Opinion
CLAIM NO. E319127
OPINION FILED DECEMBER 7, 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 NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion filed February 23, 1998, by an administrative law judge. The administrative law judge found that the claimant failed to prove that she is entitled to additional temporary total disability benefits after March 21, 1994, and that the claimant failed to prove that any further medical treatment is reasonable and necessary for her compensable back injury. After conducting a de novo review of the entire record, we affirm the opinion of the administrative law judge.
On or about September 16, 1993, the claimant sustained a compensable injury. The initial treating physician was Dr. William R. Scurlock. Dr. Scurlock reported that the claimant fell at work and injured her right knee. The claimant felt pain in her knee, which radiated to the right hip and back. By October 19, 1993, the claimant was no longer complaining of back pain. Dr. Scurlock referred the claimant to an orthopaedic surgeon, Dr. D'Orsay Bryant. Dr. Bryant eventually performed surgery on the claimant's right knee, for which the respondents paid a 12% permanent partial impairment rating. Dr. Bryant prescribed physical therapy for the claimant's back in November, 1993, in addition to administering two hip injections in December, 1993. Dr. Bryant subsequently referred the claimant to a neurosurgeon, Dr. Stephen Cathey. Dr. Cathey corresponded with Dr. Bryant regarding the claimant on January 24, 1994:
Her neurological exam is negative. She specifically has no evidence of lumbar radiculopathy and straight leg raising is negative bilaterally. A recent MRI scan confirms the presence of moderately severe degenerative disc disease at L4-L5 without any sign of disc herniation, spinal stenosis, etc. While there is a broad based posterior "bulge", there does not seem to be any compromise of the thecal sac, exiting nerve roots, etc. D'Orsay, I have indicated to Ms. O'Guinn that I believe her pain is best explained on the basis of degenerative lumbar disc disease with associated osteoarthritis. Although it is probable that the injury did not cause these anatomical changes, it could very well have aggravated the problem. At any rate, I do not see any indication for lumbar disc surgery. I have given the patient a prescription for Relafen and encouraged her to pursue an active lifestyle, particularly with regard to walking. The patient seemed satisfied with this assessment and will otherwise be followed here on a prn basis.
In February, 1994, based on Dr. Cathey's report, the respondents posited that their responsibility to the claimant ended with the injury she sustained to her knee. The respondents asked Dr. Bryant to provide a report regarding the claimant's anatomical impairment, if any. On March 21, 1994, Dr. Bryant assigned a 12 percent permanent partial impairment to the knee, which he said equated to 5 percent of the whole person. The claimant still complained of low back pain, and Dr. Bryant instructed the claimant to follow-up as needed. The respondents paid the impairment rating to the knee and temporary total disability benefits through March 21, 1994. Due to the respondents' controversion of any medical benefits for her back complaints, the claimant filed a claim for workers' compensation.
Dr. Cathey last saw the claimant on September 6, 1994:
Ms. O'Guinn returns today, apparently at the recommendation of the defense attorneys in this case. She continues to complain of lower back pain that has now started radiating up her spine to her cervical area. The patient tells me she has not worked or seen another physician since her initial evaluation here in January. . . . She is still morbidly obese weighing in at 204 lbs.
Happily, her neurological exam remains entirely negative. . . . Although there is significant discomfort, I am unable to demonstrate any restricted movement or paraspinous muscle spasm.
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Her MRI scan of the lumbar spine reveals degenerative disc disease with a midline protrusion at L4/L5. I see nothing on today's exam to suggest the situation has changed significantly.
I have again indicated to Ms. O'Guinn that I do not believe she is a candidate for lumbar disc surgery. I have therefore advised that she continue to use anti-inflammatory medication on a prn basis and to continue to pursue efforts at weight loss. It is also important that she try to maintain an active lifestyle.
The patient seems satisfied with this assessment and recognizes that there is very little that can be offered her from a neurosurgical perspective.
On November 8, 1994, Dr. Cathey found that the claimant had essentially reached maximal medical improvement with regard to her compensable injury. The record contains a series of office visits by the claimant to South Arkansas Regional Health Center, beginning in February, 1995. The claimant was receiving mental health therapy. A March 15, 1995 chart note stated that the claimant was not motivated to help herself and "would rather wait until Denver Thornton gets her benefits for her." Also on March 15, 1995, an administrative law judge found that the claimant had failed to establish a compensable low back injury; the claimant subsequently appealed this finding to the Full Commission.
In April, 1995, it was noted at the Health Center that the claimant "was not using her cane today and walked fine without it." A June, 1995 progress note states that the claimant continued to improve, was not using her cane, and had begun walking 15 minutes daily. In October, 1995, a social worker with the Health Center reported that the claimant was being reviewed for possible employment with Benchmark Industries. In an opinion filed October 10, 1995, the Full Commission found that the claimant satisfied the requirements necessary to establish a compensable injury to her back. The Full Commission determined that objective medical findings established the presence of a preexisting condition, and that the claimant's fall at least aggravated this preexisting condition. The Arkansas Court of Appeals affirmed the Commission on October 30, 1996.
The claimant did not seek further treatment for her back until returning to Dr. Bryant on March 17, 1997. Dr. Bryant's impression was chronic low back pain with radiculopathy, and he stated that the claimant had persistent pain from her musculoskeletal injury sustained in the work-related accident. Dr. Bryant prescribed a back brace, a knee brace, and medication. On September 2, 1997, Dr. Bryant corresponded with the carrier:
In response to your question as to whether she has reached maximum medical improvement, apparently, she has not. According to the patient, at her last office visit on August 18, 1997, she stated that her pain, particularly in the low back, has been persistent in nature. I had not seen her for a few years, and she stated that she had not improved since she last saw me. I would imagine, because of her symptoms being so longstanding, that she would need occasional medication and conservative management for her condition.
The respondents requested that the clerk of the commission remand the case to an administrative law judge for the purpose of receiving testimony as to claimant's entitlement to disability benefits. Consequently, a pre-hearing order was filed November 26, 1997. The pre-hearing order expressly stated that "additional medical benefits for back injury" was one of the issues to be litigated. In said pre-hearing order, the claimant contended entitlement to temporary total disability benefits from March 21, 1994 until a date yet to be determined; the claimant also contended entitlement to additional medical benefits. The respondents contended in the pre-hearing order that the claimant is entitled to neither temporary total disability benefits nor additional medical treatment. The parties reserved the issue of permanent partial disability for the claimant's back injury. In the dissent's view, the only point of contention is the respondent's liability for payment of proposed treatment at a pain clinic recommended by Dr. Bryant. To support its view, the dissent proffers the following exchange at the beginning of the February 3, 1998 hearing:
MR. PHILLIPS: It is also agreed, Your Honor, I believe, that any medical treatment reasonably incurred by Ms. O'Guinn would be the responsibility of respondents.
JUDGE KOONCE: Let me back up, then, a minute. Is an issue of medical treatment, then?
MR. PHILLIPS: No, sir, I don't think. Is there, Denver? We paid Dr. Bryant.
MR. THORNTON: They have paid Dr. Bryant. The only issue might be she will testify that Doctor Bryant sent her down to Healthsouth in the last several weeks and then the carrier would not authorize that treatment, but I think that is covered in Doctor Bryant's deposition reasonably, Your Honor, that she needs to go down there, and she will testify that she went down there and they wouldn't let her stay, so I assume that is a controversion.
MR. PHILLIPS: I wasn't aware of that, Judge, but perhaps it is true. I sent her money to go down there, I know that.
The dissent thus opines that the parties narrowly defined the issue of additional treatment, id est, whether treatment at Healthsouth was reasonably necessary for treatment of the claimant's compensable injury. We do not agree with the dissent's analysis of the record. Counsel for the claimant stated, "The only issue might be she will testify that Doctor Bryant sent her down to Healthsouth in the last several weeks. . . ." We decline to construe this equivocal statement by counsel as a narrowing of issues for the Commission's consideration, especially when we consider the pre-hearing order and following colloquy at hearing:
JUDGE KOONCE: We will leave the medical benefits issue in, then, and let the claimant testify with that regard.
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JUDGE KOONCE: The claimant is contending pursuant to the prehearing order that she is entitled to temporary, total disability benefits from March 21, 1994, to a date to be determined, entitled to medical benefits for a back injury, and, lastly, that her attorney is entitled to the maximum attorney fee for controversion. Are those correct as far as the claimant's contentions, Mr. Thornton?MR. THORNTON: Yes, Your Honor.
The record vividly shows that the parties intended to litigate the issue of whether the claimant was entitled to additional medical benefits for her compensable back injury, which might include pain management. The parties did not narrowly define the issue as to whether the claimant was entitled to pain management treatment. On the contrary, both parties were unmistakably afforded the opportunity to fully develop the issue of additional medical treatment, as required by Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983), and Guffey v. Arkansas Secretary of State, 18 Ark. App. 54, 710 S.W.2d 836 (1986). The administrative law judge did not improperly broaden or narrow the scope of his decision.
Counsel deposed Dr. Bryant on January 28, 1998. Dr. Bryant was asked about his September 2, 1997 correspondence:
Q. And you did express the opinion at that time she had not achieved maximum medical improvement?
A. Only in the sense that her low back pain had continued and apparently, you know, there was an additional step that I wanted to, that I suggested at that time, was to refer her to a pain clinic, and that step has not yet been taken.
Q. The pain clinic, though, would be to alleviate her complaints of pain and not to improve her physical condition, would it not?
A. That is correct. It would be pain management.
Dr. Bryant went on to testify that pain management might alleviate the claimant's pain symptoms but would not alter the condition of claimant's back. Hearing was held February 3, 1998. The administrative law judge found that the claimant's healing period had ended at the latest on November 8, 1994, when Dr. Cathey stated she had reached maximum medical improvement; therefore, that the claimant failed to prove that any further medical treatment for her back condition was reasonable and necessary. Further, the administrative law judge found that the claimant was not entitled to additional temporary disability, because the claimant had not proven she was totally incapacitated to earn wages. The administrative law judge thus denied and dismissed the claim.
We affirm the administrative law judge's finding that the claimant failed to prove entitlement to additional medical treatment for her compensable back injury. Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § of proving, by a preponderance of the evidence, that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers' Compensation Commission, Feb. 17, 1989 ( D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers' Compensation Commission, Dec. 13, 1989 ( D511255).
In the within matter, the claimant sustained a compensable injury in September, 1993. Dr. Bryant diagnosed lumbosacral strain with possible disc disease in October, 1993. In January, 1994, Dr. Cathey stated that the claimant's neurological exam was negative. A MRI scan confirmed moderately-severe degenerative disc disease at L4-L5, without any sign of disc herniation. Dr. Cathey prescribed medication and encouraged the claimant to pursue an active lifestyle, particularly with regard to walking. The claimant was satisfied with Dr. Cathey's assessment of the measures she needed to take regarding her back condition. In February, 1994, Dr. Bryant erroneously stated that Dr. Cathey suggested a pain management evaluation; however, the record clearly indicates that Dr. Cathey did not suggest such an evaluation. The respondents ceased paying TTD benefits in March, 1994. In September, 1994, Dr. Cathey noted that the claimant was still "morbidly obese;" the claimant obviously did not seek to improve her medical condition by pursuing an active lifestyle. The claimant told Dr. Cathey that she had not seen another physician, when the record indicates the claimant had seen Dr. Bryant. At any rate, Dr. Cathey again encouraged the claimant to maintain an active lifestyle, and the claimant again indicated that she was satisfied with Dr. Cathey's assessment.
On November 8, 1994, Dr. Cathey found that the claimant had reached maximum medical improvement with regard to her compensable injury. The dissent states that Dr. Cathey's opinion would be pertinent to the issue of additional medical treatment, if the claimant desired surgery. We point out, though, that Dr. Cathey did not so limit his opinion; rather, Dr. Cathey credibly opined that the claimant had reached maximum improvement with regard to the compensable injury. There is no further treatment of record from November, 1994 through March, 1997. In the dissent's view,
It is disingenuous of the majority to point out the time lapse with respect to claimant's receipt of treatment for her injury. Claimant had no funds with which to obtain medical treatment. As the record reflects, the compensability of claimant's claim was being litigated, and a final decision not rendered until October of 1997, when the Court of Appeals issued its decision. The court ordered the Commission to determine claimant's entitlement to benefits as a result of her compensable back injury.
First of all, we note that the Court of Appeals affirmed the Commission's finding of compensability in October, 1996, rather than October, 1997, as the dissent asserts. Even though Dr. Bryant and Dr. Cathey had previously left the door open for claimant to return for treatment, she did not seek same until March, 1997, some six months after the finding of compensability. Further, the Court did not remand this claim to the Commission, and the claimant did not seek additional benefits after the Full Commission and appellate findings in her favor. Rather, the respondents requested a remand for hearing on additional benefits. Consequently, we respectfully disagree that our de novo review of the entire record, including the claimant's failure to seek additional benefits on a timely basis, is "disingenuous."
The statutory "healing period" is that period for healing of an injury resulting from an accident. Ark. Code Ann. § claimant's neurological exam was negative, and the presence of degenerative disc disease was confirmed. Maximum medical improvement was pronounced in November, 1994. The claimant contends that she is entitled to pain management treatment for her 1993 injury. We are aware that treatment intended to reduce or enable a claimant to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Billy Chronister v. Lavaca Vault, Full Workers' Compensation Commission, June 20, 1991 ( D704562). In the instant matter, however, the prevailing weight of credible evidence indicates that any chronic pain the claimant experiences is attributable to her degenerative condition rather than the compensable injury. In so finding, we place significant weight on the credible opinion of Dr. Cathey that the claimant's pain is best explained on the basis of degenerative lumbar disc disease with associated osteoarthritis.
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). As discussed supra, the "healing period" is defined as the period necessary for the healing of an injury resulting from an healing period continues until the employee is as far restored as the permanent character of her injury will permit. When the underlying condition 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. Moreover, persistent pain does not suffice, in itself, 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).
The claimant contends that she is entitled to temporary disability benefits from March 21, 1994, until a date yet to be determined. We find that the evidence fails to show that the claimant was totally incapacitated to earn wages after March 21, 1994. The documents of record from South Arkansas Regional Health Center indicate that the claimant was in ambulatory condition, did not want to work, and simply wanted further workers' compensation benefits. We affirm the administrative law judge's finding that the claimant failed to prove she is entitled to any TTD after March 21, 1994.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove that she is entitled to any additional temporary total disability benefits after March 21, 1994, and that the claimant failed to prove that any further medical treatment is reasonably necessary to treat her compensable back injury. We thus affirm the opinion of the administrative law judge. This claim is denied and dismissed.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority opinion that claimant has failed to prove that additional medical treatment is reasonably necessary. In my view, claimant has demonstrated that additional medical care in the form of pain management is reasonably necessary for the treatment of claimant's compensable injury.
I am troubled by the scope of the decision of the Administrative Law Judge and now the majority with respect claimant's entitlement to additional medical treatment. In my view, the only point of contention is respondent's liability for payment of treatment at Healthsouth, the pain clinic recommended by claimant's treating physician, Dr. Bryant. The record reflects the following exchange between the parties and the Administrative Law Judge at the beginning of the hearing:
MR. PHILLIPS: It is also agreed, Your Honor, I believe, that any medical treatment reasonably incurred by Ms. O'Guinn would be the responsibility of respondents.
JUDGE KOONCE: Let me back up, then, a minute. Is an issue of medical treatment, then?
MR. PHILLIPS: No, sir, I don't think. Is there, Denver? We paid Doctor Bryant.
MR. THORNTON: They have paid Doctor Bryant. The only issue might be she will testimony that Doctor Bryant sent her to down to Healthsouth in the last several weeks and then the carrier would not authorize that treatment, but I think it is covered in Doctor Bryant's deposition reasonably, Your Honor, that she needs to go down there, and she will testify that she went down there and they wouldn't let her stay, so I assume that is a controversion.
MR. PHILLIPS: I wasn't aware of that, Judge, but perhaps it is true. I sent her money to go down there, I know that.
MR. THORNTON: When we took Dr. Bryant's deposition the other day, we mentioned that and nobody knew. Quite frankly, they had changed the name of the clinic down there, it's Ruston, so none of the three of us knew the exact status, but I think she can clear that up for us.
JUDGE KOONCE: We will leave the medical benefits issue in, then, and let the claimant testify in that regard.
It is noted that the issue of permanent, partial disability for the claimant's back injury is reserved.
MR. THORNTON: Correct.
In my opinion, the issue of additional treatment was narrowly defined: whether treatment at Healthsouth was reasonably necessary for the treatment of claimant's compensable injury. However, the name of the pain clinic had changed, and this caused some confusion. Although claimant was given an advance for travel expenses to the pain clinic by counsel for respondents, treatment was denied. Claimant's counsel raised the issue of controversion with respect to treatment at the pain clinic. The majority's interpretation of the pre-hearing exchange simply is implausible. Respondents conceded liablity for additional medical treatment. Why would claimant's counsel "open the door" so that the Administrative Law Judge could rule adversely on the broader issue of claimant's entitlement to all additional medical treatment? Notwithstanding the clear statement by Mr. Phillips that respondents were not controverting medical treatment claimant received directly from Dr. Bryant, the Administrative Law Judge held that claimant failed to prove that "any further medical treatment is reasonably necessary for her compensable back injury." Then, the majority holds that ". . . we find that the greater weight of the credible evidence indicates that any chronic pain the claimant experiences attributable to her degenerative condition rather than the compensable injury."
Counsel for respondents issued an advance payment of compensation in the form of medical mileage prior to claimant's visit to the pain clinic. At the hearing, Mr. Phillips appeared surprised that claimant did not receive treatment at the clinic as scheduled. Claimant's counsel contended that treatment at Healthsouth was being disputed by respondents. However, a finding with respect to all medical treatment was made by the Administrative Law Judge a and now the majority. This is problematic because the parties were not afforded an opportunity to fully develop this issue. See, Guffey v. Arkansas Secretary of State, 18 Ark. App. 54, 710 S.W.2d. 836 (1986); Arkansas Louisiana Gas Co. V. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983).
In determining that claimant failed to prove entitlement to additional medical treatment, the majority places great significance upon the opinion of Dr. Cathey. In a letter dated July 12, 1994, Dr. Cathey declined to offer an opinion with respect to the probable length of claimant's treatment because he had not examined her since January. Subsequently, he examined claimant on September 6, 1994. In a letter to counsel for respondents dated November 8, 1994, Dr. Cathey opined that claimant had "essentially reached maximum medical improvement." He based his opinion on claimant's September office visit, and provided counsel for respondents with a copy of the progress note generated by that visit. In that note, Dr. Cathey stated: "I do not believe [claimant] is a candidate for lumbar disc surgery. I have therefore advised that she continue to use anti-inflammatory medication on a prn basis . . . there is very little that can be offered her from a neurosurgical perspective." (Emphasis supplied). The opinion of Dr. Cathey on the issue of entitlement to additional medical treatment would be pertinent if she desired surgery. However, claimant is not seeking surgical intervention in this case. Rather, she is seeking treatment for pain management.
In my view, it is disingenuous of the majority to point out the time lapse with respect to claimant's receipt of treatment for her injury. Claimant had no funds with which to obtain medical treatment. An "open door" policy by claimant's physicians reflects a willingness to render medical treatment. However, I have no doubt claimant's physicians would have expected payment for their professional services. As the record reflects, the compensability of claimant's claim was being litigated, and a final decision not rendered until October of 1996, when the Court of Appeals issued its decision. A hearing was not conducted until February 3, 1997. The following month, claimant obtained medical treatment from Dr. Bryant. In an office note dated March 17, 1997, Dr. Bryant stated that claimant reported her pain had persisted since the occurrence of the fall. He diagnosed "chronic low back pain with radiculopathy" and stated that "this patient does have persistent pain from her musculoskeletal injury sustained in a work-related accident." He prescribed analgesics and muscle relaxants. In my view, the opinion of Dr. Bryant is entitled to great weight. Moreover, his deposition testimony reveals that he has recommended a pain clinic. Therefore, I am satisfied that claimant has demonstrated that treatment at the pain center as directed by Dr. Bryant is reasonable and necessary. Moreover, I am of the opinion that treatment rendered by Dr. Bryant is reasonably necessary for the treatment of claimant's work-related injury.
I am also of the opinion that claimant continues to be entitled to temporary total disability benefits.
Against the backdrop of years of litigation, and a favorable opinion from the Court of Appeals, claimant is awarded no benefits whatsoever by this Commission. The irony is inescapable, and claimant's appellate court victory is hollow indeed.
For the reasons stated herein, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner