Opinion
CLAIM NO. E714902
OPINION FILED JUNE 14, 2001
Upon review before the FULL COMMISSION in Little Rock,
Pulaski County, Arkansas.
Claimant represented by DAVID MCCORMICK, Attorney at
Law, Russellville, Arkansas.
Respondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on November 15, 2000. In that opinion and order, the administrative law judge determined that claimant proved entitlement to additional medical care for the treatment of his compensable injury. In reaching this decision, the law judge rejected respondents' theory that their liability was severed by an independent intervening cause. Based on our de novo review of the entire record, we find that claimant proved entitlement to additional medical treatment by a preponderance of the credible evidence. Therefore, we find that the decision of the administrative law judge must be affirmed.
On April 22, 1996, claimant sustained an admittedly compensable injury. He testified that he was struck about the head and face approximately five times with a winch. Claimant suffered multiple lacerations, which required sutures and surgery. He developed severe headaches following the injury. Claimant explained that the headaches always begin with right cheekbone numbness, which progresses to pain across his forehead and above the right eye. He testified that the pain is mainly on the right side, and this corresponds with where he was struck. He stated that the frequency varied, but he averaged about one headache every two weeks.
Ultimately, claimant was referred to Dr. J. Brett Ironside, a neurologist, for treatment of the headaches. Respondents controverted this treatment, contending that the headaches were unrelated to the compensable injury. The matter was litigated, and on September 29, 1999, the Commission's award of benefits was affirmed by the Court of Appeals. See, Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).
Claimant testified that during the litigation process, he did not have the resources to obtain medical treatment. He stated that when he developed a headache, he retired to his darkened bedroom to rest. Claimant testified that the headaches lasted between six and eight hours.
On October 24, 1999, claimant participated in a game of flag football. He collided with an opponent during the game, sustaining multiple injuries. In this regard, he testified that he suffered crush injuries to his right cheek bone and eye socket injury. Surgery was required, including the insertion of titanium plates. He testified that the facial surgery failed to affect the headaches. Claimant specifically stated that they have not changed in any manner since the flag football game. He added that the frequency, location and severity of the headaches are identical. Claimant testified that his most recent headache occurred three weeks prior to the hearing.
On cross-examination, claimant testified that the injuries he sustained during the flag football game have completely resolved. He acknowledged experiencing severe pain following for several days after the collision. Claimant insisted that it was dissimilar to the discomfort caused by the headaches.
Claimant testified that in addition to consulting Dr. Ironside, he also presented to the emergency room for treatment of his headaches. Primarily, however, he attempted to live with the symptoms. Claimant stated that he did not return to Dr. Ironside's office until December 8, 1999. He testified that his medication was adjusted, and this appears to have reduced the frequency of the headaches. Based on the controversion of his claim, claimant did not return to Dr. Ironside.
On redirect examination, claimant testified that after receiving notification of the court's decision, he contacted Dr. Ironside's office. However, he was unable to obtain an immediate appointment. Then, he was injured during the flag football game. Claimant testified that surgery was performed within one month of the incident. Narcotic analgesics were prescribed; therefore, he did not require migraine medication from Dr. Ironside for pain relief.
The medical evidence included a letter from Dr. Ironside dated December 8, 1999. In this correspondence, Dr. Ironside stated that claimant reported no change in his condition over the past two years. He noted that claimant's symptoms ". . . are once again consistent with his previous diagnosis of post-traumatic migraine." Dr. Ironside indicated that since claimant's last visit, new medications have become available for the "abortive relief of migraines." He furnished samples of Zomig, and prescribed Elavil as a prophylactic medication. Dr. Ironside recommended a gradual increase in the Elavil dosage, and advised claimant report his progress so that medication adjustments could be made.
Respondents introduced medical evidence pertaining to the treatment claimant received following the flag football game. According to a chart note authored by Dr. James B. Russell on October 29, 1999, he sustained a "Rt. Tripod and orbital floor fracture." Dr. Russell scheduled surgery, which was done on November 2, 1999. The hospital discharge summary reflected that claimant was furnished prescription medication upon his release, including two forms of narcotic pain medication and an antibiotic.
In Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000), the Supreme Court held that Act 796 did not change the law with respect to the independent intervening cause doctrine. Thus, the analytical framework announced by the Court of Appeals in Guidry v. J R Eads Const. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984), remains intact. Relying on Larson's treatise, the Court of Appeals characterized the pertinent inquiry as follows:
. . .[T]he question is whether there is a causal connection between the primary injury and the subsequent disability and if there is such a connection, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances.
Guidry, at 223.
Respondents argue that claimant did not require treatment, as evidenced by his failure to obtain medical care for headaches from January of 1998 until December of 1999. Moreover, they assert that claimant's participation in the flag football game, which resulted in a new injury, was reckless. We disagree.
We specifically find that claimant's headaches are causally related to the original compensable injury. Claimant testified that he experienced no change in his headaches following the flag football collision. In correspondence dated December 8, 1999, Dr. Ironside opined that claimant's symptoms were consistent with a diagnosis of post-traumatic migraine headaches.
In reaching our decision, we recognize that there exists a temporal gap of about two years between office visits with Dr. Ironside. However, claimant's credible testimony established that he lacked the resources to obtain medical care for the treatment of his headaches during the litigation process. Determinations of witness credibility and the weight to afford their testimony are matters within our exclusive province. Hapney v. Rheem Mfg. Co., 342 Ark. ___, ___ S.W.3d ___ (2000).
We also note that claimant did not consult Dr. Ironside for approximately two months after the court's favorable opinion. This time frame is minimal. Moreover, we are satisfied with claimant's explanation. After the court's decision in late September, he was unable to schedule an immediate appointment. Since Dr. Ironside is a neurologist, this is understandable. Within one month of the court's decision, the flag football incident occurred. Following surgery on November 2, 1999, narcotic analgesics were prescribed. Although claimant's need for prophylactic treatment persisted, the pain medication alleviated claimant's symptoms.
Although we hold that the requisite causation exists, our inquiry does not end. Claimant's conduct may sever the causal chain. However, no independent intervening cause exists unless claimant's subsequent disability is triggered by his own unreasonable conduct. See, Georigia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969S.W.2d 677 (1998). In Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993), the Court of Appeals cited Larson's treatise for the proposition that claimant's knowledge of his condition may be considered in determining the reasonableness of the questioned conduct.
There is no evidence that claimant was advised to cease participation in recreational activities as a result of his migraine headaches. We specifically find that claimant's involvement in a game of flag football was not unreasonable under the circumstances. Accordingly, we reject the assertion of respondents that claimant's involvement in the game constituted an independent intervening cause.
Claimant seeks reasonable and necessary treatment for his headaches. What constitutes reasonable and necessary medical treatment is a fact question for the Commission's resolution. Gansky v. High-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). In assessing the reasonableness and necessity of a given medical procedure, we consider the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers' Compensation Commission Opinion filed December 13, 1989 ( D511255).
Claimant testified that his migraine headaches have persisted. He stated that medication prescribed by Dr. Ironside reduced the frequency of the headaches. The medical evidence showed that when claimant returned to Dr. Ironside's office on December 8, 1999, he established a conservative treatment plan, including abortive and prophylactic medication. We find that claimant is entitled to all reasonable and necessary medical treatment for the treatment of his post-traumatic migraine headaches.
Based on our de novo review of the record, and for the foregoing reasons, we specifically find that claimant proved entitlement to all reasonably necessary treatment for his headaches. Thus, the decision of the Administrative Law Judge is 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 on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
_____________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner