Jack Nelson Jones Professional Association

June 11-17, 2018

Northwest Ark. Cmty. College & Pub. Emple. v. Migliori, 2018 Ark. App. 286 (May 3, 2018)

This appeal comes from the Arkansas Workers’ Compensation Claims Division and involves its determination of a compensable head injury caused by falling off a yoga ball.

Heidi Migliori was employed as an administrative analyst for the vice president of learning at Northwest Arkansas Community College (“NWACC”). On July 28, 2016, she arrived at work, retrieved a yoga ball from a coworker’s office, placed the ball on the floor in front her desk, sat down on the ball, and began to work at her computer. However, she had never sat on a yoga ball before, and, when she needed a book behind her, she turned and instinctively pushed off from her desk, causing her to fall off the ball and hit the left side of her head on the desk. She reported the injury to NWACC, sought medical treatment for a head injury, and later requested workers’-compensation benefits. NWACC controverted the claim, contending that she did not sustain a compensable injury and that her need for medical treatment was not related to the alleged injury but rather to preexisting medical issues.

At the hearing before the ALJ, Migliori testified that after she fell off the ball, she called a coworker, Lindsey White. She stated that White, along with coworker Cheryl Wagner, came to her assistance. Wagner called the NWACC human-resources representative, who filled out the first report of injury dated the same day as the fall and stated that Migliori’s injury was “Concussion,” the part of the body affected was “Skull,” and that the injury was caused when “Heidi pushed backwards on the yoga chair she uses as a chair at her desk and rolled off the chair hitting the back of her head on her wooden desk.” Migliori testified that, as a result of the accident, she experienced left-side facial numbness, left-ear ringing, neck pain, vertigo (dizziness), and headaches.

She testified that soon after she fell, she was seen by an NWACC nurse, who diagnosed her with a contusion and sent her to Mercy Clinic for treatment. The Clinic’s medical report stated that Migliori “hit back of head at 07:16 this morning falling off a yoga ball chair, HA, struggling to read forms here, left ear pain/pressure/numbness/tingling, shaky, denies other symptoms.”

Migliori subsequently returned to Mercy Clinic and was seen by Dr. David Sitzes. In his August 1 report, Dr. Sitzes stated that Migliori was experiencing ringing in the left ear and eye twitching. He stated that Migliori reported that the “bump is gone” but still felt pain, and the left side of her face felt swollen. He requested CT scans which were normal. One of the radiology reports reflected that she had been diagnosed with post-concussion headache; pressure, hearing loss, and tinnitus in the left ear; vertigo; contusion of the scalp; and visual impairment.

Migliori requested a referral to her chiropractor, Dr. Kent Moore who she saw six times from August 4 to September 6, 2016. He later opined that Migliori’s head injury was work related and was supported by objective findings and the injury was the major cause for her need of his treatment.

Migliori admitted that she had been a patient of Dr. Moore’s for spine issues, along with headache and migraine complaints, following a car accident in April 2012 that gave her severe whiplash and headaches. She said that she had been released from Dr. Moore’s treatment in April 2013 but continued to see him as needed. She stated that the symptoms she experienced after the yoga ball fall were “most certainly different” from the problems she had after the car accident.

Migliori stated that Dr. Sitzes restricted her from work for two weeks and assigned her to light-duty work for two weeks after that. He released her to return to work full duty on August 28, 2016. She stated that she was no longer experiencing problems related to the accident and has been working full time since September 1, 2016.

In March 2017 she was seen by an audiologist, Dr. Shawn Key, because of continuing symptoms. He stated in his report of the same date, that she had been diagnosed with a concussion after she fell off a yoga ball and hit her head with force on a desk. He diagnosed her with mild left-unilateral sensory hearing loss. He acknowledged that she suffered from mild hearing loss in her left ear in 2012, yet he also opined that Migliori’s change in tinnitus, postconcussion, could be due to swelling around the nerves and that her vertigo “is more likely than not a result of the impact to her head, which resulted in a concussion.”

NWACC contested her eligibility for benefits based on her prior medical history and the testimony of White and Wagner who stated they did not see a bruise or any bleeding when they went to assist her and did not think there was any significant injury. However, Wagner admitted when shown a picture of the contusion that Migliori had thick hair and she could not dispute it if a doctor found she had a contusion.

After hearing all the evidence, the ALJ determined that there was no question that the fall occurred at work and that Migliori took all the appropriate steps in reporting the injury and completing the claims process. The ALJ then found that Migliori’s testimony was credible and was supported by two witnesses and the medical evidence. The ALJ found that medical records reflected that she suffered a concussion and a scalp contusion and that she was restricted from work for two weeks as per doctor’s orders. The ALJ stated that while Migliori suffered from ringing in the ears before the July 2016 fall, based on Dr. Key’s medical report, this condition was worsened by the 2016 fall. The ALJ further stated that there were objective findings to support the injury and that they were causally connected to Migliori’s work-related incident.  The ALJ found that Migliori had proved that the medical treatment she received was reasonably necessary for her compensable head injury; thus, she was entitled to medical benefits. Finally, the ALJ found that Migliori met her burden of proving that she was taken off work for a two-week period and suffered a total incapacity to earn wages; accordingly, she was entitled to temporary total-disability benefits. On appeal to the Commission, it adopted the ALJ’s opinion and NWACC appealed.

The Court of Appeals noted that the Commission was permitted to adopt the findings and conclusions of the ALJ and that it would look to the ALJ’s decision as that of the Commission. It noted that on appeal it would view the evidence in the light most favorable to the Commission’s decision and must affirm if it is supported by substantial evidence which is simply evidence that a reasonable mind might accept as adequate. It further noted that the determination of the credibility of witnesses was the exclusive province of the Commission and that it was within the Commission’s province to reconcile conflicting evidence.

Applying these standards, the Court of Appeals found that the Commission had the duty of weighing medical evidence and resolving conflicting evidence was a question of fact for the Commission. Moreover, it had the authority to accept or reject medical opinions, and its resolution of the medical evidence had the force and effect of a jury verdict. It also noted that the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. However, here, it held the Commission did not disregard the medical evidence but weighed it, giving more weight to Dr. Key’s opinion that Migliori’s current complaints were caused by her fall from the yoga ball and not her preexisting conditions. Accordingly, the Court affirmed the determination of the Commission.