Haney v. Smith, Doyle & Winters & Continental Insurance

John E. Jennings, Chief Judge,

dissenting. The issue for the Commission was whether the chiropractic treatment of the appellant, Herbert Haney, was reasonable and necessary beyond July 28, 1989. This is the date that the appellees controverted the issue by refusing to make further payments for the chiropractic treatment.

Whether the treatment for a compensable injury is reasonable and necessary is a question of fact. Tracor/MBA v. Baptist Medical Center, 29 Ark. App. 198, 780 S.W.2d 26 (1989); Savage v. General Industries, 23 Ark. App. 188, 745 S.W.2d 644 (1988); DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). When the Commission’s finding of fact is challenged on appeal we must affirm if the finding is supported by substantial evidence. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993); Garrett v. Sears, Roebuck & Co., 43 Ark. App. 37, 858 S.W.2d 146 (1993). Whether the Commission’s finding is supported by substantial evidence is a question of law for the appellate court to decide. Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979); Aluminum Co. of America v. McClendon, 259 Ark. 675, 535 S.W.2d 832 (1976); Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1989). When the issue is whether the Commission’s finding of fact is supported by substantial evidence the question for us is whether reasonable minds could have reached the conclusion reached by the Commission. See Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992); Hardin v. Southern Compress Co., 34 Ark. App. 208, 810 S.W.2d 501 (1991); Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). In deciding this question we must view the evidence in the light most favorable to the findings of the Commission. Quality Serv. Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991); Hope Brick Works v. Welch, 33 Ark. App. 103, 802 S.W.2d 476 (1991); College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988).

When the evidence is viewed in that light, I am unable to understand the result the majority reaches.

Mr. Haney sustained an admittedly compensable injury on August 7, 1986, when he reached down to pick up a set of steps. He saw Dr. A.H. Swain, an El Dorado chiropractor. Dr. Swain diagnosed the injury as a back strain and certified on August 9, 1986, that Mr. Haney could return to regular work without restrictions.

After appellant had been cleared to return to work he continued to see Dr. Swain and, later, other chiropractic physicians who had purchased Dr. Swain’s practice. Mr. Haney testified that the only treatments he received were “adjustments of the low back,” where his back would be massaged. He also testified that since the date of the injury he had seen the chiropractic physicians hundreds of times and had gotten no “long-term relief.” As to “short-term relief,” he said sometimes it helped him and sometimes it didn’t.

While Dr. E.R. Hartmann, an orthopedic physician, testified that he believed Mr. Haney had the “residuals of a herniated lumbar disc,” he conceded that it was a possibility that Dr. Swain’s diagnosis of the lumbar strain or sprain was correct. Dr. Hartmann testified that “in some areas chiropractors are pretty good physical therapists,” but that “you certainly wouldn’t give a patient [physical therapy] for five years.” He said, “I would prescribe it, let them have a few weeks, and if it helps, great.”

Between the time the appellees controverted the necessity of continued chiropractic treatment on June 28, 1989, and the date of the hearing before the administrative law judge on November 20, 1991, Mr. Haney saw Dr. Swain’s successors on seventy-eight separate occasions and charges were submitted for more than 200 separate procedures. In my view, reasonable minds could conclude that the adjustments administered after July 28, 1989, were not necessary for the treatment of appellant’s injury.