Get Rid of It Ark. v. Graham

Cite as 2016 Ark. App. 88

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-717

GET RID OF IT ARKANSAS Opinion Delivered February 10, 2016
AND CHARTIS
APPELLANTS APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G102391]

CURTIS GRAHAM
APPELLEE AFFIRMED

RITA W. GRUBER, Judge

Get Rid of It Arkansas (Get Rid of It), a sanitation company, appeals the June 1, 2015

decision of the Arkansas Workers’ Compensation Commission (Commission) that reversed

the administrative law judge’s decision and awarded Curtis Graham additional medical

treatment for a 2011 compensable injury. Get Rid of It claims error concerning the admission

of additional medical evidence generated after the hearing before the administrative law judge.

It contends that its rights of procedural due process were violated by the Commission’s

allowing the evidence into the record after the law judge rendered a decision; that the

Commission acted outside its authority by allowing the evidence to be introduced without

a remand; and that the Commission abused its discretion in allowing the evidence into the

record after the case had been heard and decided by the law judge. Get Rid of It further

contends that substantial evidence does not support the Commission’s determination that Mr.

Graham established entitlement to additional medical treatment. We affirm.
Cite as 2016 Ark. App. 88

On March 18, 2011, Mr. Graham sustained the compensable injury to his left knee in

a fall from the top of a dumpster; his foot “hung,” and he twisted before landing on the

ground. He received medical treatment including arthroscopic surgery of the knee in July

2011 by Dr. William Henceroth. On January 9, 2012, Dr. Henceroth determined that Mr.

Graham had achieved maximum medical improvement; he was assigned a two percent

permanent impairment rating and was released without restrictions regarding the knee. At

a February 7, 2013 hearing before an administrative law judge, Mr. Graham claimed that he

had also suffered a compensable back injury in the fall from the dumpster. The law judge

denied the claim. The Commission affirmed in a decision entered on September 11, 2013.

Mr. Graham subsequently claimed that he was entitled to additional medical treatment

for his left knee. Get Rid of It responded that all appropriate benefits had been paid and that

“medical documentation does not support entitlement to additional medical treatment.” At

an August 28, 2014 hearing before the administrative law judge, Mr. Graham proffered a

medical report reflecting that he had been treated at Reinhart Family Healthcare beginning

on July 9, 2014, for complaints of knee pain and balance problems. Get Rid of It objected

because the document had been submitted only three days before the hearing, thus violating

a prehearing order for a “seven-day cutoff.” The law judge reserved her ruling on whether

to admit the additional evidence.1 Mr. Graham testified that he continued to have knee pain

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Mr. Graham stated at the hearing that he did not object if Get Rid of It wanted extra
time to determine whether it needed to take the physician’s deposition. Get Rid of It
responded that it “should not have to deal with the record three days before the hearing in
any form or fashion” and that the prehearing order was “basically being ignored.”

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and weakness, he could not balance, he could not put weight on the knee, and he had

sustained no additional injuries to it. He testified that on July 9, 2014, Dr. Jeffrey Reinhart

had injected the knee, given him (Graham) pain medications, and referred him to an

orthopedic surgeon.

In a November 25, 2014 decision, the law judge allowed the late-filed medical report

into the record but denied Mr. Graham’s claim for additional medical treatment of the knee.

She found that the only medical evidence supporting a need for additional treatment was the

report reflecting that Dr. Reinhart had injected the knee in July 2014. She noted that Mr.

Graham had not sought additional medical treatment for the left knee at the 2013 hearing; he

had stated in a March 2012 deposition that he was using a cane for a hip injury from an

unrelated motor-vehicle accident, which had occurred in November 2011; no additional

medical treatment had been recommended for the compensable knee injury; and all medical

bills for it had been paid. Mr. Graham appealed.

On January 16, 2015, after appellate briefs had been filed with the Commission, Mr.

Graham filed a motion for introduction of additional evidence. Attached to his motion were

four medical reports of treatment he had received following the August 28, 2014 hearing

before the administrative law judge. The motion stated as follows:

[Mr. Graham] was seen September 9, 2014, for a follow-up visit with his treating
physician, Dr. Jeffery Reinhart. On his oath, counsel states that the report was not
received in his office until December 18, 2014, . . . well after the hearing and also after
the Administrative Law Judge’s November 25, 2014 Opinion. . . . The record reflects
Dr. Reinhart’s referral to Dr. Ken Martin, the well-known Little Rock Orthopedic
surgeon. Claimant requests the introduction of Exhibit A (attached).

Exhibit B (attached) is the October 22, 2014, initial evaluation report of Dr.

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Martin. This report did not exist until after the . . . Administrative Law Judge hearing.
On his oath, counsel states that this report was not received in his office until January
2, 2015 . . . well after the hearing and well after the November 25, 2014
Administrative Law Judge Opinion was issued. . . .

Exhibit C (attached) is the operative note of Dr. Martin, reflecting the conduct
of an arthroscopic knee surgery performed January 2, 2015. On his oath, counsel
states that this report was not received in his office until January 16, 2015 (see fax date
across top of record). The report did not exist prior to the hearing or the
Administrative Law Judge’s Opinion. . . .

Exhibit D is the surgical follow-up evaluation of January 8, 2015. This report
was received by claimant’s counsel January 16, 2015 (see fax date on top of report).
It did not exist prior to the hearing or the Administrative Law Judge Opinion . . . .

Get Rid of It objected that Mr. Graham had shown no valid reason why the reports should

be allowed into the record.2

On February 26, 2015, the Commission entered an order allowing the medical reports,

noting that they did not exist at the time of the August 28, 2014 hearing before the law judge.

The Commission directed the clerk to place the case on its submission docket. In its June 1,

2015 decision, the Commission found that the law judge’s admission of the July 2014 medical

report from Dr. Reinhart was proper. Regarding the newly discovered medical reports

generated after the hearing, the Commission noted that Mr. Graham had a September 9, 2014

follow-up visit at Reinhart Family Healthcare for bilateral knee pain and subsequently was

treated by Dr. Martin. The Commission’s decision also included the following summary of

Dr. Martin’s reports:

Dr. Kenneth Martin examined the claimant on October 22, 2014:

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Get Rid of It did not request a continuance to conduct discovery of these reports.

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Mr. Graham is a 63 yo male who c/o left knee pain for 3.5 years duration.
Patient denies any specific injury at this time but continued pain. Patient had
knee arthroscopy by doctor in Mississippi in 2011 for likely meniscal tears . .
. . Patient is now retired and has pain along Medial Joint Line that keeps him
awake at night and prevents him from performing ADLs . . . . He is currently
having instability causing falls which is his primary reason for coming to
orthopedic doctor today. . . .

Dr. Martin reported a mild effusion in the claimant’s left knee. Dr. Martin’s
impression was “Left knee pain/instability. Plan: 1. MRI of left knee to r/o any
internal derangement or soft tissue injury and to grade cartilage damage at this time.
2. Physical Therapy referral for quad strengthening.” An x-ray was done on October
22, 2014: “AP full weightbearing, lateral, Rosenberg, and Merchant views of the left
knee reveal joint space narrowing medially, small osteophytes on the tibial eminence,
minimal sclerosis on the patella, a lateral tilt, and mild subluxation on the Merchant
view.”

An x-ray was done on October 22, 2014: “AP full weightbearing, lateral, Rosenberg,
and Merchant views of the left reveal joint space narrowing medially, small osteophytes
on the tibial eminence, minimal sclerosis on the patella, a lateral tilt, and mild
subluxation on the Merchant view.”

The Commission noted that Mr. Graham was appealing the law judge’s November

2014 denial of the claim for additional medical treatment of the left knee. The Commission

noted Dr. Martin’s January 2, 2015 medical report stating that Mr. Graham—with his history

of medial joint line pain, persistent pain medially following past arthroscopy, and continued

discomfort—was again a candidate for arthroscopy. The Commission noted the January 2,

2015 surgery performed by Dr. Martin—arthroscopic partial medial meniscectomy and

limited synovectomy—and noted the postoperative diagnosis of torn medial meniscus,

synovitis with suprapatellar plica, and Grade II medial compartment chondromalacia. Based

on its de novo review of the entire record, the Commission found that Mr. Graham had

proved that he was entitled to additional medical treatment and had proved that the treatment

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provided by Dr. Martin, including the 2015 surgery, was reasonably necessary in connection

with the 2011 compensable injury.

I. Introduction of Additional Evidence

Get Rid of It contends that its constitutional rights of procedural due process and

entitlement to a full and fair adjudication were violated by the Commission’s action in

allowing the admission of evidence that was generated after the hearing before the law judge

and after briefs had been filed with the Commission. It argues that it was left without

opportunity to investigate, develop, or otherwise challenge the records. Arguments are not

preserved for appellate review, however, when no ruling was obtained from the Commission.

Trejo v. Meeks Lumber Co., 2015 Ark. App. 649, at 2. Because Get Rid of It obtained no

ruling from the Commission on the issue of due process, the issue is not preserved for our

review.

Get Rid of It also argues that the Commission acted outside its statutory authority and

abused its discretion in allowing the newly generated medical reports to be introduced. Get

Rid of It notes that Mr. Graham furnished the medical reports only three days before the

hearing, that he did not request a separate hearing for the purpose of introducing them as

additional evidence, and that the Commission did not order a hearing for the purpose of

introducing additional evidence. Specifically, Get Rid of It argues that Mr. Graham “did not

request a hearing as required by statute.” (Emphasis added.) This is an incorrect statement of

law.

Even when a party fails to meet the statutory requirement of furnishing the opposing

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party and the Commission with physicians’ written reports seven days prior to a hearing,

introduction of the reports may be allowed at the discretion of the hearing officer or the

Commission. Ark. Code Ann. § 11-9-705(c)(2)(A), (c)(3) (Repl. 2012). See also Ark. Code

Ann. § 11-9-704(b)(7) stating that the Commission “may remand” any case before it “to a

single member of the Commission or administrative law judge . . . for the purpose of taking

additional evidence”; Ark. Code Ann. § 11-9-705(c)(1)(B), (C) (allowing, at the discretion

of the hearing officer or Commission, a further hearing for the purpose of introducing

additional evidence when a party has not complied with the statutory requirement of

presenting all evidence at the initial hearing on a controverted claim). There was no statutory

requirement that Mr. Graham request a hearing on the introduction of additional evidence

or that the Commission conduct such a hearing before allowing the introduction of the newly

generated medical reports into the record. Furthermore, Get Rid of It did not obtain a ruling

on this issue.

A motion to present new evidence should be granted when the movant was diligent

in presenting it and the evidence is relevant, not cumulative, and would change the result of

the case. St. Joseph’s Mercy Med. Ctr. v. Redmond, 2012 Ark. App. 7, at 10, 388 S.W.3d 45,

51; Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 86, 250 S.W.3d 263, 276 (2007) (citing

Hargis Transp. v. Chesser, 87 Ark. App. 301, 190 S.W.3d 309 (2004)). The Commission

should be more liberal, rather than more stringent, with the admission of evidence, and its

decision will not be reversed absent a showing of abuse of discretion. Coleman v. Pro Transp.,

Inc., 97 Ark. App. 338, 345 S.W.3d 149, 154 (2007) (citing Bryant v. Staffmark, Inc., 76 Ark.

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App. 64, 61 S.W.3d 856 (2001)).

In its June 1, 2015 decision, the Commission noted that it is given broad discretion in

the admission of evidence; noted its duty to be liberal rather than strict regarding the

admission of evidence; and noted the statutory directive that it “shall not be bound by

technical or statutory rules of evidence,” but may make such investigation or inquiry, or

conduct the hearing “in a manner as will best ascertain the rights of the parties.” See Ark.

Code Ann. § 11-9-705(a). The Commission found that Mr. Graham was diligent in

presenting medical exhibits that did not exist at the time of the hearing before the law judge.

It further found that the medical documents were relevant, were not cumulative, and could

change the result of the case. On this basis, the Commission allowed them to be admitted

into evidence.

Get Rid of It argues that Mr. Graham was not diligent in requesting further

proceedings after the hearing before the law judge; that he, rather than his attorney, was the

movant in requesting further proceedings for the introduction of additional evidence; and that

the Commission improperly focused its analysis on the diligence of his attorney, rather than

Mr. Graham, in deciding the issue of diligence. Whether the claimant was diligent in

obtaining relevant evidence is the Commission’s province to determine. Fred’s Stores of Tenn.,

Inc. v. Ely, 2012 Ark. App. 238, at 6.

Regarding the argument that Mr. Graham was the movant rather than his attorney,

we again state that we will not address an issue when no ruling was obtained from the

Commission. The medical reports at issue, having not been known before, were undeniably

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not cumulative. They were relevant, particularly regarding Dr. Martin’s evaluation of Mr.

Graham’s continuing left-knee pain and the resultant surgery. As was subsequently shown by

the Commission’s reversal of the denial of this claim, the reports changed the outcome of the

case. The Commission has broad discretion with reference to the admission of evidence, and

it should be liberal in making those decisions. Coleman, supra. We find that the Commission

did not abuse its discretion in admitting the newly generated medical records as additional

evidence in this case.

II. Reasonably Necessary and Related Medical Treatment

Get Rid of It contends that the Commission’s determination that Mr. Graham

established entitlement to additional medical treatment is not supported by substantial

evidence. Get Rid of It points to the period from January 2012, when the initial surgeon last

treated Mr. Graham, until July 2014, when he again sought treatment. Get Rid of It argues

that there is no causal link between the 2014–15 treatment and the 2011 injury and that Mr.

Graham’s claim of ongoing symptoms is undermined by his various actions and

statements—such as representing to Workforce Services that he had no disabilities associated

with his knee to prevent his working full time.

The employer shall promptly provide for an injured employee such medical services

as may be reasonably necessary in connection with the injury received by the employee. Ark.

Code Ann. § 11-9-508(a). 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

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Ark. App. 248, 205 S.W.3d 181 (2005). We defer to the Commission’s findings of credibility

and the resolution of conflicting evidence. Welcher v. Davis Nursing Home, 2009 Ark. App.

831.

Here, the Commission noted that Mr. Graham was released from medical care with

a two percent permanent impairment rating in 2012 after undergoing surgery for a torn

meniscus; that he contended that he continued to suffer chronic pain and instability; and that

Dr. Martin’s postoperative report of January 2015 included “torn meniscus.” The

Commission wrote,

There is no indication in the record that the torn meniscus discovered by Dr. Martin
was causally related to any circumstance other than the original 2011 injury. The
respondents argue that the claimant waited too long to seek additional medical
treatment, but the claimant correctly argues that the respondents did not raise a statute
of limitations defense.

It is well established that we defer to the Commission’s findings of credibility and

resolution of conflicting evidence. Stauber v. City of North Little Rock, 2015 Ark. App. 54, at

5. On appellate review, we view the evidence and all reasonable inferences deducible

therefrom in the light most favorable to the Commission’s findings, and we affirm if the

decision is supported by substantial evidence. Id. Substantial evidence exists if reasonable

minds could reach the Commission’s conclusion. Id.

Here, the Commission assessed the weight and credibility of evidence regarding Mr.

Graham’s continued symptoms after his release from medical care following the first knee

surgery and his need for additional medical treatment in 2014–15. Get Rid of It’s arguments

go to the weight of the evidence, the interpretation of medical evidence, and the credibility

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of Mr. Graham’s testimony—which are matters for the Commission rather than the appellate

court. Viewing the evidence in the light most favorable to the findings of the Commission,

we hold that its decision to award Mr. Graham’s claim for additional medical care is supported

by substantial evidence.

Affirmed.

WHITEAKER and HOOFMAN, JJ., agree.

Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, for appellants.

Gary Davis, for appellee.

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