{ "id": 6142145, "name": "Bobbie SMITH v. COUNTY MARKET/SOUTHEAST FOODS and Wausau Insurance Company", "name_abbreviation": "Smith v. County Market/Southeast Foods", "decision_date": "2001-04-25", "docket_number": "CA 00-0656", "first_page": "333", "last_page": "338", "citations": [ { "type": "official", "cite": "73 Ark. App. 333" }, { "type": "parallel", "cite": "44 S.W.3d 737" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "60 Ark. App. 13", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136275 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark-app/60/0013-01" ] }, { "cite": "339 Ark. 142", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130692 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0142-01" ] }, { "cite": "343 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226524 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0276-01" ] }, { "cite": "50 Ark. App. 13", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136288 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/50/0013-01" ] }, { "cite": "44 Ark. App. 5", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135992 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/44/0005-01" ] }, { "cite": "39 Ark. App. 24", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136359 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/39/0024-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(16)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 583, "char_count": 9836, "ocr_confidence": 0.756, "pagerank": { "raw": 2.728354700462103e-07, "percentile": 0.8307839569025067 }, "sha256": "90a5ddef104bf9c4e8473041561ce2a28ceaa3a3b9a418959ce8c715bede2482", "simhash": "1:03a93d8f87897acf", "word_count": 1546 }, "last_updated": "2023-07-14T14:33:57.447032+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, Hart, Griffen, Crabtree, and Baker, JJ\u201e agree." ], "parties": [ "Bobbie SMITH v. COUNTY MARKET/SOUTHEAST FOODS and Wausau Insurance Company" ], "opinions": [ { "text": "LARRY D. VAUGHT, Judge.\nThis is an appeal from a decision I yof the Arkansas Workers\u2019 Compensation Commission denying additional temporary total disability benefits, permanent disability benefits, and medical expenses. Appellant, Bobbie Smith, argues that the Commission erred in ruling that she failed to establish a compensable injury by medical evidence, supported by objective findings. We reverse and remand the decision of the Commission for further proceedings.\nBobbie Smith was working as a cashier at County Market on October 2, 1995, when she slipped and fell on a recently-mopped floor at the workplace, during work hours. Appellee initially accepted her injury as compensable, and stipulated that it was work-related. Appellee paid for the cost of the claimant\u2019s medical treatment relating to complaints from the October accident through July 19, 1996. Subsequent to July 19, appellee concluded that appellant did not have objective findings sufficient to support a claim of compensability. However, appellant utilized her health insurance to obtain additional treatment and diagnostic studies after her employer controverted the compensability of the claim in July of 1996.\nAppellant\u2019s primary complaint, after her fall, was bruising and pain in her hip. She was evaluated by Dr. Norris Knight, an orthopaedic surgeon, who referred her to Dr. Freddie Contreras, a neurosurgeon, for her complaints of low back pain. After several radiographic diagnostic studies, including an MKI, myleogram, and CT scan, that were essentially normal, Dr. Contreras referred Smith to a physical medicine and rehabilitation specialist, Dr. Rosham Sharma, in an effort to treat her conservatively, without surgery. Dr. Sharma treated Smith over a course of time, noting muscle spasm in her back, atrophy, and a decreased size in her right calf muscle. Dr. Sharma eventually recommended a \u201cdiscogram,\u201d which was obtained on August 22, 1996, from a Dr. Patrick Peavey in Shreveport, Louisiana.\nThe discogram revealed certain abnormalities at the L4-L5 level that were characterized as a disc bulge or a \u201clarge annular\u201d fissure. Based on the results of the discogram, Dr. Sharma assigned a 15% physical impairment rating to the body as a whole, relying on the AMA Guide to Evaluation of Permanent Impairment, 3rd Edition. Subsequently, the ALJ awarded benefits based on Dr. Sharma\u2019s impairment rating, and appellant\u2019s wage-loss claim. The Commission reversed, over the dissent of Commissioner Humphrey, based on its view that a fissure indicated by a discogram is not an \u201cobjective finding\u201d to support a compensable injury under the Arkansas Workers\u2019 Compensation Act.\nArkansas Code Annotated section ll-9-102(5)(D) (Repl. 1997) provides that a compensable injury must be established by medical evidence supported by \u201cobjective findings.\u201d An objective finding is defined as a finding that cannot come under the voluntary control of the claimant. Ark. Code Ann. \u00a7 11-9-102(16) (Repl. 1997). This court reviews decisions of the Workers\u2019 Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. If reasonable minds could reach the result shown by the Commission\u2019s decision, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000).\nBased on the letters and reports from Dr. Peavy, we note that he performed a \u201cfive level lumbar discogram\u201d at the request of Dr. Sharma. The discogram involves injecting a dye into the disc spaces, and observing both the patient\u2019s pain response to the different injections at each level and observing the dispertion pattern of the dye on x-ray and CT films. Dr. Peavy stated that diskography is \u201csomewhat controversial\u201d but does appear to be useful in certain cases. He admits that some of the \u201cprovocative response is subjective,\u201d but he describes Smith\u2019s pain response as \u201cunequivocal.\u201d Smith\u2019s pain response at the L4-L5 level was consistent with \u201cfissur-ing\u201d on that level that he visualized on an accompanying CT scan. In later correspondence to appellant\u2019s attorney, Dr. Peavy stated that the significant objective anatomic findings were at the L4-L5 level where a \u201cfairly large central annular fissure\u201d was observed on CT scan. He also noted a small \u201cfocal associated bulge\u201d at this level. Dr. Peavy was not deposed, and did not testify at the hearing. His report and correspondence were stipulated to and admitted at the hearing.\nIn support of Dr. Peavy\u2019s discogram, appellant submitted a letter from Dr. Joseph Greenspan. Dr. Greenspan offers the opinion that the discogram on Bobbie Smith was composed of three parts, two of which are objective. He admits that the third might be considered subjective for purposes of the Arkansas Workers\u2019 Compensation Act. He says that the \u201cpost-injection plain films\u201d document \u201cone markedly positive disc and four distinctly negative control discs.\u201d Dr. Greenspan opines that the second part, the objective post-injection CT scan films, document the same findings. The third portion of the test, based on the patient\u2019s pain response, is consistent with the first two. Dr. Greenspan goes on to state that the discogram is the \u201cdiagnostic gold standard\u201d when MRI and CT scans fail to document disc pathology. Dr. Greenspan was not deposed, and did not testify at the hearing. His letter opinion was admitted at the hearing. However, Dr. Greenspan\u2019s report is never mentioned in the Commission\u2019s decision.\nAppellant\u2019s treating neurosurgeon, Dr. Contreras, takes a different view of the validity of the discogram. He states in deposition that he has not ordered more than one discogram in ten years, that he believes them to be 99% unreliable, and that he believes healthy discs will exhibit the same changes on discogram as diseased discs. However, he admits that a discogram is an approved test by the \u201cMedical Association.\u201d\nThe Commission denied benefits based on the discogram results not confirming the \u201cobjective findings\u201d required by the Act. Clearly, a patient\u2019s pain response to an injection in his spine is something at least partially within his control, and potentially subject to manipulation. However, radiographic images of the dye, once injected into the spine, are clearly not subject to a claimant\u2019s manipulation. Results of x-ray, CT scan, MRI, and other radiographic and computerized diagnostic studies are \u201cobjective findings\u201d for purposes of the Arkansas Workers\u2019 Compensation Act. Therefore, we must conclude that an x-ray and CT scan of the spine, with dye contrast, cannot be rendered meaningless in a Workers\u2019 Compensation context just because a patient\u2019s pain response during the injection of the dye is taken into account.\nWhile the Commission hinges its analysis upon a lack of \u201cobjective findings,\u201d it may be that it is attempting to embrace Dr. Contreras\u2019s skepticism about the value of the discogram findings in light of numerous \u201cnormal\u201d CT and MR.I scans. Reasonable minds may disagree about the significance of objective findings; however, it is impossible to disagree that objective findings do exist. Here, the Commission may believe, as does Dr. Contreras, that the results of Smith\u2019s discogram do not indicate surgery, and may simply represent the degenerative aging process. However, reasonable minds cannot conclude that evidence of Dr. Peavy\u2019s visualization of a fissure is not objective in nature.\nThe Commission attempts to announce a bright-line rule prohibiting discograms to prove \u201cobjective findings\u201d in Arkansas Workers\u2019 Compensation proceedings. This is contrary to a strict reading of the text of the statute in that the discogram, as described here, is clearly an objective test that also takes into account a patient\u2019s subjective pain response.\nFor her second point on appeal, appellant argues that the Commission erred in disregarding two other \u201cobjective findings\u201d supporting her injury, namely muscle spasm and muscle atrophy, both observed and noted by Dr. Sharma. Appellee and the Commission seem to suggest that the Commission is free to disregard such findings when they are not clearly linked to the compensable injury. Dr. Contreras opined that he could not say for certain that the atrophy resulted from a disc injury. However, as Commissioner Humphries\u2019 dissent points out, the standard is not one of \u201cabsolute certainty,\u201d but merely a \u201creasonable degree of medical certainty.\u201d The Commission is the finder of fact, and is free to disregard medical testimony that it deems incredible. Estridge, supra. However, muscle spasm, or involuntary muscle contraction or tension and shortness in the muscles, has been held to be an \u201cobjective finding.\u201d See Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999); CAMS v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997).\nTherefore, we reverse and remand the decision of the Commission, for further proceedings consistent with this opinion.\nPittman, Hart, Griffen, Crabtree, and Baker, JJ\u201e agree.", "type": "majority", "author": "LARRY D. VAUGHT, Judge." } ], "attorneys": [ "Howard J. Goode, for appellant.", "Michael E. Ryburn, for appellees." ], "corrections": "", "head_matter": "Bobbie SMITH v. COUNTY MARKET/SOUTHEAST FOODS and Wausau Insurance Company\nCA 00-0656\n44 S.W.3d 737\nCourt of Appeals of Arkansas Divisions I and II\nOpinion delivered April 25, 2001\nHoward J. Goode, for appellant.\nMichael E. Ryburn, for appellees." }, "file_name": "0333-01", "first_page_order": 359, "last_page_order": 364 }