on August 2, noting improvement

but continued tenderness over the right piriformis, and he again recommended physical therapy.

On August 13, Melius first reported to a physical therapist at Mercy Clinic. Melius

returned for physical therapy on August 15, 16, 20, 22, and 24.

Melius saw Dr. Holder on October 2 for the sixth examination for her hip strain. His

request for an MRI was denied, and he was going to refer Melius for a steroid injection of the

ischial bursa at pain management. Melius was again seen on November 6 by Dr. Holder. His

notes indicate that Melius’s pain level at night had increased and that she had not yet tried

2 gabapentin that was prescribed for relief. Dr. Holder referred Melius to a pain-management

specialist for an injection.

On November 13, Melius reported to the Mercy Clinic Department of Pain Medicine

and was seen by Dr. Brian Goodman. He noted that her “[r]ight buttocks were tender to palp”

and assessed her with a (1) muscle strain—likely gluteal and (2) possible piriformis syndrome.

Melius was given a trigger-point injection in her right gluteal muscle and was recommended to

make a follow-up appointment in one month to evaluate piriformis pain and to consider

whether a piriformis injection was needed.

Melius was seen by Dr. Holder again on November 30, and he noted she had tenderness

over the right piriformis insertion at the ischial bursa. Dr. Holder’s note indicated that Melius

had an injection by Dr. Goodman and was to return to him in two weeks for another one.

Melius indicated that she felt a mild decrease in pain after the steroid shot.

Following a hearing on Melius’s claim for workers’-compensation benefits, the ALJ

denied benefits for Melius’s injury, finding Melius failed to prove by a preponderance of

evidence that she sustained a compensable injury to her right buttock and thigh and failed to

provide evidence in the form of objective medical findings to support her contention that she

suffered spasms related to the injury on July 11, 2018. The ALJ stated, “She stated she had pain

and spasms 1–4 times per day. The medical evidence, however, does not support her

contentions. She was treated by several physicians, none of whom found evidence of spasms

or made any notations for objective findings of spasms.” The ALJ denied admissibility of a cell-

phone video and photographs of spasms due to lack of authenticity. Furthermore, the ALJ did

not find Melius’s testimony credible.

3 Melius appealed the denial of benefits to the Commission, which affirmed and adopted

the ALJ’s opinion. Arkansas law permits the Commission to adopt the ALJ’s opinion as its own.

Ark. Highway & Transp. Dep’t v. Work, 2018 Ark. App. 600, 565 S.W.3d 138. If the

Commission adopts the ALJ’s opinion, the ALJ’s findings of fact and conclusions of law are

made the Commission’s findings of fact and conclusions of law, and this court considers both

the ALJ’s opinion and the Commission’s majority opinion on appellate review. Univ. of Ark.

at Pine Bluff v. Hopkins, 2018 Ark. App. 578, 561 S.W.3d 781. Therefore, for purposes of our

review, we consider both the ALJ’s opinion and the Commission’s opinion.

II. Standard of Review

In appeals involving workers’-compensation claims, this court views the evidence and

all reasonable inferences deducible therefrom in the light most favorable to the Commission’s

decision and affirms the decision if it is supported by substantial evidence. Marshall v. Ark. Dep’t

of Corr., 2020 Ark. App. 112, 594 S.W.3d 160. Substantial evidence exists if reasonable minds

could reach the Commission’s conclusion. Id. The issue is not whether the appellate court

might have reached a different result from the Commission but whether reasonable minds could

reach the result found by the Commission; if so, the appellate court must affirm. Id. When

the Commission denies a claim due to the claimant’s failure to meet his or her burden of proof,

the substantial-evidence standard of review requires this court to affirm the Commission’s

decision if the opinion displays a substantial basis for the denial of relief. Id. We will not reverse

the Commission’s decision unless we are convinced that fair-minded persons with the same

facts before them could not have reached the conclusions arrived at by the Commission. Fred’s,

Inc. v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005).

4 A compensable injury must be established by medical evidence supported by objective

findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2019). “Objective findings” are those

findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-

9-102(16)(A)(i). Complaints of pain are not be considered objective medical findings. Ark.

Code Ann. § 11-9-102(16)(A)(ii)(a). The burden of proving a specific-incident compensable

injury is the employee’s and must be proved by a preponderance of the evidence. Ark. Code

Ann. § 11-9-102(4)(E)(i).

As a preliminary matter, the ALJ found that Melius’s testimony was not credible in light

of the balance of evidence presented, and this court does not second-guess credibility

determinations made by the Commission. Bittle v. Wal-Mart Assocs., Inc., 2017 Ark. App. 639,

537 S.W.3d 753. Questions concerning the credibility of witnesses and the weight given to

their testimony are within the exclusive province of the Commission. Frost v. City of Rogers,

2016 Ark. App. 273, 492 S.W.3d 875. The Commission is not required to believe the

testimony of the claimant or any other witness but may accept and translate into findings of fact

only those portions of the testimony that it deems worthy of belief. Marshall, 2020 Ark. App.

112, at 5, 594 S.W.3d at 163. When there are contradictions in the evidence, it is within the

Commission’s province to reconcile conflicting evidence and to determine the true facts. Id.

Thus, our decision in this case is not based on Melius’s testimony. Furthermore, we will not

consider the photos or video because the ALJ found they were not properly authenticated. We

will not disturb evidentiary rulings by the Commission absent an abuse of discretion. Bryant v.

Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 (2001). We do not find that the evidentiary

ruling was an abuse of discretion; therefore, our analysis will not include the video or pictures.

5 Appellant was diagnosed with a strain of muscle, fascia, and tendon of right hip, received

medication, and subsequently was referred to physical therapy and a pain specialist for relief.

What is disputed is whether appellant presented proof of objective medical evidence and

whether the injury was work related. Following our supreme court’s precedent, we agree with

appellant’s argument that her diagnosis of muscle strain along with prescribed treatment of

medications, physical therapy, and pain management is sufficient to establish objective findings.

See Fred’s, Inc., 361 Ark. 258, 206 S.W.3d 238. In Fred’s, Inc., no physician or physical therapist

reported witnessing or feeling Jefferson’s muscle spasms. Id. at 262, 206 S.W.3d at 241. The

doctor noted Jefferson’s work-related injury (falling off a ladder) in the medical record;

diagnosed a muscle strain; and prescribed Flexeril, a muscle relaxer, pain medication, and

physical therapy. Id. at 263, 206 S.W.3d at 242. Jefferson was also placed on limited work

duties and ordered to not engage in lifting more than ten pounds. Id. Jefferson’s doctor did

not indicate what the medications were for or state specifically why he prescribed physical

therapy. The supreme court held that it is reasonable to infer from the chronology of events

that the medication and physical therapy were prescribed to aid Jefferson and to treat her injury

and that the medical evidence was supported by objective findings. Id.

In addition, there is no requirement under Arkansas law that a doctor, physical therapist,

or other medical provider actually observe a patient having a muscle spasm before an employee’s

injury can be compensable. See Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167. In

Estridge, the supreme court held that straightening of the curve in the spine was an objective

finding supporting a back injury because this finding is normally associated with muscle spasm,

and the doctor in that case prescribed medication “as needed for muscle spasm.” Estridge, 343

Ark. at 282, 33 S.W.3d at 171. This was found to be objective evidence of injury with no

6 evidence to the contrary. Id. Furthermore, the supreme court held that a doctor would not

prescribe medications used for muscle spasms if he or she did not believe that muscle spasms

were existent. Id.

Arkansas Code Annotated section 11-9-102(4)(A)(i) defines compensable injury as “[a]n

accidental injury causing internal or external physical harm to the body . . . arising out of and

in the course of employment and which requires medical services or results in disability or

death. An injury is accidental only if it is caused by a specific incident and is identifiable by time

and place of occurrence.” The ALJ found, “There are no physicians’ records reflecting that the

claimant ever had a spasm while being examined, despite the fact that she testified to having

spasms 1-4 times per day,” and the Commission adopted this finding. In Continental Express,

Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999), the supreme court held there were

objective medical findings to support a lower back injury where the claimant complained of

muscle spasms in the back and the medical records indicated that muscles spasms were observed

by the physical therapist on two occasions. Although Continental Express may be relied on for

the proposition that muscles spasms may be a compensable injury and that viewing by a third

party equated to objective medical findings, given our supreme court’s holdings in both Estridge

and Jefferson, the Commission erred in holding that a doctor or a physical therapist must actually

view muscles spasms as a requirement for muscle spasms to be a compensable injury.

Accordingly, we hold that a reasonable inference from the chronology of events is that

the medications, physical therapy, and pain management were prescribed to aid Melius and to

treat her injury, and there was no evidence introduced to the contrary. Any other construction

of these events does not withstand scrutiny or pass the test of reasonableness. See Jefferson, 361

Ark. at 265, 206 S.W.3d at 243. Fair-minded persons with the same facts before them could

7 not have reached the conclusions that the Commission did. The medical evidence presented

by Melius did contain objective medical findings in the form of the observations of the doctors

as to the noted tenderness, the prescribed treatment for muscle spasms in the form of medication,

physical therapy, and pain management. Other determinations regarding the compensability of

the injury were not addressed upon the finding that Melius did not present objective medical

findings. Therefore, we reinstate Melius’s case and remand for further determinations of

whether she suffered a compensable injury to her buttock and thigh on July 11, 2018, whether

she is entitled to medical treatment, and whether she is entitled to temporary partial-disability

benefits.

Reversed and remanded.

HARRISON, C.J., and KLAPPENBACH, J., agree.

Caddell Reynolds, by: Matthew J. Ketcham, for appellant.

Frye Law Firm, P.A., by: William C. Frye, for appellees.