Opinion
CLAIM NO. E120330
OPINION FILED NOVEMBER 24, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DAVID MACKEY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE GLENN JONES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part, reversed in part, and affirmed as modified in part.
OPINION AND ORDER
The claimant appeals and the respondents cross appeal an opinion and order filed by the administrative law judge on January 31, 1997. In that opinion and order, the administrative law judge found that the claimant has failed to prove by a preponderance of the evidence that his left arm and neck conditions are causally related to his compensable right arm injury. In addition, the administrative law judge found that respondents are not entitled to any credit or reimbursement of any benefits or expenses previously paid in relation to the claimant's left arm and neck conditions. The administrative law judge also found that this claim has been controverted in its entirety and that the claimant's counsel is entitled to the maximum attorney's fees under the Arkansas Workers' Compensation Law.
After conducting a de novo review of the entire record we find that the claimant failed to prove by a preponderance of the evidence that his left arm and neck conditions are causally related to the admittedly compensable injury he sustained on November 11, 1991. In addition, we find that the respondents are not entitled to a credit for any medical expenses paid in relation to the claimant's left arm and neck conditions. Therefore, we find that the administrative law judge's decision in these regards must be affirmed. However, we find that the respondents are entitled to a credit against future indemnity benefits for any indemnity benefits previously paid to the claimant in relation to his left arm and neck conditions. Therefore, we find that the administrative law judge's decision in this regard must be reversed. In addition, we find that the claimant's attorney is entitled to the maximum attorney's fees, but only to the extent of actual benefits which the respondents did not pay because of their reliance on the disallowed credit. Therefore, we find the administrative law judge's decision in this regard must be affirmed as modified.
1. Compensability of the Claimant's Neck and Left Elbow Conditions
The claimant sustained an admittedly compensable injury while he was employed by the respondent as a welder on November 11, 1991. At the hearing the claimant testified that he was injured while lifting a piece of steel approximately 7 to 8 feet long and weighing over 100 pounds. The claimant testified that while carrying the piece of steel, he felt a severe burning pain inboth of his elbows, more severely on the right. The medical evidence indicates the claimant promptly reported a work-related injury and began receiving treatment at the Little Rock Medical Clinic on the same day. Subsequently, the claimant was referred to Dr. Rex Easter, a Little Rock orthopedist, and later to Dr. Thomas Frazier, a surgeon at the Arkansas Hand and Surgery Center in Little Rock.
In assessing the weight to be accorded the claimant's hearing testimony that he felt immediate pain in both elbows, we note thatnone of the progress notes, narrative reports, or treatment notes from the Little Rock Medical Clinic or from Dr. Easter or Dr. Frazier contain any reference to any pain or discomfort in the claimant's left elbow. Both Dr. Easter and Dr. Frazier diagnosed the claimant as suffering from epicondylitis of the right elbow. When the claimant did not respond to conservative treatment, Dr. Frazier eventually directed that an MRI be performed on the claimant's right elbow. The MRI revealed that there were loose bodies in the claimant's elbow joint. In order to remove these bodies, Dr. Frazier performed the first of two surgeries on the claimant's right elbow.
After the surgery was performed, the claimant relocated to the state of Kansas. Subsequently, claimant began seeing Dr. David Thurston, an orthopedist in Topeka, Kansas. In a progress noted dated May 21, 1992, Dr. Thurston reviewed the claimant's treatment history for his right elbow, and for the first time included a history of pain in the left elbow. Dr. Thurston diagnosed the claimant as suffering from left lateral epicondylitis and noted some evidence of stitch reaction in the location of the previous surgery on the right elbow. Eventually, Dr. Thurston performed another operation on the claimant's right elbow as well as two surgeries on the claimant's left elbow in an attempt to resolve chronic pain and related symptoms related to both elbows.
In late 1993, the claimant also apparently began complaining of chronic headaches and pain in his neck. After treating the neck problem for some time, Dr. Thurston eventually referred the claimant to various orthopedists and neurosurgeons to treat or evaluate the claimant's neck problems. After several somewhat inconsistent MRI's and CT scans it was eventually determined that claimant suffered from spondylosis from C3 through C7, with a disc herniation at the C5-6 level of the spine, and with several osteophyte formations. However, the orthopedists and neurosurgeons who saw the claimant advised against surgical treatment of that condition. Eventually Dr. Edmond McGehee, a neurosurgeon in Kansas City, Missouri after an extensive review of diagnostic tests of the claimant's cervical spine, decided that surgery would be appropriate for the claimant and apparently scheduled the claimant for a cervical fusion in late 1994 or early 1995. The respondent apparently refused to authorize this treatment and surgery was not performed at that time. The claimant later sought treatment from a Veterans Administration Hospital where a cervical fusion was performed.
After conducting a de novo review of the entire record we find that the claimant failed to establish any causal connection between his left elbow and neck problems and his compensable injury that occurred on November 11, 1991. In reaching that conclusion, we find it highly significant that the claimant did not complain to his treating physicians about left elbow pain until approximately 6 months after the initial injury. It also appears that the claimant did not mention any neck problems to any of his doctors until almost two years after his work-related injury. The claimant attempted to explain this discrepancy by stating that both elbows had hurt at the time of his work related injury, but the pain was much more severe in his right elbow. The claimant stated that he therefore focused on the injury to his right elbow and did not report problems in his left elbow until his right elbow had resolved itself somewhat. The claimant also testified that he had experienced some pain in his neck which had grown progressively worse but that originally this pain was not severe enough for him to request medical care.
However, in assessing the weight to be accorded the claimant's testimony in this regard, we note that nothing in the record indicates any causal connection between the claimant's work-related lifting injury and his left elbow and neck problems. Moreover, the claimant's neck injury referred to by Dr. McGehee in his progress note of February 5, 1995, is described as being congenital in nature. In assessing the claimant's testimony that he had experienced left elbow and neck problems as a result of the November 11, 1991, lifting incident we also note the claimant's past history of numerous prior injuries sustained by the claimant over his working life. Specifically, while in the Navy in the late 1970's the claimant sustained injuries to both of his knees which resulted to his discharge and caused him to undergo multiple surgeries to both knees. He also underwent back surgeries as a result of a lumbar injury in 1980 and also sustained an injury after being struck on his right elbow in 1982. At various other times, the claimant has suffered a broken right thumb, broken his left hand, and has sustained a broken foot. In light of the claimant's long history of injuries and related experience with health care professionals, we find it highly improbable that the claimant experienced the symptoms indicated in his testimony without reporting these alleged neck and left elbow symptoms to his treating physicians prior to the dates indicated in the medical record. Consequently, for reasons discussed herein, we affirm the administrative law judge in this regard, and we find that the claimant did not establish by a preponderance of the credible evidence that his left elbow and neck problems are causally related to his compensable injury of November 11, 1991.
2. Respondents ' Entitlement to Credit/Reimbursement for Medical and Indemnity Benefits Paid for the Claimant's Non-Compensable Right Elbow and Neck Conditions
Ark. Code Ann. § 11-9-807 states in relevant part:
(A) If the employer has made advance payments for compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
With regard to the respondents' request for a credit or reimbursement for medical benefits paid on behalf of the claimant for the claimant's alleged left elbow and neck complaints, we find that the respondents are estopped from asserting a right to credit or reimbursement for the medical benefits which the respondents have paid. See Southern Hospitalities v. Britain, 54 Ark. App. 318, 925 S.W.2d 810 (1996). In reaching our decision, we note that all the doctors who saw and treated the claimant for his left elbow and neck injuries did so with authorization and knowledge of the respondent. Moreover, there is no evidence in the record to indicate that the claimant acted in bad faith or in any way attempted to obtain medical services as a result of fraud or deception. Consequently, we find that allowing the respondent to pursue a reimbursement for their medical payments from the claimant in the present case would clearly be contrary to the decision in Britain, supra.
However, we find that the respondents are entitled to a credit against future indemnity benefits owed to the claimant as a result of his compensable injury for any indemnity benefits paid to the claimant as a result of his non-compensable left elbow and neck conditions. Moreover, this Commission has long recognized respondent's entitlement to reimbursement against future indemnity benefits for prior indemnity benefits which were erroneously overpaid to the claimant to which the claimant is not entitled.See Generally, Carty v. Ward Furniture Manf. Co., 229 Ark. 725, 318 S.W.2d 148 (1958); See also Tomasa Rogers v. Ayers Chairmakers, Full Workers' Compensation Commission, September 16, 1992 (W.C.C. No. D902725); Roger Mixon v. Valley Implement, Full Workers' Compensation Commission, June 20, 1996 (W.C.C. No. E315872); William Hunt v. Bill Lovett, Full Workers' Compensation Commission, September 16, 1996 (W.C.C. No. E218307). Accordingly, we modify the administrative law judge's decision and find that the respondents are entitled to a credit against any future disability benefits that the claimant may be entitled to receive in an amount equal to the previous overpayment of the claimant's disability benefits paid for alleged left elbow and right compensable injuries.
3. Attorney's Fee for Claimant's Attorney
The administrative law judge held that the respondent had controverted the present claim in its entirety. However, we find that the administrative law judge's finding is erroneous. There is nothing in the record indicating that the respondents ever controverted the claimant's entitlement to benefits related to the claimant's admittedly compensable right elbow injury. Moreover, the record indicates that the respondents did pay the claimant's medical and disability benefits based upon his admittedly compensable right elbow injury.
In the present case, we find that the claimant's attorney is entitled to the maximum attorney's fee based on that portion of the credit requested by the respondents and disallowed herein. However, we find that the attorney's fee applies only to the extent of actual benefits which the respondents did not pay because of their reliance on the disallowed credit.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that his left arm and neck conditions are causally related to the admittedly compensable injury he sustained on November 11, 1991. In addition, we find that the respondents are not entitled to a credit for any medical expenses paid in relation to the claimant's left arm and neck conditions. Therefore, we find that the administrative law judge's decision in these regards must be affirmed. However, we find that the respondents are entitled to a credit against future indemnity benefits for any indemnity benefits previously paid to the claimant in relation to his left arm and neck conditions. Therefore, we find that the administrative law judge's decision in this regard must be reversed. In addition, we find that the claimant's attorney is entitled to the maximum attorney's fees, but only to the extent of actual benefits which the respondents did not pay because of their reliance on the disallowed credit. Therefore, we find the administrative law judge's decision in this regard must be affirmed as modified.
Any benefits that are due to claimant as a result of our decision herein shall be paid in lump sum without discount, and any benefits so awarded shall bear interest at the maximum legal rate.
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 (Repl. 1996).
IT IS SO ORDERED.
Commissioner Humphrey concurs.