Opinion
CLAIM NO. E613789
ORDER FILED OCTOBER 20, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE C. BURT NEWELL, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by the HONORABLE GAIL PONDER GAINES, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] Respondents appeal an opinion and order filed by the administrative law judge on April 13, 1999. The administrative law judge found that claimant is entitled to a reinstatement of temporary total disability benefits commencing May 28, 1998, and continuing through a date yet to be determined, that respondents controverted the claim, that respondents must pay the additional temporary total disability benefits from May 28, 1998, forward and all reasonable and necessary medical expenses which have resulted or may result from his compensable injury, and the maximum attorney's fee. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed.Respondents appeal the award of additional temporary total disability benefits, arguing that claimant's healing period does not include that period during which claimant's injury allegedly "stabilized" from May 13, 1998, until March 1999, when Dr. Martin agreed that the claimant required additional surgery due to severe knee degeneration. Claimant argues that the period in which claimant did not receive treatment occurred because respondents would not allow further medical treatment. Respondents assert that merely seeking a change in physician after the treating physician states there is nothing more he can do is insufficient to extend the healing period.
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 he is within his 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(13) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of his 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, regardless of his 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, provided that the underlying condition has stabilized. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982), Isenhour v. Lockwood Electric, Full Commission Opinion Filed January 5, 1999 (WCC No. E700397). Whether an employee's healing period has ended is a factual determination to be made by the Commission. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 226, 956 S.W.2d 196 (1997) ( citing Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994); Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995)), Goode v. Commercial Warehouse, Full Commission Opinion Filed November 12, 1998 (WCC No. E112906).
In Goode, the claimant underwent a spinal fusion to correct a compensable injury. His doctors determined that the fusion and his condition reached a point of stability and that other than monitoring the fusion in hopes of further improvement and pain management, he was at maximum medical improvement and his healing period was ended. In fact, the fusion failed, but the Commission determined that this did not affect the healing period. His condition remained stable and the doctors' hopes of a successful fusion were insufficient to extend the healing period. In Claimant's situation, the condition of his knee required pain management and monitoring in order to determine the appropriate time for knee replacement surgery.
In Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987), the Court of Appeals recognized that a claimant may undergo more than one healing period. In that case, the claimant sustained a compensable injury when he was struck on the left leg with a two-by-four and subsequently developed thrombophlebitis in the leg and then pulmonary emboli, requiring surgery. Several years later, the claimant developed deep, non-healing ulcers on his left leg, which the Commission determined were causally connected to the original compensable injury. The respondents argued that since the Commission had also determined in the course of this claim that the healing period for the original injury ended in 1978, and since the Commission may not award temporary total disability benefits outside the healing period, there can be no liability for the 1984 ulcers since they are outside the healing period.
The Court of Appeals stated that "[o]bviously, [the claimant] is now in a new healing period." There was a causal connection between the claimant's original compensable injury and his current complaints, despite the closure of his original healing period. When the ulcers developed, the claimant began a new healing period which would not close until he reached maximum medical improvement of the ulcers. The Court of Appeals held that the liability for the natural and probable results of the original injury includes "liability for additional temporary benefits, when the claimant undergoes a second, distinct healing period." Elk Roofing, 22 Ark. App. at 195 ( citing Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 71, 644 S.W.2d 321, 324 (1983))
In Milligan v. West Tree Serv., 57 Ark. App. 14, 941 S.W.2d 434 (1997), the claimant suffered a compensable injury to his arm which resulted in a great deal of unsuccessful treatment. However, the Court of Appeals determined that the Commission correctly held that the claimant was not entitled to temporary total disability for a particular period because his treating physician had stated that the claimant had reached maximum medical benefit unless he decided to have the recommended surgery. However, the Court also reversed the Commission in relevant part, and found that the claimant remained within his healing period to a date yet to be determined when the evidence established that the claimant's injury had deteriorated and required a new surgery which had not yet been authorized by the respondent. See, Id. at 23.
In Thurman v. Clarke Indus., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994), the claimant sought additional temporary total disability benefits for his compensable knee injury where he had refused to undergo recommended arthroscopic knee surgery. The Court of Appeals determined that since his fear of surgery was so great, his refusal to submit to surgery was not unreasonable. On remand, the Commission found that, without the arthroscopic knee surgery, the claimant's healing period had ended on August 28, 1989, and, therefore, that he was not entitled to any additional temporary benefits. The Court of Appeals agreed that the record supported the Commission's finding since the doctors stated that the claimant would experience no further healing without the surgery.
The record in this case is made up of claimant's hearing testimony and his medical records, and correspondence from his doctors. Claimant testified at the hearing to the following facts. He was employed by respondent, blowing insulation in new and existing construction. On June 6, 1996, claimant was blowing insulation above the windows in a new home when he fell off the second or third step from the top of the ladder to the floor, when the legs on the back of the ladder collapsed. His knee popped, and then swelled, so he wrapped it in duct tape and finished the job. The next morning his employer sent him to the company doctor. The doctor said he pulled a muscle "or something" and gave him some pain mediation and an off work slip for one week, although he continued to work because it was too busy. Claimant missed work when the workload started to lighten up. He went back to the doctor in October, because his knee got worse and it would pop. The company doctor sent him to a physical therapist or a chiropractor who told him he had done too much damage and torn his ACL. He was referred to Dr. Martin.
Claimant further testified that he quit working October 14 because he "couldn't hardly" walk on his leg, and he had surgery on October 16, 1996, to repair his damaged ACL. Claimant has not worked since that time. The surgery did not help because his knee still swells and hurts all the time. The insurance company sent claimant to Dr. Mulhollan who found a bone spur, so Dr. Martin did the second surgery in 1997 to clean out the scar tissue. Claimant saw Dr. Martin monthly. He had therapy but it hurt. Physical therapy and his exercises made claimant's back hurt. In May 1998, Dr. Martin said that he could not do any more for claimant. At the time of the hearing, claimant had not seen any other doctor. He told Dr. Martin he wanted him to fix his knee so he could go back to work, but the doctor said there was nothing else he could do. Claimant has not tried to work. Claimant's back stopped hurting when he stopped doing the exercises prescribed by the doctor:
Well, I've got an exercise brace that I put on, but it's just, it hurts so much, and I feel is they don't want to give me nothing for the pain, I mean, why should I put myself in a lot of pain if they're not going to help me.
Claimant further testified that Dr. Martin released claimant in May, 1998, saying that claimant was at maximum medical improvement and assigning a permanent impairment rating indicating that his knee is not going to return to absolute normal.
The medical records contained in the hearing record reveal the following facts. The record contains several pages detailing claimant's treatment for cervical and back strain resulting from a motor vehicle accident in 1994. The only information contained therein potentially relevant to the current issues are the comments of Dr. Young, his orthopedic specialist at that time, in a letter to an attorney dated May 11, 1994 that claimant "has undergone therapy sporadically but has been less than compliant," and on September 19, 1994, Dr. Young wrote that while claimant was still complaining of multiple aches and pains, there was no need for "further diagnostic work-up. I think that the best advice for this young man is to have him get on with his life."
On June 12, 1996, Dr. Lyles released claimant to return to work on the same date, commenting that he "may work with splint," after being off work from June 6, 1996 to June 12, 1996. Also, on June 12, 1996, claimant sought a new Darvocet prescription because "my dog ate all my pills #20." The notes state "knee doing OK with splint."
On September 19, 1996, Dr. Martin recommended an anterior ligament reconstruction and meniscal repair or meniscectomy to treat claimant's torn anterior cruciate ligament of the left knee, torn medial meniscus of the left knee, and sprain of the medial collateral ligament. On October 16, 1996, Dr. Martin performed "arthroscopy, arthroscopic assisted augmentation of the anterior cruciate ligament using the central one-third patellar tendon autograft" to repair claimant's "torn anterior cruciate ligament left knee."
Dr. Martin's office notes from November 5, 1996 state the following:
Mr. Emmett is three weeks post left ACL reconstruction. He is now complaining of a lot of pain over the lateral side of the knee and says it feels like it will "lock up." I pressed this point further and he does not feel exact locking but there is some tightness over the lateral side of the knee with flexion. . . .
I explained to Mr. Emmett the importance of aggressive rehabilitation, getting off his crutches and proceeding to full weight bearing. I also stressed that he needs to regain his extension as quickly as possible.
Because of his apparent failure to improve, I called him [sic] therapist, Rob Jordan at Hot Springs Village. Mr. Jordan told me that Mr. Emmett is much more motivated and was progressing until he visited his attorney and took the video to his attorney. Mr. Jordan felt like the behavior change was after the meeting with the attorney.
My biggest concern at this point is that since this is a worker's compensation case, Mr. Emmett will not progress as expected as most patients do with adequate motivation. It is very important that the patient persue [sic] his portion of the treatment plan and that involves cooperation with therapy and proper attitude for rehabilitation. . .
He is to continue with his rehab. He was given a prescription for Darvocet N-100.
Dr. Martin's office note from November 26, 1996 states that claimant "is 6 weeks post left ACL reconstruction. He says he is having continued pain over the lateral side of his knee and proximal fibula." The doctor stated that if claimant was "aggressive" with his therapy he would have a "very good result." He wanted claimant's knee pain evaluated by another doctor and to make a decision about manipulating claimant's knee to regain motion at his next appointment.
On December 9, 1996, Dr. Martin's notes reflect that claimant complained that he thought he had torn his graft. "Mr. Emmett probably experienced the giving way episode because of his significant quadriceps atrophy." Dr. Martin fitted claimant for a functional brace at that visit.
Dr. Martin's office note of February 18, 1997 states:
Brett is 4 months post ACL of the left knee. He has not received his extension brace. He still has some pain posterior laterally and lacks about 15 degrees of extension. He can flex approximately 115 degrees. There is no instability. There is no effusion in the knee. There is minimal tenderness posterior laterally, no tenderness anteriorly.
Mr. Emmett will be returned to light duty. We will try to get the extension brace for him to use at home. He will continue with stretching and therapy. I will see him back in six weeks for follow up.
In a letter dated May 13, 1997, Dr. Mulhollan describes the results of his evaluation of claimant on that same date.
He has rather marked quadriceps atrophy that is very noticeable visibly and palpably.
Radiographs show rather marked osteopenia of all bones in the knee region. Of course, osteopenia is a manifestation of the degree of use and the strength of an extremity. . . .
The patient tells me he has been unable to resume work because his employer lacks any sort of job situation that has less that full activity as part of the obligation. . . .
I believe enough time has passed for the patient to be approaching his final outcome. I think there are two possibilities in his management. The first is for him to be retrained into a different occupational area that can be accomplished, despite the defective extremity. Of course, the other alternative is for someone to undertake a surgical remedy for the patient's problem, which would involve a more generous notchplasty or resection of fibrous tissue if that is the mechanism of his limitation of extension. . . .
Whatever is done, I think the patient will benefit from improved strength. I do not think that will be accomplished by going to a physical therapist. I think the patient should pedal a stationary bicycle two or three times a day at home and swim at every possible opportunity. If he does these things, he can achieve a higher strength level, despite the flexion contracture. I think improved strength will probably make him less symptomatic presently. It will certainly help him respond to surgical treatment, if that is ever elected.
I think the patient's present predicament constitutes a physical impairment of approximately 25 percent of the extremity. I think permanency in such a situation is relative. It depends on whether he will accept the situation as it exists or whether he demands further care.
Dr. Martin's June 6, 1997 office note states:
Brett is 7 months post ACL reconstruction of the left knee. He still complains of pain in his knee and complains of significant weakness.
On examination he has marked quadricep atrophy. He lacks about 15 degrees of extension and flexes to 120 degrees today. There is no instability. He has no crepitance. There is a trace of effusion in the knee today.
XT-1000 testing shows no increased anterior tibial translation on the left knee compared to the right. Biodex testing was done and he has a greater than 50 percent quadriceps deficit on the left side.
Mr. Emmett has failed all the measures post op and I am not sure how aggressive he is in trying to regain his motion or quadriceps function.
I also think that it is possible that there may be some overgrowth of tissue in the notch that is preventing complete extension.
My recommendation is arthroscopy and enlargement of the notch to attempt to regain extension and hopefully this will allow him to work harder on the quadriceps function.
On August 15, 1997, Dr. Martin performed "arthroscopy, arthroscopic debridement, synovial biopsy, resection of fibrous tissue, and synovectomy" to treat Claimant's pain, with a post-operative diagnosis of "mild arthrofibrosis with inflammatory arthritis." The pathological examination of claimant's synovial tissue biopsy resulted in a final diagnosis of chronic synovitis.
Dr. Martin's August 19, 1997 office note is as follows:
Brett is four days post op arthroscopy with debridement of arthrofibrosis of the left knee. He says his knee feels better. He has regained some motion and lacks only about 10 degrees of extension and when he really pushes the knee down to 5 degrees. He complains of posterior pain now when he extends. He flexes greater than 90 degrees. He has only a trace of effusion and the wounds are healing well with no trace of infection.
Brett needs to be very aggressive in his rehab much more so than after his first operation.
The notes from claimant's physical therapist, Wayne Rice, dated 8-20-97 through 9-25-97 indicate that his course of physical therapy was useful in controlling and relieving his pain in his knee and hip and back, and in increasing his strength and range of motion.
On September 9, 1997, Dr. Martin wrote:
Brett is 3 + weeks post arthroscopy with debridement of arthrofibrosis of the left knee. He says it has continued to get better but has some mild pain posteriorly. He lacks only 5 degrees of extension and flexes to approximately 120 degrees. There is no instability. He does still have some popping around the knee but this improving.
Brett is doing much better with his knee.
I will see him back in four weeks for follow up and at that time make a determination about returning to work.
On October 8, 1997, in a letter to Dr. Martin, the physical therapist recommended an MRI and an evaluation in regard to a suspected disc protrusion. Claimant suffered numbness in his left hip, leg and calf and severe burning pain down the leg which was relieved in therapy.
Dr. Martin's October 9, 1997 office note states:
Brett is 8 weeks post arthroscopic debridement for arthrofibrosis.
He was in Hawaii walking and says he felt some numbness down his leg with giving way of his knee. He did not fall but because of this pain going down his leg he had to he carried to a van. He is using an over the counter knee brace which seemed to help him and he was able to come back from his trip. He saw his physical therapist who manipulated the back and gave him some relief. He now says he is walking after his manipulation.
On exam he is tender over the lateral side of the calf and lateral thigh. The knee is not particularly painful. There is no significant change in his knee exam with -5 degrees of extension and flexion 120 degrees. He is tender over the lumbar spine on the left side and left SI joint. Straight leg raise causes pain down the leg.
I referred him to Neurosurgery Associates for evaluation of a possible nerve root impingement. I will see him back in a month for follow up.
He was given a prescription for Ambien for sleep and Darvocet N-100 for pain.
On November 11, 1997, Dr. Martin wrote:
Brett returns for follow up of his left knee. For some reason he has not seen neurosurgery associates as requested.
He still has the symptoms of peroneal nerve irritation and I would like him to see one of the neurosurgeons at Neurosurgery Associates for evaluation of the peroneal nerve to see if he needs a release of the nerve or exploration of the nerve.
I will see him back after the evaluation.
I also recommended that he undergo vocational rehab since I don't think he will be able to return to his previous job.
Addendum: Mr. Emmett has been abusive to my office personnel of the phone with his requests for pain medication. His behavior borders on someone who has a narcotic dependency and the physical manifestations following surgery are a way to obtain more medication.
Mr. Emmett has been a difficult patient from the standpoint of his rehabilitation following a routine ACL reconstruction. I am not able to explain his pain and the intraarticular abnormality at this point.
His symptoms are radicular in nature and most likely represent nerve root impingement. I have little less [(left?)] to offer other that the neurosurgical evaluation.
On November 25, 1997 Dr. Mulhollan wrote a letter in which he stated, that after reviewing records, including the operative report from August 15 and follow up by Dr. Martin that:
At this moment, the patient has rather marked palpable warmth in the left knee region. There is a slight effusion. He has an inability to extend the knee fully, lacking roughly 10 degrees. He has a dramatically antalgic gait. He has marked quadriceps atrophy.
Radiographically, he has moderate narrowing of the left knee medial compartment and marked osteopenia so that the patella is quite indistinct on the AP view where it overlaps the distal femur.
It is my opinion that the patient has an inflamed knee created by a lack of quadriceps strength. As long as he ambulates without an aid, I think he will continue to have this predicament. His knee is plenty good for swimming. If he will protect it with two crutched, using a 3:1 gait pattern, he will probably stop having so much irritation and become able to pedal a stationary bicycle. I do not think additional surgery will help his predicament. I do not think he is anywhere near MMI.
Presently I think he can work in a sedentary position, but he cannot do anything that requires walking around without crutches.
I think it is premature to estimate the patients's physical impairment.
Claimant went to the emergency room on January 15, 1998, complaining of hip pain after his knee popped. The diagnosis was lower back strain. His discharge instructions indicate claimant was to return to work light duty on January 16, 1998, with no lifting over ten pounds until cleared by an orthopedic doctor.
Dr. Martin's office note dated May 13, 1998 states:
Brett returns for follow up of his left knee. He still has some pain anteriorly and has radicular pain down the back of the leg from the hip all the way down to the foot. He does not complain of any instability.
On examination today, he has range of motion from -5 to 120 degrees. He has no instability and there is a 1+ effusion present. Patella compression test was positive. There is crepitance with motion. He has a positive straight leg raise but no loss of sensation and no motor weakness. He still has a significant quad atrophy on the left.
I don't think that Mr. Emmett is going to improve any more. I still recommend that he have the back evaluated.
As a result of the ACL reconstruction with patellofemoral chondrosis and joint space narrowing as well as loss of motion I estimate that he has a 22 percent impairment of the lower extremity or 9 percent to the body as a whole. THE AMERICAN MEDICAL ASSOCIATION GUIDES TO EVALUATION OF PERMANENT IMPAIRMENT was used in arriving at this rating.
Dr. Martin's August 5, 1998 office note indicates that claimant was suffering persistent pain consistently for several months, but no instability in his range of motion as there was before:
I think most of Mr. Emmett's problems are coming from the chondral damage in his knee. I was noted at the time of the surgery that he did have a significant amount of arthrosis on both the patella and the medial femoral condyle.
I started him on Arthrotec. I don't think another surgery is warranted at this time. If he persists in having continued problems, at some point in his life he may be a candidate for additional debridement and possibly a knee arthroplasty if this degeneration continues.
There was a hearing September 25, 1998, after which the administrative law judge did not allow a change of physician but did order an independent medical examination to determine whether claimant was at maximum medical improvement or whether he needed more treatment. The IME was performed January 7, 1999.
Dr. Barnes, of the Arkansas Orthopaedic Network, performed an Independent Medical Evaluation of claimant on January 7, 1999. His report states:
The independent medical evaluation will be based upon the history and physical examination of the patient as well as a review of the records and radiographs. . . .
On medical examination today, he has a fairly large effusion of the left knee, he lacks about 10 degrees of extension and has a painful range of motion, flexing to about 85 degrees. His knee is stable. He has pain with varus loading and he is tender at his medial joint line.
Radiographs confirm medial compartment narrowing of the left knee.
He has post-traumatic arthritis of his left knee. Dr. Martin has suggested to him that he may ultimately require total knee replacement, and I would concur with this. He might be a candidate for osteotomy since most of his arthritis is medial.
The patient is unable to return to work at this time. I do not think he would ever participate in a manual labor type position. He needs to be retrained for more sedentary work.
Dr. Martin's March 9, 1999 x-ray report states that claimant "has had progression of his arthritis since the last x-ray. He now has complete loss of the medial joint space on this film."
Dr. Martin's March 9, 1999 office note states:
Brett is two years 5 months post left ACL reconstruction. He has had progressive pain secondary to post traumatic arthritis. The pain has now progressed to the point that it is incapacitating. He cannot walk because of the pain. He has pain at night which keeps him from sleeping. He has seen some other doctors for other opinions and has been told that he is a candidate for a total knee arthroplasty because of the arthritis.
X-rays today show complete loss of the medial joint space. This is consistent with post traumatic arthritis.
On exam he has a 1+ to 2+ effusion in the knee. He is tender over the medial joint line and around the patella. Patella compression test is positive. He has no significant laxity. Range of motion is -30 to 80 degrees. There is crepitance with motion.
Assessment: Post traumatic arthritis of the left knee.
Recommendations: I agree that Brett is a candidate for a total knee arthroplasty. I don't think that an osteotomy would be appropriate. The risks and benefits were explained. I also explained that because of his significant synovitis and problems with the knee that he probably would not get complete resolution of the pain.
Dr. Barnes wrote a letter to respondents' attorney, dated March 9, 1999, stating:
It is my impression that Mr. Emmett will be unable to return to manual labor. This is a permanent restriction that will remain in place should he proceed with total knee replacement. He has probably plateaued in the healing from his injury. He does, however, have significant arthritis and symptoms secondary to this. He will ultimately require further surgical treatment. The timing of the surgery should be decided by the patient and his surgeon. If he continues to have significant symptoms, Dr. Martin may decide to proceed with surgery sooner rather than later.
I have not seen Mr. Emmett since January. If, however, his symptoms remain stabilized, he could return to sedentary work at this time.
In short, although Dr. Martin concluded that he had nothing left to offer claimant for his knee on May 13, 1998, and assigned the claimant a permanent impairment, the subsequent office reports and diagnostic tests performed by Dr. Barnes and Dr. Martin indicate that claimant's knee underwent severe arthritic changes over a short period of time causing a complete loss of the medical joint space by at least March 9, 1999. Dr. Barnes concluded that the condition would require total knee replacement on January 7, 1999, and Dr. Martin concluded that the claimant would require total knee replacement on March 9, 1999. Under these circumstances, we find that the record fails to establish that the claimant's knee condition ever "stabilized" as respondents assert, or that the claimant's knee was as far restored as the permanent nature of his injury would permit during any period prior to March 9, 1999. To the contrary, claimant's knee underwent a surprisingly rapid degeneration, and deteriorated to the point that surgery is the best option remaining. On this record, we find that claimant remained within his healing period between May 13, 1998, and March 9, 1999, while his knee condition was continuing to deteriorate, and to a date yet to be determined. Compare, Milligan v. West Tree Service,supra.
We also find that the greater weight of the credible evidence establishes that the claimant was totally incapacitated from earning wages during the period in question. There is simply no credible evidence in the record that the claimant could return to his prior job in manual labor or to any new work within his physical restrictions and work experience during the period in question. In reaching this conclusion, we have considered Dr. Barnes' March 9, 1999, letter suggesting that the claimant could perform sedentary work if stabilized. However, there is no evidence that the claimant had available sedentary employment within his physical restrictions, pain limitations, and work experience during the relevant period between May 13, 1998, and March 9, 1999.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must 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 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
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DISSENTING OPINION
[46] I respectfully dissent from the majority's opinion The issue in this case is whether temporary total disability benefits cover the period of plateau after Claimant's doctor indicated that Claimant had reached maximum medical improvement, but will probably someday need further surgical treatment, and Claimant still complained of pain and wanted a second opinion, and did in fact need surgery at a later time. It is my opinion, based on a thorough de novo review of the entire record that Claimant is not entitled to temporary total benefits for the period after May 13, 1998 until March 1999 because during that period Claimant's condition was stabilized, and no further treatment or care would improve Claimant's knee other than the knee replacement surgery when it was indicated.The record in this case is made up of Claimant's hearing testimony and his medical records, and correspondence from his doctors, as described in the majority opinion.
It is my opinion that the case law as cited in the majority opinion supports a finding against an award of benefits to Claimant in this case. Goode v. Commercial Warehouse, Full Commission Opinion Filed November 12, 1998 (WCC No. E112906);Thurman v. Clarke Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994); Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987). Based upon my de novo review of the entire record, I find that Claimant's healing period ended on May 13, 1998 when Dr. Martin, Claimant's treating physician, stated that "I don't think Mr. Emmett is going to improve anymore." The Administrative Law Judge however, ordered an independent medical examination to determine whether Claimant was at maximum medical improvement after a hearing on September 25, 1998. Dr. Barnes, in a letter written March 9, 1999, stated that Claimant "has probably plateaued in the healing from this injury," based upon his examination on January 7, 1999. It appears from the medical records that Claimant's condition did not change after May 13, 1998, other than the worsening of his post-traumatic arthritis. This arthritis was treated with medication for pain but was not expected to resolve. Claimant was warned that the arthritis would probably require total knee replacement, and in fact this happened. Claimant reached maximum medical improvement on May 13, 1998, and his condition required pain management and monitoring until such time as the knee replacement became warranted in March 1999.
After a de novo review of the entire record I would find that Claimant is not entitled to any total temporary disability benefits for the period of time between May 13, 1998 and March 1999 during which time Claimant was not in a period of healing. Therefore I respectfully dissent from the decision of the majority as I would reverse the decision of the Administrative Law Judge.
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