BUENTELLO v. SIMMONS FOODS, INC., 2003 AWCC 52


CLAIM NO. F111435

RENE BUENTELLO, EMPLOYEE, CLAIMANT v. SIMMONS FOODS, INC., EMPLOYER, RESPONDENT, S.B. HOWARD COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 18, 2003

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by HONORABLE TOD BASSETT, Attorney at Law, Fayetteville, Arkansas.

Decision of the Administrative Law Judge: Affirmed in part and reversed in part.

OPINION AND ORDER
The claimant appeals an Administrative Law Judge’s opinion filed July 29, 2002. The Administrative Law Judge found that the claimant failed to prove he was entitled to temporary total disability compensation or medical treatment after December 12, 2000. After reviewing the entire record de novo, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove he was entitled to additional temporary total disability. We reverse the Administrative Law Judge’s finding that the claimant was not entitled to additional medical treatment after December 12, 2000.

I. HISTORY
The testimony of Rene Buentello, age 34, indicated that he began working for Simmons Foods in about July 2000. The parties stipulated that Mr. Buentello sustained a compensable injury to his coccyx on October 29, 2000. The claimant testified that he fell on a pallet.

Dr. Keith Holder reported on October 30, 2000:

Coccyx x-ray shows a fracture of the distal segment of the sacrum.

IMPRESSION: 1. Fractured coccyx.

Dr. Holder treated the claimant conservatively and returned him to work, “no lifting over 30 pounds.” The claimant testified that he continued to work for the respondent-employer. He also periodically followed up with Dr. Holder, and Dr. Holder continued to assign work restrictions. Dr. M. Scott Harford reported on December 6, 2000:

Rene was released from care for his fractured coccyx but has continued to have debilitating pain. I received a call from the plant nurse who requested that we reassess pain control measures. I explained to the patient that a fractured coccyx is as he is well aware of now a painful condition that will take a long time to resolve and may take up to six (6) months. . . .we are sending him to Physical Therapy for placement of a TENS unit. He may return to work with restrictions of no lifting over fifteen (15) pounds and I want to see him back in one week.

The claimant followed up with Dr. Harford on December 15, 2000:

He states he is getting significant pain control with both the TENS unit and the Ultram. At this point there is nothing further to do other than administer a tincture of time. So, at this point he may continue his TENS unit and Ultram as previously prescribed and he may return to work with restrictions of no lifting over fifteen pounds and sitting on his donut that he has. We’ll see him back in four (4) weeks at which time he may be ready for release from care.

The claimant did not keep a scheduled follow-up appointment with his physician. The claimant testified that he traveled to Texas on or about December 28, 2000. “I was desperate, so I just — that’s why I went home, back to Texas. I didn’t have no medication, we hadn’t worked for three or four days, and they weren’t treating me that right at the company,” he testified.

On a Texas Department of Human Services Physician’s Statement dated January 3, 2001, the claimant was diagnosed with “fractured coccyx.” On the Food Stamp Section of the Statement, it was indicated that the claimant could not work. The claimant began visiting a medical clinic in Texas. The record includes a radiology report dated January 18, 2001:

The sacrum is intact, however, there is felt to be a subacute appearing non-displaced fracture of the posterior aspect of the 1st coccygeal segment along its longitudinal axis. There are no other abnormalities noted.

Mr. Buentello claimed entitlement to additional worker’s compensation. The claimant contended that he had incurred medical expenses which had not been paid. The claimant contended that he was entitled to temporary total disability compensation beginning in January 2001 until a date to be determined.

The respondents contended that they provided reasonably necessary medical treatment, but that the claimant failed to keep an appointment scheduled for December 22, 2000. The respondents contended that the medical treatment sought in Texas was unauthorized. The respondents contended that they provided light work within the claimant’s restrictions, but that the claimant left his job on or about December 9, 2000. The respondents contended that the claimant was not entitled to additional temporary total disability.

The parties agreed to litigate the following issues:

(1) Additional medical treatment;

(2) Temporary disability from December 15, 2000 until a date yet to be determined; and

(3) Attorney’s fees.

After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove entitlement to temporary total disability compensation. The Administrative Law Judge also found, “All medical treatment subsequent to December 12, 2000, is not authorized and should not be at the expense of the respondents.” The Administrative Law Judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.

II. ADJUDICATION A. Temporary disability
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 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 healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(12).

In the present matter, the Full Commission affirms the Administrative Law Judge’s finding that the claimant failed to prove he was entitled to temporary total disability compensation after December 12, 2000. The record indicates that the respondents provided light work within the claimant’s physical restrictions. The evidence does not indicate that the claimant was unable to perform his work duties, namely “cutting bags” with chicken parts for processing. The claimant voluntarily left his work with the respondents. The Full Commission therefore finds that the claimant failed to prove he was incapacitated to earn wages as a result of his compensable injury.

B. Medical treatment
An employer must promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). In the present matter, the Full Commission reverses the Administrative Law Judge’s finding that the claimant’s medical treatment subsequent to December 12, 2000 was “not authorized” and not the respondents’ liability.

The claimant sustained a compensable injury on October 29, 2000. Three treating physicians have reported that the claimant has a “fractured coccyx,” and there are no medical reports indicating that the claimant has reached the end of his healing period for this compensable injury. The respondents argue that the claimant’s treatment in Texas was not “authorized” pursuant to the change of physician statute. However, since the record does not indicate that the claimant was provided a Form AR-N, we cannot find that the claimant failed to follow the change of physician rules. See, Ark. Code Ann. § 11-9-514(c)(2); Goad-Lovett v. Tyson Shared Services, Inc., Workers’ Compensation Commission E911941 (Feb. 12, 2001).

Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove he was entitled to temporary total disability compensation after December 12, 2000. We find that the claimant proved that additional medical treatment was reasonably necessary in connection with his compensable injury. The Full Commission therefore affirms in part and reverses in part the Administrative Law Judge’s opinion.

Claimant’s attorney is entitled to the maximum statutory attorney’s fee based on respondents’ controversion of this claim for additional benefits, one-half of which is to be paid by claimant and one-half to be paid by respondent in accordance with Ark. Code Ann. § 11-9-715
(Repl. 2002), Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345
(1990). 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. 2002). For prevailing in part on this appeal before the Full Commission, the 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.

______________________________ OLAN W. REEVES, Chairman

Commissioner Turner concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION

SHELBY W. TURNER, Commissioner

I respectfully concur in part and dissent in part from the majority opinion. While I concur that claimant is entitled to additional medical treatment subsequent to December 12, 2000, I dissent from the finding that he is not entitled to temporary total disability benefits from December 12, 2000 to a date yet to be determined. Based on my de novo
review of the record, including current medical documentation that claimant physically is unable to work, I find that claimant is entitled to indemnity benefits for the period in question.

For the foregoing reasons, I respectfully concur in part and dissent in part from the majority opinion.

_______________________________ SHELBY W. TURNER, Commissioner

Commissioner Yates concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION JOE E. YATES, Commissioner

I respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I concur in the majority’s finding that the claimant failed to prove by a preponderance of the evidence that he was entitled to temporary total disability compensation. However, I must respectfully dissent from the majority’s opinion finding that the claimant was entitled to additional medical treatment after December 12, 2000.

In my opinion, a review of the evidence indicates that the claimant is not entitled to any additional medical treatment. The evidence shows that on December 15, 2000, when the claimant related to Dr. Holder that he had attained significant pain control with a TENS unit and the prescription medication Ultram, Dr. Holder advise the claimant to continue with the same regime and to return to see him in four weeks. The claimant did not keep his return appointment. Instead, he decided between December 26 and December 29 that he would return home to Texas in inclement weather without telling his employer, the doctor, or anyone else about it. The claimant testified that during an ice storm, he ran out of pain medication and was unable to get an appointment for a refill because of the weather. However, despite closed roads, the lack of a driver’s license, and being in a lot of pain, the claimant drove to South Texas in a van with his family over a 24-hour period.

Further, the radiographic studies never established that the claimant sustained an actual fracture of his coccyx. The first x-ray taken on October 30, 2000, was equivocal in its findings. Dr. William Hocott acknowledged that the very slight relative posterior position of the tip of the coccyx in relation to the mid aspect could be secondary to trauma. He noted that it was probably, and more likely, “just normal variant.” A second x-ray taken in McAllen, Texas, is also equivocal in identifying a “subacute appearing non-displaced fracture.” Moreover, Dr. Scott Harford advised the claimant that a fractured coccyx “may take up to six months” to resolve. Further, on December 16, 2000, Dr. Harford advised the claimant that “[a]t this point, there is nothing further to do other than to administer a tinctur of time.” In fact, the claimant admitted that the doctors in Texas had administered the very same treatment as the doctors in Arkansas did. The Texas doctors have not initiated or recommended any new treatment. For all intense purposes, Dr. Harford released the claimant on December 15, 2000, by telling him that the only thing that was going to help was a “tinctur of time.” Therefore, I find that the claimant is not entitled to any additional medical treatment. Accordingly, I must respectfully dissent from the majority’s award of additional medical treatment.

_______________________________ JOE E. YATES, Commissioner