Univ. of Ark. Pub. Emp. Claims Div. v. Tocci

2015 Ark. App. 505

471 S.W.3d 218

University of Arkansas Public Employee Claims Division, Appellant

v.Kym Tocci, Appellee.

No. CV–15–260

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered September 23, 2015

Robert H. Montgomery, Public Employee Claims Division, for appellants.

Odom Law Firm, P.A., Fayetteville, by: Conrad T. Odom, for appellee.

Opinion

RITA W. GRUBER, Judge

The University of Arkansas (U of A) appeals the January 14, 2015 decision of the Arkansas Workers' Compensation Commission awarding additional medical treatment to Kym Tocci for her compensable back injury. Ms. Tocci, a print-machine operator at the U of A, sustained the injury on April 6, 2012, while moving a case of envelopes. Her treating physician diagnosed the injury as a low-back sprain and referred her for chiropractic manipulation, physical therapy, and orthopedic consultation. Dr. Regina Thurman eventually undertook Ms. Tocci's medical care for pain management, primarily through medication and physical therapy. The U of A controverted her claim to any additional medical treatment in the form of physical therapy after her last visit in March 2014.¹

At a hearing before the administrative law judge in September 2014, Ms. Tocci contended that she was entitled to deep aggressive massage and joint mobilizations as outlined by Trinity Rehabilitation in an April 2014 report. The U of A contended that only in-home physical therapy had been recommended. The law judge found in his written decision that Ms. Tocci had met her burden of proving by a preponderance of the evidence that she was entitled to additional medical treatment in the form of physical therapy at Trinity Rehabilitation. The Commission adopted and affirmed the decision of the law judge as its own. The U of A now appeals, raising two points. It contends that (1) the Commission improperly construed Arkansas Code Annotated section 11–9–508(a) and (2)substantial evidence does not support the award of additional physical therapy. We affirm.

Arkansas Code Annotated section 11–9–508(a)(Repl. 2012) requires an employer to promptly provide for an injured employee such medical treatment “as may be reasonably necessary in connection with the injury received by the employee.” The U of A has not shown that it raised any argument regarding construction of reasonable and necessary to the Commission, which prevents our addressing the issue on appeal. Vangilder v. Anchor Packaging, Inc.,2011 Ark. App. 240, 2011 WL 1166885. At any rate, we will not address an argument that is unconvincing or that lacks convincing authority to support it. Stutzman v. Baxter Healthcare Corp.,99 Ark. App. 19, 256 S.W.3d 524 (2007). Furthermore, despite arguing that the issue requires “examination of the very meaning of the words reasonableand necessary,” the U of A is simply questioning Ms. Tocci's need for additional physical therapy and its appropriateness for her injury. These were merely factual questions for the Commission, which are to be decided under the substantial-evidence standard of review.

What constitutes reasonably necessary treatment is a question of fact for the Commission, which has the duty to use its expertise to determine the soundness of medical evidence and to translate it into findings of fact. Hamilton v. Gregory Trucking,90 Ark. App. 248, 205 S.W.3d 181 (2005). The claimant may be entitled to ongoing medical treatment after the healing period has ended if the treatment is geared toward management of the compensable injury. Patchell v. Wal–Mart Stores, Inc.,86 Ark. App. 230, 184 S.W.3d 31 (2004).

We defer to the Commission's findings on what testimony it deems to be credible, and the resolution of conflicting evidence is a question of fact for the Commission. Hargis Transp. v. Chesser,87 Ark. App. 301, 190 S.W.3d 309 (2004). The Commission has authority to accept or reject medical opinion and to determine its medical soundness and probative force. Oak Grove Lumber Co. v. Highfill,62 Ark. App. 42, 968 S.W.2d 637 (1998). 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. Murphy v. Forsgren, Inc.,99 Ark. App. 223, 258 S.W.3d 794 (2007). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.

The U of A does not dispute that Ms. Tocci received medical treatment and care from the time of her April 6, 2012 compensable injury until she came under the care of Dr. Thurman for pain management. Ms. Tocci was taken off work for a period of time after her diagnosis of low-back sprain, and she returned to work with restrictions on April 16, 2012. On April 18, 2012, a chiropractor performed manipulative treatment and indicated that resolution of her condition would take up to twelve weeks of care. On the same day, her treating physician indicated that she should work only half days until further notice. He subsequently ordered an MRI, referred her for physical therapy at Trinity Rehabilitation, and—when her condition did not improve—referred her for an orthopedic consultation. The consulting doctor diagnosed lumbago and lumbar spondylosis, stated that the MRI showed mild stenosis and degenerative changes at L4–5, and recommended treatment in the form of a steroid injection at L4–5. He continued to evaluate and treat Ms. Tocci and to prescribe physical therapy.

The medical evidence in this case included Dr. Thurman's written answers on January 17, 2014, to questions from the nurse case manager about Ms. Tocci's condition and need for additional treatment. Dr. Thurman wrote that Ms. Tocci had indicated that deep-tissue massage and aquatic therapy were helping “tremendously.” Dr. Thurman also wrote that “[i]f the therapist feels he can transitionher to a home program with the equipment she needs, then I feel she is ready for a home program.” In a February 28, 2014 report conducted for U of A, a physician reviewer at the Medical Review Institute of America, Inc., opined that additional physical therapy was not appropriate;

[T]he patient has completed over 100 physical therapy sessions over the last two years since her injury. She has previously been instructed in a home exercise program and should be more than capable of transitioning to a home exercise program at this time. The clinical documentation from Regina Thurman specifies that the

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