Opinion
CLAIM NO. E606801
OPINION FILED JANUARY 22, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOE R. PERRY, Attorney at Law, Marianna, Arkansas.
Respondents represented by the HONORABLE SCOTT D. PROVENCHER, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal to the Full Workers' Compensation Commission an administrative law judge's opinion filed August 3, 2001. The administrative law judge found that the claimant proved by a preponderance of the evidence that she sustained a compensable physical injury and a mental injury arising out of and in the course of her employment on May 8, 1996. The administrative law judge also found that the claimant proved that she remained in her healing period and was unable to earn wages from May 8, 1996 through Dr. Howser's last office visit. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Donna K. Chamness, age 39, worked for the respondent-employer as a co-manager, and the parties stipulated that an incident occurred on May 8, 1996. The claimant testified:
Q. What happened that morning when you got to work? Just describe from the time you parked your car until the accident.
A. I parked beside the front door and unlocked the door, went in the door, locked the door back. Walked across the carpet, my feet hit the brick floor and I fell. . . .
Q. Describe how you fell and how you landed.
A. I just, I was walking across, my feet hit the floor and I just went, kind of, up I landed on my rear end. And instead of going all the way back and landing on my back I twisted to the right, to catch myself with my hands.
Q. When you landed on your rear end, did your rear end hit the carpet or was it on the brick?
A. The brick. . . .
Q. What did you do after you got up?
A. When I got up I went immediately to the office and, well I went and shut the alarm off — because that's the first thing you do when you walk in the door. And, that's what I was thinking, "Hurry, up, shut the alarm off, the police are going to, come, the police are going to come." So, I ran and shut the alarm off. . . .
Q. After you turned off the alarm what did you do?
A. I unlocked the office door and went in the office. I had an order that came in — I sat in the chair for a few minutes. And then I thought "Well, I'm going to be okay. I've just pulled some muscles." I got up and I began to check the orders in, I unlocked the door, somebody was beating on the door, and let some people in. And, I was hurting on my left lower side and my upper right side.
The claimant testified that she attempted to perform her regular employment duties, but that she had to leave work on the date of injury after becoming dizzy and nauseated. The claimant filed a Form AR-N, Employee's Notice of Injury, on May 20, 1996. The claimant wrote that she landed on her "upper buttocks and lower back" in the May 8, 1996 accident. The claimant testified, "I was having radiating pains down the lower part of my back, down into my left leg to my knee and I could hardly move. There would be days that I couldn't even get up, I could just barely move." The respondents initially accepted compensability of the accidental injury. The claimant testified that she was sent to an orthopaedic surgeon, Dr. Samuel Meredith, who reported on June 13, 1996:
This 33 year old assistant manager of Wendy's in Forrest City who is also 8 months pregnant fell at work. Date of injury 5/8/96. She states a carpet was wet and she slipped and fell backwards pretty much landing on her buttocks and "tail bone". She presents with continued pain in the distal sacrum. She occasionally has some lumbar pain and has had occasional radiation into her posterior thigh on the left side, but this does not seem to be a persistent problem and is not associated with any neurologic phenomenon. . . . No x-rays have been done. . . . She denies any previous lumbar problems. . . . Single lateral x-ray of her sacrum is done with shielding and I don't see an obvious fracture, but told her that an occult fracture of the distal sacrum healing could not be ruled out. . . . I recommend that she not work from the standpoint of her injury. No other treatment at this time would be more definitive than what she has had. She will contact me after her delivery at which time Dr. Derossitt would ordinarily send her back after the baby comes.
The claimant delivered her baby at Crittenden Memorial Hospital on July 12, 1996. Dr. Meredith reported on July 25, 1996:
Ms. Chamness was not relieved of back pain by recent delivery of her daughter. She is about two weeks post caesarean. She feels disabled by pain which radiates into both buttocks and occasionally into the right popliteal space. She has moderate restriction of range of motion. She has straight leg induced thigh pain on the right. No cross over pain. Grossly her neurologic exam is intact. Recommend MRI.
An MRI of the lumbar spine was taken on or about July 31, 1996:
Exam reveals slight straightening of the upper lumbar lordotic curvature with normal alignment seen throughout the lumbar spine. . . . The discs, neural arches, facets and foramina from L1 through S1 are felt to be intact. No focal herniations, protrusions or peripheral impingements are seen.
CONCLUSION: No central neural axis pathology, herniated disc or peripheral impingements identified. Spasm or soft tissue injury cannot be ruled out.
Dr. Meredith referred the claimant to Dr. Jack Goodman for pain control measures. The claimant was admitted to an outpatient pain clinic on September 17, 1996. Dr. Goodman reported "within spasms" upon physical examination of the claimant's back and diagnosed "Back and leg pain."
The claimant began treating with a physical therapist on September 25, 1996. One of the goals set out by the therapist was to "eliminate swelling: lumbar area." The claimant underwent a functional assessment on October 29, 1996:
Mrs. Chamness was very consistent and specific with both pain behaviors and reports. Pain reports were consistent with an SI pathology. She was unable to stand for over 15 minutes, and shifted her weight throughout standing tolerance part of assessment. Braiding and squatting consistently brought high pain reports and behaviors. Stairs were also particularly painful.
Dr. Meredith wrote on November 4, 1996:
Her FCE was valid. She only made light to sedentary on USDL classification. I know her job is beyond light to sedentary so I will once again request work oriented rehab program for her.
Dr. Meredith reported on November 26, 1996:
Donna was scheduled to return to work today. She states she got up early this morning. She bent over to pick up her baby and had an acute onset of recurrent back and right lower extremity sciatic distribution pain with numbness into the foot. She presents with an acute back picture with flexed posture, rigid spine, sciatic stretch pain on the right in a seated position. No cross over pain. No gross neurologic deficit. Muscular rigidity is palpable in her paravertebral muscles. I think we need a second opinion from a neurosurgeon.
Dr. Rodney G. Olinger examined the claimant on December 6, 1996 and reported "a lot of muscle tightness in the upper back." Dr. Olinger diagnosed "lumbar strain" and treated the claimant conservatively. The claimant testified that she wished to return to Dr. Goodman for additional treatment; however, the respondents controverted the claim after January 9, 1997. The claimant stated that Dr. Meredith released her to full work duty on that date. She testified:
Q. What was your condition at that time?
A. The same. I had not improved.
Q. Did you go back to work?
A. Yes I did. I went back to work January the 13th and 14th. I was off the 15th — I could hardly move the 15th. The 16th I got up and went back to work. My leg was swollen. My left leg was swollen like two times bigger than my right leg. And I was in so much pain I couldn't stand up straight. I was bent over and the general manager on duty Lisa Winfrey told me to go home that I needed to go back to the doctor.
The claimant testified that she unsuccessfully attempted to contact the respondents' nurse as well as a representative of the carrier. The claimant also testified that Dr. Meredith would not refer her to another physician. Therefore, the claimant presented on her own and began treating with another neurosurgeon, Dr. John P. Howser, on January 23, 1997. The claimant complained of lower back pain, left leg pain, and tingling and numbness in her left arm. Dr. Howser took the claimant off work and arranged diagnostic testing. An MRI of the cervical spine taken January 28, 1997 was normal. A note from Dr. Gokturk dated February 27, 1997 stated that "pain is gone and all lumbar spine motions are restored."
Dr. Howser indicated on March 4, 1997, however, that the claimant was unable to work. On March 17, 1997, Dr. Howser completed a physician's statement for a long-term disability claim. Dr. Howser diagnosed "lumbar facet syndrome" and wrote that "patient is unable to work at this time." On March 30, 1997, the Commission received correspondence from the claimant requesting a change of physician to Dr. Howser.
Dr. Howser wrote to the carrier on May 2, 1997:
Donna Chamness returned to my office on April 23, 1997. The Relafen was not helping. The CT of the lumbar area was normal. The Boston overlap brace was helping. She was advised to return to my (sic) in one month for reevaluation. Diagnosis at this time continues to be lumbar facet syndrome. She may have to have repeat lumbar facet blocks. She also continues with her carpal tunnel problems and continues to wear her carpal tunnel splints. This patient is unable to work because of these problems. She is limited to no lifting, bending or stooping in the workplace secondary to her lumbar facet syndrome at this point. She is also limited so far as repetitive use of her hands in the work place from her carpal tunnel problem.
A psychiatrist, Dr. Melvyn A. Levitch, wrote to Dr. Howser on September 5, 1997:
Ms. Chamness is suffering from a Major Depression directly related to her fall and subsequent back injury in 5/96, Ms. Chamness hurt her back after falling on a wet floor at Wendy's restaurant. Since that time she has developed symptoms of increasing depression with crying, weight loss and insomnia. . . . My diagnostic impression is that of a Major Depression secondary to physical injury. . . . There is no previous history of mental or emotional disorder in this lady and there is no history of depression.
Dr. Howser wrote to the respondents on December 30, 1997:
Ms. Donna Chamness tried to go back to work for two days with the restrictions of maximum per day one hour of sitting, standing and walking combined and was bent over and had to go to bed for two weeks after this. Therefore, these restrictions are not enough. She was last seen in my office on December 22, 1997 and was worse. She will now have lumbar facet rhizotomies at L4-L5 and L5-S1 bilaterally. After these have been completed and she has recovered, a reevaluation from the work standpoint will then be performed.
Dr. Howser referred the claimant for treatment with a rheumatologist in August, 1998. The parties deposed Dr. Howser on May 30, 2001. Dr. Howser testified regarding the claimant's workplace injury and the medical treatment she received. Dr. Howser testified:
A. . . . April 5, 2000, this is the last day I saw her before I retired at the end of April of 2000. She said she was still having her neck problems and was waiting for Dr. Gokturk to do the bilateral cervical facet blocks. I told her Dr. Gokturk was going to have to follow her. Her left low back pain was returning. Had been doing very well after the lumbar facet blocks. Apparently, she had a period of time where she was completely relieved of the left low back pain after the lumbar facet rhizotomies, but now the pain was returning. Dr. Levitch was still treating her. The Boston overlap brace was helping her a lot. And that was the last time I saw her.
Q. What was your final diagnosis?
A. Cervical and lumbar facet syndrome. . . .
Q. Do you have an opinion whether the injuries that you treated Ms. Chamness for were related to the fall that she sustained at Wendy's?
A. Yes. . . . It is my opinion that it caused the cervical and lumbar facet syndrome. . . .
Q. Do you have an opinion as to whether Donna, from the time you began treating her until the time you last saw her, was she able to engage in substantial, gainful activity?
A. No.
Ms. Chamness claimed entitlement to additional worker's compensation. The claimant contended that she sustained a compensable back injury on May 8, 1996, and that as a result of same, she underwent treatment by Dr. Meredith, Dr. Goodman, Dr. Olinger, Dr. Howser, Dr. Levitch, and Dr. Gokturk. The claimant contended that she was entitled to temporary total disability compensation from May 8, 1996 to the present. The claimant contended that since the respondents had controverted the claim, a change of physician request was not necessary.
The respondents contended that the claimant was not performing employment services at the time of her injury. The respondents contended that the claimant was not entitled to additional temporary total disability, and that they were in fact entitled to reimbursement for temporary disability paid through January 9, 1997. The respondents contended that medical treatment the claimant began receiving from Dr. Howser in January, 1997 was not authorized. The respondents contended that the claimant's current problems were not related to the May 8, 1996 incident. The respondents contended that the claimant was ready to return to work in November, 1996, but that she suffered an aggravation at her home while lifting her child. The respondents contended that treatment for the claimant's psychological injury was not related to the May 8, 1996 incident.
After a hearing before the Commission, the administrative law judge found that the claimant proved that she sustained a compensable physical injury and a mental injury on May 8, 1996. The administrative law judge found that the claimant's medical treatment for both injuries was reasonable and necessary. The administrative law judge found that the claimant "remained in her healing period and was unable to earn wages from May 8, 1996 through Dr. Howser's last office visit." The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Compensability
1. Low back
The claimant contends that she sustained a compensable injury on May 8, 1996. A claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2001). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that the injury caused internal or external physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, the administrative law judge found that the claimant proved that she sustained a compensable injury on May 8, 1996. The Full Commission affirms this finding. The claimant credibly testified that she slipped and fell after arriving at work and entering the respondent-employer's premises on May 8, 1996. The preponderance of evidence indicates that the claimant fell while walking across the floor to turn off the store alarm. The respondents initially accepted compensability of the claim.
After controverting additional benefits in January, 1997, however, the respondents contended that the claimant was not performing employment services at the time of the May 8, 1996 specific incident. The administrative law judge found that the claimant was performing employment services pursuant to the provisions of Act 796 of 1993. The administrative law judge cited Shults v. Pulaski County Sp. Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998), where the Court of Appeals held that a school district employee was performing employment services when he fell while running to disable an alarm. The administrative law judge found the instant case on point, in that the instant claimant was walking across the respondent's floor to turn off the store alarm when she fell. The respondents have abandoned the employment services issue on appeal. In any event, the preponderance of evidence supports the administrative law judge's finding that the claimant was performing employment services at the time of her accidental injury.
In addition, we find that the claimant also satisfied the other statutory provisions of Act 796 to prove a compensable injury. The claimant required medical treatment for her lower back after her work-related fall. An MRI taken July 31, 1996 revealed "straightening of the upper lumbar lordotic curvature." Such a report constitutes an objective medical finding. Estridge, v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). There were also reports, based on physical examination of the claimant, of "spasm" and "swelling" in the claimant's low back, which are both objective medical findings. See, Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999); Stone v. Aztec Paving And Heavy Construction, Inc., Workers' Compensation Commission E807346 (March 2, 2000).
The Full Commission finds that the claimant sustained an accidental injury arising out of and in the course of her employment on May 8, 1996, which injury caused physical harm to the body and required medical services, and which injury was established by objective medical findings beyond the claimant's voluntary control. The Full Commission thus affirms the decision of the administrative law judge.
2. Mental injury
The administrative law judge found that the claimant sustained a mental injury arising out of her compensable physical injury of May 8, 1996. The respondents initially contended that the claimant was not entitled to treatment for a psychological injury, but they have abandoned this issue on appeal. Ark. Code Ann. § 11-9-113 (Supp. 2001) provides in pertinent part:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee's body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
In the present matter, the record contains no history of psychiatric or psychological problems for the claimant before her compensable physical injury of May 8, 1996. Dr. Levitch, a psychiatrist, reported in September, 1997 that since her back injury, the claimant had developed symptoms of increasing depression with crying, weight loss, and insomnia. Dr. Levitch diagnosed "Major Depression secondary to physical injury." Based on a preponderance of the evidence, the Full Commission finds that the claimant's mental injury was causally connected to her physical injury, and we find that the diagnosis of major depression meets the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. The decision of the administrative law judge is affirmed.
B. Medical treatment/Causation
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a). Injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. Beatty v. Ben Pearson, Inc., Workers' Compensation Commission D612291 (Feb. 17, 1989).
The administrative law judge found in the present matter that the claimant proved that the medical treatment she pursued for her physical and mental injuries was reasonable and necessary. The Full Commission affirms the administrative law judge.
The claimant, with no prior history of any back injuries or symptoms, sustained a compensable injury to her low back on May 8, 1996. The claimant received conservative medical treatment for her lower back and was set to return to work on November 26, 1996. Unfortunately, the claimant bent over to pick up her baby that day and experienced "an acute onset of recurrent back and right lower extremity sciatic distribution pain with numbness into the foot. . . . Muscular rigidity is palpable in her paravertebral muscles." Dr. Meredith referred the claimant to a neurosurgeon, who diagnosed "lumbar strain."
The claimant desired to continue conservative treatment with one of her treating physicians, Dr. Goodman, but the respondents controverted her claim after January 9, 1997. Therefore, the claimant began treating for her low back with Dr. Howser, a neurosurgeon, on January 23, 1997. The respondents contend that the medical treatment provided by Dr. Howser was not related to the compensable injury of May 8, 1996.
Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(F)(iii) (Supp. 2001), provides:
Under this subsection (4)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or reckless on the part of the claimant.
In Davis v. Old Dominion Freight Line Inc., 341 Ark. 751, 20 S.W.3d 326 (2000), the Arkansas Supreme Court held that the General Assembly's enactment of Act 796 of 1993 did not change the prior existing law regarding independent intervening causes. In Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993), the Court of Appeals outlined the test for when an independent intervening cause relieves an employer from liability:
In Guidry v. J.R. Eads Constr. Co., 1 Ark. App. 219, 669 S.W.2d 483 (1984), we said that the 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 was triggered by activity on the part of the claimant which was unreasonable under the circumstances.
The administrative law judge in the present matter cited Davis, supra, and determined that "the claimant's conduct was not unreasonable when she was going to pick up her newborn baby in November, 1996; thus, the respondents' responsibility did not end with this event." The respondents contend that the claimant's lifting of her child in November, 1996 constituted an "aggravation" which absolved them of further liability. However, Dr. Meredith reported an onset of recurrent back pain after the November, 1996 incident, not an aggravation. The Full Commission finds that there is a causal connection between the claimant's compensable injury and the treatment she sought in January, 1997, after the respondents controverted additional medical treatment. In addition, we are unable to find that the claimant's activity in picking up her baby was unreasonable under the circumstances.
The respondents also argue that Dr. Howser's treatment and referrals were unauthorized. However, the change of physician rules do not apply during a controverted period. Barnett v. Daniel, Workers' Compensation Commission E600078 (May 25, 2001), citing Clements v. Shoney's, Workers' Compensation Commission E604632 (Feb. 14, 1998). Dr. Howser treated the claimant conservatively, and he related the claimant's low back condition to her workplace accident. The Full Commission therefore affirms the administrative law judge's finding that the claimant proved that the medical treatment she received after the respondents controverted the claim was reasonable, necessary, and related to the compensable injury.
C. Temporary disability
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 and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). 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(12). 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. The claimant is no longer entitled to receive temporary total disability compensation, regardless of her physical capabilities. The persistence of pain, in itself, does not suffice 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).
In the present matter, the claimant sustained a compensable injury on May 8, 1996. The record shows that the claimant was unable to work after her compensable injury. The claimant testified, "There would be days that I couldn't even get up, I could just barely move." Dr. Meredith recommended in June, 1996 "that she not work from the standpoint of her injury." The claimant was consistent and credible in a subsequent functional assessment. Dr. Meredith reported in November, 1996, "She only made light to sedentary of USDL classification. I know her job is beyond light to sedentary so I will once again request work oriented rehab program for her."
The claimant experienced "an acute onset of recurrent back and right lower extremity sciatic distribution pain" after picking up her baby on November 26, 1996. The claimant was referred to a neurosurgeon, Dr. Olinger, who diagnosed "lumbar strain" and treated the claimant conservatively. The claimant testified that Dr. Meredith released her to full work duty on January 9, 1997. The claimant attempted to return to her job, but "My left leg was swollen like two times bigger than my right leg. And I was in so much pain that I couldn't stand up straight." The claimant's supervisor told the claimant to go home and see a doctor.
At that point, the claimant unsuccessfully attempted to contact the company nurse and the carrier, and Dr. Meredith would not refer the claimant for additional medical treatment. Therefore, the claimant began treating with another neurosurgeon, Dr. Howser, on January 23, 1997. Dr. Howser diagnosed "lumbar facet syndrome" on March 17, 1997 and opined that the claimant was unable to work. Dr. Howser opined in December, 1997 that the claimant was still unable to work because of her compensable injury. Dr. Levitch opined on November 3, 1998, "I feel Mrs. Chamness continues to be totally disabled from any type of gainful employment." The administrative law judge found that the claimant proved by a preponderance of the evidence that she remained in her healing period and was unable to earn wages from May 8, 1996 through Dr. Howser's last office visit. Dr. Howser's last office visit with the claimant took place on April 5, 2000. The record does not indicate that the claimant was totally incapacitated to earn wages after that date, and the claimant does not appeal the administrative law judge's finding. The decision of the administrative law judge is affirmed.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a compensable physical injury and a mental injury arising out of and in the course of her employment on May 8, 1996. We find that the claimant proved that the medical treatment she pursued for her physical and mental injuries was reasonable and necessary. We find that the claimant proved that she was entitled to temporary total disability compensation from May 8, 1996 through April 5, 2000. The Full Commission therefore affirms, in its entirety, the opinion of the administrative law judge. 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, the 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.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.