Roberson v. Waste Management

• Decision Date: 04 June 1997
• Docket Number: No. CA,CA
• Citation: 58 Ark.App. 11,944 S.W.2d 858
• Parties: Connie ROBERSON, Appellant, v. WASTE MANAGEMENT, Appellee. 96-1401.
• Court: Arkansas Court of Appeals

Page 858

944 S.W.2d 858

58 Ark.App. 11

Connie ROBERSON, Appellant, v. WASTE MANAGEMENT, Appellee.

No. CA 96-1401.

Court of Appeals of Arkansas.

June 4, 1997.

Denver L. Thornton, El Dorado, for Appellant.

Lee J. Muldrow, Kristi M. Moody, Little Rock, for Appellee.

STROUD, Judge.

Connie Roberson worked as a truck driver for Waste Management. She suffered a compensable injury to her right knee on April 13, 1994, when she lost her footing while opening the truck door and grabbing a chain to keep from falling into the ruts below. She underwent arthroscopic surgery the next month by Dr. W.J. Giller, and she began a weight loss program under the care of a dietician. She weighed 296 pounds at the time of the injury.

At a hearing in November 1995, the administrative law judge found that the claimant had proven that she remained within her healing period, that she was entitled to temporary total disability benefits for the periods she had not worked after the injury, and that she was entitled to reasonable and related medical benefits for treatment by Dr Giller. The Workers' Compensation Commission reversed the decision of the ALJ, finding that the claimant had failed to prove that she remained within her healing period beyond August 1994, that she was entitled to additional temporary total disability benefits, or that she was entitled to an osteotomy surgical procedure by Dr. Giller. Ms. Roberson contends on appeal that the Commission's denial of additional temporary total disability benefits and denial of reasonable and related medical treatment is not supported by substantial evidence. We disagree and affirm.

When the Commission denies a claim because of the claimant's failure to meet her burden of proof, the substantial evidence standard of review requires that we affirm the Commission's decision if its opinion displays a substantial basis for the denial of relief. Jordan v. Tyson Foods, Inc., 51 Ark.App. 100, 911 S.W.2d 593 (1995). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. Harvest Foods v. Washam, 52 Ark.App. 72, 914 S.W.2d 776 (1996).

Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark.App. 200, 785 S.W.2d 51 (1990). The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Nix v. Wilson World Hotel, 46 Ark.App. 303, 879 S.W.2d 457 (1994). The Commission has the duty of weighing the medical evidence as it does any other evidence, id., and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc., 29 Ark.App. 218, 780 S.W.2d 34 (1989).

The evidence at the hearing included letters and medical records of appellant's primary treating physician, Dr. Giller; an independent medical evaluation by Dr. John Slater; and appellant's own testimony. Both doctors are orthopedic surgeons.

The day after Dr. Giller performed arthroscopic surgery on May 23, 1994, he wrote, "It is evident that the patient is going to have continuing difficulties with her knee. It is an absolute must that she lose weight to a more normal range." At the end of May he released appellant to light duty work with the restrictions that she could not stand or walk for prolonged periods of time and that she sit with her leg propped up. He wrote in June 1994 that appellant should continue on limited duty at work. In August 1994 he stated, "She will continue with her physical therapy ... and she will also continue on her diet. She was told that she could return to work so long as she was not required to stand or walk." Finally, on November 30, 1994, Dr. Giller wrote:

Since the patient was last seen she has lost approximately 70 pounds on the New Directions Weight Loss Program. She tells me that she is still having discomfort in the knee and she has not been working.

....

It is still my recommendation that the patient needs to be scheduled for a tibial osteotomy.... In the meantime, she will continue with her weight loss program.... She was told that she could work as long as she adhered to the restrictions that have been outlined previously.

Dr. John Slater's report of the independent medical examination on February 28, 1995, included the following: "In reviewing the record, I would ascertain that she reached maximum medical improvement three months after her arthroscopic surgery." He stated that his findings did not suggest a need for surgery, and he recommended that appellant continue with her weight loss. At the hearing, Ms. Roberson testified that she was twenty-six years old and was five feet six inches tall. She stated that she had weighed 296 pounds at the time of her injury and further testified:

I now weigh 125 pounds. I had to lose weight because of my knee injury. I needed another surgery and they wanted me to lose the weight so that I could heal better from the surgery. The second surgery has not been done yet. Dr. Giller was going to do a second surgery on my knee when I lost the weight. I've lost the weight.

Appellant relies upon Dr. Giller's statements and her own testimony to support her argument that she is still within her healing period and that she needs additional surgery. When reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and uphold those findings if they are...