Opinion
CLAIM NO. E703941
OPINION FILED MARCH 16, 2001
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on September 29, 2000. In that opinion and order, the administrative law judge held that respondents failed to prove that the statute of limitations is a bar to an award of additional compensation. With respect to the merits of claimant's claim, the administrative law judge determined that claimant proved the occurrence of a compensable mental injury within the meaning of Ark. Code Ann. § 11-9-113 (Repl. 1996), for which he is entitled to receive temporary total disability benefits for a twenty-six-week period commencing on June 30, 1997. Also, reasonably necessary medical treatment for claimant's compensable mental injury was awarded. Respondents received a credit for benefits paid by the group health insurance carrier, which was predicated on Ark. Code Ann. § 11-9-411 (Repl. 1996). Based upon our de novo review of the record, we find that claimant proved the occurrence of a mental injury for which he is entitled to receive temporary total disability benefits for twenty-six weeks. Also, claimant is entitled to reasonably necessary medical benefits. Moreover, we find that respondents are entitled to a credit. Therefore, the decision of the administrative law judge must be affirmed.
The appeal notice filed by respondents encompassed only the merits of claimant's claim. Similarly, their appeal brief related solely to claimant's mental injury. Since respondents appear to have abandoned the statute of limitations issue raised below, we will not consider this issue.
On March 4, 1997, claimant sustained an admittedly compensable physical injury. As he dismantled a machine, a section fell off, striking his thumb. This resulted in a partial amputation of claimant's distal left thumb. He received prompt treatment in the emergency department at St. Mary-Rogers Memorial Hospital from Dr. Karen Haney. She referred claimant to Dr. R.W. Alderson's office. He also examined claimant on March 4, 1997, recommending outpatient surgery in the form of a debridement and skin graft. Dr. Alderson performed the procedure at St. Mary's on March 11, 1997.
Following surgery, he monitored claimant's progress. In a chart note dated March 25, 1997, Dr. Alderson noted that claimant was anxious and perhaps depressed. He indicated that he was convinced by claimant's appearance and actions that ". . . there is something major going on." He recommended a therapist to assist claimant in dealing with his "post-traumatic stress."
On April 1, 1997, Dr. Alderson documented a conversation with Ms. Patsy Woodson, insurance adjuster. He informed Ms. Woodson that claimant ". . . exhibited signs of post-traumatic stress disorder." Also, Dr. Alderson opined that the post-traumatic stress was causally connected to the job-related injury. Woodson disagreed, and advised him that she would not authorize a psychiatric referral. Moreover, she repeatedly informed Dr. Alderson that he was not a preferred provider, which he interpreted as a veiled threat. After a consultation, claimant agreed to use group health insurance to pay for counseling. Dr. Alderson scheduled an appointment for claimant with Dr. William McCollum, psychiatrist.
According to a chart note dated April 3, 1997, Dr. McCollum diagnosed "Post-traumatic Stress Disorder 309.81 Acute." (PTSD). He noted that claimant had recurrent recollections of the work-related accident. Dr. McCollum furnished samples of medication. On April 11, 1997, he enumerated claimant's symptoms as follows: ". . . trouble falling asleep, irritability, difficulty concentrating, hypervigilence, and exaggerated startle response." Again, Dr. McCollum provided claimant with medication samples.
On April 23, 1997, Dr. McCollum amended his diagnosis to include "Major Depression, Single Episode, Severe w/out Psychotic Features 296.23." According to the DSM IV, the significance of characterizing a patient's major depressive disorder as "single episode" is that the term only applies to the initial episode. In a letter dated July 24, 1997, Dr. McCollum opined that claimant's "Post Traumatic Stress Disorder, as well as his Major Depression are directly related to his traumatic work injury."
On August 15, 2000, Dr. McCollum was deposed by counsel for respondents. His deposition testimony was introduced as a Joint Exhibit by the parties. Dr. McCollum's testimony was in accord with the causation opinion he expressed on July 24, 1997. In this regard he stated that the claimant's traumatic thumb loss resulted in a significant imbalance of brain chemicals, which caused depression. Although Dr. McCollum recognized patient history is an important diagnostic tool, he pointed out that the temporal relationship between the accident and the onset of depression can be significant as well.
Dr. McCollum acknowledged that claimant was experiencing other stressors, which could affect his mental state. Nevertheless, he identified the traumatic loss of claimant's thumb as the "most prominent cause" of his conditions. Dr. McCollum testified that post-traumatic stress disorder is treated with medication and psychotherapy.
Dr. McCollum opined that claimant has been disabled since the work-related accident. He stated that his determination was premised on multiple factors. Elaborating, he cited the duration of the depression as well as claimant's significant symptoms of post-traumatic stress disorder. Moreover, Dr. McCollum noted that claimant's dual diagnosis complicated his condition.
The record also contained an evaluation by Dr. Mary Sonntag, psychologist. On October 3, 1997, she conducted a "mental status examination," as a result of a referral from the Social Security Administration. Dr. Sonntag opined that, in accordance with the DSM IV, claimant's Axis I diagnosis is: "296.34 Major Depression, Recurrent, with psychotic features."
Claimant testified that he continues to suffer from depression as a result of the traumatic amputation of his thumb. Prior to the accident, he stated that his life was active. However, he currently lacks the desire to leave home. Claimant acknowledged on cross-examination that he received counseling after an episode of domestic violence involving the use of alcohol. This occurred in 1987.
Claimant contends that his mental injury was caused by the distal left thumb amputation. Ark. Code Ann. § 11-9-113 (Repl. 1996), is controlling and provides in part:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee's body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
(b)(1) Notwithstanding any other provision of this chapter, where a claim is by reason of mental injury or illness, the employee shall be limited to twenty-six (26) weeks of disability benefits.
A preponderance of the credible evidence supports a finding that claimant suffered a mental injury within the meaning of Ark. Code Ann. § 11-9-113. Dr. McCollum is qualified to render an opinion, and his diagnoses comport with the DSM IV. Determining if a diagnosis conforms with the DSM is typically a fact question. Branscum v. RNR Constr. Co., 60 Ark. App. 116, 959 S.W.2d 429 (1998). Rather than furnishing mere diagnoses, Dr. McCollum articulated the symptoms claimant exhibited which supported the respective conditions.
We are also convinced that claimant satisfied the requisite causal connection. At deposition, counsel for respondents pointed out that other life stressors could affect claimant's mental state. Dr. McCollum did not equivocate, maintaining that the "most prominent cause of [claimant's] depression is the traumatic loss of his thumb in incurring post-traumatic stress disorder."
We are cognizant that Drs. McCollum and Sonntag disagree with respect to claimant's diagnoses. However, the Commission's duty to resolve evidentiary conflicts extends to medical evidence and testimony.Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). Dr. McCollum's vantage point is superior. He examined claimant soon after the work-related accident, and his treatment is ongoing. Dr. Sonntag evaluated claimant only once. Therefore, we afford greater weight to Dr. McCollum's opinion.
In reaching our decision, we reject the argument advanced by respondents that claimant's psychological difficulties pre-existed his work-related injury. Within one month of the traumatic amputation, Dr. Alderson documented that claimant exhibited signs of post-traumatic stress. He referred claimant to Dr. McCollum, over the strong objection of the insurance adjuster. Dr. MCollum agreed with Dr. Alderson's assessment, diagnosing Acute Post-Traumatic Stress Disorder. According to the DSM IV, the term "acute" is used as a specifier if the symptoms have existed for less than three months. Ultimately, Dr. McCollum added a diagnosis of "Major Depression, Single Episode, Severe w/out Psychotic Features." As stated, characterizing the major depressive episode as single means that it is the first episode. In our view, this evidence militates against a finding that claimant's difficulties were pre-existing.
Claimant contends that he is entitled to temporary total disability benefits commencing on October 14, 1998. In Hope Livestock Auction Co. v. Knighton, 67 Ark. App. 165, 992 S.W.2d 826 (1999), the Court of Appeals addressed the required proof for an award of indemnity benefits under the mental injury provision. The court noted that Ark. Code Ann. § 11-9-113 (b) (1), which limits an award of disability benefits to twenty-six (26) weeks, contains no reference to the healing period. After reciting the statutory definition of disability, the Court of Appeals focused their inquiry on claimant's inability to earn wages. In this regard, they considered medical evidence and lay testimony.
Here, Dr. McCollum testified that claimant has been incapable of working as a result of his mental injury since March 4, 1997. Claimant testified that his depression has continued. He stated that prior to the accident, his life was active. By contrast, claimant testified that he currently lacks the desire to leave the house. We find that a preponderance of the credible evidence supports an award of temporary total disability benefits commencing on June 30, 1997, for a period of twenty-six weeks.
Claimant seeks treatment for depression and PTSD. The determination of the reasonableness and necessity of medical treatment is a fact question for the Commission. Arkansas Dep't. Of Corrections v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994). Dr. McCollum's chart note for August 7, 2000, was introduced as a deposition exhibit. It documented claimant's final office visit prior to the hearing, which was conducted on August 30, 2000. The chart note reflected that claimant reported flashbacks and significant anxiety. Dr. McCollum prescribed medication, and advised claimant to return for a follow-up appointment. Under these circumstances, we find that additional medical treatment is reasonably necessary for the treatment of claimant's depression and PTSD. Dr. McCollum's chart notes as well as claimant's credible testimony supports this conclusion. Since claimant's group health insurance policy has paid benefits for his psychiatric treatment, § 11-9-411 is applicable to this claim.
Based on our de novo review of the entire record, and for the reasons stated herein, we find that claimant proved by a preponderance of the credible evidence that he sustained a mental injury for which he is entitled to receive temporary total disability benefits for twenty-six weeks in accordance with Ark. Code Ann. § 11-9-113. We further find that medical treatment for claimant's mental injury is reasonable and necessary.
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 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
___________________________________ SHELBY W. TURNER, Commissioner
___________________________________ MIKE WILSON, Commissioner
I concur in the principal opinion's findings. I write separately to address the dissenting opinion's suggestion that the claimant's mental injury was caused by stressors other than his amputation.
I agree with the dissenting opinion that Dr. McCollum testified that long-term problems with diabetes could cause depression. I agree that Dr. McCollum also testified that severe dental decay could cause depression.
However, I also point out with regard to the claimant's case (1) that Dr. McCollum gave an opinion on causation, (2) that Dr. McCollum gave an opinion favorable to the claimant's theory that his depression and post-traumatic stress syndrome were caused by his finger amputation at work, (3) that the respondents had an opportunity to depose Dr. McCollum and discuss other possible stressors in the claimant's life, and (4) that at the end of the deposition the respondents had not persuaded Dr. McCollum to change his opinion. The Administrative Law Judge relied on Dr. McCollum's opinion in finding that the claimant proved his case, but the respondents' request on appeal that the Full Commission place no weight on Dr. McCollum's opinion and reverse the Administrative Law Judge.
Under these circumstances, I do not find Dr. McCollum's expert medical opinion to be invalid on its face, and I concur that Dr. McCollum's opinion should be entitled to significant weight. I also note that the respondents did not seek any expert medical opinion of their own to rebut Dr. McCollum's expert medical opinion. Therefore, I find that the claimant has met his burden of proof by a preponderance of the evidence.
____________________________ ELDON F. COFFMAN, Chairman
I respectfully dissent from the majority's opinion finding that the claimant has proven by a preponderance of the evidence that he sustained a compensable mental injury. Based upon my de novo review of the record, I find that the claimant has failed to prove by a preponderance of the evidence that he suffered a compensable mental injury or illness pursuant to Ark. Code Ann. § 11-9-113.
Since claimant's injury occurred on March 4, 1997, this claim is governed by Act 796 of 1993. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1999) defines compensable injury as:
An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is `accidental' only if it is caused by a specific incident and is identifiable by time and place of occurrence.
For injuries deemed to be mental injuries, Ark. Code Ann. § 11-9-102(5)(C) (Supp. 1999) states, "[t]he definition of `compensable injury' as set forth herein shall not be deemed to limit or abrogate the right to recover from mental injuries as set forth in § 11-9-113 . . ."
§ 11-9-113 states:
A mental injury or illness is not a compensable injury unless it is caused by a physical injury to the employee's body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; . . . no mental injury or illness under this section shall be compensable unless it is diagnosed by a licensed psychiatrist or psychologist and unless a diagnosis of the condition meets the criteria established in the most current issue of the diagnostic and statistical manual of mental disorders.
In considering the meaning of this statutory provision in light of the evidence presented in this claim, I note that Act 796 requires the provisions of the Arkansas Workers' Compensation Law to be strictly construed. Ark. Code Ann. § 11-9-704(C)(3) (Repl. 1996). Moreover, the General Assembly expressly admonished this Commission not to liberalize, broaden or narrow the Workers' Compensation Statutes. Ark. Code Ann. § 11-9-1001 (Repl 1996). Thus, in applying the strict construction doctrine and considering the legislative admonishment, we cannot read anything into the Act that is not clearly stated in it's language, unless the failure to do so would do manifest violence to the intent of the General Assembly.
The claimant sustained an admittedly compensable injury on March 4, 1997, when he sustained a partial amputation of his left thumb. The claimant ultimately came under the treatment of Dr. William McCollum, a psychiatrist. Dr. McCollum diagnosed the claimant as suffering from major depression and post-traumatic stress disorder.
The evidence shows that the claimant has a long history of physical and emotional problems prior to suffering his thumb injury. The claimant has also suffered from diabetes since 1983. Dr. McCollum testified that long term problems associated with diabetes could cause depression. The evidence show that the claimant was also treated for "nerves" in 1972. In addition, the claimant admitted that he had been seen by a psychiatrist once a week for six months in 1987, following an episode of spousal abuse.
The record indicates that there are many things that are contributing to the claimant's depression other than his compensable injury. The claimant has had three of his children die. A surviving son is both physically and emotionally impaired and has been a continual source of anxiety to the claimant. In addition, the claimant's daughter has been in prison and her children have been in foster homes and received psychiatric hospitalization. Further, the claimant's mother has been in poor health and she also suffers from depression.
In my opinion, the evidence fails to support a finding that the claimant's work-related injury and his alleged mental injury keeps him from working. The claimant suffers from numerous chronic physical problems, including emphysema and diabetes. When the claimant filed for social security benefits in the fall of 1997, he stated that the following were his reasons for requesting such:
Diabetes;
Poor circulation;
Emphysema;
Bronchitis;
Right shoulder;
Right knee;
Inability to walk because of arthritis in the left knee;
Thumb;
Depression
In addition, the claimant has had problems with his teeth that have progressed to the point where the claimant was hospitalized in 1999 and had to have all of his teeth extracted. Dr. McCollum testified that severe dental decay could also cause depression. Further, the evidence shows that the claimant suffers from impotence, which also causes depression.
The evidence fails to support a finding that the claimant suffers from a mental injury due to his compensable thumb injury. The claimant suffers from multiple stressors that are unrelated to his injury which are now causing his depression.
Therefore, for all the reasons set forth herein, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner