Opinion
CLAIM NO. E906144.
ORDER FILED JUNE 29, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by the HONORABLE TERENCE C. JENSEN, Attorney at Law, Benton, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondent appeals an opinion and order filed by the administrative law judge on January 19, 2000. In that opinion and order, the administrative law judge determined that claimant sustained a specific incident injury on June 3, 1999. Claimant was awarded temporary total disability benefits, and medical benefits. The administrative law judge also determined that respondents controverted claimant's claim. After conducting a de novo review of the record in its entirety, we find that claimant proved by a preponderance of the evidence the occurrence of a specific incident injury. Further, claimant has demonstrated entitlement to indemnity and medical benefits. Finally, we have determined that respondent controverted claimant's claim. Therefore, we find that the administrative law judge's opinion must be affirmed.
Claimant worked as a pest control technician for respondent employer. His employment commenced in March of 1999. On June 3, 1999, he was spraying the yard of a customer in the course and scope of his employment. Claimant testified that he slipped and fell on a piece of sheet metal, landing on his tail bone. He stated that he was stiff and sore as a result of the fall. However, he completed the work day. Claimant testified that he reported the injury to Ralph Webb, Owner, on June 4, 1999.
Claimant testified that he was initially examined by his family physician, Dr. Gardial, on about June 7, 1999. He stated that as a result of Dr. Gardial's treatment, he received a referral to Dr. W. Michael Garrett. Dr. Gardial's office provided claimant with his x-ray films for Dr. Garrett's review. Although the record does not include a chart note from Dr. Gardial, a case management note prepared by a staff nurse with Dr. Garrett's office confirmed the referral.
Dr. Garrett initially examined claimant on June 11, 1999. Upon palpation, he detected an "anterior sweeping coccyx." His chart note showed that claimant reported a diagnosis of a coccygeal fracture. Dr. Garrett's note revealed that he perused the x-ray films, and offered an opinion regarding claimant's condition:
CLINIC COURSE: X-rays were reviewed of the coccyx as provided by the patient and although he does have an anterior sweep of the terminal two coccyx vertebrae, at this point I can not see evidence of acute fracture.ASSESSMENT: (1) Acute post traumatic coccydnia.
(2) Right piriformis strain.
IMPRESSION: The patient may in fact have a coccygeal fracture, however, it is just [sic] likely that he has also contused the area. Treatment, however, is the same. . . . I believe that the pain that he has in his right leg is related to the piriformis and its anatomic relationship to the sciatic nerve.
Dr. Garrett recommended a doughnut pillow, imposed light duty restrictions, and advised claimant to perform piriformis stretches. Moreover, he prescribed medication for pain.
Claimant returned to Dr. Garrett's office on June 18, 1999. In a chart note, he reiterated his earlier findings, noting that no fracture was apparent but the x-rays showed "a marked anteflexion of the tip of the coccyx." Dr. Garret again assessed a "coccygeal contusion, and piriformis strain on right."
Dr. Garrett continued to follow claimant's progress. On June 25, 1999, he wrote:
There was some question about fracture of the coccyx, however I was unable to visualize any fracture on the x-rays provided. [Claimant] does have significantly anteflexed terminal portion of the coccyx which might either be normal . . . or may be related to this trauma. He has had significant pain with evidence of piriformis, tenderness as well . . .
Claimant's light duty restrictions were not removed. However, Dr. Garrett advised him to begin walking on a daily basis.
On June 30, 1999, claimant returned to Dr. Garrett's office, and his chart note revealed:
CLINIC COURSE: X-ray of the coccyx was obtained. Again, I find no visible acute fracture and his significant anterior deflection now appears to be improving.ASSESSMENT:
(1) Coccygeal contusion with bilateral piriformis strain.
IMPRESSION: The patient appears to be healing as expected now three weeks status post his injury. There is no evidence of fracture on x-ray although certainly an occult fracture can not be excluded. The old x-rays are not available at this time.
In addition to his complaints of pain, claimant also reported some thigh weakness with the exercise regimen Dr. Garrett recommended. Thus, additional pain medication was prescribed.
When claimant returned on July 8, 1999, Dr. Garrett's chart note indicated:
CLINIC COURSE: Review of his x-rays shows the anterior angle of the coccyx to have been improved and since this is a fused structure, it leaves me to reassess and believe that the patient probably did have a coccygeal fracture with anterior displacement that actually is improving and this in fact would explain the duration of symptoms.ASSESSMENT: (1) 2Coccygeal fracture.
(2) Piriformis strain — resolving.
IMPRESSION: I believe the patient is improving and has improved significantly since the onset of his care. This is an obviously painful process and may actually be extended for a number of months but I do not believe that this should prevent him from returning to gainful employment in the near future.
PLAN: We will attempt to get the patient back into his workplace at least four hours daily five days per week. He is given duty modification recommendations to include limit his sitting, no kneeling or squatting and limited bending or stooping. He is to continue with his current care including stretches, heat, and doughnut pillow. . . .
Dr. Garrett discharged claimant from his care, and he was evaluated by Dr. Michael Young, an orthopedist, commencing on July 19, 1999. Dr. Young immediately excused claimant from work, and the record included multiple off-work slips he authored.
In a letter to claimant's counsel dated September 15, 1999, Dr. Young indicated that his "initial diagnosis was coccydnia, possibly nondisplaced coccyx fracture with a sprain. He has continued to have continued pain and we obtained a bone scan which showed no gross evidence of fracture." With respect to the presence of objective findings, Dr. Young noted that recent diagnostic testing revealed "no significant abnormality."
The resolution of this case turns on whether claimant has satisfied the objective findings requirement. Ark. Code Ann. § 11-9-102 (16) (A) (Supp. 1999), is controlling, and provides that: "`objective findings' are those findings which cannot come under the voluntary control of the patient." Respondents argued on appeal that "there is a complete absence of objective findings establishing and/or supporting the injury alleged by Claimant." We disagree. The Full Commission holds that the improvement of the anterior angle of claimant's coccyx, as evidenced by the serial x-rays performed following his work-related injury, fulfills the objective findings requirement.
Dr. Garrett's records present a cogent analysis regarding the diagnostic progression from coccygeal contusion to coccygeal fracture. His chart notes showed that he never eliminated the occurrence of a fracture. First, Dr. Garrett asssessed "acute post-traumatic coccydnia and right piriformis strain," noting the absence of an "acute fracture." He pointed out that the x-ray studies done at the direction of Dr. Gardial revealed some anterior displacement of the coccyx. His chart notes showed that the coccyx angle was also palpable upon clinical examination. However, Dr. Garrett was uncertain whether the "anterior sweeping coccyx" was normal for claimant or attributable to the work-related trauma. He considered the evidence equiposed with respect to whether claimant had sustained a contused or fractured coccyx. Dr. Garrett's diagnosis of a coccygeal contusion remained unchanged until he ordered new x-ray films, and had an opportunity to conduct a comparative analysis. The new studies demonstrated an improvement in the anterior angle of claimant's coccyx, and Dr. Garrett's chart note indicated that he would not exclude the presence of an "occult fracture." According to Dorland's Illustrated _Medical Dictionary, 1168 (28th ed. 1994), occult means "obscure; concealed from view; difficult to understand." When the chart note was prepared, claimant's original x-rays were unavailable; therefore, Dr. Garrett did not disturb his working diagnosis of a coccygeal contusion. After comparing the serial x-rays Dr. Garrett dismissed the theory that claimant's coccyx curvature was congenital, and amended his diagnosis from contusion to fracture. His decision was based upon the improvement of the coccyx, which he characterized as a "fused structure." We are convinced that the amelioration of claimant's coccyx curvature represents an objective finding as contemplated by the Act. We would also note that the serial x-ray studies corroborate the existence of a coccygeal fracture, as diagnosed by Drs. Gardial and Garrett. See, Meister v. Safety Kleen, 339 Ark. 91, 3 S.W.2d 320 (1999).
Claimant also contends that he is entitled to an award of temporary total disability benefits. Respondents assert that claimant's failure to accept light duty work within his restrictions precludes the payment of temporary total disability benefits. The applicable statutory provision is Ark. Code Ann. § 11-9-526 (Repl. 1996), which follows:
If any injured employee refuses employment suitable to his capacity offered to or procured for him, he shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers' Compensation Commission, the refusal is justifiable.
To support their theory that an award of temporary total disability benefits is barred by § 11-9-526, respondents offered the testimony of Mr. Ralph Webb. Webb testified that on July 8, 1999, he received a phone call from Carolyn G. Wilson, R.N., Case Manager, regarding claimant's return to the work force on light duty. Webb acknowledged that he was unable to accommodate the restrictions previously imposed by Dr. Garrett. However, he stated that he agreed to furnish light duty work within claimant's new restrictions, which were less stringent than those initially imposed by Dr. Garrett. He stated that claimant was in Wilson's office when she made the phone call, and she handed the phone to him so that they could discuss the matter. Webb testified that although he instructed claimant to contact him, he never heard from claimant.
Upon examination by the administrative law judge, Mr. Webb testified that initially, Dr. Garrett refused to permit claimant to ride in a car, which precluded the performance of light duty employment. He explained that his business entailed driving to the homes of customers and spraying for pests; therefore, claimant's restrictions could not be accommodated. Webb testified that on July 8, 1999, claimant was permitted to ride in a car in thirty-minute increments, and Webb determined that claimant could return to work. He acknowledged that he did not ask claimant to return to work. Rather, he asked claimant to call him after leaving the doctor's office so that they could "make arrangements and see what we could do." He stated that he made no attempt to contact claimant after their conversation. Webb testified that he assumed claimant had no desire to return to work. However, he acknowledged that claimant never stated that he did not want to work. Mr. Webb testified that he paid claimant his salary until July 12, 1999.
Claimant testified that he was never offered light duty work within his restrictions. He stated that at the end of June of 1999, Webb came to his home and retrieved the company truck, and all company property in his possession. Claimant stated that he attempted to reach respondent employer by telephone after July 8, 1999, leaving messages with Webb's spouse on approximately four occasions. However, his calls were not returned. Claimant testified that subsequent to July 8, 1999, respondent employer contacted him on one occasion regarding a job in Maumelle, Arkansas. The forty-five minute drive would have exceeded claimant's restrictions. He testified that he discussed the matter with Mr. Webb. Claimant stated that Webb advised him to remain at home until he could perform full duty.
The record contained a "Work Status" report completed by Dr. Garrett on July 8, 1999. According to the report, claimant was released to return to work four hours each day. Claimant was permitted to remain seated in thirty-minute increments. Also, case management notes authored by Ms. Wilson were made a part of the record. A note dated July 8, 1999, and provided in pertinent part:
[Claimant] was advised that Mr. Ralph Webb, his employer would be contacted to see if he might be able to accommodate the current limitations and start getting [claimant] back into the work place. He was advised that when we hear back from Mr. Ralph Webb that I would contact him at home. [Claimant] then left our office with copies of his injury worksheet and work status report. Ralph Webb was left a message and later called our office back stating that he might be able to try to go pick up [claimant] at his home and take him to several houses to assure that he stays within his limitations and that he would be able to do aspects of the job that [claimant] is unable to do at this time. Mr. Ralph Webb was advised that Dr. Garrett would allow this only up to four hours per day and was then faxed a copy of the work status report. . . .
Ms. Wilson's case management note cannot be reconciled with the hearing testimony of Mr. Webb. Although respondent employer maintained that he communicated an employment offer to claimant, it appears that the offer of light duty work was actually made to Ms. Wilson. In our opinion, the case management note is more credible. The record showed that Ms. Wilson's note was prepared contemporaneously with the telephone conversation. We specifically find that a preponderance of the credible evidence supports a finding that an offer of light duty employment was never communicated directly to claimant. An offer of suitable employment is a condition precedent to the application of Ark. Code Ann. § 11-9-526. Accordingly, this provision is not a bar to an award of temporary total disability benefits.
Entitlement to temporary total disability benefits requires claimant to satisfy a two-prong test: (1) claimant must be within his healing period; and (2) completely incapacitated from earning wages. Arkansas Highway Transportation Dep't. V. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for healing the injury, which continues until claimant is as far restored as the permanent nature of the injury will allow. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). In the event that the underlying condition has stabilized and there is no additional treatment that will improve claimant's condition, the healing period has ended. Id. This question is one of fact for the Commission to resolve.
The evidence showed that on July 19, 1999, Dr. Young excused claimant from work. Claimant testified that he also prescribed pain medication for the treatment of his symptoms. On September 7, 1999, Dr. Young extended claimant's period of disability until October 5, 1999. In a letter to claimant's counsel dated September 15, 1999, Dr. Young stated that claimant remained disabled. His correspondence noted further that he imposed restrictions upon claimant's activities, indicating that he could not engage in "heavy lifting, bending or stooping." This is the final medical report introduced by the parties. However, claimant stated that Dr. Young released him on November 2, 1999. He testified that he has neither required nor received medical treatment subsequent to November 2, 1999.
Based on the preponderance of the credible evidence we find that claimant is entitled to an award of temporary total disability benefits commencing on June 4, 1999 and ending on November 2, 1999. The Pre-Hearing Order filed by the administrative law judge reflected that respondent employer paid indemnity (and medical) benefits through July 12, 1999. Accordingly, respondents are entitled to a credit for those benefits.
Claimant also contends that he is entitled to reasonably necessary medical care for the treatment of his compensable injury. What constitutes reasonable and necessary medical treatment is a question of fact for the Commission's resolution.Gansky v. High-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). The medical evidence showed that claimant received appropriate medical treatment for his work-related injury. In a chart note dated July 8, 1999, Dr. Garrett opined that the duration of claimant's symptoms could be explained by the diagnosis of a coccygeal fracture. A follow-up appointment was scheduled; however, claimant did not return to Dr. Garrett. Dr. Young assumed responsibility for his care effective July 19, 1999. He prescribed medication, excused claimant from work and ordered diagnostic studies. In our opinion, the medical care claimant received was reasonably necessary. Thus, we find that claimant is entitled to medical benefits for the treatment of his compensable injury.
The final issue is controversion. The Pre-Hearing Order stated that for purposes of attorney's fees, claimant's claim was controverted in its entirety. Prior to the hearing, respondent employer attempted to amend this stipulation, maintaining that it only controverted those benefits not previously paid. However, compensability was never conceded in this case. In order to protect his rights and demonstrate the occurrence of a compensable injury, claimant was required to retain counsel. On this record, we find that respondent employer controverted claimant's claim.
Therefore, after conducting a de novo review of the entire record, and for the foregoing reasons, we find that claimant has proved by a preponderance of the evidence that he sustained a specific incident injury, for which he is entitled to medical and indemnity benefits. Moreover, we find that respondent employer controverted claimant's claim. Therefore, the decision of the Administrative Law Judge must be, and hereby is, affirmed.
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.
_____________________________ ELDON F. COFFMAN, Chairman
_____________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.