Opinion
CLAIM NO. E317800
OPINION FILED JANUARY 22, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT S. TSCHIEMER, Attorney at Law, Little Rock, Arkansas.
Respondents represented by MICHAEL L. ALEXANDER, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
An Administrative Law Judge entered an opinion and order on April 29, 1996, finding that claimant was entitled to temporary total disability benefits from January 5, 1995, to a date yet to be determined, as well as medical and hospital expenses stemming from his work-related injury of October 16, 1993. Respondents now appeal from that opinion and order, contending that claimant's ongoing difficulties subsequent to July 20, 1995, are attributable to an underlying pre-existing condition and that all appropriate benefits have been paid.
Following our de novo review of the entire record, we find that claimant has proven, by a preponderance of the credible evidence, that he is entitled to an award of continued temporary total disability and medical benefits subsequent to July 20, 1995. The decision of the Administrative Law Judge must therefore be affirmed.
Claimant sustained a compensable left knee injury on October 16, 1993, which he described during his testimony as follows:
Okay. October 16th, as I said, I was cutting these bars and I had maybe about three hundred already stacked, and as I pulled them off the table, then I had to walk up on this pile of bars, and when I pulled them off, the bars went sliding on me and my knee buckled back on me.
Claimant further testified that he had never before experienced problems with either knee.
Claimant initially presented to the company physician, Dr. Asemota, who later referred him to Dr. Robert R. Gullett, a Pine Bluff orthopedist. Dr. Gullett first examined claimant on October 21, 1993, and noted "grade 1 of 4 joint effusion present of the left knee." Dr. Gullet's impression from this initial exam was that claimant had sustained "internal derangement of the left knee with possible medial meniscus tear and/or ACL tear left knee."
A subsequent MRI exam revealed "marked chondromalacia," which Dr. Gullett described as "bad" on November 15, 1993. Conservative measures were ineffective, and Dr. Gullett performed an arthroscopic tricompartmental debridement and partial synovectomy on November 18, 1993. The post-operative diagnosis confirmed Dr. Gullett's earlier assessment:
Internal Derangement of the Left Knee With Chondral malacia (sic) of the left knee, severe, confirmed on MRI, and Synovitis of the left knee.
Claimant initially seemed to do well post-operatively, and was released to return to work on December 13, 1993. However, claimant reported back to Dr. Gullett one month later, and complained of additional swelling and pain. Dr. Gullett again noted the presence of grade 1 effusion, and prescribed anti-inflammatories. Claimant presented with similar complaints on February 4 and February 16, 1994, and Dr. Gullett once more took him off work following the latter of these visits. He also ordered an additional two weeks of "mandatory" physical therapy.
By March 2, 1994, Dr. Gullett described claimant's chondromalacia as "grade 3," and recommended implementation of a TENS unit. Claimant reported on March 21 that the TENS unit had been of some benefit, however, he continued to relate significant pain "even in church this Sunday standing." Dr. Gullett also noted that:
Repeat x-rays today again reveal the degenerative changes in the left knee which I had shown him. He has arthritis in his knee. There is no question that this is present and this is responsible for the pain . . . I think he is going to have a hard time returning to the type of work which he has done in the past.
At this point, Dr. Gullett issued an additional off-work slip for the period of March 21, 1994, through May 2, 1994. By the time of his follow up on May 2, claimant had not improved and Dr. Gullett maintained the off-work status for another week. On May 9, Dr. Gullett noted that claimant was still in pain but had begun to respond to conservative treatment. He allowed for claimant to return to work on May 16, 1994, with orders to return for follow-up in one month.
Claimant duly returned on June 13, 1994, and informed Dr. Gullett that he still had "problems out of it" and that he "made the month, but it was rough." Dr. Gullett went on to note that:
Mr. Dale is still limping significantly today . . . He has marked crepitus and grinding with flexion and extension. He is still having a lot of trouble with the knee. He had the grade 3 chondromalacia and the degenerative changes on the initial arthroscopy, but I do feel like the injury set these off. I think he is going to have a very difficult time continuing to work in the capacity which he has. He is attempting to do that but he is having a lot of trouble . . . I will need to follow this patient because he does have some significant problems which will need attention in the future . . . His ROM has diminished and his pain has increased. I think these are legitimate findings. I think that he has 20% permanent physical impairment and loss of physical function to the right lower extremity.
(Dr. Gullet had previously issued a 5% rating on December 13, 1993.)
By December, 1994, claimant had experienced no appreciable improvement, and still complained of pain and swelling in his knee. Dr. Gullett suggested that a further arthroscopic debridement might be helpful, though "under no circumstances" did he anticipate that it would "cure" claimant's difficulties. Accordingly, a second tricompartmental debridement and partial synovectomy was performed on January 5, 1995, and again left Dr. Gullett with the following post-operative diagnosis:
1. Degenerative joint disease of the left knee.
2. Grade III Chondromalacia of the left knee.
3. Synovitis of the left knee.
As with the first arthroscopy, claimant showed brief signs of improvement, but by February 10, 1995, Dr. Gullett reported that claimant had "not responded well at all" to the second procedure. By May 1, 1995, in the presence of limited gradual improvement but also persistent and significant pain, Dr. Gullett opined that he had done all he could for claimant, and recommended referral to a pain clinic. Accordingly, claimant visited Dr. Willis Courtney on May 10, 1995. Dr. Courtney assessed "chronic left knee pain," and prescribed a trial period of antidepressant medication (Serzone) coupled with a different NSAID (Indocin) than the one claimant had been taking. Claimant returned to Dr. Courtney on June 7, and "denied any improvement in his left knee symptoms." Dr. Courtney discontinued his initial prescription and switched claimant to Oruvail and Elavil.
Claimant returned to Dr. Gullett on June 29, 1995, and informed him that "everything is about the same." Dr. Gullett once again noted "marked crepitus and grinding with movement." Dr. Gullett's last entry (in this record) is dated July 28, 1995, when claimant reported that he was "really hurting."
Claimant himself testified that he has not returned to work since his second operation nor has he been released to return (as of the hearing on this matter). Indeed, there are numerous off-work slips, issued subsequent to claimant's second arthroscopy, within the medical records. Concerning his condition at the time of the hearing, claimant explained that:
Well, my condition right now, my knee, it swells when I do a certain period of standing and . . . Well, I'm never comfortable. You know, I'm always, I'm always — Like when I'm sitting around the house, I always have to keep it like propped, because when I keep it setting at a level like we are setting now, it just constantly throbs and swells.
Claimant testified that only about forty-five minutes of standing will induce swelling and that his knee had been in that condition "ever since my first surgery." In addition, when asked how his knee has affected his "daily living" since January 5, 1995, he replied that:
It affects me very bad because I can't do none of the things that I used to do, you know . . . As far as travel on the weekends or . . . Well, I used to go to Little Rock or, you know, some weekends I might go to Kansas or something like that . . . Like if I sit here long enough, when I get ready to get up, I have to get my knee together . . . I have to straighten it out, you know . . . I try to hold it together, you know.
Respondents terminated benefits on or about July 21, 1995, following a report issued by Dr. Bruce Safman, which respondents interpreted as indicating that claimant's difficulties were the result of his pre-existing chondromalacia.
It is well-settled that when a claimant's ordinary work aggravates a pre-existing condition and thus contributes to the injury, the claim is compensable.Colonial Nursing Home v. Harvey, 9 Ark. App. 197, 657 S.W.2d 209 (1983) (citing McGeorge Constr. Co. v. Taylor, 234 Ark. 1, 350 S.W.2d 313 (1961)). While respondents seem to acknowledge as much, their brief opens and concludes with the following assertions:
The medical evidence in the case at bar clearly supports the respondents' position in this case. Specifically, that the major cause (more than 50%) of the claimant's continuing complaints and problems is from the pre-existing chondromalacia/degenerative joint disease as opposed to the on-the-job injury.
And,
Respondents therefore submit that under the definition of major cause and the application of that definition, the claimant has failed to prove by a preponderance of the evidence that the major cause of his continuing complaints beyond July 20, 1995, are the result of the claimant's on-the-job injury versus the pre-existing condition. In the alternative, respondents submit that the claimant had reached maximum medical improvement by July 20, 1995, and therefore, temporary total disability benefits were not owed to the claimant beyond that date anyway. However, it is respondents' primary contention and argument in this case that the major cause of the claimant's continuing pain is the pre-existing/underlying condition and not the on-the-job injury and, therefore, the claimant is not entitled to any additional benefits over and above those previously paid and the decision of the Administrative Law Judge should be reversed and dismissed.
We are puzzled by respondents' reliance on the issue of "major cause," since the varying "major cause" provisions of Act 796 have no role in this case. Because of its reference to pre-existing conditions, we can only assume that Ark. Code Ann. § 11-9-102 (5)(F)(ii)(b) (Repl. 1996) is the section relied upon:
If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment. (Emphasis added).
Only a cursory reading of the foregoing demonstrates that this provision is inapplicable to the instant case, since permanent benefits are nowhere at issue. The remaining "major cause" provisions of Act 796 are found at Ark. Code Ann. §§ 11-9-102 (5)(E)(ii), (5)(F)(ii)(a), and 11-9-114 (a) (Repl. 1996), and deal respectively with (1) the burden of proof for non-specific event injuries, (2) permanent benefits, and (3) heart or lung injuries or illnesses. None of these statutory provisions appear to have any bearing on the case before us.
While we are confident that respondents' primary theory of the case does not represent an effort to mislead this Commission regarding applicable law, we are nevertheless compelled to point out that said theory is of no use to us in resolving the issues at hand.
With regard to those issues, we are not persuaded by respondents' assertion that claimant's difficulties subsequent to July 20, 1995, are attributable only to his pre-existing chondromalacia rather than his work-related injury. This assertion overlooks the fact that claimant's knee was asymptomatic prior to his injury of October 16, 1993, and his condition was only made manifest when he sustained an accident on that date. Dr. Gullet's deposition testimony makes this clear:
A. I think what happened here is that — I think that he had significant Grade III chondromalacia, which means that basically is a full thickness loss of the cushion or the articular cartilage in many places throughout his knee . . . And what I think happened with Mr. Dale is that the injury that he had exacerbated a pre-existing condition, as far as I've been able to tell. I think unquestionably he had some changes in his knee. This did not happen totally as a result of this injury by any means. But I do feel like that's most likely what happened.
And later,
Q. . . . In your opinion, was Mr. Dale's arthritic condition asymptomatic before his trauma of October 16, 1993?
A. Yes, sir.
Q. Earlier you said that the trauma that he received at work exacerbated his arthritic condition. Is it also fair to say that the trauma at work aggravated, accelerated, or combined with the arthritic condition?
A. Well, I do think that — I think it aggravated the condition which was present in his knee.
Q. Okay. In your opinion, did the aggravation of this asymptomatic condition cause it to become symptomatic in Mr. Dale?
A. It seemed like it did.
With one brief interlude of improvement after his first surgery — which quickly dissipated after an attempt to return to work — claimant has presented an essentially unbroken period of continuing pain, swelling, and associated difficulties with his left knee. From claimant's testimony, which we accept as credible, as well as Dr. Gullett's foregoing statements, we find that these difficulties were originally precipitated by the compensable injury of October 16, 1993, which took the form of an aggravation of a pre-existing condition, and that this essential character was not rendered void as of July 20, 1995, by the mere passage of time.
Nor are we moved by Dr. Safman's report of July 14, 1995, (based upon a review of claimant's medical records) to find that claimant's pre-existing condition is solely responsible for his current difficulties. We note that Dr. Safman's report addresses the issue of whether claimant is an appropriate candidate for a total knee arthroplasty and does not speak with great detail as to the ultimate causation of claimant's ongoing problems. Nevertheless, we believe that in this case, Dr. Gullett, as claimant's primary treating physician, is better suited to address issues relating to causation than is Dr. Safman.
Based on the same evidence which led us to our finding above, we additionally find that claimant's ongoing left knee difficulties are the continuing result of his October 16, 1993, work-related accident, and cannot be passed off as entirely attributable to his pre-existing chondromalacia. Indeed, in the absence of pre-accident symptoms, there is not even a "water-mark" by which to judge claimant's current level of difficulty and determine whether the effects of the 1993 trauma have disappeared, leaving his condition at its pre-accident state. In our opinion, claimant' current situation is attributable to his work-related injury in October, 1993.
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep't. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period itself continues until the injured employee is as far restored as the permanent character of his injury will permit, and will end once the underlying condition has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id. Finally, the question of when the healing period has ended is a factual determination that is to be made by the Commission. Id.
It is true that Dr. Gullett has indicated that claimant reached something of a "plateau" on May 1, 1995. It is also true that persistent pain is one of claimant's most enduring complaints. However, concerning Dr. Gullet's comments of May 1, 1995, we note that his remark in its entirety was that claimant had "reached a plateau as far aswhat I can do for him." (Emphasis added). Dr. Gullett did not suggest that claimant's healing period was at an end in the general sense and, in fact, suggested referral to a pain clinic for exploration of additional options. Also, pain has not been claimant's only difficulty, as Dr. Gullett has consistently noted "crepitus and grinding" upon physical exams of claimant's knee as late as June 29, 1995. Also, Dr. Courtney discovered "some edema over the distal left patella" on May 10, 1995, and on June 7, 1995, stated that "his examination is essentially unchanged since his initial assessment." Finally, during his deposition (taken on October 9, 1995), Dr. Gullett took part in the following exchange:
Q. Do you need to follow up with him in your office to —
A. I do.
Q. — take good care of this patient?
A. Yes, sir.
Q. Would you recommend, therefore, that he keep seeing you for treatment?
A. I think so.
Q. And right now — what is your proposed course of treatment right now, continuing anti-inflammatories and physical therapy?
A. That's correct.
Q. Did you refer him to Dr. Willis Courtney?
A. I did.
Q. And he's a neurologist, correct?
A. Yes.
Q. Okay. And you believe, I assume, that Dr. Courtney's treatment has been helpful to the patient; is that true?
A. I think it has helped him some.
Q. Okay. And do you also relate the need for Dr. Courtney's involvement to the trauma the patient received on this on-the-job injury?
A. Yes, sir.
Based on the findings of Drs. Gullett and Courtney, discussed above, as well as the former's deposition testimony, also set out above, and giving due consideration to claimant's credible testimony regarding his ongoing difficulties, we find that claimant's healing period persisted beyond July 20, 1995.
We also find that claimant remained totally incapacitated to earn wages beyond July 20, 1995. Claimant has, first of all, provided credible testimony regarding the extent of his limitations, and Dr. Gullett himself has stated (during his deposition) that "I really feel like he has honestly represented the amount of pain that he had. I have always felt that way with him." Secondly, claimant made an admirable effort to return to work but could not remain on the job. Finally, Dr. Gullett, his primary treating physician, has not yet released claimant to return to work. Dr. Gullett elaborated on this during his deposition:
Q. Okay. In fact, should he have actually been off work from January 27, '95, on?
A. I think so.
Q. Okay. And at the appropriate time, I assume you will issue a return to work slip whenever you feel it's appropriate; is that correct?
A. That's right.
Q. And until you issue that return to work slip, then your opinion would be that this patient should remain off work and in your good care?
A. That's correct.
From claimant's credible description of his limitations and from Dr. Gullett's foregoing testimony, we find that claimant remained totally incapacitated to earn wages as of and beyond July 20, 1995. Because we so find, and because we have found that claimant's healing period extended beyond July 20, 1995, we also find that claimant is entitled to temporary total disability benefits subsequent to that date.
Based on our findings that claimant's healing period did not end by July 20, 1995, and that his current difficulties remain related to his compensable injury of October 16, 1993, we additionally find him entitled to continuing medical treatment beyond July 20, 1995, from Drs. Gullett and Courtney.
From our de novo review of the entire record and for the reasons discussed herein, we specifically find that claimant is entitled to additional temporary total disability benefits subsequent to July 20, 1995, and is further entitled to additional medical benefits in the form of continued treatment from Drs. Gullett and Courtney. The decision of the Administrative Law Judge must therefore be, and hereby 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 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant is entitled to temporary total disability benefits continuing until a date yet to be determined. Based upon my de novo review of the entire record, I find that the claimant's healing period ended on May 1, 1995 when he reached maximum medical improvement.
Although respondent argues that the thrust of this case centers around "major cause", it is my opinion that "major cause" is not a dispositive issue in this case. The claimant sustained an admittedly compensable injury on October 16, 1993 when bars he was stacking slid onto claimant causing his left knee to buckle. As a result of his compensable injury, claimant has undergone two arthroscopic knee surgeries, the first in November of 1993 and the second in January of 1995. Following claimant's first surgery, he did return to work for a short period of time, however, as his condition worsened, claimant was again taken off work.
Claimant has received treatment and undergone surgery at the hands of Dr. Robert R. Gullett, a Pine Bluff orthopaedist. Claimant was first examined by Dr. Gullett on October 21, 1993 and Dr. Gullett noted the claimant had a Grade One of four joint effusion present of the left knee. Dr. Gullett diagnosed the claimant with internal derangement of the left knee with possible medial meniscus tear and/or ACL tear left knee. After undergoing two debridement surgeries, claimant's diagnosis currently consists of degenerative joint disease of the left knee, Grade Three chondromalacia of the left knee, and synovitis of the left knee. A review of Dr. Gullett's medical records reveal that the claimant has consistently reported to Dr. Gullett that everything has remained about the same. Dr. Gullett notes that the claimant has marked cryptitis grinding with movement in his knee and that the claimant's knee hurts. These findings are consistent throughout Dr. Gullett's medical records. Of particular interest is Dr. Gullett's May 1, 1995 office note which states:
Levon Dale checked back today. He says, `The PT is helping me out.' But he says, `I have to get those crutches after therapy.' He says, `I still have that pain.' Today he is not as exquisitely tender to touch over the knee as he was and he has a better ROM and improved strength. However, he is dealing with significant pain. Mr. Dale has reached the plateau as far as what I can do to help him. He needs referral to a Pain Clinic and/or having a neurologist see him here in Pine Bluff if Pain Clinic is unrealistic as far as getting there is concerned. This will be checked out through his Worker's Comp and the appropriate referral will be made. There is good neurovascular status and a negative Homans. I have rewritten his Daypro prescription.
Dr. Gullett was asked several questions in his deposition regarding this particular office note. When asked what he meant by the statement claimant has reached a plateau, Dr. Gullett stated, "Well, I felt like he had — he did not respond well to the next — the last arthroscopy and it — he still had a lot of pain, a lot of weakness. He was limping and hurting a lot. I felt like he was not continuing to improve. Had shown no improvement." Dr. Gullett was then asked:
Q. When you felt in early May of '95 that he had reached the plateau, did you feel as though there was nothing other medically that you could do to improve his condition?
A. That's correct.
* * *
Q. Other than the possibility of a total knee arthroplasty, is there any other active medical treatment that you recommended for Mr. Dale?
A. Well, no. Right now, we've continued with his anti-inflammatory medicine which is the Daypro and we have been trying to work with him in physical therapy and I think he also saw the neurologist, I think, for treatment.
Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Temporary total benefits do not, in all cases, correspond to the healing period; temporary disability is not based on the claimants healing period, but is awarded where the claimant's injury-caused incapacity prevents him from earning the wages he was receiving at the time of the injury. County Mkt. v. Thornton, 27 Ark. App. 235, 770 S.W.2d 156, supp. op. reh'g denied. 27 Ark. App. 241-A, 771 S.W.2d 793 (1989). The healing period continues until the employee is a far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized.
In my opinion, the evidence clearly shows that claimant's medical condition stabilized on or about May 1, 1995 when he reached a medical plateau. Claimant's treating physician, Dr. Gullett, noted that medically there was nothing else to offer the claimant other than to continue his current medication. Although Dr. Gullett stated that he felt claimant should remain off work, Dr. Gullett also stated that claimant had reached maximum medical improvement.
In order for a claimant to be entitled to temporary total disability benefits, claimant must demonstrate that he is both within his healing period and suffers from a total incapacity to earn wages.
As noted by Dr. Gullett's medical records, claimant's healing period obviously ended on May 1, 1995 when he reached a plateau in his medical treatment. Claimant's condition had stabilized as of May 1, 1995, and as explained by Dr. Gullett, further active treatment was not improving claimant's condition.
After reviewing the record de novo, I find that claimant's healing period ended when he reached his plateau in medical treatment as noted by Dr. Gullett. Accordingly, I find that claimant has failed to prove by a preponderance of the evidence that he is both within his healing period and remains totally incapacitated from earning wages. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner