Opinion
CLAIM NO. E517398
OPINION FILED SEPTEMBER 19, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE JOHN DAVIS, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals and the respondent cross-appeals a decision by the Administrative Law Judge finding that claimant has failed to prove by a preponderance of the evidence that he is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a) and finding that the claimant has proven by a preponderance of the evidence that he is entitled to additional medical treatment. Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge.
I. Background.
The claimant sustained an admittedly compensable injury on October 25, 1995. The claimant slipped and fell on the floor while walking down from a catwalk. The claimant testified that when he hit the floor, he felt something burn and pop in his neck and upper shoulder area. The claimant received medical treatment from numerous physicians but ultimately came under the care of Dr. Reginald Rutherford, who diagnosed the claimant with right posterior shoulder pain, myofascial in character. Through referrals from Dr. Rutherford, the claimant received trigger-point injections from Dr. William Ackerman. The claimant also underwent a period of physical therapy. An MRI was performed on January 8, 1996, which revealed very mild degenerative disc disease. Dr. Rutherford then ordered a bone scan, which proved to be normal. In a clinical note dated January 10, 1996, Dr. Rutherford explained that he had nothing further to offer the claimant and released the claimant to return to work with lifting restrictions of 25 lbs. for one month and then return to full duty.
Due to the claimant's continued complaints, the claimant was seen by Dr. David Collins on January 24, 1996. Dr. Collins concurred with Dr. Rutherford's diagnosis that claimant suffered from myofascial pain and residual sequel to this. Dr. Collins released the claimant to activities as tolerated at that time. Dr. Collins stated in his office note:
I believe that he has reached maximum medical improvement for his injury. He can return to any type of work, letting comfort be his guide. I feel that there are no limitations except those imposed by comfort alone. He will continue to follow with his previous caregivers.
It appears that the claimant returned to work at full duty following his release from Drs. Rutherford and Collins.
On March 1, 1996, the claimant returned to Dr. Rutherford in what Dr. Rutherford called "an unanticipated clinical follow-up." The claimant informed Dr. Rutherford that he had an increased pain above the right mid trapezius. Dr. Rutherford restricted the claimant to work eight-hour shifts only. This reduction to an eight-hour shift was made permanent by Dr. Rutherford on March 11, 1996.
Dr. Rutherford ordered an MRI of the claimant's right shoulder, which revealed mild abnormalities. Dr. Joseph Sheppard performed a diagnostic injection on the claimant. The claimant improved from this injection. Dr. Rutherford referred the claimant to Dr. Sheppard for possible surgical intervention, but Dr. Sheppard opined that the claimant was not a surgical candidate. On December 5, 1996, Dr. Sheppard released the claimant to return to work without any restrictions.
The claimant did not seek medical treatment again until the fall of 1996, wherein he sought treatment from Dr. Jack Vander Schilden at UAMS. Dr. Vander Schilden diagnosed the claimant with cervical spondylosis with a trigger point in his trapezius and rhomboid on the right. Dr. Vander Schilden prescribed medication and referred the claimant to extensive physical therapy. An MRI was performed on January 9, 1998, which revealed "early desiccation of some cervical intervertebral discs but otherwise unremarkable MRI examination of cervical spine." Dr. Vander Schilden ordered epidural steroid injections, which were begun by Dr. Carl Covey on January 26, 1998.
On October 4, 1998, the claimant was evaluated by Dr. J. K. Smelz with the Arkansas Pain Centers. Dr. Smelz diagnosed the claimant with:
Chronic myofascial pain syndrome involving the cervical, upper thoracic and shoulder girdle musculature with abnormal positioning of the scapula, and taut muscle bands and spasms in the involved muscles. Impingement syndrome, with rotator cuff tear on MRI according to the radiologist's report.
Dr. Smelz prescribed an aggressive home stretching program. On August 19, 1998, Dr. Smelz noted that the claimant had reached maximum medical improvement and she released the claimant from her care.
Dr. James Logan evaluated the claimant on November 17, 1999. Dr. Logan, a rheumatologist, found that he did not have anything to offer the claimant.
The claimant received a permanent release to return to work an eight-hour day by Dr. Rutherford in March of 1996. The respondents accommodated this restriction until August of 1999. On July 6, 1999, the claimant was advised by the respondent-employer that pursuant to the union contract mandatory overtime was a condition of his employment and was considered an essential function of his job. The claimant was asked to obtain a release from his health care provider stating that he would be able to work the mandatory hours of overtime set forth in the union contract. By letter dated July 12, 1999, Dr. Vander Schilden stated that the claimant should not work over eight hours per day. The claimant was placed on unpaid leave of absence on August 3, 1999. On August 1, 2000, in a meeting between the claimant and the respondent-employer, the claimant advised that he would never be able to work more than eight hours per day and that he would require extensive restrictions in order to work the straight time hours. The claimant informed Mr. McDaniel, the human resources director, that his condition was life long and would never improve and that he would never be able to work more than eight hours per day.
II. Section 505(a) Benefits.
The claimant is now seeking benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) which provides:
Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee's physical and mental restrictions, upon order of the Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of such refusal, for a period not exceeding one (1) year.
We find that the facts in this claim do not describe a situation where the respondent has refused to return claimant to work. As in Davis v. Dillmeier, 330 Ark. 545, 956 S.W.2d 155 (1997), the claimant had returned to work and worked following his compensable injury for an extended period of time. In Davis, the claimant was terminated after sustaining a permanent impairment to both upper extremities. In the present claim, the claimant was terminated after being unable to provide the respondents with a release to full duty in compliance with the collective bargaining agreement. As stated by the Supreme Court, "[claimant's] termination thus cannot be viewed as a refusal by [respondent-employer] to return [claimant] to work; rather it can be viewed only as a termination." The claimant was returned to work and was not refused a return to work within his physical limitations. Rather, the claimant was returned to work for over three years and the respondents accommodated this limitation. It was only subsequent to this return to work that the claimant was terminated.
In reaching this conclusion, we note the claimant's argument on appeal that this statutory interpretation "would lead one to the conclusion [that] all an employer had to do to satisfy the provisions of § 505 would be to simply return an employee to work for one day and then fire them." We agree with the claimant's attorney that an employer should not be able to avoid liability under Section 505(a) by returning an injured employee to work for one day and then firing the employee. See generally Kevin S. McGee v. Clayton Kidd Logging Company, Full Workers' Compensation Commission, Opinion filed August 28, 2001 (W.C.C. No. E904834). However, as discussed, in the present case the respondent returned the claimant to work for over three years, not one day. As we understand the Supreme Court's reasoning in Davis v. Dillmeier, supra, these cases are fact specific and must be analyzed accordingly. In the present case, we find that the greater weight of the evidence does not describe a refusal to return to work, but instead indicates a return to work and subsequent termination, as occurred in Davis.
We also find that the claimant has failed to prove that the claimant's termination was unreasonable. Ark. Code Ann. § 11-9-505(a)(2) provides that the Collective Bargaining Agreement with respect to seniority is controlling. The record reveals that seniority played no role in mandatory overtime. However, compliance with the Collective Bargaining Agreement with regard to all employees being physically capable of performing mandatory overtime appears to have been reasonable grounds for the termination at issue. The Collective Bargaining Agreement was a contract between the union and the respondent-employer. Although the employer attempted to accommodate the claimant and similarly restricted employees for over three years, that accommodation has phased out to comply with the terms of the Collective Bargaining Agreement. In light of the Collective Bargaining Agreement, which applied to the claimant's position, there were no jobs available with the respondent which complied with the claimant's eight hour restriction. Although the Arkansas Courts have not addressed the issue in a published opinion, we have previously interpreted that Ark. Code Ann. § 11-9-505(a) does not impose upon an employer the obligation to create a permanent position in an otherwise non-existent job classification when a claimant desires to return to work within permanent restrictions. See, Pamela Hayes Yandell v. Darling Store Fixtures, Full Commission Opinion filed November 10, 1997 ( E507897). We therefore affirm the Administrative Law Judge's denial of benefits pursuant to Ark. Code Ann. § 11-9-505(a).
III. Additional Medical Treatment.
The claimant further contends that he is entitled to continuing medical treatment. The Administrative Law Judge found that the claimant was entitled to continuing medical treatment. The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary. Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 ( D7033346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees' injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In workers' compensation cases, the burden rests upon the claimant to establish his claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 ( D512553).
The medical evidence indicates that on April 5, 2000, the claimant was seen by Dr. Jim Moore for an examination. The claimant told Dr. Moore that he had "a bubbling pain, a burning pain, especially with any motion of the arm and shoulder and the lower cervical region to the right." In his report, Dr. Moore noted that mild compression precipitated pain in the claimant.
The claimant was the subject of video surveillance on June 9 and June 16, 2000, and the respondents seem to suggest that the videotape indicates that the claimant's report of ongoing symptoms is feigned. In this regard, the respondents argue that the videotape shows the claimant rotating his neck to the left and right with no restrictions or stiffness, looking behind him over his right shoulder as he is backing up his fishing boat while operating his four-wheeler, using his right arm with no restriction, using his right arm to lift a tire up and over the tailgate of his pickup truck, and using his right arm and hand to operate the crank on his fishing boat. In short, the respondents assert that the restrictions and the pain that the claimant described to Dr. Moore where he claimed that he was in pain 24/7 was not evident on the videotape. Therefore, the respondents argue that additional medical treatment is not reasonably necessary for treatment of the claimant's compensable injury.
As an initial matter, we note that the respondents apparently did not show the videotape at issue to Dr. Moore or any other physician for purposes of obtaining medical opinion as to whether the claimant's activities are inconsistent with his ongoing complaints.
For our part, we have reviewed the videotape, and we frankly fail to see any obvious medical significance to anything the claimant was doing in the videotape, the respondent's assertions notwithstanding. In this regard, we note that the claimant's persistent pain is in the right side of his neck and his activities in the video were primarily either left handed or he used both hands. In addition, to the extent that the respondents are apparently suggesting that the claimant is feigning a persistent injury, we note that the claimant's injury occurred in 1995 and the claimant was still producing objective documented muscle spasms and reduced passive range of motion in August of 1998, some three years after the injury. We also note that the respondents apparently cut off medical at least by 1999, and are therefore now trying to use the 2000 video as an after-the-fact justification for having cut off medical benefits in 1999 or before. Finally, no doctor has opined in 2000 that the claimant should not seek additional medical treatment, and the Administrative Law Judge who observed both the videotape and the claimant's demeanor during questioning at the hearing while the videotape was played, obviously did not find anything in the video worth even mentioning in her 15-page opinion. Therefore, to the extent that the respondents seek to assert that credibility is an issue, the respondents obviously did not persuade the Administrative Law Judge, who heard the live testimony and observed the claimant's demeanor in the video and at the hearing, that the claimant was not credible with regard to his need for continuing pain management for his 1995 injury. On this record, we are not persuaded by the respondents' suggestion that the claimant is feigning his ongoing medical problems, and we find that the claimant has established that he is entitled to additional medical treatment.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we 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 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the principal opinion. I concur in the finding that the claimant has failed to prove by a preponderance of the evidence that he is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a). However, I must dissent from the finding that the claimant has proven by a preponderance of the evidence that he is entitled to additional medical treatment.
The claimant contends that he is entitled to continuing medical treatment and the majority affirmed the Administrative Law Judge's finding that the claimant was entitled to continuing medical treatment. In my opinion, the claimant has failed to meet his burden of proof.
The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary.Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 ( D7033346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees' injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In workers' compensation cases, the burden rests upon the claimant to establish his claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 ( D512553).
The medical evidence indicates that on April 5, 2000, the claimant was seen by Dr. Jim Moore for an examination. The claimant told Dr. Moore that he had "a bubbling pain, a burning pain, especially with any motion of the arm and shoulder and the lower cervical region to the right." In his report, Dr. Moore noted that mild compression precipitated pain in the claimant.
The claimant was the subject of video surveillance on June 9 and June 16, 2000. The videotape shows the claimant rotating his neck to the left and right with no restrictions or stiffness, looking behind him over his right shoulder as he is backing up his fishing boat while operating his four-wheeler, using his right arm with no restriction, using his right arm to lift a tire up and over the tailgate of his pickup truck, and using his right arm and hand to operate the crank on his fishing boat. In short, the restrictions and the pain that the claimant described to Dr. Moore where he claimed that he was in pain 24/7 was not evident on the videotape. Therefore, I conclude that additional medical treatment is not reasonably necessary for treatment of the claimant's compensable injury.
Therefore, for all the reasons set forth herein, I respectfully concur in part and dissent in part from the principal opinion.
_______________________________ MIKE WILSON, Commissioner
Commission Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
While I concur with the finding in the principal opinion that claimant has proven by a preponderance of the evidence that he is entitled to additional medical treatment, I must respectfully dissent from the finding that claimant failed to prove entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505(a) (Repl. 1996).
_______________________________ SHELBY W. TURNER, Commissioner