Jordan v. Home Depot, Inc.

2013 Ark. App. 572

430 S.W.3d 136

Jonathan JORDAN, Appellant

v.HOME DEPOT, INC., and American Home Assurance Company, Appellees.

No. CV–13–401.

Court of Appeals of Arkansas.

Oct. 9, 2013.

Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellant.

Roberts Law Firm, P.A., by: Jeremy Swearingen and Emily A. Neal, for appellees.

RITA W. GRUBER, Judge.

In Jordan v. Home Depot, Inc., CA07–1031, 2008 WL 727046 (Ark.Ct.App. March 19, 2008) (unpublished), Jonathan Jordan appealed a 2007 decision of the Arkansas Workers' Compensation Commission that denied his claim for additional medical treatment and additional temporary total-disability benefits related to his 2003 compensable back injury. We reversed and remanded the denial of additional medical benefits, and reversed and remanded for reconsideration of disability benefits. In a subsequent decision of September 2008, the Commission found that medical services provided and recommended by Dr. Cyril Raben—including possible surgical intervention—were reasonably necessary medical services for Mr. Jordan's compensable lumbar injury, and that Mr. Jordan was entitled to additional temporary total-disability benefits from the cessation of his employment in mid–2004 but not prior to July 15, 2004, and continuing through a date yet to be determined. That decision was not appealed.

The present appeal involves Mr. Jordan's claims for an additional period of temporary total-disability benefits from February 2011 until a date to be determined and for additional medical treatment recommended by Dr. James Blankenship. In a 2012 opinion, the Commission found that Mr. Jordan did not prove entitlement to additional temporary total-disability benefits but did prove entitlement to medical services recommended by Dr. Blankenship. Mr. Jordan appeals the denial of additional temporary total-disability benefits, contending that substantial evidence instead supports a finding that he was entitled to benefits from February 2011 to a date yet to be determined. ¹ Home Depot cross-appeals, contending that no substantial evidence supports the finding that additional medical treatment is reasonably necessary in connection with the 2003 compensable injury. We affirm on appeal and cross-appeal.

Where 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, 602–603, 120 S.W.3d 153, 155 (2003). Where the Commission denies benefits because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. Woodmancy v. Framco, Inc., 2011 Ark. App. 785, 387 S.W.3d 286.

Temporary Total-Disability Benefits

On direct appeal, Mr. Jordan challenges the Commission's finding that he was not entitled to temporary total-disability benefits. The healing period is that period for healing of an injury resulting from an accident. Ark.Code Ann. § 11–9–102(12) (Repl.2012). An injured employee is entitled to temporary total-disability benefits when he is totally incapacitated from earning wages and remains in his healing period. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008). The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id. The determination of when the healing period has ended is a factual determination for the Commission. Id.

Evidence before the Commission included Mr. Jordan's medical records, his testimony before the law judge at an April 2012 hearing, and the deposition testimony of Dr. Blankenship. The 2009 medical records reveal that Dr. Raben performed a caudal epidural steroid injection in February, a bilateral neural forminal block at L5–S1 in May, and surgery at L4–5 and L5–S1 in June or July. Dr. Raben referred Mr. Jordan to pain-management physician Dr. D. Wayne Brooks, who in March 2010 planned to continue physical therapy for strengthening and lumbar stabilization. Dr. Brooks referred Mr. Jordan to Dr. James B. Blankenship, a neurosurgeon certified in pain management, in November 2010.

Mr. Jordan underwent a lumbar MRI on June 1, 2011, and first saw Dr. Blankenship on June 6, 2011. Dr. Blankenship recommended a sacroiliac (SI) joint injection, active physical therapy, and after two months, “If he is not any better, ... a CT scan with reconstructions—to evaluate the construct, and I will see him back. If he is doing better, we will proceed on with exercise as appropriate for his SI joint pain and his post laminectomy syndrome.”

Regarding Mr. Jordan's healing and treatment for pain, Dr. Blankenship testified:

He had some intermittent right posterior buttock pain for the past three months.... Essentially Jordan had a fusion at L4–5 and L5–S1. I am intimately familiar with those procedures. The length of time a patient remains in their healing period is extremely variable. The fusion itself is not the critical issue. The fusion can take up to six months to a year to be solid, but ... how quickly you get to fusion doesn't really have anything to do with how well you do. I will have some patients that undergo a 4–5, 5–1 fusion, and four weeks postoperatively, they are back doing their regular job. Then I will have some that never get any better....

Mr. Jordan indicated that his back and leg pain were better after that surgery. If he continued to treat with Dr. Brooks for pain management, it is not necessarily part of the healing period. It is just that some patients that are still having problems or still having some degree of pain will still need some type of either pain management from a medication standpoint or physical therapy or a combination of both postoperatively and can need that even long-term. It doesn't state one way or the other as to whether he is still healing or is in the recuperative period because ... although not the typical outcome, it is not infrequent that I will have patients that we will still be following for long term after having surgery. My interpretation of the MRI was that there was no gross complication in his implants. It appeared, both with the MRI and his plain films that he had a solid fusion, although you cannot absolutely state that with either of those tests. That requires a CT scan.

Dr. Blankenship testified that Mr. Jordan's clinical examination was consistent with his complaints of SI joint pain, which was not uncommon after a fusion, and that it was not uncommon for patients “to experience some level of symptomatology indefinitely” after the fusion. Reiterating that Mr. Jordan's pain was in an adjacent segmentwell known to have problems after lumbar fusion, Dr. Blankenship stated, “I didn't really think that he had a problem with his lumbar spine. I thought it was his SI joint.” He further testified:

Whether Jonathan has reentered a healing period it is just from the standpoint that he is having a new pain, if we are doctoring on it, then he has entered a new healing period. I am not sure that terminology is that germane. He is not entering a healing period from his lumbar fusion. That is healed up, and he is solid. The new pain, at least as far as I know, he never did get his SI joint injections, so it is still a diagnosis of examination and clinical history. It is a...