Gerdau MacSteel and Gallagher Bassett Services, Inc. v. Jason Hindmarsh

Cite as 2019 Ark. App. 458
Digitally signed by Elizabeth
Perry
ARKANSAS COURT OF APPEALS
Date: 2022.08.03 14:19:56 -05'00' DIVISION II
Adobe Acrobat version: No. CV-19-227
2022.001.20169
Opinion Delivered: October 16, 2019
GERDAU MACSTEEL AND
GALLAGHER BASSETT SERVICES,
INC. APPEAL FROM THE ARKANSAS
APPELLANTS WORKERS’ COMPENSATION
COMMISSION
V. [NO. G504197]

JASON HINDMARSH
APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Gerdau Macsteel (“Macsteel”) appeals the decision of the Arkansas

Workers’ Compensation Commission (Commission) that determined appellee Jason

Hindmarsh proved his entitlement to additional medical treatment and awarded him

temporary-total disability (TTD) benefits. Macsteel argues that the Commission’s decision

was not supported by substantial evidence. We affirm.

I. Factual and Procedural Background

Hindmarsh sustained an admittedly compensable lower-back injury in April 2015

while doing physical inventory for Macsteel. Hindmarsh received conservative treatment

for his injury without positive results. He underwent a lumbar MRI scan in August 2015

and a similar MRI in November. Both scans indicated no disc bulges or protrusions and

showed “no definite lumbar spine abnormality.” Hindmarsh continued to experience
lower-back pain and eventually saw Dr. Kyle Mangels. 1 Dr. Mangels ordered another MRI,

which was “read as being unremarkable” by Dr. Matthew Powers. Dr. Mangels also

described the MRI findings as “basically negative.” Nevertheless, because of Hindmarsh’s

complaints of unexplained pain, Dr. Mangels thought a discogram was warranted. 2

Dr. Andrew Revelis performed the discogram of Hindmarsh’s lumbar spine. He

reported that the L4-5 disc had a normal retention of contrast within the nucleus of the disc,

indicating a “normal nonpainful disc.” Regarding the L5-S1 disc, however, Dr. Revelis

opined that the disc was “unable to achieve a maximum pressure,” which indicated “annular

degeneration . . . with extravasation[3] of contrast into the outer third of the annulus and the

left periannular space.” Hindmarsh also reported concordant pain when the disc was injected

that was consistent with the pain he usually experienced. Dr. Revelis’s impressions were

that L4-5 was a normal, nonpainful disc, but L5-S1 was a “painful, concordant degenerated

disc.” Dr. Revelis then sent Hindmarsh to Dr. Powers for a postdiscogram CT scan. Dr.

Powers’s report of the CT scan showed no abnormalities, however, and his review of the

L5-S1 discogram found “an intranuclear injection of contrast material without evidence of

posterior annular tear.”

1
Hindmarsh’s request for treatment by Dr. Mangels was contested by Macsteel and
was resolved at a hearing (unrelated to this appeal) before an administrative law judge.
2
A discogram is a test in which a needle is placed into a disc between the vertebrae,
contrast material is injected into the disc, and x-rays and CT scans are performed to see if
the images correlate to the patient’s pain.
3
“Extravasation” means the leakage of fluids from where they are supposed to be into
the surrounding tissue.

2
After the discogram and CT scan, Hindmarsh followed up with Dr. Mangels. Dr.

Mangels reviewed the films, including the postdiscogram CT, and opined that Hindmarsh

had disc disease at the L5-S1 level. He advised Hindmarsh about surgical options, including

a posterior lumbar fusion, and Hindmarsh expressed a desire to consider surgery. Macsteel

denied the requested surgical treatment, and Hindmarsh filed his workers’-compensation

claim seeking approval for the requested treatment as well as TTD benefits.

Hindmarsh’s claim proceeded to a hearing before an administrative law judge (ALJ),

who found that Hindmarsh had proved his entitlement to additional medical treatment in

the form of the surgery recommended by Dr. Mangels. The ALJ also found that Hindmarsh

had demonstrated his entitlement to TTD benefits from November 15, 2017 through a date

to be determined. The Commission affirmed and adopted this decision in a 2–1 opinion.

Macsteel timely appealed.

II. Standard of Review

Normally, we review only the decision of the Commission, not that of the ALJ.

Queen v. Nortel Networks, Inc., 2012 Ark. App. 188, at 3. When, however, as here, the

Commission affirms and adopts the ALJ’s opinion, thereby making the findings and

conclusions of the ALJ the Commission’s findings and conclusions, our court considers both

the ALJ’s opinion and the Commission’s opinion. Mercy Hosp. Fort Smith v. Hendley, 2015

Ark. App. 527.

Our court views the evidence in the light most favorable to the Commission’s

decision and affirms the decision if it is supported by substantial evidence. Baxter Reg’l Med.

Ctr. v. Ferris, 2018 Ark. App. 625, 565 S.W.3d 149. Substantial evidence exists if reasonable

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minds could reach the Commission’s conclusion. Id. The issue is not whether the appellate

court might have reached a different result from the Commission, but whether reasonable

minds could reach the result found by the Commission. Prock v. Bull Shoals Boat Landing,

2014 Ark. 93, 431 S.W.3d 858.

III. Discussion

A. Additional Medical Benefits

In its first point on appeal, Macsteel argues that Hindmarsh failed to meet his burden

of demonstrating his entitlement to additional medical treatment. Arkansas Code Annotated

section 11-9-508(a) (Repl. 2012) requires an employer to provide an employee with

medical and surgical treatment “as may be reasonably necessary in connection with the

injury received by the employee.” However, a claimant bears the burden of proving

entitlement to additional medical treatment. LVL, Inc. v. Ragsdale, 2011 Ark. App. 144, 381

S.W.3d 869. What constitutes reasonably necessary treatment is a question of fact for the

Commission. Id. Macsteel contends that fair-minded persons reviewing the facts could not

come to the conclusion that the surgery recommended by Dr. Mangels was reasonable and

necessary.

In support of its argument, Macsteel notes that Hindmarsh had three unremarkable

MRIs over the course of two years, and it urges that “the only manifestation of Hindmarsh’s

injury are his complaints of pain.” 4 Macsteel also points to the record it developed as part

4
We acknowledge that compensable injuries must be established by medical evidence
supported by objective findings, Ark. Code Ann. § 11-9-102(4)(D), and objective findings
are those that cannot come under the voluntary control of the patient. Ark. Code Ann. §
11-9-102(16)(A)(i). Complaints of pain are not objective medical findings. Ark. Sec’y of State
v. Young, 2018 Ark. App. 508, at 8, 559 S.W.3d 331, 336. We note, however, that a

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of the ensuing litigation wherein it sought medical opinions from Dr. Stephen Cathey and

Dr. David Reding.

Dr. Cathey testified that he reviewed Hindmarsh’s medical records and did not

observe any objective findings either clinically or radiographically. He dismissed the use of

the discogram as a diagnostic tool, asserting that the MRI was “much more useful” and the

discogram was not “necessarily reliable.” He also noted that the follow-up CT scan after

the discogram was “normal.” In short, he could not recommend any kind of surgical

intervention.

Likewise, Dr. Reding opined that Hindmarsh’s multiple MRIs were normal and did

not reflect any herniation or spinal-cord impingement. He also did not approve of using

discograms as diagnostic tools, saying that he never felt they gave valid information about

the cause of pain. In his opinion, the most valuable part of a discogram was the CT scan

that was done afterward, and Hindmarsh’s CT scan indicated his disc was normal. Dr.

Reding’s conclusion, after his review of the medical records, was that there was nothing in

the records to indicate that surgery was warranted.

Macsteel acknowledges that the ALJ’s decision was “entirely based on his acceptance

of Dr. Mangels’s opinions over those of Drs. Cathey and Reding.” It argues, however, that

the doctors’ opinions were diametrically opposed, and it cites Titan Oil & Gas, Inc. v. Shipley,

257 Ark. 278, 298, 517 S.W.2d 210, 223 (1974), for its statement that “[w]here the evidence

claimant like Hindmarsh who has sustained a compensable injury is not required to offer
objective medical evidence to prove entitlement to additional benefits. Ark. Health Ctr. v.
Burnett, 2018 Ark. App. 427, at 9, 558 S.W.3d 408, 414.

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tends equally to sustain two inconsistent propositions, the party having the burden of proof

cannot prevail.”

We do not find Macsteel’s reliance on Titan Oil & Gas persuasive, primarily because

Titan Oil & Gas was not a workers’-compensation case. In workers’-compensation cases,

we have repeatedly held that it is the Commission’s duty rather than ours to make credibility

determinations, to weigh the evidence, and to resolve conflicts in medical opinions,

evidence, and testimony. See Ark. Dep’t of Transp. v. Abercrombie, 2019 Ark. App. 372, at

13, 584 S.W.3d 701, 710; Ark. Highway & Transp. Dep’t v. Work, 2018 Ark. App. 600, 565

S.W.3d 138; Gibson v. Wal-Mart Assocs., Inc., 2012 Ark. App. 560. In fact, the Commission

has the authority to accept or reject medical opinions, and its resolution of the medical

evidence has the force and effect of a jury verdict. Lonoke Exceptional Sch., Inc. v. Coffman,

2019 Ark. App. 80, at 3, 569 S.W.3d 378, 381. When there are contradictions in the

evidence, it is within the Commission’s province to reconcile conflicting evidence and to

determine the true facts. Kroger Ltd. P’ship I v. Bess, 2018 Ark. App. 404, at 6, 555 S.W.3d

417, 421; Neal v. Sparks Reg’l Med. Ctr., 104 Ark. App. 97, 289 S.W.3d 163 (2008).

Macsteel nonetheless argues that the Commission erred by arbitrarily disregarding

the medical evidence before it, contending that the Commission ignored Dr. Powers’s

interpretation of the postdiscogram CT as “normal.” We disagree.

Macsteel is correct in this regard: the Commission may not arbitrarily disregard

medical evidence. See Coffman, supra. This court has noted, however, that the Commission’s

failure to specifically discuss conflicting evidence does not mean that the evidence was

arbitrarily disregarded when there is substantial evidence to support the Commission’s

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decision. Raulston v. Waste Mgmt., Inc., 2012 Ark. App. 272, at 7, 411 S.W.3d 711, 715

(citing Unimin Corp. v. Duncan, 2010 Ark. App. 119). We conclude that substantial evidence

supports the Commission’s decision.

Here, the Commission was confronted with competing and differing medical

opinions from multiple doctors. While both Dr. Cathey and Dr. Reding opined that surgery

was not reasonable or necessary, both admitted that they did not personally examine or

evaluate Hindmarsh, and neither of them actually reviewed the MRIs and CT films; instead,

they relied only on the report from the radiologist. In contrast, Dr. Mangels did conduct

physical examinations of Hindmarsh and personally reviewed the actual films of the

postdiscogram CT scan. 5 The Commission thus found “under these particular circumstances

that the opinion of Dr. Mangels is entitled to greater weight.” The Commission thus

weighed the evidence, gave greater credibility to Dr. Mangels’s opinion for the valid reason

that he was the only doctor to actually examine Hindmarsh, and concluded from the

evidence before it that the requested surgery was reasonable and necessary. Macsteel is

essentially asking this court to reweigh the evidence, which we simply do not do. See Ark.

State Military Dep’t v. Jackson, 2019 Ark. App. 92, at 8, 568 S.W.3d 811, 816 (“In asking us

to overturn the Commission’s decision, ASMD is requesting us, in essence, to reweigh the

evidence and credibility findings made by the Commission. That is not our role.”). We

therefore affirm on this point.

5
Dr. Mangels’s note from the postdiscogram CT scan visit reflects that the
“architecture at L5-S1 is definitely abnormal compared to L4-5 on the CT scan.”

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B. TTD Benefits

In the closing paragraph of its brief, Macsteel asserts that the decision to award

Hindmarsh TTD benefits was not supported by substantial evidence. It urges that

Hindmarsh failed to prove that he suffered a period of time before, on, or after November

15, 2017, when he was unable to work because of his compensable injury. We do not

address the merits of Macsteel’s argument, however, because it is unsupported by any

citation to convincing authority. When an appellant fails to cite any convincing authority

to support its argument, we will not address it on appeal. See Stutzman v. Baxter Healthcare

Corp., 99 Ark. App. 19, 24–25, 256 S.W.3d 524, 527 (2007); Family Dollar Stores, Inc. v.

Edwards, 97 Ark. App. 156, 162, 245 S.W.3d 181, 185 (2006); Jones Truck Lines v.

Pendergrass, 90 Ark. App. 402, 409, 206 S.W.3d 272, 277 (2005) (“Assignments of error that

are unsupported by convincing authority will not be considered.”).

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Dover Dixon Horne PLLC, by: Joseph H. Purvis and Monte D. Estes, for appellants.

Medlock and Gramlich, LLP, by: M. Jered Medlock, for appellee.

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