Opinion
CLAIM NO. F106661
OPINION FILED JANUARY 19, 2005
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE DAVID LANDIS, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by HONORABLE COLLEEN McCULLOUGH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that she was entitled to additional medical treatment and temporary total disability benefits. Based upon our de novo review of the evidence, we find that the claimant has failed to met her burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent employer in the floral department. She had prior work-related injuries but had no permanent impairment as result of these injuries. The claimant also has pre-existing arthritis in her right knee. On May 14, 2001, the claimant tripped over a box and fractured her right foot as well as injuring her right knee. She was treated by Dr. Ken Carpenter, the company physician, who referred the claimant to Dr. John Woloszyn, an orthopedic surgeon. Dr. Woloszyn put her foot in a cast and allowed her to return to work. The claimant continued working using crutches and a wheelchair. On July 10, 2001, Dr. Woloszyn released the claimant to return to work without any permanent impairment.
The claimant continued to complain of pain and was allowed to return to Dr. Carpenter who ultimately referred the her to Dr. James Mulhollan. Dr. Mulhollan treated the claimant conservatively between November 2001 and July 2002. The claimant did not seek any additional medical treatment until June 24, 2003 when she complained of sharp pains in her kneecap at which time she sought treatment from Dr. Hurst, her family physician, who took the claimant off of work from June 24-July 4, 2003. Dr. Hurst released the claimant to return to work without restrictions on July 4, 2003. The claimant returned to Dr. Mulhollan on July 3, 2003. The claimant requested a change of physician from Dr. Mulhollan to Dr. Edward Cooper and this was granted. The claimant saw Dr. Cooper who prescribed physical therapy. The correspondence that the respondent employer received from the claimant was a doctor's note dated July 8, 2003 which stated that the claimant had gone to see her family physician and should be off work until she had an appointment with an orthopedic physician. The respondent employer received leave of absence papers on January 27, 2004.
The claimant asked for additional medical treatment and temporary total disability benefits. The Administrative Law Judge awarded the claimant additional medical treatment and temporary total disability benefits from June 24, 2003 through January 12, 2004. The respondents appealed. After conducting a de novo review of the evidence, we find that the claimant has failed to prove by a preponderance of the evidence entitlement to the benefits sought.
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). However, injured employees have the burden of proving by a preponderance of the evidence that the medical treatment is reasonably necessary for the treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers' Compensation Commission Opinion filed February 17, 1989 (Claim No. D612291). 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 Workers' Compensation Commission Opinion filed December 13, 1989 (Claim No. D512553). Also, the respondent is only responsible for medical services which are causally related to the compensable injury.
The medical evidence demonstrates that the problems the claimant experienced are related to her pre-existing genetic deformity and degenerative arthritis. Dr. Mulhollan opined that any potential surgery that the claimant would have would be for her degenerative, symptomatic, pre-existing condition. The claimant is overweight which contributes to her knee problems. The claimant was released to return to work by Dr. Woloszyn on July 10, 2001 without any permanent impairment. The claimant was also treated by Dr. Mulhollan who treated her conservatively through July of 2002. The claimant did not seek any medical treatment after she was released by Dr. Mulhollan until June of 2003.
The evidence demonstrates that within five months of her injury she received a steroid injection for knee pain. Dr. Mulhollan stated on August 1, 2002:
The claimant tells me she is basically better. She has problems every once in a while instead of continuously. She points to the lateral knee as the location of discomfort. Of course, that coincides with the area of her degeneration. In my estimation, this patient is basically over the injury she sustained in May, when she fell.
According to the claimant's own description of pain to Dr. Mulhollan, she was back to her pre-injury level. The claimant testified at the hearing as follows:
Q. [Judge] Were you having any problems with your right knee before May 14 of `01.
A. I ached but I continued to work. I took a leave (sic) and I continued to work. I just learned to cope with it.
It is apparent the claimant was experiencing pain prior to the 2001 fall, and that it was not a condition which was asymptomatic prior to 2001. On his October 18, 2002, response to the respondents' inquiry of the claimant's status, Dr. Mulhollan stated, that the claimant reached maximum medical improvement from her compensable injury on July 1, 2002, that she did not need any additional treatment to maintain her maximum medical improvement level, that she did not sustain any permanent disability, and that she was released to return to work with no restrictions.
The claimant did not seek additional medical treatment for more than 11 months after Dr. Mulhollan released her at MMI, without any disability rating. Then, on June 12, 2003, the claimant sought treatment at St. Bernard's Medical Center Emergency Room. According to the hospital record, the chief complaint was "right ankle injury. Pain up to right thigh. Dr. gave her cortisone shot Tues. Has degenerative arthritis in right knee." It is apparent that the treatment sought in June 2003 was not for her knee problem. It appears from the emergency room records notation that the claimant sustained a new injury. This injury was not reported to her employer and was therefore not job related. Further, the record does not list any objective findings, only the subjective complaints of pain.
On June 24, 2003, the claimant sought treatment from Dr. William Hurst, her family physician, rather than Dr. Carpenter, the company doctor. Dr. Hurst's record stated that the claimant was "unable to work at this time, and excuses her from work from 6/24/03 — 7/4/03. The claimant is to return to work on 7/4/03 without restrictions." The medical record does not indicate why the claimant was unable to work, or for what part of the body she sought treatment.
The claimant was again seen by Dr. Mulhollan on July 3, 2003. According to the medical report, Dr. Mulhollan stated the following:
"I have reviewed her case in some detail. She injured an already very arthritic knee when she fell in May, 2001. The earliest film made on November 23, when I first saw her. There were 4+ bone-on-bone relations in the outer one-half of the patellofemoral joint, due to malalignment. Of course, that has been present for many years prior to her mishap. An MRI made on November 26, just after I saw her, did not demonstrate surgical pathology. The patient's pain was lateral with extension into the thigh. Of course, her case was greatly complicated by obesity that was marked. Whenever she tried to work, she had severe pain. I do not think Shirley can be helped arthroscopically. She may be helped by total knee replacement, but that is outside of my area of expertise. The replacement would not be to fix her job injury. Instead, it would be done to fix the degenerative process present in her patellofemoral joint."
Dr. Mulhollan issued the claimant a 5% impairment rating, which respondents have paid.
On September 16, 2003, Dr. Mulhollan further stated:
"The patient has a very severe degenerative arthritic condition in her patellofemoral joint, due to patellar malignment. It is a congenital or at least a developmental abnormality that has been present throughout her adult life. Narrowing to the degree observed occurs only over a prolonged period of time and a very high level of favoring, usually brought on by the process of trying to avoid discomfort."
Clearly the medical records do not support the finding that all medical treatment incurred by the claimant after July 2002, are reasonable and necessary in connection with her compensable injury. It is undisputed that Dr. Mulhollan found the claimant to be at MMI as of August 1, 2002. After reaching maximum medical improvement, the claimant did not seek any medical treatment for almost one full year later and the treatment she sought was for pain in her right foot and thigh area. The medical evidence clearly demonstrates that any medical treatment the claimant received subsequent to July of 2002 was for her pre-existing degenerative arthritis and genetic deformity. Therefore, it is not the responsibility of the respondents. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to any additional medical treatment.
The claimant has also requested additional temporary total disability benefits. In order to be entitled to temporary total disability compensation for a scheduled injury, the employee must prove: (1) that she remains within her healing period; and (2) that she has not returned to work. Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). In the instant case, the claimant was released by Dr. Mulhollan at MMI on or about August 1, 2002, with no work restrictions, and no disability rating. Therefore, as of August 2002, the claimant had reached the end of her healing period. No additional treatment was recommended for the claimant as of that date. Further, the medical records reflect that the claimant did not seek any medical treatment for approximately 11 months after reaching MMI. The next treatment documented was a June 12, 2003, emergency room record, which stated the claimant was being treated for "right ankle injury and pain up to her right thigh." The only specific reference in the record pertaining to the right knee is a notation which reads: "has degenerative arthritis in right knee."
In his July 3, 2003, correspondence, Dr. Mulhollan stated: "I do not think Shirley can be helped arthroscopically. She may be helped by total knee replacement, but that is outside of my area of expertise . . . The replacement would not be to fix her job injury. Instead, it would be done to fix the degenerative process present in her patellofemoral joint." Dr. Cooper, the claimant's most recent orthopedist, has evaluated the claimant with regard to a need to knee replacement surgery, and has not recommended surgery.
Clearly, the medical records do not support the claimant's position that she still remains within her healing period from this injury. Any problems she may be experiencing with her right lower extremity are obviously related to her genetic deformity, degenerative arthritic changes and not to the May 2001 injury.
At the hearing, the testimony of both the claimant and Debra Wells affirmed that when the claimant left work on June 24, 2003, she was doing so because it was just too much on her coming to work, coming in the building, walking to break and back and forth to the lunchroom, and that she just did not think she could do it anymore. The claimant testified at the hearing that she does not feel she can return to work at this time because she is still in pain. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
We find that the claimant has failed to prove by a preponderance of the evidence that she was entitled to additional temporary total disability benefits. Accordingly, we reverse the decision of the Administrative Law Judge. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion reversing the Administrative Law Judge's award of additional medical treatment and temporary total disability benefits. As in Williams v. L. W. Janitorial, Inc., 85 Ark. App. 1 (2004), I find that claimant is entitled to medical and indemnity benefits because her pre-existing degenerative knee condition was aggravated by her work-related injury which has resulted in claimant's need for total knee replacement surgery. Claimant has endured persistent knee pain since her May 14, 2001 work-related injury. Prior to that injury, claimant had occasional knee pain as a result of a January, 1993 work-related fall. However, prior to the May, 2001 injury, claimant was able to work continuously and was able to cope with the pain. In her own words, claimant has said with regard to the May, 2001 injury that "This time I haven't been able to get over it." As a result of the May, 2001 injury to her right knee, claimant states that she now has pain every day and she cannot continue to work as it is painful to bend and stand for long periods of time. In Williams, supra, the Court stated that the claimant there was entitled to additional medical treatment in the form of knee replacement surgery because her treating physicians had stated her work-related injury contributed to her disability and had an effect on her pre-existing condition. Ms. Williams' work-related injury aggravated a pre-existing arthritic condition in her knee. It was undisputed in that case that claimant had a pre-existing condition and that she had experienced pain in her knee prior to the work-related fall. The Court reversed the Full Commission's finding that the recommended knee replacement surgery was not casually related to the compensable injury. The Full Commission reasoned that claimant was symptomatic prior to the incident at work and would have required knee replacement surgery regardless of the work-related injury due to the progressive nature of her degenerative disease. The Court disagreed with this analysis and held as follows:
In workers' compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark. App. 46, 120 S.W.3d 150 (2003). An aggravation of a pre-existing non-compensable condition by a compensable injury is, itself, compensable. Id. An aggravation is a new injury resulting from an independent incident. Id. An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Id.
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Both doctors can be fairly said to have testified that appellate's fall at work was not the major cause, but that it was, at least, a factor in her resulting inability to work and need for knee replacement surgery. . . . Appellees had to take the appellate as they found her, and the compensable injury that she suffered was a factor in her need for the additional surgery.
Here, as in Williams, the medical record shows that claimant's compensable injury is a factor in her need for total knee replacement surgery. Dr. Cooper's February 11, 2004 report states that "The injury did aggravate her condition, making this become symptomatic and she has continued to have symptoms since that time. She has not recovered as would be expected from the injury because of her degenerative condition." On July 3, 2003, Dr. Mulhollan release claimant with a five percent physical impairment rating related to the injury, while also acknowledging that claimant's overall impairment was far greater than the five percent, but that it was pre-existing and not related to the work injury. He further opined that she may be helped by a total knee replacement because of her continuously problematic degenerative condition. Unlike the majority, I find that the medical evidence does not support the holding that claimant's compensable injury only resulted in a temporary aggravation of her pre-existing condition. In any event, the law is clear that an aggravation of a pre-existing condition is compensable where that aggravation is a factor in the claimant's need for additional medical treatment necessary to treat a pre-existing condition. See, Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996); Williams, supra. Accordingly, I find that claimant has proved by a preponderance of the evidence that she is entitled to additional medical treatment and temporary total disability benefits for the period that she remains within her healing period.
For these reasons, I find that claimant is entitled to medical and indemnity benefits pursuant to the Court of Appeals' decision in Williams. I, therefore, respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner