Opinion
CLAIM NO. E614038
OPINION FILED SEPTEMBER 14, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE TERENCE JENSEN, Attorney at Law, Benton, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
[2] The respondents appeal and the claimant cross-appeals an administrative law judge's opinion filed July 24, 1997. The administrative law judge found that the claimant sustained a compensable injury pursuant to Ark. Code Ann. § 11-9-102(5)(A)(i), and that treatment rendered to the claimant by Dr. Greg Henson from September 25, 1996 through March 3, 1997 constitutes reasonably necessary medical treatment for the compensable injury. The administrative law judge found that the claimant was rendered temporarily totally disabled from September 26, 1996 through October 2, 1996, and from October 4, 1996 through March 3, 1997. The Full Workers' Compensation Commission has reviewed the entire record de novo. The Full Commission affirms the finding that the claimant sustained a compensable injury, but we find that the claimant sustained an injury pursuant to Ark. Code Ann. § 11-9-102(5)(A)(ii)(b) et seq. We affirm the finding that the claimant is entitled to reasonable and necessary medical treatment by Dr. Henson, and we affirm the periods of temporary total disability compensation awarded by the administrative law judge. The Full Commission thus affirms, as modified, the decision of the administrative law judge.The claimant, age 50, previously worked for the respondent-employer from approximately 1979 through 1989. The claimant lost her job when the business changed owners. She went to work for a grocery store, but she was re-hired by the respondent-employer several years later. The parties stipulated that the employee-employer relationship existed on all relevant dates between April 29, 1996 and September 25, 1996. The 5' 5" claimant testified that her work during this time involved going through boxes and sorting clothing items, sometimes reaching overhead to get boxes down, using a step ladder to bring down boxes stacked to the ceiling, and pulling down shelves. The claimant said she restocked merchandise, occasionally swept, and cleaned the bathrooms. The claimant testified that she also pushed large four-wheel carts carrying heavy boxes. The claimant said she had to frequently and daily lift, bend, stoop, push, pull, and squat. Cheryl Owens, manager and co-owner, agreed that the claimant rearranged and stocked merchandise, but as for daily lifting, pulling, and tugging on boxes, "That just did not occur." Ms. Owens testified that there were some boxes when she bought the store, but that these were not moved on a daily basis. Ms. Owens recalled only one specific time when the claimant climbed a ladder, August 12, 1996, to get down a box of socks for a wholesaler. Ms. Owens testified that employees "very seldom" were required to move heavy boxes.
Three weeks before presenting to an emergency room, claimant testified, her back began popping and hurting. On or about September 25, 1996, according to the claimant's testimony, she had been working with Dickie coveralls. "They were scattered in rooms and they were on the floor; they were in boxes; they were on shelves; they were on tables." The claimant testified that her back had been hurting all day, and she described an incident which occurred on September 25, 1996, when she had sat on the floor and was crawling under a table to reach for some coveralls:
These particular ones were under the table. I had to get under the table to get them out and then I handed some up to her that late afternoon, but I had done the job basically by myself during the day hours until late that evening and then when I got down I had sat down and then I got over in a crawl like on my knees — I was like on my all fours and I went to reach to get some coveralls and I couldn't move back. I was stuck and I heard this tremendous pop and I thought well, what's wrong. I said Barbara, something's wrong and I hollered at Barbara.
The claimant testified that she did not experience an "immediate onset" of pain, but that her chronic pain became more severe after the "pop." A co-worker, Barbara Benetz, testified that she noticed the claimant was sitting and could not get up. Ms. Benetz testified that the claimant had complained of back pain for three weeks prior to this event, and that she helped the claimant get up. The claimant's mother, Nina Heathcock, testified that she also had known that the claimant's back was hurting about three weeks prior to the date of injury. Ms. Heathcock also testified that the claimant had complained of back pain after cleaning out a house in the scope of employment with her son. Ms. Heathcock stated that the claimant had been moving things from the house to the respondent-employer's premises. Further, Ms. Heathcock stated that Barbara Benetz had not been able to get the claimant up by herself on the alleged injury date.
The claimant testified that the September 25, 1996 injury occurred near the end of her shift, and that she slowly and painfully got into her truck to go home. The claimant testified that her son and his wife took her to the emergency room. A Baptist Memorial Medical Center Discharge Instruction Sheet, dated on or about September 25, 1996, indicates that the claimant was treated conservatively for a lumbar strain, muscle strain. Dr. Greg Henson, a practitioner of internal medicine, testified at deposition that he treated the claimant in the emergency room that date, and that there was "a lot of just spasm of the muscles of the low back." Dr. Henson did not consider muscle spasm to be an "objective finding . . . just the fact that there was increased tone in the lumbar region down there."
The claimant testified that Dr. Henson took her off work for seven days, and that she reported back to work around October 3, 1996. The claimant said she told an employee, Linda, that the physician had ordered light duty work. The claimant testified that after lunch, Bill Ferguson, an owner-supervisor, instructed her to move a rack, table, and some underwear off of four-inch plywoods. The claimant said she told Mr. Ferguson she could only perform light work, and that he said, "This ain't going to hurt you." The claimant balked at performing this duty, and after she called her mother and her physician, Mr. Ferguson sent her home. The respondent-employer has not offered the claimant work since that time, nor has she attempted to return to work — "My doctor has not released me and I do have pain."
The record contains a progress note from Dr. Greg Henson dated October 9, 1996:
Mrs. Smith returns to the clinic today for follow-up of problems with her back still. She was seen in the ER about one week ago and had difficulties with back pain. We subsequently placed her on bedrest. . . . She has difficulty in walking for any length of time.
I discussed the etiologies of this and I feel that lifting heavy loads at work over a period of time seemed to cause a chronic progressive thing while she was at work with lifting boxes and changing displays and carrying heavy objects. I asked her to see about looking into workmen's comp. issues because I feel that this is a workmen's comp. issue because she was injured on the job.
Dr. Henson scheduled an MRI to rule out a ruptured L5-S1 disc and kept the claimant off work for another week. Dr. Henson testified that he kept the claimant off work at that time "because of the amount of pain she has and the suspected injury." An MRI of the lumbar spine was taken October 10, 1996, with the impression of diffuse disc bulge at L3-4, L4-5, and L5-S1, no evidence of focal disk herniation or nerve root compression. Dr. Henson corresponded on October 16, 1996:
Mrs. Jeanie Smith is a lady we have followed in our clinic for several years now. . . . She subsequently reported to the emergency room approximately the first part of October for problems with her back. She came to the ER after she was no longer able to get around in her own home. Her husband had to bring her. She had given a history that for approximately two to three weeks she had been doing a lot of heavy lifting on the job and lifting a lot of boxes where she works. . . . She had development of a slow process of increasing amounts of pain over the past couple of weeks. The day she presented to the ER, after getting home from work, she had so much pain in her back that she could not stand it any longer and had to be brought to the ER. In the ER, I evaluated her there and x-rays were unremarkable. . . . She was sent home with bedrest, muscle relaxers, and pain medication.
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Since I am her primary care physician, she came to see me first and we were hoping that this might be something that she could recover from simply, but it is not. Knowing that the injury occurred from the workplace, we are now requesting that this be turned over to workmen's compensation.
The claimant began a course of physical therapy in November, 1996. The physical therapist stated that the claimant had been diagnosed with muscle spasms upon presenting to the emergency room after the workplace injury. Dr. Henson's impression on November 27, 1996 was severe lumbar strain, improving, but "will need a lot more physical therapy to try to return her to a state of independence." Dr. Henson wrote on December 30, 1996, "Evidently, the muscular damage is now healing. Sometimes it takes six, eight or even twelve weeks for this to heal. . . . We will continue her on physical therapy now, as she is needing to get a full recovery so that she can hopefully return to some form of work."
Dr. Henson corresponded with counsel on March 10, 1997:
To my knowledge, she has never had any problems with her back or with any prior history of back injury or back problems. She came to the ER on 09/25/96 when she had been working for Owens and Ferguson and had problems with small degrees of back pain for two to three weeks. . . .
Overall, I feel that given the fact that she had no previous back problems prior to this that her work is the major cause of her back injury and there were no identifiable pre-existing conditions. However, our only objective findings to this point was the fact that a lot of muscular spasm was seen in the low back on exam in the initial evaluation. There has never been any evidence of radicular pain or obvious abnormalities on the x-rays which would lend itself to this. I feel that the bulging disk could be seen in any one of her age and her body habitus. What we do know is that she has had marked pain with this and that pain is her limiting factor at this time.
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In the case of Ms. Smith, because of her larger body habitus, these muscles were probably initially very strong and supported her in her own weight; but, once damaged, her weight has now become her own enemy in that it hampers her ability to recover as her muscles are asked to lift a larger burden in the initial recovery period. . . .
Dr. Earl Peeples conducted an independent medical examination for the respondents and corresponded on March 24, 1997: "It is my impression that this patient, although, she may have had some minimal muscle irritation in September, has at present a diagnosis of Conversion Disorder." Dr. Peeples could not find a physical basis for the claimant's pain, and stated, "I do not find a structural problem which would prevent this patient from being gainfully employed." Dr. Peeples, an orthopedic surgeon, decided to psychologically evaluate the claimant in addition to his physical examination. He gave the claimant a Minnesota Multiphasic Personality Inventory (MMPI) to take home and complete on her own. Dr. Peeples enclosed a copy of the results to counsel in April, 1997: "These do not correspond with my initial clinical impression of Conversion Disorder, but do reflect significant abnormality. I did not identify an orthopedic or neurological abnormality which I believe would require further treatment." Dr. Peeples did not disclose which significant psychological abnormality he diagnosed from reviewing the claimant's take-home personality inventory.
In order to establish compensability of a gradual-onset back injury in accordance with Act 796, the claimant must establish by a preponderance of the evidence that she sustained an injury which arose out of and in the course of employment, and that the injury caused internal or external physical harm to the body. See, Ark. Code Ann. § 11-9-102(5)(A)(ii)(b). The compensable injury must be established by objective medical findings. See, Ark. Code Ann. § 11-9-102(5)(D). Further, the claimant must establish that the compensable injury is the major cause of the her disability or need for treatment. See, Ark. Code Ann. § 11-9-102(5)(E)(ii).
The Full Commission finds in the present matter that the claimant proved, by a preponderance of the evidence, that she sustained a gradual-onset injury pursuant to Act 796 of 1993. The claimant testified that she had been moving heavy boxes for several months prior to the "culmination" on September 25, 1996. On that date, the claimant's back had been hurting all day before feeling a "pop" while reaching for some coveralls. The claimant sought emergency medical treatment and was diagnosed with a lumbar strain, muscle strain. We recognize that Cheryl Owens, a manager and co-owner of the store, testified that frequent and daily lifting, pulling, and tugging on boxes by the claimant "just did not occur." We note, however, that Ms. Owens did not begin work for the respondent-employer until July 22, 1996; the parties stipulated that the claimant began work for the respondents on April 29, 1996, nearly three months before Ms. Owens was even on the scene to observe the claimant's duties. Further, Ms. Owens testified that she was not present every day even after she began working for the respondents.
Under these circumstances, we attach greater weight to the opinion of Dr. Henson, who opined in October, 1996, "I feel that lifting heavy loads at work over a period of time seemed to cause a chronic progressive thing while she was at work with lifting boxes and changing displays and carrying heavy objects." Dr. Henson, the claimant's treating physician, testified at deposition:
Q. Doctor, just to kind of finalize this examination, at least as far as I'm concerned, the major cause, the major reason for this lady's need for treatment, in your opinion, was the heavy lifting activities and then culminating in an incident on September 25; is that true?
A. Yes.
Based on the significant weight that we accord Dr. Henson's testimony, we find that the claimant proved that she sustained an injury which arose out of and in the course of her employment, that the injury caused internal or external physical harm to the body, and that the injury is the major cause of her disability and need for treatment.
Ark. Code Ann. § 11-9-102(16)(A)(i) provides that "objective findings" are those findings that cannot come under the voluntary control of the patient. In the present matter, the administrative law judge found:
The opinion of Dr. Henson, concerning the presence or existence of the physical harm or damage to the claimant's lower back, is supported by "objective findings", in the form of muscle spasms of the musculature of her lower spine. Although, in his deposition, Dr. Henson vacillates between whether such spasms are objective or subjective (i.e., under the claimant's voluntary control), it is his testimony that this observed abnormality was not totally within the claimant's voluntary control. It must be noted that the Full Commission has specifically held that the observation of "muscle spasms" constitutes an objective finding. It is simply my opinion that this rule should also apply to the present facts. I do not believe that this claimant, nor the vast majority of claimants, have the discipline and ability to voluntarily control muscle tone and rigidity, particularly in their lumbar spine.
In his March, 1997 deposition, Dr. Henson testified regarding the claimant's trip to the emergency room after the alleged workplace injury: "The only findings that we saw at that time were a lot of just spasm of the muscles of the low back . . . that is, an increased amount of tone such that the muscles were harder or firmer than what you would expect to find in someone who is not having a spasm." Dr. Henson described muscle spasm as "partially involuntary, partially voluntary." Dr. Henson testified that there were no actual "objective findings . . . just the fact that there was increased tone in the lumbar region down there," which the claimant's treating physician opined resulted from the injury. Elsewhere in the deposition, Dr. Henson responded affirmatively to the question, "In this case, you detected what you considered to be objective evidence of a muscle spasm; it that true?"
On appeal, the respondents argue that "true objective findings" were not present when Dr. Henson initially examined the claimant. We disagree. It is well-settled that a physician's report of muscle spasm constitutes an objective medical finding.Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998); High Capacity Products v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). In University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997), the Arkansas Court of Appeals approved the following definition of "muscle spasm":
1. An involuntary muscular contraction. . . . 2. Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; (spasm) is due to pain stimuli to the lower motor neuron.
In Kimbrell v. Ark. Dept. of Health, 66 Ark. App. ___, ___ S.W.2d ___ (1999), the sole issue was whether a compensable injury had been established by medical evidence supported by objective findings. The claimant contended that she had sustained a compensable injury to her back, but the initial treating physician reported that he found only muscle "tenderness." The Court of Appeals affirmed the Commission's denial of the claim based on a lack of objective findings, noting that "tenderness" was measured by the claimant's subjective reaction to stimuli, and could thus "be controlled by the patient." In the present matter, however, Dr. Henson testified that he observed "a lot of just spasm of the muscles of the lower back" when he first treated the claimant after the injury. Although Dr. Henson was not certain whether he would describe the claimant's muscle spasm as objective from a medical standpoint, we need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to workers' compensation law. Tyson v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). We also recognize that Dr. Henson reported "increased tone in the lumbar region," which he attributed to the injury. We have previously determined that a report of increased muscle tone may constitute an objective medical finding. Ponder v. Patterson Cleaners, Inc., Full Workers' Compensation Commission, opinion filed March 10, 1997 ( E514528). From this record, we find that the claimant established a compensable injury by objective medical findings.
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). Ark. Code Ann. § 11-9-102(13) defines "healing period" as the period necessary for the healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of her injury will permit. When the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of her physical capabilities. 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 administrative law judge found that the claimant was rendered temporarily totally disabled from September 26, 1996 through October 2, 1996, and from October 4, 1996 through March 3, 1997. The Full Commission affirms this finding. The claimant sustained a compensable lumbar strain, muscle strain on September 25, 1996, and Dr. Henson took the claimant off work for seven days. The claimant attempted to return to light-duty work for the respondents on October 3, 1996, but after lunch on that date, the employer assigned the claimant duty moving a large table and rack. When the claimant objected, she was sent home. The claimant has not worked for the respondents since that time, nor has work been offered. At about this time, the claimant again presented to the emergency room, and Dr. Henson reported that he had taken the claimant off work and had prescribed bed rest. On December 30, 1996, Dr. Henson wrote that the claimant's muscular damage was healing, and that the claimant's healing period could last as long as twelve weeks.
The administrative law judge opined that the claimant continued within her healing period from September 25, 1996 through March 3, 1997. The administrative law judge found that there had been little or no change in the claimant's physical condition after March 3, 1997, and that her condition had thus "stabilized." The administrative law judge cited an "absence of any objective findings" after March 3, 1997, and he also noted that Dr. Peeples reported no "physiological abnormalities." On appeal, the claimant argues that the Commission should afford her the opportunity to prove the existence of objective findings in order to support a prospective award of temporary total disability. Yet, the law concerning temporary total disability does not concern itself with whether there are objective findings of an injury, because the question of objective findings applies to compensability determinations. Williams v. Prostaff Temporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998). From this record, we affirm the administrative law judge's finding that the claimant remained within her healing period and totally incapacitated from earning wages from September 26, 1996 through October 2, 1996, and from October 4, 1996 through March 3, 1997.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant proved that she sustained a compensable injury pursuant to Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(5)(A)(ii) et seq. We find that the claimant proved entitlement to reasonable and necessary medical treatment as awarded by the administrative law judge, and that the claimant was temporarily totally disabled from September 26, 1996 through October 2, 1996, and from October 4, 1996 through March 3, 1997. We thus affirm the decision of the administrative law judge.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing in part 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.
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Commissioner Humphrey concurs.
Commissioner Wilson dissents.