Hernandez v. Wal-Mart Associates, Inc.

KAREN R. BAKER, Judge,

dissenting.

The majority affirms this case reasoning that the analysis involves the competing opinions of two doctors. Characterizing the opinions as merely conflicting medical evidence, the májority further concludes that the resolution of the conflict was a question for the Commission leaving this court powerless to reverse the decision. While credibility is certainly the province of the Commission, it is the duty of this court to determine’whether the Commission’s decision is legally sound. In this case, the decision is not. The majority acknowledges that the basis of the Dr. Moffitt’s opinion supporting the Commission’s decision is appellant’s subjective manifestations of pain: “Dr. Moffitt stated that Hernandez’s complaints of left-side pain after her compensable injury did not correlate with an MRI performed on September 1, 2005, which disclosed a herniated disc at the same level on the right side.” Pain is a subjective symptom of an injury, a necessary component to the medical diagnostic process. The subjective nature of pain, however, 11 requires this court to find that pain alone cannot support an award of benefits, but must be accompanied by objective findings of an injury.. See Singleton v. City of Pine Bluff, 97 Ark.App. 59, 244 S.W.3d 709 (2006) (reversing and remanding when objective findings indisputably established injury and holding that Commission arbitrarily and improperly disregarded claimant’s complaints of pain given the objective findings); Swifi-Eckrich, Inc. v. Brock, 63 Ark.App. 118, 975 S.W.2d 857 (1998). Conversely, an injured employee’s description of pain is not legally sufficient to deny an award of benefits when objective findings of injury are present. Because the Commission relied upon an opinion based upon legally deficient criteria, we not only have the power to reverse, we have a duty to do so.

The opinion of Dr. Moffitt, upon which the Commission relied in denying benefits, was based upon appellant’s identification of pain on the left side of her body, which the doctor viewed as inconsistent with the herniation on the right that was clearly identified by the MRI. This opinion was given on September 1, 2005, the same day the MRI was conducted and shortly after the injury. As Dr. Moffitt’s treatment of appellant continued, his notations of appellant’s symptomology revealed a progression of pain. From September through January 19, 2006, these notations indicated appellant’s complaints of increasing pain on the right. On January 19, he stated that appellant had “a herniated nucleus pulposus by MRI of L5-S1 on the right. Some of the symptoms and physical findings that she demonstrates today are consistent with this.” Dr. Moffitt further opined that he was “not Inexactly sure” what “the next best step” would be, stating, “I am not sure that surgery would be an appropriate alternative at this time due to concerns with anxiety.” Nothing in the record supports a conclusion that Dr. Mof-fitt was evaluating surgei’y as an appropriate treatment for a- lumbar strain. He clearly stated that his concerns over the appropriateness of surgery stemmed from his patient’s anxiety level, not a concern that the surgery was an inappropriate treatment for her injury.

Subsequently, a discogram and CT were obtained that showed appellant to have pain at the L5-S1 level, the same level as the herniated disc. She was sent for a psychiatric evaluation, and it was recommended that she continue with psychiatric treatment following her surgical procedure; however, it was also recommended that she could go ahead and proceed with surgery.

Both the ALJ and the Commission found that appellant had suffered a com-pensable injury to her low back. ■ She experienced acute pain in her low back after lifting a 35-pound box, which caused her to seek treatment. On September 1 and 30, 2005, Dr. Moffitt observed muscle tightness and spasms. Based upon this information, the Commission found that appellant had suffered an accidental injury caused by a specific incident and identifiable by time and place of occurrence on August 11, 2005. The MRI, performed on September 1, 2005, corresponded with the first day that Dr. Moffitt observed the muscle spasm and showed the disc herniation at the same level of the spasm.

| lfiTherefore, there is no dispute that appellant suffered a compensable injury to her low back after lifting a box. There is no dispute that after the incident she suffered from lumbar strain evidenced by muscles spasms and that an MRI revealed a protruding disc at the same level as the muscular strain. In rejecting appellant’s evidence that the protruding disc was attributable to the lifting of the box, the Commission stated: “None of the claimant’s treating physicians, other than Dr. Raben, opined that claimant had sustained a herniated disc as a result of her lumbar strain.” Actually, no physician claims that the herniated disc was a result of the lumbar strain. Dr. Raben stated that the protrusion was causally related to the incident on August 11, 2005, not caused by the lumbar strain. His exact words were that “the acute and proximate cause of her symptomology is related to an on-the-job injury creating a lumbar disc herniation.” Furthermore, he explained that there were many reasons why appellant’s back pain could have also existed on her left side initially and that his review of the MRI scan conducted on September 1 would lead him to expect appellant to suffer from some right leg pain and also perhaps some left pain.

The responsibility to weigh carefully, judge cautiously, and evaluate thoroughly the testimony of witnesses as an integral part of the fact-finding process bears heavily on the shoulders of the Commission. One obligation in its role as fact-finder is the Commission’s duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Bohannon v. Walmart Stores, Inc., 102 Ark.App. 37, 279 S.W.3d 502 117(2008). It is this court’s responsibility to examine the evidence upon which the Commission relied. Both our and the Commission’s duty is to examine the factual basis for doctors’ opinions. When the factual basis for the opinions is not legally sufficient to support a doctor’s opinion, it is also legally insufficient to support the Commission’s decision.

Each participant in the process of evaluating a claim for workers’ compensation benefits must be diligent in performing the duties of each respective role. When deciding any issue, administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence. Ark.Code Ann. § 11 — 9—704(c)(2) (Repl.2002); Ark.Code Ann. § ll-9-705(a)(3) (Repl.2002); Excelsior Hotel v. Squires, 83 Ark.App. 26, 34, 115 S.W.3d 823, 828 (2003) (reversing and remanding for the Commission to make additional findings of fact, emphasizing that it is the Commission’s duty to make such findings with no deference to the ALJ’s findings). The Commission reviews an ALJ’s decision de novo, and it is the duty of the Commission to conduct its own fact-finding independent of that done by the ALJ. Id. The Commission does not review the ALJ’s decision to .determine whether there was substantial evidence to support the ALJ’s findings; rather, the Commission makes its own findings .in accordance with the preponderance of the evidence. Id.

The ALJ in this case noted Dr. Moffitt’s belief that appellant’s symptoms did not | lscorrelate with the herniated disc on the right and his statement that there were no objective medical findings of a problem with appellant’s back; however, the ALJ did not thoroughly articulate in his decision the factual basis for Dr. Moffitt’s initial opinion nor the progression of Dr. Moffitt’s observation and treatment of appellant. Rather, the ALJ focused on Dr. Raben’s medical opinion, which hg found credible and entitled to great weight in awarding appellant benefits.

The fact that the ALJ did not thoroughly address the basis of Dr. Moffitt’s opinion, rendered early in his diagnosis and treatment of appellant, does not lessen the Commission’s duty to do so. The Commission may not merely assume that the factual basis for the doctor’s opinion mentioned by the ALJ was entitled to any weight. It has an independent duty to evaluate each medical opinion. This duty is integral to the proper adjudication of claims, and this court has a responsibility to ensure that the Commission fulfills that function.

It is this court’s duty to hold the Commission accountable, recognizing the balancing of rights with responsibilities. The Workers’ Compensation Commission has the right to find the facts, but that right carries with it the duty to make and set out the crucial findings of fact and the supporting evidence, and where the Commission fails to adequately detail findings of fact to enable the appellate court to properly review the record, the case will be remanded so that the Commission may then do so. McCoy v. Buckeye Cotton Oil, 271 Ark. 638, 609 S.W.2d 670 (1980); see also Singleton v. City of Pine Bluff, 102 Ark.App. 305, 285 S.W.3d 253 (2008) (reversing and remanding with instructions for Commission to follow this court’s mandate to fulfill its duty of fact finding).

The Commission must not only adequately articulate its findings; its duty as fact-finder carries with it the corresponding obligation to properly evaluate the medical opinions to determine if the facts upon which a doctor’s opinion is based are legally sufficient to support the opinion. In Bohannon v. Walmart Stores, Inc., supra, this court reversed a denial of benefits holding that the.expert physician opinion provided no basis for the Commission’s conclusion that the claimant did not require additional medical treatment for inhalation of chemicals used to clean air conditioning units. The expert assumed claimant did not suffer from symptoms that would normally accompany chemical inhalation, but medical reports revealed she suffered from those symptoms, and the treating neurosurgeon recommended an MRI scan of claimant’s brain which was never conducted because employer would not pay for it. This court explained:

The sole issue before this court is whether the Commission erred in determining that additional medical treatment, including but not limited to Dr. Rutherford’s recommendations, was not necessary. We hold that the Commission erred.
First, the Commission relied heavily on Dr. Foster’s expert opinion, and it is clear from the record that Dr. Foster’s opinion was based on several erroneous assumptions. Specifically, Dr. Foster admitted that he was unaware of the dimensions of the room where appellant worked; did not know the number of vents' in the room; did not know how much 2-butoxyethanol was put in the air conditioner unit; did not know how much of the chemical was blown into the room; and did not know how close appellant was sitting to a vent. Moreover, he was unaware of the length of her exposure. He assumed that appellant’s exposure time to the chemical was only a few |2nminutes. However, appellant’s co-workers testified that they left the work area thirty minutes after noticing the chemical odor, but appellant did not accompany them at that time. Rather, she remained behind at her workstation. Therefore, contrary to Dr. Foster’s assumption, appellant’s exposure was greater than thirty minutes.
Dr. Foster also made it clear during his deposition that the key factor in his opinion that appellant’s headaches and speech problems were not caused by 2-butoxyethanol was that appellant did not experience any eye, nose, and skin irritation in conjunction with her headaches. Dr. Foster agreed that those findings were at the “heart” of his opinion. Contrary to Dr. Foster’s opinion, the emergency-room reports revealed that immediately following her exposure, appellant experienced pain and blurry vision in her left eye, had redness in her nasal chambers, and appeared to have swelling in her lips and mouth.

Bohannon, 102 Ark.App. at 43-44, 279 S.W.3d at 506-07.

In Bohannon, the expert based his opinion upon erroneous assumptions. The expert’s opinion was based upon factual errors that rendered the assumptions and speculation upon which the opinion was based legally insufficient to support the doctor’s opinion. See Bohannon, supra. Similarly to the doctor’s reliance on assumptions that could not legally support a denial of benefits in Bohannon, Dr. Mof-fitt’s opinion relied on his patient’s description of pain. Certainly it was appropriate in the early stages of his diagnostic process to rely on appellant’s description of pain to help him determine the cause of appellant’s symptoms. While Dr. Moffitt’s reliance on his patient’s experience of pain is essential to his diagnostic process, the Commission is legally precluded from basing an award solely on a complaint of pain. Pain is a subjective symptom of an injury, and the experience of pain is individual in nature:

While one would think that normally a person who had been injured would immediately report such injury to his employer or fellow employees, this is certainly _[^ not a hard and fast rule. Rather, such action would seem to depend upon the individual nature of the person involved, some people being able to bear pain more than others, and, of course, a desire to continue employment for the purpose of earning wages could be a factor bearing upon this behavior.

Price v. Servisoft Water Conditioning Co., 256 Ark. 702, 705-06, 510 S.W.2d 293, 295 (1974).

Descriptions of pain in the diagnostic stage of an injury are a critical aspect of the medical protocol. This court has recognized that the diagnostic process is just that, a process with various tests and evaluation techniques used to develop a medical opinion regarding the patient’s condition. See Amaya v. Newberry’s 3N Mill, 102 Ark.App. 119, 282 S.W.3d 269 (2008) (reversing Commission’s determination that claimant’s healing period had ended when physician who stated claimant had reached maximum medical improvement also stated claimant should receive injections for his back and workers’ compensation should pay for the treatment); Southeast Arkansas Farmers Ass’n v. Walton, 267 Ark. 1118, 597 S.W.2d 603 (Ark.App.1980) (upholding determination that healing period did not end when treating physician had indicated claimant could return to work but further treatment would be required). While pain is an integral part of the diagnostic process, pain alone is too subjective to support an award of benefits. See Singleton, supra; Ark.Code Ann. § 11-9-102; see also Smith v. County Market/Southeast Foods, 73 Ark.App. 333, 44 S.W.3d 737 (2001) (explaining the interplay of objective tests and pain in the diagnostic process in describing a disco-gram as an objective test, even though it takes into account a patient’s | ^subjective pain response, because radiographic images of the dye are not subject to a claimant’s manipulation).

This court should not elevate a medical professional’s legitimate utilization of a patient’s identification of pain as a diagnostic technique into a legally sufficient basis for awarding or denying a workers’ compensation claim. We cannot award benefits solely on the subjective descriptions of pain. See Singleton, supra; Ark.Code Ann. § 11-9-102. To deny a claim based upon a doctor’s initial impression in the diagnostic phase that he believes the pain is inconsistent with the undisputed objective medical findings completely disregards not only our precedents, but our acceptance of the general unreliability of the subjective experience of pain. This court has consistently held that pain alone cannot support an award of benefits. Conversely, we should hold that an injured employee’s description of pain is not legally sufficient to deny an award of benefits. The majority’s characterization of the Commission’s analysis as merely one of credibility ignores the Commission’s duty to properly evaluate the factual basis of the medical opinions and this court’s duty to evaluate the legal soundness of the decision.1 Accordingly, I would reverse.

. The concurrence’s discussion of the arbitrary disregard of evidence in the context of a worker's compensation case echos a concurring opinion in Pyle v. Woodfield, Inc., 2009 Ark. App. 251, 306 S.W.3d 455. Both seem to attempt an unspecified correction of this court’s misapplication of the standard. The discussion has no place in the analysis of this case and, even if it did, it fails to set forth a correct statement of the law or this court's application of the law.