Opinion
CLAIM NO. E005739
ORDER FILED FEBRUARY 24, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FLOYD M. THOMAS, JR., Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on July 15, 1999. In that opinion and order, the administrative law judge found that the claimant was entitled to additional temporary total disability benefits from June 1998 to a date yet to be determined; that the medical treatment rendered to the claimant under the care of Drs. Hart and Sheppard is reasonable and necessary and related to her November 26, 1988, compensable injury; that the selection of a Board Certified Psychiatrist in El Dorado for psychiatric treatment of the claimant is reasonable and necessary and related to the claimant's compensable injury; that the respondents are responsible for all of the claimant's hospital and medical bills arising from the injury including the EMG recommended by Dr. Edward Saer; and that the respondents controverted payment of temporary total disability benefits subsequent to June 1998 and the payment of all medical and psychiatric benefits subsequent to June 6, 1998. After conducting a de novo review of the entire record, we find that the claimant's healing period following her 5th surgery ended in June of 1998, and she failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability benefits. Therefore, we find that the administrative law judge's decision in this regard must be reversed. However, we find that in all other respects, the decision of the administrative law judge must be affirmed.
The claimant sustained an admittedly compensable injury in 1988. She was involved in a motor vehicle accident and injured her back. As a result of this injury, the claimant has undergone five surgeries to her neck. The claimant's fifth and final procedure was performed on August 1, 1997. At issue currently is whether the claimant is entitled to additional temporary total disability benefits beyond June of 1998, continuing treatment by Dr. Thomas Hart, follow-up treatment with Dr. James Sheppard, prescription medication prescribed by Dr. Hart, psychiatric treatment by a psychiatrist in El Dorado, and finally the respondent's request that the claimant submit to an evaluation by Dr. Robert Valentine.
HEALING PERIOD/ADDITIONAL TEMPORARY DISABILITY COMPENSATION
Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages.Arkansas State Highway Transportation Dept. V. Breshears, 272 Ark. 244, 613 S.W.2d (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of her injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
The evidence shows that the claimant was assessed a permanent partial disability impairment rating of 30% in June of 1998 by Dr. Saer. The respondents have accepted this impairment rating and benefits have been paid to the claimant in accordance with this rating. In addition, Dr. Safman released the claimant as having reached maximum medical improvement in June of 1998. Dr. Saer noted in June of 1998 that the claimant was healed from a surgical standpoint.
Dr. Hart's deposition testimony indicates that Dr. Hart intends to treat the claimant indefinitely with narcotic pain medication, which appears to be the same course of medical treatment that Dr. Hart prescribed before the claimant's fifth surgery. All parties now agree that the claimant requires psychiatric evaluation for her chronic pain management.
We find that the greater weight of the evidence indicates that the underlying condition causing the claimant's disability following her 1997 surgery became permanent on June 30, 1998, when the claimant's treating surgeon, Dr. Saer, indicated that the claimant was "healed" from a surgical standpoint. Therefore, we find that the preponderance of the evidence indicates that the claimant's healing period ended on June 30, 1998. Therefore, we find that the administrative law judge's decision in this regard must be reversed.
TREATMENT AND MEDICATION BY DR. HART
It is the contention of respondents that continued treatment by Dr. Hart is not reasonably necessary. However, respondents are not opposed to treatment by another pain management specialist. An appointment was scheduled with Dr. Valentine; however, the claimant declined to attend. The problem respondents have with Dr. Hart is the type and quantity of medication he has prescribed for the claimant. In addition to other medication, Dr. Hart has prescribed Oxycontin, a Class II narcotic, for the treatment of the claimant's chronic pain. Beginning in February of 1998, respondents controverted claimant's entitlement to the medicine prescribed by Dr. Hart.
The claimant's first visit with Dr. Hart occurred on October 2, 1995. The record shows that Dr. Hart attempted to treat the claimant's chronic pain with steroid injections and radio-frequency denervation. In June of 1996, he prescribed Oxycontin. In a chart note dated June 20, 1996, Dr. Hart explained that he had no cure for claimant's condition. Instead, he planned to manage claimant's pain pharmacologically, and with as few procedures as possible. Dr. Hart has continued to treat the claimant with narcotic pain medication for her persistent pain after her 1997 surgery, except during a 30-day in-patient program prescribed by Dr. Safman and during a short period thereafter when the claimant came under Dr. Sheppard's care.
The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary. Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 ( D703346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees' injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In workers' compensation cases, the burden rests upon the claimant to establish her claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 ( D512553).
In the present case, we find that the claimant has proven by a preponderance of the evidence that Dr. Hart's treatment of the claimant's chronic pain with narcotic medication has been at all relevant times, and remains, reasonably necessary for treatment of the claimant's work-related injury. In reaching this conclusion, we note that the respondents put forth the following argument on appeal:
Dr. Hart's narcotics program was not reasonably necessary. Such program was the type often seen with treating terminal cancer patients, not for ordinary pain management of a small framed woman. The present evidence shows that when she was on the narcotics, the claimant's health declined. The treatment regime offered by Dr. Hart has clearly been detrimental to the claimant and is not reasonable and necessary.
In assessing the respondent's argument, however, we point out that the claimant was also on narcotic medication for chronic pain control when she was referred to Dr. Hart, and that based on his review of the case, Dr. William Ackerman concluded in a letter dated June 16, 1997 that narcotics are appropriate for the claimant's severe injury. Likewise, Nurse Doerhoff concluded in a Peer Review dated June 30, 1997, that narcotics were appropriate for the claimant. Dr. Sheppard, who also has no affiliation with Dr. Hart, opined in his deposition that the narcotic Oxycontin is reasonably necessary for the claimant. In fact, Dr. Safman was the only physician to even suggest in a deposition that Dr. Hart's treatment might be inappropriate. However, in determining the weight to accord Dr. Safman's opinions on this issue, we note that Dr. Safman acknowledges that henever treats patients with narcotic medications and we note in passing the professional animosity that has developed between Dr. Safman and Dr. Hart. In the present case, we accord greater weight to the testimony of Dr. Hart and Dr. Sheppard, and the reports of Dr. Ackerman and Nurse Doerhoff, than the weight we accord the testimony of Dr. Safman. Based on the testimony and reports of these witnesses, we find that Dr. Hart's chronic pain management has been, and continues to be, reasonably necessary for treatment of the claimant's chronic pain.
DR. SHEPPARD'S TREATMENT
It appears that, by the time the claimant got out of Dr. Safman's 30-day inpatient program in June of 1998, Dr. Safman had completely replaced the claimant's narcotic pain medication with placebos, and the claimant was in significant pain. Dr. Sheppard testified that he had known the claimant somewhat for years, and was struck by the claimant's appearance when the claimant returned to El Dorado. Dr. Sheppard, who had not been treating the claimant previously, re-started the claimant's narcotic pain medication and saw the claimant very frequently at first because the claimant was so distraught. Those visits quickly tapered off to a rate of one per month in El Dorado.
We find that Dr. Sheppard's office visits in El Dorado, where the claimant resides, have been, and will continue to be, reasonably necessary within the required time approved to her chronic pain management. In this regard, the deposition testimony of Dr. Sheppard, Dr. Hart and Dr. Safman indicates that the claimant's chronic pain management will require some type of team approach. Notably, Dr. Safman testified that he did not have any criticism of Dr. Sheppard's treatment to date. To the extent that the respondents assert that Dr. Sheppard appears to have filled the roles of both primary care physician and mental health manager after the claimant's release from in-patient treatment in June of 1998, we point out that it has been the respondents who have failed to authorize the claimant a treating psychiatrist/psychologist in her hometown of El Dorado. Considering the severity of the claimant's distress when she returned to El Dorado, as corroborated by several witnesses in this case, at approximately the time she first presented to Dr. Sheppard, we find that both the nature and the frequency of Dr. Sheppard's office visits, and his treatment have been reasonably necessary for treatment of the claimant's injury and chronic pain.
PSYCHIATRIC TREATMENT
The respondents wanted the claimant to present for a psychiatric evaluation to a Dr. Rice in Little Rock, who apparently has a specialty in pain management. The respondents concede that the claimant has requested and been denied psychiatric care in El Dorado, where she lives. However, the adjuster, Melanie Zumstein, conceded in her deposition that, if Dr. Rice recommended an El Dorado psychiatrist, the respondents would agree to pay for the treatment in El Dorado. The administrative law judge found that, through its action, the respondent has controverted the claimant's entitlement to psychiatric treatment and the administrative law judge directed that either Dr. Sheppard, Dr. Hart, or Dr. Saer are authorized to make a psychiatric/psychological referral to a board certified psychiatrist in El Dorado. We affirm these findings.
Under the circumstances, we find that the claimant should be followed by an El Dorado psychiatrist since (1) the claimant lives in El Dorado (2) the claimant cannot drive herself to Little Rock and (3) the claimant will at least initially likely need to see a psychiatrist on a much more frequent basis than the one time every three months that she currently has someone drive her to Little Rock to treat with Dr. Hart.
To the extent that the respondents now state that they have withheld authorizing an El Dorado psychiatrist until Dr. Rice could see the claimant in Little Rock and recommend an El Dorado psychiatrist, we do not perceive any reason from this record why Dr. Rice would need to have actually seen the claimant in his Little Rock office as a prerequisite to Dr. Rice giving the respondent's adjuster the name of a competent El Dorado psychiatrist (there are apparently 5 licensed psychiatrists to choose from in El Dorado) to treat the claimant. Consequently, we are not persuaded by the respondent's assertion that the respondent was justified in delaying psychiatric treatment in El Dorado pending an office visit in Little Rock with Dr. Rice.
EMG ORDERED BY DR. SAER
Neither party deposed Dr. Saer, so there is very little evidence regarding why exactly Dr. Saer has ordered an EMG. However, contrary to the respondent's argument on appeal, there is no credible evidence in the record of any "new" injury to the claimant during the period that she has remained off work, in addition to her compensable injury which has required five surgeries and rendered the claimant 30% physically impaired. We find that an EMG study is appropriate to determine whether the numbness in the claimant's fingers has an origin in her cervical area, with its 11-year-old injury, five surgeries and associated degenerative problems. On that basis, we affirm the administrative law judge's EMG award.
RESPONDENT'S REQUEST FOR EVALUATION BY DR. VALENTINE
The respondents admitted that they directed the claimant to leave Dr. Hart's care and enroll in Dr. Safman's 30-day inpatient program by threatening to terminate the claimant's temporary disability compensation if she did not enter the 30-day program. When Dr. Safman's program failed to achieve the desired results, and Dr. Safman later refused to participate in any way in the claimant's treatment, the respondents demanded (again) that the claimant stop seeing Dr. Hart and that she see Dr. Valentine (another pain specialist).
The respondents now suggest that the respondents seek to send the claimant to Dr. Valentine for an "evaluation" and that the respondents have the right to have the claimant evaluated by a physician of their choosing pursuant to Section 511. We respectfully point out that the respondents' adjuster, Melanie Zumstein, testified on page 34 of her deposition that, if the claimant had agreed to go to Dr. Valentine, the respondents would treat her action as a change of physician. Clearly, the respondent's current argument, that they have only sought an "evaluation" from Dr. Valentine, is contrary to the deposition testimony of the respondent's own adjuster. In light of Ms. Zumstein's testimony that the respondents have sought a change of physician (not an IME) with Dr. Valentine, we deny the respondent's request that the Commission order the claimant to see Dr. Valentine.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant's healing period following her 5th surgery ended in June of 1998 and she is not entitled to any additional temporary total disability benefits. Therefore, we find that the administrative law judge's decision in this regard must be reversed. However, we find that in all other respects, the decision of the administrative law judge must be affirmed.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
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CONCURRING AND DISSENTING OPINION
I concur in part and respectfully dissent in part from the majority's opinion in this case. I concur in all findings related to claimant's medical treatment. However, I must dissent from the finding that claimant failed to prove entitlement to temporary total disability benefits.
Claimant seeks temporary total disability benefits from June of 1998 until an undetermined date. Although Dr. Saer opined that claimant had reached maximum medical improvement on June 30, 1998, he was offering a surgical perspective. His chart note for that date stated:
While I do not think she needs any further surgery at this time, I do think she needs continuing treatment. She needs two things: she needs to be followed by a pain management specialist such as Dr. Hart; she also needs psychologic/psychiatric management for depression and emotional support. I think this is crucial and without this latter component, pain management is going to be extremely difficult.
Dr. Hart opined that claimant is incapable of working. In a letter dated December 5, 1997, he attributed this to her many neck surgeries, including the recent fusion, and the use of narcotic pain medication.
Claimant has not received the psychiatric treatment that she needs. She is receiving some counseling through a local church; however, at least one physician has deemed this insufficient. Respondents refused to provide this treatment.
In my opinion, claimant is entitled to an open-ended award of temporary total disability benefits.
Based on the foregoing, I concur in part and respectfully dissent in part from the majority opinion.
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CONCURRING DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority's opinion. Specifically, I concur in the majority's finding that the claimant's healing period ended in June of 1998. However, I must dissent from the majority's opinion on all other issues.
The claimant began treating with Dr. Hart as a result of a referral from Dr. Austin Grimes. Dr. Hart eventually began treating the claimant with Oxycontin, a class II narcotic. The claimant's dosage was eventually increased to the point she was taking 200 mg per day. Dr. Bruce Safman recommended a thirty day in-patient detoxification program for the claimant. The claimant made good progress while she was in the detoxification program. However, within 10 days of her discharge, she returned to Dr. Hart and was back on narcotics. The narcotics regime that the claimant is on is not reasonable and necessary medical treatment. Claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary.Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 ( D703346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees' injuries.DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In workers' compensation cases, the burden rests upon the claimant to establish her claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 ( D512553).
These type of narcotics are usually used to treat terminally ill cancer patients. They are typically not for ordinary pain management. The claimant is small framed, 4'11" and weighs less than 100 pounds. Her doctors have noted that this is a very strong amount of narcotics for a woman of her size. Accordingly, I would find that the medical treatment by Dr. Hart was not reasonable and necessary medical treatment for the claimant's condition.
Dr. Shepard's treatment is also not reasonable and necessary medical treatment. Dr. Shepard is seeing the claimant monthly for psychological purposes and not for physical healing purposes. Dr. Shepard is not prescribing any medication for the claimant. He simply discusses the claimant's problems with her on a monthly basis. All medical decisions for the claimant are made by other physicians. The respondents should not be liable for these expenses related to the visits by the claimant to Dr. Shepard's office.
All of the claimant's treating physicians agree that the claimant needs psychiatric treatment. The respondents requested an evaluation by Dr. Rice in Little Rock. If Dr. Rice approves the treatment plan of an El Dorado psychiatrist, the respondents will approve the treatment.
Dr. Safman recommended that the claimant have a psychological evaluation by a psychiatrist who specializes in pain management. Dr. Rice is a psychiatrist that specializes in pain management. The claimant refuses to see Dr. Rice because his practice has a Christian focus and the claimant practices Judism. The respondents are merely requesting that the claimant seek an initial evaluation by Dr. Rice. The respondents only want her to treat with him if an El Dorado psychiatrist could not give the claimant the treatment that she needs. The claimant's contention that she does not want to see Dr. Rice because he has a Christian focus is without merit. The claimant is currently seeing a counselor, Nita Gage, who works at Immanuel Baptist Church in El Dorado. Ms. Gage works for the Immanuel Baptist Church as a counselor and is not a licensed psychiatrist and cannot render the psychological treatment necessary for the claimant.
The majority found that the respondents were responsible for the claimant's hospital and medical bills accompanying the EMG study recommended by Dr. Saer. This EMG is not an expense related to the claimant's compensable injury. Dr. Saer ordered the EMG study after the claimant returned from a trip to Florida. The claimant was having new symptoms including numbness in the hands and fingers. All indications are that these symptoms are from a separate subsequent injury and are not the responsibility of the respondent.
The respondents arranged for the claimant to be evaluated by Dr. Valentine, a pain management specialist. The claimant did not keep the appointment and refused to be evaluated by Dr. Valentine. The respondents have the right to have the claimant evaluated by a physician of their own choosing pursuant to Ark. Code Ann. § 11-9-511. The respondents have agreed to pay for the examination and expenses.
Therefore, for all the reasons set forth herein, I respectfully concur in part and dissent in part.
______________________________ MIKE WILSON, Commissioner