Opinion
CLAIM NO. E209976
OPINION FILED JANUARY 11, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ROBERT MONTGOMERY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and vacated in part.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on June 27, 1994. In that opinion and order, the administrative law judge found that the claimant remains in his healing period, that he is entitled to additional medical treatment as prescribed by Dr. Jordan, that benefits unpaid from a previous award are subject to a 20% late payment penalty, and that the claimant's attorney is entitled to a second attorney's fee on those unpaid benefits. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed as modified herein.
In a prior opinion filed December 18, 1992, the administrative law judge found that the claimant sustained a compensable injury on June 5, 1992. He was employed by the respondent employer as a warehouse man, and his duties involved filling orders for groceries. On Friday, June 5, 1992, he experienced the onset of back pain as he was lifting boxes of bleach. This occurred shortly before the end of the day, and he continued working. However, his symptoms subsequently worsened, and he began to experience numbness in his legs.
Consequently, on Monday, June 8, 1992, the claimant sought treatment at the emergency room. While he was in the emergency room, the claimant was examined by Dr. F. Richard Jordan, a neurosurgeon. Dr. Jordan's clinical examination revealed significant tenderness, stiffness, and spasm in the lumbar spine, but there were no signs of radiculopathy. X-rays and a MRI revealed spondylolysis and spondylolisthesis at L5-S1. According to Dr. Jordan, spondylolysis refers to a fracture of the pars interarticularis of the vertebrae, which is the bridging bone between the vertebrae that keeps the vertebrae in alignment, and spondylolisthesis refers to the slippage in alignment of the vertebrae, such as that which can occur when the pars interarticularis is fractured. Dr. Jordan testified that the condition is treated by increasing the stabilization of the spine. According to his testimony, the condition is treated conservatively with instruction in proper body mechanics and exercises to tone-up the abdominal and torso muscles to help stabilize the spine and by stabilizing the spine with a brace. However, if these conservative measures do not alleviate the symptoms, he testified that surgical fusion is indicated. At the emergency room on June 8, 1992, he discussed these means of treatment with the claimant. In addition, Dr. Jordan is of the opinion that no back injury heals as readily in people who smoke as in non-smokers, and he emphasized to the claimant that he should stop smoking. In addition, the claimant was given pain medication and muscle relaxers.
The respondents denied the compensability of this claim and, consequently, declined to authorize medical treatment by Dr. Jordan or any other physician. Therefore, Dr. Jordan did not see the claimant again until May 4, 1993, after the administrative law judge had determined that this claim was compensable. The claimant continued to experience problems during this time which prevented him from working, and he saw Dr. Robert Rook, a general practitioner, on three occasions. Dr. Rook's neurological findings were essentially normal, which is consistent with spondylolysis and spondylolisthesis.
Dr. Jordan's May 4, 1993, examination was essentially the same as his examination in the emergency room on June 8, 1994. There were no radicular signs, but there was significant tenderness, stiffness, weakness, and spasm in the lumbar area. Dr. Jordan instructed the claimant to get a brace, and he gave him anti-inflammatory medication. In addition, Dr. Jordan again advised the claimant of the need to stop smoking. When the claimant returned to Dr. Jordan on July 26, 1993, he had been unable to obtain a brace, and his condition was unchanged. However, when he returned on September 20, 1993, he had been fitted with a brace, and Dr. Jordan noted marked improvement while he was in the brace. According to Dr. Jordan this improvement indicates that a fusion would help the claimant, and he has recommended a fusion. However, Dr. Jordan has declined to perform the fusion until the claimant stops smoking, and the claimant has greatly reduced his cigarette intake.
Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his 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). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(6) (1987). The healing period continues until the employee is as far restored as the permanent character of his 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, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient 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).
In the present claim, we find that the claimant proved by the preponderance of the evidence that he is entitled to additional temporary total disability compensation. In this regard, the claimant's testimony indicates that he continues to experience severe pain in his back and leg,.and he experiences numbness in his leg. He testified that he cannot sit or stand for very long at one time, and his testimony indicates that his activities are limited. He has attempted to go fishing and deer hunting, but he was unable to do either for a prolonged period of time. Furthermore, Dr. Jordan has continuously opined that the claimant is unable to work due to the pain and other problems he continues to experience and which are supported with physical findings of severe muscle spasm. Moreover, Dr. Jordan continues to offer treatment which may improve the claimant's condition. In this regard, Dr. Jordan has recommended fusion surgery, and he has indicated that this might significantly improve the claimant's condition. Although Dr. Jordan has testified that he will not perform the operation until the claimant quits smoking entirely, both the claimant and Dr. Jordan indicated that the claimant began making a genuine and sincere effort to quit smoking when it became clear that surgery was indicated, and both have indicated that he has made substantial progress in stopping smoking. Consequently, we find that the preponderance of the evidence establishes that the claimant is totally incapacitated from earning, and we find that he remains in his healing period and that he has been in his healing period continuously since he sustained the injury on June 5, 1992.
In addition, we find that the claimant has established by a preponderance of the evidence that continued medical care is reasonably necessary for the treatment of the compensable injury. In this regard, employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (1987). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson. Inc., Full Workers' Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers' Compensation Commission, Dec. 13, 1989 (Claim No. D511255).
In the present claim, as discussed, the preponderance of the evidence establishes that the claimant continues to experience significant physical problems which are related to his compensable injury. In addition, the preponderance of the evidence establishes that he continues to receive medical care from Dr. Jordan which is reasonably necessary for treatment of the compensable injury, and the preponderance of the evidence shows that Dr. Jordan has recommended additional treatment which is also reasonably necessary for treatment of the compensable injury. Therefore, we find that the claimant has established by a preponderance of the evidence that he continues to need medical treatment for the compensable injury, and that the respondents are liable for such treatment, including the fusion procedure recommended by Dr. Jordan, if he continues to recommend the surgery.
However, we find that administrative law judge' orders for the respondents to pay for nicotine patch treatment must be vacated. There is no evidence in the record indicating that Dr. Jordan or any other physician ordered this treatment or has opined that it would be effective. Furthermore, neither party requested this treatment. Consequently, we find that the administrative law judge's decision in this regard must be vacated and set aside.
We also find that compensation unpaid from the award contained in the December 18, 1992, decision of the administrative law judge, as affirmed and adopted by the Full Commission on April 2, 1993, are subject to a 20% late payment penalty. Where indemnity compensation is payable under the terms of an award by the Commission which is not appealed, the first payment of compensation becomes due when the time for appeal has expired. Ark. Code Ann. § 11-9-802(c) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-711 (1987);Johnson v. American Pulpwood Co, 38 Ark. App. 6, 826 S.W.2d 827 (1992). Thereafter, indemnity compensation is to be paid every two weeks. Ark. Code Ann. § 11-9-802. If any installment of indemnity compensation payable under the terms of an award by the Commission is not paid within fifteen (15) days after it becomes due, Ark. Code Ann. § 11-9-802(c) provides for the imposition of a penalty equal to twenty percent (20%) of the installment.
In the present claim, the administrative law judge found in her December 18, 1992, opinion and order that the claimant was entitled to temporary total disability compensation from June 8, 1992, to a date to be determined. This decision was affirmed and adopted by the Full Commission on April 2, 1993, and no appeal was taken from that decision. The claimant has never received any indemnity compensation on account of this injury. On appeal, the respondents focus on the Commission's use of the phrase "to a date to be determined," by the Commission and administrative law judge and they interpret this phrase to mean that we did not make a finding with regard to the duration of the period of temporary total disability compensation. Furthermore, the respondents contend that the claimant had a duty to prove both the beginning and the end of the healing period. Consequently, the respondents contend that the payment of temporary total disability compensation never became due, and, therefore, that they are not subject to the penalty.
The respondents' contentions in this regard are wholly without merit. First, the phrase "to a date to be determined" is commonly used by this Commission, administrative law judges, and attorneys appearing before us to mean that the claimant is entitled to temporary total disability compensation at the time of the decision and that he will remain entitled to temporary total disability compensation in the future until the facts support a determination that he is no longer totally incapacitated and in his healing period. Therefore, the finding of this Commission and the administrative law judge was a finding that the claimant was entitled to temporary total disability compensation from the date specified in the opinions until the facts show that he is no longer temporarily and totally disabled. Furthermore, the respondents' assertion that the claimant must prove both the beginning and the end of the healing period is contrary to the spirit of the Arkansas Workers' Compensation Law. Temporary total disability compensation is intended to be replacement income to provide for an injured employee's sustenance until he is able to return to work or the permanency of the injury is determined. For this reason, the law provides that compensation shall be paid every two weeks, not in one lump sum at the end of the healing period. Furthermore, although a claimant has a duty to prove his entitlement to temporary total disability compensation, this does not mean that he has a duty to establish the end of the healing period, as asserted by the respondents. Often, an injured employee will remain entitled to receive temporary total disability compensation at the time after a decision is made regarding his entitlement to such compensation. Obviously, neither the claimant nor this Commission can look into the future to determine in advance when the healing period will end. In their brief, the respondents question how they are to determine the period of compensation. Obviously, all compensation that had accrued up to the date of the hearing became due when no appeal was taken from the Full Commission's April 2, 1993, decision. Furthermore, since the respondents didn't challenge the claimant's entitlement to continuing temporary total disability, weekly compensation accrued every two weeks after the hearing and this compensation became due when the Full Commission's decision became final. Furthermore, compensation continued to become due every two weeks after that time.
Respondents certainly have the right to terminate temporary disability compensation at any time they feel that the claimant is no longer entitled to receive it. However, to do so, they must controvert the claimant's entitlement to receive additional benefits in accord with the provisions of the Arkansas Workers' Compensation Law. Moreover, acceptance of the respondents' contentions would require a claimant to prove on a weekly or daily basis that he is temporarily and totally disabled, and that is contrary to the spirit of the law as well as common sense.
Therefore, we find that all temporary disability compensation that had accrued at the time when the Full Commission's April 3, 1993, decision became final became due pursuant to the award on that date and that the (20%) late payment penalty attached when no payment was paid within 15 days. In addition, we find that payments of compensation owed pursuant to the award became due every two weeks thereafter and that the late payment penalty attached to each payment which was not made within 15 after it became due.
We also find that the claimant's attorney is entitled to a second attorney's fee on the temporary total disability compensation previously awarded. In this regard, the Commission has the authority to award a second controverted attorney's fee if the same benefits have been controverted twice by respondents. Tyson Food. Inc. v. Fatherree, 16 Ark. App. 41, 696 S.W.2d 782 (1985). In the present case temporary total disability compensation was awarded to the claimant. However, the respondents failed to pay the compensation awarded, and they have contended that claimant failed to prove his entitlement to the compensation because he failed to prove the duration of his healing period. Consequently, we find that the respondents have twice controverted claimant's entitlement to temporary total disability compensation during that period.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant is totally incapacitated from earning, that he remains in his healing period and that he has been in his healing period continuously since he sustained the injury on June 5, 1992. Consequently, we find that the claimant is entitled to additional temporary total disability compensation. In addition, we find that the claimant has established by a preponderance of the evidence that continued medical care, with the exception of the nicotine patch treatment, is reasonably necessary for the treatment of the compensable injury. We also find that compensation unpaid from the award contained in December 18, 1992, decision of the administrative law judge, as affirmed and adopted by the Full Commission on April 2, 1993, is subject to a 20% late payment penalty, and find that the claimant's attorney is entitled to a second attorney's fee on the temporary total disability compensation previously awarded. With the exception of the nicotine patch treatment, the respondents are ordered and directed to comply with the award found in the administrative law judge's June 27, 1994, decision.
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 (1987). 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(b) (1987).
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur with part and dissent with part of the majority's opinion. I concur with the majority's finding that respondent is responsible for paying a 20% late penalty and that the Administrative Law Judge erred in awarding the nicotine patch treatment. However, I dissent with the length of time claimant is entitled to temporary total disability benefits. In my opinion, claimant is entitled to and the penalty should be assessed only on benefits owed from June 8, 1992 through May 4, 1993. Thus, I respectfully dissent from the decision of the majority finding that claimant is temporarily and totally disabled and remains in this healing period subsequent to May 4, 1993. Therefore, as stated, I would concur in part and dissent in part with the majority's decision.
A preponderance of the credible evidence indicates that claimant's healing period ended no later than May 4, 1993. On May 4, 1993, Dr. Jordan testified that claimant's condition had been basically the same since the date he last saw claimant. He further testified that he did not anticipate claimant's condition improving until claimant stopped smoking. Furthermore, as noted, Dr. Rook had examined claimant on at least three occasions and on each he noted that claimant had full range of motion and was able to heel-toe walk. Apparently, claimant's healing period will not end until he quits smoking. It is patently unfair and a violation of the Workers' Compensation law for a claimant to not reach the end of his healing period due to his own choice. This gives the claimant total control over his period of temporary total disability benefits. Therefore, in my opinion, claimant reached the end of his healing period on May 4, 1993.
As stated, I am of the opinion that the majority is correct in assessing a 20% penalty. However, I dissent with the time period. A prior order indicates that claimant has been temporarily and totally disabled from June 8, 1992 until a date yet to be determined. In my opinion, as noted, claimant's healing period ended on May 4, 1993.
I agree with the majority's opinion finding that respondent should not be required to pay for the nicotine patch therapy. As noted, no doctor has prescribed the nicotine patch therapy and claimant has not requested to undergo said treatment. I concur with part and dissent with part of the majority's opinion.
ALLYN C. TATUM, Commissioner