Opinion
CLAIM NO. E212555
OPINION FILED APRIL 1, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE WILLIAM H. TRICE, III, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
[2] The respondents appeal an opinion filed January 16, 1997, by an administrative law judge. The administrative law judge found:
1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim.
2. On October 17, 1991, claimant sustained a compensable injury, arising out of and during the course of his employment with Southern Company of North Little Rock, at which time he earned sufficient wages to entitle him to the maximum compensation rates of $231.37 per week for temporary total disability and $173.53 per week for permanent partial disability.
3. Claimant was temporarily totally disabled for the period beginning July 13, 1992, and continuing, without interruption, through October 13, 1994.
4. Claimant's healing period ended October 13, 1994.
5. Claimant had sustained a twenty-one percent (21%) whole body impairment, which is directly and causally related to the October 17, 1991, admitted injury.
6. Respondents have controverted all indemnity benefits beyond those previously paid.
After reviewing the entire record de novo, we affirm the Administrative Law Judge's decision as modified. In this regard, we find that the claimant is entitled to the additional temporary disability benefits controverted by the respondents for the period beginning August 9, 1993, and continuing through March 20, 1994. We also find that the claimant is entitled to additional permanent partial disability benefits equal to 6% rated to the body as a whole, and 6% rated to the upper extremity at the wrist.
The claimant was involved in a work-related automobile accident on October 17, 1991. He was initially treated at St. Joseph's hospital in Hot Springs, Arkansas and released the next day. Dr. Laurenzana, the claimant's family physician, treated claimant conservatively following his release from the hospital. Following a diagnosis of paracervical muscle strain on October 25, 1991, the claimant did not seek additional medical treatment until March, 1992.
The claimant presented to Dr. Jim J. Moore on March 5, 1992. He complained of recurrent headaches, sensitivity in the back of his head, bilateral shoulder pain and severe pain from the mid-thoracic area and upwards. Dr. Moore diagnosed cervical sprain, resulting from the compensable injury. Claimant began experiencing episodes of dizziness in July, 1992. The parties stipulated that the respondents paid temporary total disability benefits for the period beginning July 13, 1992, and continuing through August 8, 1993. The claimant underwent admittedly compensable shoulder and carpal tunnel surgery on March 21, 1994, and the parties stipulated that the respondents also paid temporary total disability benefits for the period beginning March 21, 1994, and continuing through December 18, 1994.
Since the claimant's injuries occurred prior to July 1, 1993, this claim is governed by the provisions of the Arkansas Workers' Compensation Law as it existed prior to the amendments of Act 796 of 1993. The Commission determines temporary disability 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). 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(13) (Repl. 1996). 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 stabilizes, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities.
The respondents first terminated temporary total disability benefits effective August 8, 1993, after Dr. Moore first released the claimant to return to work on July 21, 1993, after approximately one year off work related primarily to symptoms of dizziness. However, the claimant returned to Dr. Moore on September 20, 1993, at which time Dr. Moore reported:
The patient tells me that his place of employment advised him there was no work available as long as he had the complaints of passing out . . . As far as treatment is concerned, it is felt primarily supportive. I see no evidence there would be anything other than a level of stability having been reached in his instance; therefore, one could interpret MMI. His limitations are based primarily on his subjective complaints that have not been substantiated, but are still a worry, both to the patient, his potential employer, and his attending physicians.
For his own part, the claimant testified that he could not return to work:
No, I went back after they released me, and Mr. Mulligan, my boss, and Ms. Childers here, I went back in and there wasn't nothing that I could do. I couldn't work around that equipment passing out, or around them holes, digging them big, deep holes. They was afraid I'd get hurt worse . . . Yeah, I couldn't bend over, I would pass out. And that arm would spasm, my right arm and shoulder would spasm on me. I couldn't work.
Though Dr. Moore had exhausted the options available to him, Dr. Reginald Rutherford of the Pain Care Center independently examined the claimant on December 3, 1993, concluding:
Mr. Winkler's complaints of headache, musculoskeletal pain and dizziness may be remedial to further intervention, initial further treatment to comprise therapy for post-traumatic migraine and myofascial pain and dysfunction . . . In conjunction with the above, a diagnostic trial of intensive myofascial release will be pursued comprising trigger point injection with stretch and spray physical therapy . . . If the above proved without benefit I would then recommend as Mr. Winkler's final evaluation, a comprehensive labyrinthine evaluation by Dr. John Dickens.
The claimant underwent a considerable course of injection therapy in his neck and shoulder during the early part of January, 1994, performed by Dr. Warren. This therapy initially proved beneficial, but failed to entirely alleviate claimant's difficulties. In addition, on February 18, 1994, Dr. Rutherford opined that the claimant's right shoulder difficulties might be related to an "impingement syndrome." He referred the claimant to Dr. Sheppard, a hand specialist, for evaluation.
On March 1, 1994, Dr. Sheppard examined the claimant and said:
It is my impression that this gentleman has stage II impingement syndrome with moderate to severe carpal tunnel syndrome. I believe these are related to his motor vehicle accident. Validity testing was performed, which demonstrated a satisfactory effort . . . It is my impression that he would benefit from an arthroscopic subacromial decompression and carpal tunnel release.
Therefore, the respondents approved and Dr. Sheppard performed surgery on March 21, 1994, for the claimant's right shoulder impingement and right carpal tunnel syndrome.
After conducting a de novo review of the entire record, we find that the greater weight of the evidence in the record indicates that the claimant remained within his healing period and totally incapacitated to earn wages between August 9, 1993 and March 20, 1994. In this regard, the claimant suffered from continuing shoulder and carpal tunnel abnormalities which did not receive surgical attention until March 21, 1994. In addition, claimant received substantial injection therapy in early 1994 following Dr. Rutherford's suggestion that his "complaints . . . may be remedial to further intervention." As Dr. Rutherford subsequently noted in February, 1994, this therapy had been of at least "partial benefit." Further, we note that the claimant continued to experience difficulties with significant pain, spasm, and even passing out following his initial release from Dr. Moore which prevented the claimant from returning to gainful employment during that period. Moreover, we find that the claimant's unstable medical condition described above rendered the claimant totally incapacitated from work during the period from August 9, 1993 through March 20, 1994.
In reaching our decision, we are cognizant of Dr. Moore's September 20, 1993, report releasing the claimant to return to work, and of the claimant's ability to engage in some degree of hunting activities in 1993.
However, the issue in this case was the claimant's ability towork, not his ability to hunt, during 1993 and early 1994. The claimant was employed by the respondents as a technician, checking underground gasoline tanks, as well as repairing equipment, and this work required the claimant to travel extensively throughout the state. We do not find the claimant's ability to walk in the woods to hunt particularly relevant in assessing whether the claimant could return to work driving, particularly in light of the evidence that the respondents advised the claimant that he could not return to work until his dizziness resolved. Likewise, we note that the claimant's work involved digging activities and that the claimant was restricted by a shoulder joint impingement (as well as receiving injection treatment from Dr. Rutherford) during the disputed period. Moreover, the claimant did not receive treatment for his shoulder impingement or his carpal tunnel syndrome until March 21, 1994. Finally, not only do the claimant's hunting activities have little bearing on his ability to drive or dig (i.e. work-related activities), but it also appears that the claimant had hunting companions to cock-down his bow for bow hunting.
Accordingly, for the reasons discussed herein, we find that the claimant remained in his healing period and totally incapacitated to earn wages during the period from August 9, 1993 through March 20, 1994. We thus award the claimant additional TTD benefits from September 20, 1993 through March 20, 1994.
The parties stipulated that respondents paid forty-five (45) weeks in permanent disability benefits, representing the ten percent (10%) whole body impairment assessed by Dr. Moore related to the claimant's cervical spine. In addition, the respondents paid for the claimant's shoulder and carpal tunnel surgery on March 21, 1994, but now assert that the claimant failed to prove that he sustained a compensable carpal tunnel injury. In addition, the respondents assert that the claimant is only entitled to a 4% rating for the cervical injury, instead of the 10% rating assigned by Dr. Moore and paid.
With regard to the respondents' assertion on appeal that the claimant's appropriate impairment rating for his cervical injury should have been 4% rated to the whole body, we note that Dr. Moore assigned the claimant a 10% rating, and the respondents paid the claimant benefits for that rating. The respondents' attorneys now ask us to apply Table 75 to the AMA Guidelines to find that the claimant sustained only a 4% rating for his cervical injury. We respectfully decline to do so. Dr. Moore assigned the claimant a 10% rating, the respondents did not dispute the accuracy of the rating, but instead paid the 10% rating. In addition, the medical record and Dr. Moore's deposition indicate that he was not misinformed in any way as to the nature and extent of the claimant's cervical injury when he assigned the claimant's cervical impairment rating in 1993, although Dr. Moore was very equivocal about his impairment rating under leading and suggestive questioning from the respondents' attorney in a deposition conducted approximately three years later. In light of the fact that respondents accepted and paid Dr. Moore's 10% rating in 1993, we find that, under the circumstances, Dr. Moore's 1993 impairment rating is entitled to significantly greater weight than Dr. Moore's 1996 testimony under leading questioning or the weight to be accorded the 1997 assertions of the respondents' attorney regarding the AMA Guides in his brief on appeal.
Likewise, we note that Dr. Sheppard wrote a letter on March 1, 1994, advising the respondent carrier that the claimant was experiencing moderate to severe carpal tunnel syndrome and that he believed that the claimant's carpal tunnel syndrome was related to the claimant's motor vehicle accident. The respondent carrier accepted this injury as compensable and paid benefits related to surgery. Nevertheless, the respondents' attorney now requests that we revisit the compensability issue, and essentially find the carrier erred in accepting the injury as compensable, so that the carrier would not be liable for the impairment rating resulting from the wrist surgery paid for by the respondents. However, as with Dr. Moore's cervical impairment rating, we place great significance on the fact that Dr. Sheppard advised the respondents in 1994 that he considered the carpal tunnel condition causally related, and on the fact that the respondents accepted the injury as compensable. Moreover, there is no evidence in the record that the claimant ever withheld any information from Dr. Sheppard regarding any non-work activities or problems which might have caused or contributed to the claimant's carpal tunnel syndrome. Consequently, their attorney's argument on appeal notwithstanding, we see no basis in the record from which to conclude that the respondent carrier's employees erred in interpreting Dr. Sheppard's 1994 letter as accurate and accepting the compensability of the claimant's right carpal tunnel syndrome injury as a consequence of the work-related motor vehicle accident.
In reaching our decision, we note that the respondents' attorney relies on leading and suggestive questioning of Dr. Moore and Dr. Sheppard (and equivocal testimony obtained therefrom) during 1996 depositions to support the assertion that no causal relationship exists between the claimant's 1991 motor vehicle accident and his carpal tunnel syndrome injury. As a practical matter, we point out to the respondents' attorney that the appropriate point for the respondents to investigate the compensability of the claimant's carpal tunnel injury and surgery was in 1994 (which the respondent carrier's employees presumably did), and not by deposing the attending physicians in 1996, two years later.
This case is representative of a troubling trend in recent cases before the Commission where respondent carriers accept alleged work-related injuries as compensable, (providing associated benefits for months or years thereafter) only to have their attorney later argue (for no apparent reason), in essence, that the carrier's employees erred in accepting an injury ascompensable when the claimant seeks permanent disability benefits as a result of his or her injury and/or surgery. We note with great concern that this rather frivolous litigation has become an increasingly standard practice before the Commission to the point of impeding the expeditious review function of the administrative law judges and the Full Commission.
We also note that this litigation practice is fundamentally unfair to claimants who then must meet an evidentiary burden on an essentially new issue (compensability) months or years after the relevant medical treatment may have ended. By that time, doctors' recollection of specific complaints and conversations will obviously have waned, and doctors will be required to rely for the most part, if not exclusively, on prior written reports to answer deposition questioning. We note that, where the respondents challenge the compensability of an injury months or years after the fact, we are in just as good a position as a deposed physician to read the physician's reports prepared years earlier. In addition, we note that the relevant questions asked years after the fact in depositions usually seek information regarding what a doctor observed, what the doctor heard the claimant say, or on what basis the doctor reached a conclusion years earlier. Obviously, very few physicians are going to have a personal recollection of what any particular patient said or what the physician observed years earlier. Consequently, where as here, the respondents' attorney challenges the compensability of a condition years after the fact, the respondents place the claimant at an extraordinary disadvantage to obtain competent medical testimony regarding relevant conversations and observations of attending physicians about which the physicians have no personal recollection years later.
We do not mean to suggest that we find the respondents are estopped from challenging the compensability of this alleged work-related injury after having initially accepted the injury as compensable. Certainly, in some cases, an initial investigation will lead a carrier or employer to justifiably conclude that an alleged compensable injury is work-related, although thesubsequent discovery of previously unrevealed information of the surrounding circumstances (the claimant's medical history, etc.) may justifiably lead the carrier or employer to controvert the alleged compensable injury in its entirety at a later date. Likewise, we note that claimants always have the burden of proving that a compensable injury is the major cause of any subsequent permanent disability in any claim subject to the provisions of Act 796 of 1993 (the present case involves a Pre-Act 796 injury).
However, where as here, the claimant's treating physician opines that an injury is work-related, the carrier performs its investigation and accepts the injury as compensable, and the respondents' attorney challenges the compensability of the injurylong after surgery is performed and benefits paid, we are inclined to place significant weight on the physician's initial opinion and the respondents' initial acceptance of the injury as compensable, when the respondents' attorney cannot offer any explanation as to why the carrier or employer erred in accepting the injury as compensable.
In the 1996 depositions in the present case, Dr. Sheppard and Dr. Moore seemed to indicate that the probability that the claimant's carpal tunnel syndrome was causally related to the 1991 motor vehicle accident is likely related to how long after the accident that the claimant first began experiencing right wrist symptoms. The further away from the time of the initial accident that the claimant first began to experience right hand problems, the more likely that the carpal tunnel syndrome was not traumatically induced as a result of the accident. In deposing both physicians, the respondents' attorney relied on a February 10, 1993, report from Dr. William Blankenship relating a history of the claimant's right hand symptoms beginning in July of 1992 (approximately 10 months after the motor vehicle accident). In rather equivocal testimony under leading and suggestive questioning both physicians opined that 10 months would be a relatively long period to elapse for a traumatically induced carpal tunnel syndrome to become symptomatic.
On the other hand, the claimant testified that he began experiencing some degree of right hand symptoms shortly after the accident, and that he did in fact inform Dr. Moore of these symptoms prior to July of 1993.
After conducting a de novo review of the entire record on the compensability (causal connection) issue, and for the reasons discussed herein, we accord substantially greater weight to, (1) the claimant's hearing testimony, (2) Dr. Sheppard's March 1, 1994 letter to the respondents, and (3) the respondents' acceptance of the claimant's carpal tunnel syndrome as compensable, over the weight to be accorded, (4) Dr. Blankenship's February 10, 1993 letter, and (5) the equivocal 1996 deposition testimony of Dr. Sheppard and Dr. Moore.
In reaching our decision, we note that both Dr. Blankenship's 1993 letter and Dr. Sheppard's 1994 letter were addressed to the respondent carrier, and that the carrier had the benefit of both letters in assessing whether the claimant's carpal tunnel syndrome was causally related to his work-related accident. With regard to the claimant's testimony, we note that a report from his initial hospital stay indicates that the claimant did in fact experience an initial tingling in both arms and legs, and the medical record indicates that Dr. Moore treated the claimant for potentially much more threatening and severe neurological injuries than carpal tunnel syndrome. Consequently, we place very little significance on the fact that Dr. Moore's notes do not reference any right hand symptoms prior to July of 1992. Likewise, we place very little weight on the equivocal 1996 deposition opinions by Dr. Moore and Dr. Sheppard which appear to be a re-assessment of the exact same documents available to Dr. Sheppard and the respondents in 1994 when the respondents initially determined that the claimant's carpal tunnel syndrome was a compensable consequence of the claimant's work-related motor vehicle accident. Because we find that the claimant proved by a preponderance of the credible evidence that his carpal tunnel syndrome was compensable, we also find that the respondents are liable for the 6% anatomical impairment assigned by Dr. Sheppard as a result of that surgery.
In awarding the claimant a 21% whole body impairment, the administrative law judge apparently combined claimant's previous 10% impairment rating (for the cervical injury) with the 11% rating assigned by Dr. Sheppard. However, Dr. Sheppard's additional 11% rating represented the combined impairment to claimant's shoulder (an unscheduled injury) with the impairment to his wrist (a scheduled injury). We find it more appropriate to award the claimant an additional impairment based on the breakdown provided by Dr. Sheppard during deposition, viz., 6% to the hand, and an additional 7% to the whole body for the claimant's shoulder problems. Though Dr. Wilson also issued a rating in this claim, we find that Dr. Sheppard is best suited to rate the claimant's shoulder and hand impairments. We thus find that the claimant's final anatomical impairment rating shall be 6% to the hand, 10% rated to the body as a whole for the claimant's cervical impairment, and 7% rated to the body as a whole for the claimant's shoulder impairment. Further, consistent with the Combined Values Chart of the Fourth Edition of the AMA Guides to the Evaluation of Permanent Impairment, we find that the claimant's 10% whole body impairment (cervical) and 7% whole body impairment (shoulder), equate to a combined 16% impairment rated to the body as a whole.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant is entitled to additional temporary disability benefits from August 9, 1993 to March 20, 1994. We also find that the claimant is entitled to additional benefits equal to a 6% permanent impairment to the body as a whole, as well as a 6% impairment rating to his right hand. We thus affirm the ruling of the Administrative Law Judge, as modified.
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.
CONCURRING OPINION
[35] While I wholeheartedly agree with the findings in the majority opinion, I write separately to echo the Chairman's concern about some respondents controverting compensability years after the claim is accepted and significant benefits paid.Any intimation that the Commission is penalizing respondent in this case for controverting the claim after initially accepting it as compensable is unjustified and without merit. Nothing could be farther from the truth. The underlying conclusion that claimant simply met his burden of proving by a preponderance of the evidence that he sustained a compensable injury should not be overlooked.
The discussion related to respondent's actions of controverting this claim years after paying benefits is merely to point out a disturbing trend in Arkansas workers' compensation cases. The determinative factor resulting in this discussion was that respondent controverted compensability for no apparent reason. There is no suggestion whatsoever that respondents cannot controvert a claim at any time it obtains evidence providing a legitimate basis for controversion. I can recall several cases where respondents' attorneys have gone so far as to actually refrain from offering contentions to support the decision to suspend the payment of benefits. This smacks of bad faith and should be handled accordingly. If respondent has a reasonable and well-grounded belief that a claimant is not entitled to benefits, I certainly have no problem allowing respondents to controvert compensability at any time. However, in many instances, respondents' conduct in controverting the claim could be sanctionable under Ark. Code Ann. § 11-9-717.
If adjusters are not qualified to, or capable of, evaluating a claim for compensability on a timely basis they should find more suitable employment. Such deficiencies, even if real, are certainly no excuse for the downright poor claims handling we see in many cases. This situation is rarely discussed when people complain about the high cost of workers' compensation.
Further, the dissent states that "[n]ormally, respondents are only allowed 15 days within which to investigate a claim prior to advising the Commission whether they accept the claim as compensable." Respondents are never limited to 15 days to investigate a claim, unless they fail to exercise diligence. Ark. Code Ann. § 11-9-803(b)(1) states the following:
If an employer is unable to obtain sufficient medical information as to the alleged injury or death within fifteen (15) days following receipt of notice, although the employer has acted in good faith and with all due diligence, the employer may apply in writing for an extension of time for making payment of the first installment or controverting the claim.
Thus, there is a statutory mechanism for resolving the situation on the front end. Thereafter, respondents are not prevented or discouraged from controverting a claim for good cause at any time and never will be. Then, if a claimant cannot meet his or her burden of proof, the claim will be denied and dismissed.
Finally, the discussion concerning the reliability, accuracy and discoverability of evidence seems interestingly similar to what the Commission repeatedly hears from respondents in statute of limitations cases. Respondents continually complain about the difficulties associated with discovering and questioning evidence in a timely manner when claimants wait what may appear to be a prolonged period of time before filing a claim for benefits. Surely it isn't too much to ask that respondents likewise use due diligence in determining whether it has good cause to accept or controvert a claim.
PAT WEST HUMPHREY, Commissioner
DISSENTING OPINION
[45] I respectfully dissent from the majority opinion. The majority has placed "great significance" on the initial acceptance of compensability, presumably under the theory that controversion after acceptance of compensability prejudices the claimant. The Court of Appeals, however, addressed this issue in Jackson v. Circle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995). In Jackson, the Court of Appeals affirmed our finding that the respondent was not precluded from controverting and defending against a claim even though the respondent had initially accepted the claim as compensable and had even initially stipulated to the compensability of the claim. The Court addressed the claimant's argument that he was prejudiced in having to prove compensability more than two years after the accident and after the parties had stipulated to compensability. The Court recognized that the claimant and respondent had access to the medical records prepared shortly after the injury took place. The Court further stated, "We also note that the appellant has not shown that he was deprived of obtaining any additional evidence before the hearing that would have supported the compensability of his claim." In short, there is nothing to prohibit a respondent from controverting a claim after further investigation reveals that the compensability of the claim may be questionable. In addition, I feel compelled to point out that at the time claimant's carpal tunnel injury arose in 1994 this claim was being handled solely by an adjuster by respondent's carrier. Skilled and trained as an adjuster may be in analyzing cases, most adjusters are not as skilled to elicit relevant information from a physician through questioning as an attorney may be.In addition, the majority's opinion places respondent in a very awkward position. The majority implies that it is the adjuster's position to obtain all relevant information and to elicit answers from treating physicians prior to an attorney ever being involved in the claim. However, there are many claimants and claimants' attorneys who object to any direct communication between the adjuster and the treating physician. Normally, respondents are only allowed 15 days within which to investigate a claim prior to advising the Commission whether they accept the claim as compensable.
In my opinion, the concern over "frivolous litigation" when a respondent controverts a claim of permanent disability benefits after compensability has been accepted is misplaced. Many times a claimant's claim for permanent disability benefits is controverted when there are no objective medical findings warranting permanent disability benefits. If there are no objective findings warranting permanent disability benefits, many times there are no objective findings substantiating the compensability of a claim. These two often go hand in hand. Without objective findings, respondent has every right and is legitimately entitled to controvert a claim since the claimant is not entitled to such benefits. Oftentimes a claim may be accepted before all the medical records are gathered by respondent to confirm the presence, or lack thereof, of objective findings. It is not frivolous to controvert a claim in such circumstances. Decisions made under such time constraints may not always be the correct decision. Furthermore, controversion is not something a respondent does lightly. A controverted claim which proves to be compensable only serves to impose claimant's attorney's fees upon respondent.
Finally, I am troubled by the implication that a doctor's testimony may not be accurate and reliable merely because it is given a year a two after treating a claimant. This Commission has on numerous occasions found a claimant's testimony credible when the claimant offers testimony diametrically opposed to that of respondent's witnesses over an event which occurred two, three or even four years prior to the hearing. Unlike the treating physician, the claimant has a vested interest in offering favorable testimony which may not always be true and accurate. When asked to weigh the reliability of the testimony from a disinterested party against that of a claimant, I prefer the disinterested party. We've also seen in the past that a physician's initial opinion regarding the compensability of a claim sometimes does not hold up when the physician is asked to explain the basis for his opinion. In my opinion, we must always look to not only the initial opinion, but to the doctor's explanation and basis for that opinion, regardless of when that explanation is given.
Therefore, for those reasons stated herein, I must respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner