{ "id": 6141063, "name": "OWENS PLANTING COMPANY and AIG Claim Services v. Arvel B. GRAHAM", "name_abbreviation": "Owens Planting Co. v. Graham", "decision_date": "2008-05-21", "docket_number": "CA 07-793", "first_page": "299", "last_page": "305", "citations": [ { "type": "official", "cite": "102 Ark. App. 299" }, { "type": "parallel", "cite": "284 S.W.3d 537" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "78 Ark. App. 222", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138782 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/78/0222-01" ] }, { "cite": "90 Ark. App. 248", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139719 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "250-51" }, { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/ark-app/90/0248-01" ] }, { "cite": "99 Ark. App. 162", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139542 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark-app/99/0162-01" ] }, { "cite": "97 Ark. App. 251", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140241 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark-app/97/0251-01" ] }, { "cite": "82 Ark. App. 600", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143443 ], "weight": 4, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0600-01" ] } ], "analysis": { "cardinality": 561, "char_count": 11748, "ocr_confidence": 0.752, "pagerank": { "raw": 1.9495872193517232e-07, "percentile": 0.7365622474514923 }, "sha256": "7a6383915ba7f3564db326c2fc11385629925d4412bda822bc3408c3eb3a2052", "simhash": "1:8dbf03c643959da1", "word_count": 1828 }, "last_updated": "2023-07-14T21:30:35.503442+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, C.J., and Vaught, J., agree." ], "parties": [ "OWENS PLANTING COMPANY and AIG Claim Services v. Arvel B. GRAHAM" ], "opinions": [ { "text": "Sam Bird, Judge.\nOwens Planting Company and its insurer, AIG Claim Services, Inc., appeal from a decision of the Workers\u2019 Compensation Commission awarding claimant Arvel Graham additional temporary total disability benefits and medical benefits. Appellants contend that neither the Commission\u2019s determination that Graham is entitled to additional medical treatment nor its determination that Graham is entitled to additional temporary total disability benefits is supported by substantial evidence. We affirm the Commission\u2019s decision.\nOn April 26, 2001, while working for Owens Planting Company, Graham was injured when the bucket of the front-end loader he was driving unexpectedly dropped, stopping the front-end loader and causing Graham\u2019s face to hit the steering wheel and dashboard. As a result of the accident, Graham suffered injuries to his head, arm, shoulder, back, and neck. The parties stipulated that Graham sustained a compensable injury, and appellants paid various medical expenses for treatment of Graham\u2019s chest, back, arm, and neck and total temporary disability benefits from the date of the injury.\nSeveral months after the accident, Graham reported headaches, dizziness, and vision and hearing problems, and he continued to experience facial pain, headaches, vertigo, and ringing in his ears through 2002. Neither Dr. Riley Jones, an orthopedic surgeon, nor Dr. Alan Nadel, a neurosurgeon \u2014 physicians authorized by appellant AIG \u2014 found anything objectively wrong with Graham and, on May 14, 2002, both released him at maximum medical improvement with no impairment from either an orthopedic or neurological standpoint. Dr. Charles Bosch, an ear, nose, and throat specialist, began treating Graham in September 2001 but was unable to cure the vertigo, head and facial pain, or dizziness. He suggested that Graham contact his family physician, Dr. Scott Hall, as the scope of Dr. Bosch\u2019s practice did not include the continued prescription of pain medication. After a hearing in 2003, an administrative law judge awarded Graham additional benefits for Dr. Bosch\u2019s treatment and additional temporary total disability for an indefinite time. Appellants discontinued payment of the temporary total disability benefits on January 27, 2004.\nDr. Hall referred Graham to Dr. James Fowler, an ear, nose, and throat specialist, in December 2004. After a physical examination and review of a CT scan, Dr. Fowler stated that Graham\u2019s nose revealed severe left nasal septal deformity and that the scan revealed a deviated nasal septum, turbinate hypertrophy, chronic maxillary sinusitis, intraorbital emphysema bilaterally (abnormal passageway of air into the eye socket), and bilateral chronic ethmoid sinusitis. Dr. Fowler performed surgery in February 2005 and in July 2005. He opined that the intraorbital emphysema, first noted in September 2001, would only occur from disruption of bone in an air-containing space \u2014 that is, from trauma. In reviewing Dr. Fowler\u2019s testimony, the Commission noted that the record did not show any cause for the deviated septum other than the April 2001 compensable injury. Dr. Fowler also reported that Graham had hearing loss in both ears, which would certainly be due to trauma associated with a severe blast of noise or pressure. He recommended additional diagnostic testing at UAMS by Dr. John Dornhoffer, a neuro-otologist. Dr. Fowler also stated on March 3, 2006, that Graham had not reached maximum medical improvement and was totally unable to perform work of any kind for wages.\nThe ALJ found Dr. Fowler to be a credible witness and found the treatment provided by him and his authorized referrals was reasonable and necessary in relation to the compensable injury. The ALJ also found that Graham was entitled to temporary total disability benefits from January 28, 2004, to a date yet to be determined. The Commission affirmed the ALJ\u2019s findings. Appellants bring this appeal challenging the sufficiency of the evidence to support the Commission\u2019s award of benefits.\nWhere the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the findings of the Commission and will affirm if those findings are supported by substantial evidence. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We recognize that it is the Commission\u2019s function to determine the credibility of the witnesses and the weight to be given their testimony, Powers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007), and that when the medical evidence is conflicting, the resolution of that conflict is a question for the Commission. Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d 394 (2007).\nAppellants\u2019 first point on appeal is that the Commission erred in finding Graham proved entitlement to additional medical treatment by Dr. Fowler. They argue that, when Graham was first treated at the emergency room after the accident, he mainly complained of injuries to his arm, back, and neck, not to his nose, face, or head. They point out that his orthopedic treating physician, Dr. Jones, found maximum medical improvement with no impairment. They also argue that Dr. Nadel, a neurosurgeon, found nothing objectively wrong with Graham and released him at maximum medical improvement from a neurological standpoint with no impairment. Appellants note that Dr. Bosch, an ear, nose, and throat specialist who saw Graham because of his complaints of headaches and dizziness, released him, indicating that there was nothing he could do for him. Finally, appellants argue that Graham did not begin seeing Dr. Fowler until more than three years after the accident and that Graham had already been released from care regarding all of his injuries. Appellants contend that Dr. Fowler\u2019s treatment was not reasonable and necessary in connection with the injuries he received in the accident.\nArkansas Code Annotated section 11-9-508 requires employers to provide medical services that are reasonably necessary \u201cin connection with the injury received by the employee.\u201d Ark. Code Ann. \u00a7 ll-9-508(a) (Supp. 2007). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Wal-Mart Stores, Inc. v. Brown, supra. What constitutes reasonably necessary treatment under the statute is a question of fact for the Commission. Hamilton v. Gregory Trucking, 90 Ark. App. 248, 250-51, 205 S.W.3d 181, 183 (2005).\nThe record shows that Graham\u2019s face slammed into the steering column during the accident. Evidence before the Commission indicated that Graham had complained of pain around his nose and face within six months of the accident. The Commission noted that a CT scan performed in September 2001 of Graham\u2019s facial bones showed \u201cevidence for intraorbital emphysema\u201d which \u201ccould be related to previous trauma.\u201d\nDr. Bosch reported that Graham complained of hearing loss, dizziness, and vertigo within several months of the accident. Dr. Bosch\u2019s initial examination in September 2001 indicated Graham had a \u201cseptal deviation to the left . . . and tenderness in the right nasal vestibule area and paranasal region corresponding with right intraorbital nerve injury.\u201d Indeed, in November 2002, when Dr. Bosch was unable to treat these ailments successfully, he reported that his \u201cmedical opinion\u201d was that it was \u201cimperative that Mr. Graham be further evaluated for his complaints of his head and facial pain and more importantly, his complaints of dizziness.\u201d The Commission noted that the ALJ had determined in an opinion dated August 15, 2003, that Graham proved he was entitled to treatment with Dr. Bosch \u201cfor his cranial injury (dizziness, pain, etc.)\u201d and that Graham was entitled to temporary disability for \u201chis facial injury,\u201d and that appellants had not appealed these findings.\nDr. Fowler performed surgery in February 2005 to treat a septal deformity and other associated abnormal findings. He performed additional nasal-related surgery in July 2005. In October 2005, Dr. Fowler explained that \u201cintraorbital emphysema,\u201d first noted in September 2001, \u201ccould only occur from disruption of bone in air containing space,\u201d that is, trauma. The Commission found Dr. Fowler\u2019s opinion that Graham\u2019s facial injuries were caused by the accident credible and that the treatment he provided was reasonably necessary in connection with Graham\u2019s compensable injury. We hold that substantial evidence supports the Commission\u2019s findings.\nIn their second point on appeal, appellants challenge the Commission\u2019s award of additional temporary total disability benefits. First, they argue that substantial evidence does not support this finding because Graham was released from care by three separate physicians. Second, they contend that the parties stipulated at the hearing for any temporary total disability benefits to end in July 2005.\nTemporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). Whether or not an employee\u2019s healing period has ended is a question of fact for the Commission. Id. In this case, the Commission found that Dr. Fowler began treating Graham in December 2004 and found credible Dr. Fowler\u2019s opinion in October 2005 that Graham was unable to perform work of any kind. The Commission noted that, while Dr. Fowler testified in April 2006 that Graham had reached a plateau with regard to the treatment provided by Dr. Fowler, Dr. Fowler opined that Graham needed to complete diagnostic testing at UAMS before a final determination regarding maximum medical improvement could be made. The Commission affirmed the ALJ\u2019s finding that Graham remained in his healing period and was entitled to temporary total disability from January 28, 2004, to a date yet to be determined. We hold that this finding is supported by substantial evidence.\nAdditionally, we find no evidence in the record to support appellants\u2019 contention that the parties stipulated to end temporary total disability in July 2005. The \u201cstipulations\u201d in the prehearing order filed by the ALJ on July 21, 2005, indicate that temporary total disability benefits had been paid through January 27, 2004. There is nothing in these stipulations, however, limiting these benefits. In the \u201ccontentions\u201d section of the order, but notably not in the stipulations section, the ALJ states that Graham requests additional temporary total disability benefits, and there are blanks for the period of time requested that have been filled in with handwritten insertions stating as follows: from \u201c1-28-04 [to] July 2005 (see Dr. Fowler\u2019s depo).\u201d No mention was made of this handwritten insertion at the hearing before the ALJ held on March 14, 2006. In fact, in response to the ALJ\u2019s question, \u201cWhat dates of temporary total are you requesting?\u201d Graham\u2019s attorneys responded from \u201c1/28/04, through a date yet to be determined.\u201d Appellants neither objected to nor clarified this response. Moreover, the ALJ\u2019s opinion states that Graham requested additional temporary total disability benefits from January 28, 2004, to a date yet to be determined.\nFor the foregoing reasons, we affirm the decision of the Commission.\nAffirmed.\nPittman, C.J., and Vaught, J., agree.", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "Bridges, Young, Matthews & Drake PLC, by: R. Scott Morgan, for appellants.", "Dover Dixon Horne PLLC, by: Nona M. Robinson, for appellant." ], "corrections": "", "head_matter": "OWENS PLANTING COMPANY and AIG Claim Services v. Arvel B. GRAHAM\nCA 07-793\n284 S.W.3d 537\nCourt of Appeals of Arkansas\nOpinion delivered May 21, 2008\nBridges, Young, Matthews & Drake PLC, by: R. Scott Morgan, for appellants.\nDover Dixon Horne PLLC, by: Nona M. Robinson, for appellant." }, "file_name": "0299-01", "first_page_order": 335, "last_page_order": 341 }