Opinion
CLAIM NO. E405591
OPINION FILED APRIL 14, 1997
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 CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals certain portions of the administrative law judge's opinion. The claimant in this case suffered an admittedly compensable back injury on January 31, 1994. She was initially diagnosed as having a back sprain, but because of her persistent symptomology, a MRI scan of her spine was performed on April 20, 1994. In that radiology report, it was found that the vertebral bodies were normal and that there was no evidence of bulge or herniation. The respondents continued providing medical care for the claimant through January 3, 1995.
The claimant alleged that she suffered an aggravation of this injury on August 3, 1994, while undergoing a work hardening program at Health South Rehabilitation Hospital in Little Rock. The claimant contends that as a result of the compensable aggravation suffered on August 3, 1994, she is still within her healing period and is in need of further medical care. The respondents contend that the claimant reached the end of her healing period on August 9, 1994, and that further medical care after January 3, 1995, is not reasonable or necessary. Additionally, the respondents deny that the claimant suffered an aggravation on August 3, 1994, as alleged by the claimant.
In his decision, the administrative law judge found that the claimant's healing period ended on August 9, 1994, and that she was not entitled to further temporary disability benefits. The administrative law judge further found that the claimant was still in need of medical care and designated that the claimant's authorized treating physician was Dr. John Yokum. The administrative law judge also stated that the treatment received by the claimant from Dr. Julia McCoy and Dr. Wilber Giles was not authorized and payment for services received by those physicians was not the obligation of the employer. Lastly, the administrative law judge found that the respondents had controverted the claimant's entitlement to medical benefits received after January 3, 1995, and held that the claimant's attorney was entitled to a fee based upon any treatments the claimant received from authorized physicians after that date.
If this discussion were limited only to the admittedly compensable injury of January 31, 1994, we would be in agreement with the respondents' position. The progress notes from the claimant's physicians at the time, indicated that her condition had been improving and that she was referred to Dr. Paul Kramm, a rehabilitation specialist in June of 1994, to design a rehabilitation program for the claimant. At Dr. Kramm's direction, the claimant was referred to the work hardening program administered at the Health South Rehabilitation Hospital in Little Rock. The claimant admitted in her deposition that her condition was improving at this time and that it continued to improve while undergoing physical therapy and work hardening at Health South.
The claimant testified that the work hardening program consisted of job simulations of the type of tasks her job entailed. This included the occasional lifting and stacking of boxes of varying weights. The claimant testified that on August 3, 1994, while lifting a box pursuant to the work simulation, she began experiencing a burning pain in her lower back radiating into her thigh. The claimant testified that she advised employees of Health South of this incident. They instructed her to rest for a few minutes. The claimant stated that the pain did subside and she returned to the work simulations. However, she also stated that when lifting boxes the pain would return. The claimant further stated that after the work hardening program ended for the day, her symptoms grew worse that night and that she was not able to complete the work hardening program the following day.
The record contains progress notes from the physical therapist conducting the work hardening program. The note dated August 3, 1994, notes that the claimant was doing the required work but had reported an increase in the pain. The note dated August 4, 1994, relates that the patient was taken out of the work simulation due to the increased pain. The claimant's allegation of an aggravation was further corroborated by the testimony of Mr. Jay Mayet, the physical therapist supervising the work hardening procedure. In his deposition, Mr. Mayet testified that while loading and unloading boxes on August 3rd, she had reported an increase of pain in her leg. Mr. Mayet further stated that on August 4th while undergoing work simulation activities she reported a burning sensation.
It is our finding that the claimant did suffer an injury-while performing the work hardening simulations. In our opinion, the claimant provided credible testimony that was supported by documentary evidence from the rehabilitation hospital and the testimony of Mr. Mayet, the supervising therapist. The claimant's contention in this regard is also supported by her symptomology and by objective tests performed before and after the injuries she sustained during the work hardening program.
When the claimant was initially injured, she had not complained of radiating pain or burning sensations in her legs. She did on one instance report some stiffness and pain in her right leg but these pains were not noted as being significantly severe. However, after the incident on August 3, 1994, the claimant immediately began complaining of radicular pain and burning sensations which are symptoms of a disc herniation or bulge.
A MRI was performed on the claimant in April of 1994. That MRI did not note any disc herniations or bulges and found that her spine was in appropriate alignment. However, in a narrative report dated December 12, 1994, Dr. Julia McCoy noted that a CT myelogram of the lumbosacral area of the claimant's back confirmed a herniated disc at the L5-S1 junction with mild but consequential impairment of the right S1 nerve root. The CT scan was apparently performed as a result of a positive EMG/nerve conduction study done in the doctor's office on November 9, 1994. No date was given for the CT scan, but presumably it was done after the date of the nerve conduction study. As a result of the CT scan, a MRI was performed on the claimant on December 28, 1994. That report notes that the claimant was found to have central posterior bulging of the L5-S1 vertebral disc with mild extrinsic pressure on the thecal sac. The CT scan and the MRI, which were performed on the claimant after the August 3rd aggravation, clearly indicate that the claimant suffered a disc injury after the MRI of April 20, 1994.
The diagnostic evidence coupled with the claimant's credible testimony regarding the August 3rd incident, and her sudden onset of symptoms synonymous with a disc injury leaves little doubt that on August 3, 1994, she did suffer an injury which aggravated the condition caused by her January 31, 1994, compensable injury.
The next issue is whether the aggravation suffered by the claimant on August 3, 1994, is a compensable consequence of her original injury. We note the Court of Appeals had held that injuries which arise out of the claimant's attempts to seek medical care are compensable. In Preeway, Inc. v. Davis, 22 Ark. App. 132, 736 S.W.2d 21 (1987) injuries suffered by the claimant in a car wreck while traveling to the doctor were found to be compensable. InEagle Safe Corporation v. Eagan, 39 Ark. App. 79, 842 S.W.2d 438 (1992), a claimant who died as a result of an overdose of prescribed medication was also found to have suffered a compensable consequence of the original injury. We therefore find that the claimant's aggravation on August 3, 1994, was a compensable consequence of her original injury and that she is entitled to all additional benefits arising therefrom.
The administrative law judge held that the claimant was entitled to additional medical care based upon her condition. We affirm this finding and the respondents are ordered to provide the claimant reasonable and necessary medical care based upon our findings and determinations set out above. However, the administrative law judge also held that treatment furnished to the claimant by Dr. Julia McCoy was not authorized. In this regard, the administrative law judge's decision must be reversed.
Up to, and including the time of the hearing, the respondents have never contended that the treatment furnished by Dr. McCoy was unauthorized. The only contention made by the respondents in this regard was that treatment furnished to the claimant after January 3, 1995, was unreasonable and unnecessary. In fact, the respondent had apparently paid medical bills arising from Dr. McCoy's treatment of the claimant that had been incurred prior to that date. The claimant testified that she saw Dr. McCoy as a result of an order from the Workers' Compensation Commission. The claimant did in fact file a request for a change of physician with the Commission prior to being treated by Dr. McCoy. The respondent consented to that request so long as the treating doctor was chosen by the Commission. In an order dated October 26, 1994, a Legal Advisor with the Commission approved the claimant's request for a change of physician and arranged for her to be treated at the Arkansas Headache and Neurology Clinic, the clinic where Dr. McCoy practices. Those factors alone are sufficient to find that Dr. McCoy was an authorized treating physician of the claimant. However, we also note that the respondents had refused to provide the claimant medical care after January 3, 1995. In cases where a claimant is in need of medical care, and the respondents refuse to provide such care, then the change of physician rules do not apply.Sanyo Manufacturing Corporation v. Farell, 16 Ark. App. 519, 696 S.W.2d 779 (1985). There is simply not any doubt that Dr. McCoy was an authorized treating physician of the claimant, and that medical care rendered by her to the claimant both before and after January 3, 1995, is the responsibility of the respondents.
The next issue that must be dealt with in this case is the claimant's entitlement to temporary total disability benefits. The administrative law judge found that she was not entitled to these benefits. In making this decision he was relying upon the fact that the claimant had been released from further care by Drs. Yokum, Kramm, and Giles. However, two of those reports were prepared prior to the August 3rd aggravation, and Dr. Kramm's report which is dated August 9, 1994, was prepared without knowledge of that aggravation. Since the doctors preparing these reports were not apprised of all the essential factors, we find that it would be inappropriate to use these reports as justification for denying the claimant temporary disability benefits. The most recent medical report contained in the record is from Dr. McCoy dated January 3, 1995. In that report, the doctor notes the claimant has a disc herniation and while she does not take issue with Dr. Kramm's previous assessment of the 5% impairment rating, Dr. McCoy does state that she believed a surgical consultation for the claimant was "still very necessary" and was awaiting a final assessment in regard to her plans for further treating the claimant. Dr. McCoy's report leaves little doubt that at that time the claimant was still within her healing period. Since there is no evidence indicating when she reached the end of her healing period, she is entitled to receive temporary total disability benefits at least up to that time, and in the future to a date yet to be determined. The question of the extent of the claimant's permanent disability is hereby reserved for future determination.
In his opinion, the administrative law judge also designated Dr. John Yokum to be the claimant's treating physician. Since we have found that Dr. McCoy is in fact the claimant's authorized treating physician, the administrative law judge's decision in this regard is reversed.
The respondents are hereby ordered and directed to provide to the claimant all reasonable and necessary medical care resulting from her compensable injury of January 31, 1994 and the compensable aggravation of that injury sustained on August 3, 1994.
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 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant sustained an aggravation of her compensable injury on August 3, 1994, and finding that claimant is entitled to additional temporary total disability benefits and medical benefits, specifically the treatment of Dr. Julia McCoy. Based upon my de novo review of the entire record, I find that claimant has failed to meet her burden of proof.
It was admitted that claimant sustained a compensable injury on January 31, 1994, during the course and scope of her employment. The evidence further reveals that as of August 9, 1994, claimant had reached the end of her healing period for her compensable injury. The only real issue on appeal is whether claimant sustained an aggravation of her compensable injury on August 3, 1994, while undergoing a work hardening program. I cannot find that claimant has met her burden of proof. The majority finds that the alleged aggravation was a compensable consequence of claimant's compensable injury. In my opinion, in order to prove a compensable consequence under Act 796, a claimant must meet all of the same requirements in proving a compensable injury under Act 796. We have held that in order to establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796. Jerry D. Reed v. ConAgra Frozen Foods, FC Opinion filed Feb. 2, 1995 ( E317744). When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102 (5)(A)(i) and § 11-9-102 (5)(E)(i) (Repl. 1996). She must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102 (5)(A)(i). Finally, Ark. Code Ann. § 11-9-102 (5)(D) requires that a claimant must establish a compensable injury "by medical evidence supported by `objective findings' as defined in 11-9-102 (16)."
If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied. Jerry D. Reed, supra.
In my opinion, claimant has failed to establish these five elements of her compensable consequence injury, therefore claimant has failed to prove entitlement to benefits. First and foremost I cannot find that claimant has proven a specific incident identifiable by time and place of occurrence by preponderance of the credible evidence. Claimant contends that she sustained an injury on August 3, 1994, during her work hardening program. Although the evidence indicates that claimant complained of pain on August 3, 1994, while undergoing the work hardening program, it is clear when all of the records are reviewed that claimant consistently complained of pain even before and after August 3, 1994. Moreover, when claimant completed the program on August 8, 1994, she did not complain of sustaining an injury or aggravating her condition during her exit interview. The records from the work hardening program clearly reveal that claimant's later account of an injury do not coincide with their records.
Consequently, I cannot find claimant's testimony regarding an injury on August 4, 1995 to be credible. A claimant's testimony is never considered uncontroverted.Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). Accordingly, I cannot find that a specific incident occurred thus I cannot find that claimant sustained a compensable consequence. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner