W.W.C. Bingo v. Zwierzynski

• Decision Date: 22 May 1996
• Docket Number: No. CA,CA
• Citation: 53 Ark.App. 288,921 S.W.2d 954
• Parties: W.W.C. BINGO, Appellant, v. Sandra ZWIERZYNSKI, Appellee. 95-541.
• Court: Arkansas Court of Appeals

Page 954

921 S.W.2d 954

53 Ark.App. 288

W.W.C. BINGO, Appellant, v. Sandra ZWIERZYNSKI, Appellee.

No. CA 95-541.

Court of Appeals of Arkansas Division II.

May 22, 1996.

Murrey L. Grider, Pocanontas, for appellant.

John Bartlett, Jonesboro, for appellee.

MAYFIELD, Judge.

This is the second appeal in this workers' compensation case involving a claimant/appellee and an uninsured employer/appellant. In the first appeal the only issue was compensability. The Commission had held that appellee had sustained a compensable injury and was entitled to workers' compensation benefits. We affirmed the Commission's decision. After another hearing the appellee was awarded temporary total disability benefits from July 11, 1991, through November 16, 1991, medical expenses, and attorney's fees. On appeal the appellant/employer argues:

I. "WHETHER OR NOT THE APPELLEE SUFFERED AN INJURY TO THE EXTENT AND NATURE AS SHE CLAIMED."

II. "THE COMMISSION ERRED IN UPHOLDING VARIOUS DISCOVERY AND EVIDENTIARY RULINGS BY THE ADMINISTRATIVE LAW JUDGE."

The appellee was injured while selling bingo cards on the floor of appellant's bingo parlor. On July 11, 1991, she was running from one side of the room to the other, and something slick on the floor caused her to fall. This injured her back and leg. At the second hearing the appellant contended, even though this court had said appellee sustained a compensable injury and was entitled to workers' compensation benefits, that appellee was entitled only to the medical expenses incurred at the emergency room on July 12, 1991, and that all other medical expenses after that date were not reasonable or necessary.

Medical records from St. Bernard's Regional Medical Center show that on July 12, 1991, appellee reported she had fallen at work the night before and injured her back and knee. X-rays were made on both of appellee's knees, her pelvis, and her lumbar spine. On July 16 a CT scan was performed and on July 20 an MRI was performed. All were essentially normal.

Dr. Steven C. Golden, appellee's family doctor, sent appellee to the Northeast Arkansas Rehabilitation Hospital for physical therapy, and after eleven sessions she was continuing to have significant discomfort but was discharged from physical therapy on September 23, 1991. On October 1, 1991, appellee was admitted to St. Bernard's Regional Medical Center for a lumbar myelogram and post-myelogram CT scan. They were both normal. Dr. Golden's office notes of October 15, 1991, state that appellee was to get a "facet joint injection on Friday at 11:30 by Dr. Tyrer at Methodist Hospital x-ray," and on October 21, 1991, the notes reveal that appellee was to restart physical therapy, including the wearing of a TENS unit.

A letter to Dr. Golden from Dr. A. Roy Tyrer, Jr., a Memphis neurological surgeon, dated October 22 states:

As you have requested, on October 18, 1991 this lady was given a right lower lumbar facet block at the L3-4, L4-5, and L5-S1 disc levels under x-ray localization at Methodist Hospital of Jonesboro on an outpatient basis.

She tolerated the injection well. I am very hopeful it will help her chronic back and right leg symptoms.

Appellee began physical therapy again on October 28, 1991, had a second treatment on October 30, and did not return for further treatments. On November 26, 1991, Dr. Golden wrote a letter to appellee's attorney stating:

Ms. Zwierzynski was in to see me on November 26, 1991. At that time she indicated she was doing well and not having pain at the present time. Her strengthening exercises have helped dramatically build the strength in her leg. She is now back to baseline, perhaps maybe even a little stronger than prior to her accident. She is looking forward to going back to work, and I have released her to do so.

Appellant's first argument challenges the sufficiency of the evidence. When reviewing a decision of 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 affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The weight and credibility of the evidence is exclusively within the province of the Commission. Morrow v. Mulberry Lumber, 5 Ark.App. 260, 635 S.W.2d 283 (1982). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 7 Ark.App. 65, 644 S.W.2d 321 (1983).

Appellant argues that "A lumbar strain should not generate any pain into the leg and any treatment for problems with [appellee's] leg should not be the responsibility of Appellant." Although appellee testified she hurt her knees and back when she fell and that one time after her fall, she got out of her car and her right leg "gave out on" her, the medical evidence does not indicate appellee was receiving treatment solely for a leg injury. The physical therapy may have included some leg strengthening exercises but the main thrust of the treatment was for an injury to appellee's back.

Furthermore, Dr. Golden's medical records clearly document pain radiating into the leg from appellee's back injury. On July 15, August 5, September 30, and October 15, Dr. Golden's notes indicate that appellee was complaining of back pain and leg pain.

We think the medical records clearly support the Commission's findings that appellee suffered an injury to her back and legs when she fell on July 11, 1991; that her back pain radiated into both legs at one time or another; that the initial program of physical therapy afforded appellee no relief from the pain; that the facet joint injection relieved all of appellee's symptoms; and that she was released to return to work in November 1991, with no permanent impairment. Therefore, we affirm the Commission's holding that appellee is entitled to temporary, total disability benefits from July 11, 1991, through November 26, 1991.

The appellant also complains about certain evidentiary rulings made by the administrative law judge. One of appellee's relatives testified that another member of the family had told her that appellee was swimming and dancing the weekend after her injury. The law judge sustained a hearsay objection to this testimony and stated that he would not allow appellant to even proffer it since it was clearly hearsay. However, the testimony was not stricken from the record and, therefore, the proffer issue is moot. Moreover, the Commission has broad discretion with reference to the admission of evidence, Linthicum v. Mar-Bax Shirt Co., 23 Ark.App. 26, 741 S.W.2d 275 (1987), and we find no abuse of discretion as to the ruling on the admission of this evidence.

The owner of the appellant W.W.C. Bingo attempted to introduce into evidence the affidavit of a man stating that the appellee had done housecleaning for him on November 14, 1991. This document was not allowed into evidence but it was proffered. Through the same witness, appellant...