Opinion
CLAIM NO. E610010
OPINION FILED MARCH 9, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE BRIAN H. RATCLIFF, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] In an opinion dated July 22, 1997, the administrative law judge held that the claimant was entitled to receive additional medical care at the expense of the respondents and that the respondents were obligated to pay the claimant temporary disability benefits through April 15, 1996. The administrative law judge further held that the record had not been sufficiently developed to determine whether the claimant was entitled to benefits after that date and reserved any determination as to the claimant's entitlement to benefits subsequent to April 15, 1996. Based upon our de novo review of the record, we find that the administrative law judge correctly applied the law to the facts presented and that his decision should be affirmed.The claimant suffered an admittedly compensable injury on December 15, 1995. At the time of his injury, the claimant was traveling in a company-furnished vehicle in the state of Mississippi. Originally, the respondents questioned the jurisdiction, but did not appeal the administrative law judge's finding that jurisdiction in this matter rested with Arkansas.
The only remaining issue in this case is whether the claimant is entitled to any additional medical or disability benefits in excess of those already provided to him.
The claimant contends that his injury has rendered him totally disabled from the date of the injury to the present time, and that he is entitled to temporary total disability benefits to a date yet to be determined. The respondents apparently admit that the claimant is entitled to a certain amount of medical and disability benefits pursuant to his injury. However, the respondents also contend that their obligation to provide such benefits is satisfied by the credit to which they would be entitled to receive based upon a previous payment of benefits to the claimant by the employer's workers' compensation insurance carrier for the state of Mississippi.
The administrative law judge held that the claimant established that he was entitled to all reasonable and necessary medical benefits for the injury to his neck and upper back, and that he was entitled to temporary total disability benefits through April 15, 1996. The administrative law judge also held that the medical records were unclear as to the claimant's entitlement to further medical and disability benefits after April 15, 1996, and accordingly, the claimant's entitlement to such benefits was held in abeyance pending further development of the medical evidence. The respondents were also allowed to claim a credit based upon the claimant's receipt of medical and disability benefits pursuant to the Mississippi Workers' Compensation Act.
The respondents did not appeal the administrative law judge's determination that Arkansas was the appropriate forum to litigate this claim, nor that the claimant was entitled to medical and disability benefits through April 15, 1997. However, the respondents strenuously contend that the administrative law judge's decision that the claimant's entitlement to benefits beyond that date was reserved pending further development of the medical evidence was erroneous, as a matter of law, and has the effect of giving the claimant "a second bite at the apple."
The claimant argues that the administrative law judge's decision to reserve the issue, as to the extent of his temporary disability benefits, was justified by the Supreme Court decision in Gansky v. High Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). In that case, the Commission held that the claimant had reached the end of his healing period and was not entitled to any further medical or disability benefits. That decision was affirmed by the Court of Appeals. The Supreme Court reversed on the basis that the claimant's treating physician had recommended that the claimant undergo further testing and medical care, but that such was not carried out because of the respondents' refusal to pay for it. The Supreme Court held that the Commission should have affirmed the administrative law judge's order that the respondents pay for a functional capacity assessment and other tests prescribed by the claimant's treating physician before determining the claimant's entitlement to additional disability benefits.
Another case in point on this issue is Grimes v. North American Foundry, 316 Ark. 395, 872 S.W.2d 59 (1994). In that case, one of the issues submitted to the administrative law judge was the extent of the claimant's wage loss disability. However, at the hearing, little, if any, evidence was presented as to that issue. In spite of that, the administrative law judge determined the claimant's entitlement to wage loss disability benefits and awarded such benefits to the claimant. On appeal, the Commission held that insufficient evidence had been presented at the hearing to determine that issue and, consequently, remanded the case back to the administrative law judge to conduct subsequent proceedings to determine the extent of the claimant's wage loss disability, if any. The Court of Appeals affirmed the Commission in a three to three decision. The Supreme Court accepted the case and held that the Commission's action was appropriate. The Supreme Court held that the Commission had the discretion to reserve such issues and require subsequent hearings for submission of additional evidence. The Court went on to determine that the Commission had not abused its discretion in the Grimes case.
We find that the Supreme Court's decision in Gansky v. High Tech Engineering, supra and Grimes v. North American Foundry,supra, are controlling authorities in the present case. Prior to the termination of benefits by the respondents, the claimant was being seen by Dr. P. B. Simpson, a neurosurgeon in Pine Bluff, Arkansas. Dr. Simpson apparently last saw the claimant on or about June 19, 1996. In a progress report of that date, Dr. Simpson noted that the claimant was still having pain and related problems in his neck. Dr. Simpson stated that he was uncertain as to any other treatment to be given to the claimant, but that he should return as needed. However, when the claimant did attempt to return to Dr. Simpson, the respondents refused to pay further medical care. The claimant then attempted to seek medical care from various other sources, eventually being seen by Dr. D'Orsay Bryant, an orthopedic surgeon in El Dorado, Arkansas. In a report dated May 29, 1997, Dr. Bryant indicated that the claimant was suffering from a soft tissue injury to his neck and sternum and that he required conservative treatment. However, the claimant has been unable to obtain such treatment because of the respondents' refusal to pay for further medical care.
In our opinion, the refusal of the respondents to provide the claimant reasonable and necessary medical care has made it impossible to determine his entitlement to benefits beyond April 15, 1996.
Consequently, we find no merit in the respondents' assertion that the facts in this case are controlled by the precedent set by the Court of Appeals in Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). Instead, we find the situation in the present case analogous to facts before the Arkansas Supreme Court in Gansky, supra, where the Supreme Court distinguished Landers on the following basis:
Having resolved the first issue in this manner, resolution of the second issue falls into place. The Administrative Law Judge appropriately delayed deciding whether Gansky had a temporary total disability until all the medical treatment, that is, the functional capacity assessment, was completed. This did not transpire. We do not view the reservation of a decision on this point as running afoul of the Court of Appeals's decision in Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). In Landers, that court observed that a claimant should not be permitted a second opportunity to offer proof to meet her burden on the issue of her period of temporary total disability. The Court of Appeals further held that the Workers' Compensation Commission had exceeded its authority in permitting her to do so. Here, Dr. Gocio ordered an additional assessment of Gansky and Hi-Tech contested the need for this additional treatment. The result is that Gansky's initial medical treatment and evaluation were never completed. Those circumstances are fundamentally different from the facts which resulted in the Gencorp decision.
To the extent that it has been asserted that no further medical treatment has been recommended by any provider past April 15, 1996, we again point out that on May 29, 1997, Dr. Bryant indicated that the claimant requires medication and conservative medical treatment, and was also not able to return to work as of that date.
We therefore find that the administrative law judge did not abuse his discretion in reserving any determination as to the claimant's entitlement to benefits after that date for future determination. We wish to emphasize at this time that this finding does not mean that the claimant is entitled to such benefits, but merely that the issue must be determined at a future date. We are simply not willing to either foreclose the claimant from possibly obtaining these benefits or improperly order the respondents to provide them, when the record does not provide a sufficient basis to make such a determination.
For the reasons set out above, the decision of the administrative law judge is, hereby, affirmed. The respondents are ordered to provide to the claimant all reasonable and necessary medical care including that from Dr. D'Orsay Bryant and all other authorized treating physicians. Likewise, the respondents are further ordered and directed to provide the claimant temporary disability benefits through April 15, 1996. Any determination as to the claimant's entitlement to benefits after that date is reserved for future determination. All benefits awarded herein are subject to the credit to which the respondents are entitled to, based upon the claimant's receipt of benefits pursuant to the Mississippi Workers' Compensation Act.
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(b) (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
[21] I respectfully dissent from the majority's opinion finding that the claimant's entitlement to benefits after April 15, 1996 should be reserved for future determination. Based upon my de novo review of the record, I find that by allowing the claimant to reserve this issue he is in a sense getting one more bite at the apple.The majority cites the cases of Gansky v. High Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996) and the case ofGrimes v. North American Foundry, 316 Ark. 395, 872 S.W.2d 59 (1994) as controlling in this case. However, I cannot agree with the majority's findings that these cases are controlling. In my opinion, the case of Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991), is the controlling case with respect to the reservation of deciding an issue. The Commission in the Landers case reversed a Commission decision which made the following findings of fact as the temporary total disability benefits:
The record concerning the appropriate periods of temporary disability prior to June 10, 1989, and subsequent to February 1, 1989, is not sufficiently complete to allow a determination which would be fair and just to all parties concerned, and a determination in regard to the claimant's entitlement to such benefits during this period is reserved for future determination upon further development of the record, if necessary.
In reversing the findings of the Commission, the Court of Appeals held:
It is the duty of the Workers' Compensation Commission to translate the evidence on all issues before it into findings of fact. Sanyo Mfg Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984). The Commission's statutory obligation is to make specific findings of fact and to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990); Ark. Code Ann. § 11-9-705(a)(3) (1987). The quoted paragraph is not a finding of fact, but is a declination to find a fact.
Ark. Code Ann. § 11-9-705(c)(1) provides that all evidence shall be presented to the Commission at the initial hearing on the controverted claim. The burden of proving a case beyond speculation and conjecture is on the claimant. Bragg, supra; 3 Arthur Larson, The Law of Workmen's Compensation, 80.33(a) (1952).
By reserving the issue of whether the appellee was entitled to temporary total disability benefits for the period from February to June 1989, the Commission simply declined to say that the appellee failed to meet her burden of proof on this issue. This constitutes error on the part of the Commission as our workers' compensation statute states that the evidence shall be weighed impartially, and without giving the benefit of the doubt to any party. Ark. Code Ann. § 11-9-704(c)(4). The Commission has allowed the appellee a `second bite at the apple' by giving her another opportunity to present evidence substantial enough to carry her burden. . . .
Therefore, we hold that reserving the issue of the appellee's entitlement to temporary total disability benefits from February 1, to June 10, 1989 is reversed. We hold that appellee failed to meet her burden of proof on this issue, and therefore, she is denied benefits for the reserved period. Gencorp Polymer Products v. Landers, 36 Ark. App. At 194-5.
The factual circumstances in this case are analogous to the case of Landers. The claimant in this case contended that he was temporarily totally disabled from March 28, 1996 to a date yet to be determined. In fact, the Administrative Law Judge's prehearing order, which was filed on February 13, 1997, states that one of the issues to be presented for determination was whether or not the claimant's healing period had ended and whether or not the claimant was entitled to additional temporary total disability.
In my opinion, there is enough evidence in the record to support a finding the claimant's healing period ended on April 15, 1996 and the Commission should make such a finding. To allow the claimant to now present evidence would allow the claimant a second bite at the apple.
A review of the evidence shows that the claimant's healing period ended on April 15, 1996. The healing period is defined as that period for healing of the injury that continues until the employee is as far restored as the permanent character of the injury will permit. Arkansas Highway and Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id.; Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition.Arkansas Highway and Transp. Dep't v. McWilliams, supra; J.A. Riggs Tractor v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The determination of when the healing period ends is a factual determination to be made by the Commission. Arkansas Highway and Transp. Dep't v. McWilliams, supra; Mad Butcher, Inc. v. Parker,supra. In Pallozollo v. Nelms Chevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994), the Court of Appeals stated that in order to be entitled to temporary total disability compensation, a claimant must prove that he remained within his healing period and that he suffered a total incapacity to earn wages (citing Arkansas State Highway and Transp. Dep't v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981)).
After the claimant's December 15, 1995 car accident, he was in the hospital until December 18, 1995. Dr. J. G. Peters treated the claimant and noted in his discharge summary that the claimant was diagnosed with a cervical spasm, with muscle contusions and extreme tenderness in the neck region with post concussion syndrome. Dr. Peters saw the claimant again on January 11, 1996 and noted significant spasm and felt a neurological evaluation was in order. Dr. Peters referred the claimant to Dr. P.B. Simpson on January 15, 1996. Dr. Simpson examined the claimant on January 22, 1996 and continued conservative treatment and ordered an MRI which failed to show any evidence of any abnormality. By a report dated March 25, 1996, Dr. Simpson released the claimant to return to regular duties on April 15, 1996. Again, on June 19, 1996, Dr. Simpson opined that the claimant had reached maximum medical improvement. Therefore, in my opinion, the claimant has failed to meet his burden of proof that he was temporarily totally disabled after April 15, 1996. For the Commission to hold the record open to allow the claimant to present additional evidence on this issue is improper.
Therefore, for the reasons stated herein, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner