CLAIM NOS. E508874 E600738
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 13, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by MARK McCARTY and BUD ROBERTS, Attorneys at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Respondents appeal a September 30, 1996 opinion of the Administrative Law Judge finding that claimant is entitled to additional benefits for temporary total disability from February 6 to March 27, 1996; that claimant is entitled to benefits for a permanent anatomical impairment of 25% to the body as a whole; and that claimant’s compensation rates are $267.00/$200.00.
Q. I think you’re agreeing with me, doctor, that the straight leg raising and the range of motion, those examinations, those findings just confirm or assist in confirming what you find out from an MRI and the x-ray . . .
A. Yes, sir.
Q. . . . which the underlying condition is a herniated disc, or something maybe less than herniated disc, and so forth. Is that right?
A. Yes, sir.
Q. And based on that information, you would say within a reasonable degree of medical certainty that the impairment rating for this condition that you found in this lady’s lumbar spine would be Twenty-Five Percent (25%) to the body as a whole. Is that correct?
A. Yes, sir.
Q. Okay. Let me ask you about the history because Mr. McCarty was mentioning this to you. The history just has to do with what the lady is telling you about where these problems came from?
A. Yes, sir.
Q. We’re not trying to figure out where the problems came from when we’re assigning the rating. Is that right?
A. That’s right.
Q. So the history is not a component of the rating?
A. No.
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[10] Based on the above evidence, we find that Dr. Dickinson’s rating is based on objective and measurable findings and stated within a reasonable degree of medical certainty. [11] Finally, Dr. Dickinson opined that the etiology of claimant’s back problems was the work-related accident. Thus, the requirement that the compensable injury be the major cause of the disability or impairment has been met. Although respondent attempted to introduce evidence that claimant had back problems in the past, we find that claimant’s testimony that her prior difficulties were with her coccyx or tailbone to be credible. [12] The final issue concerns claimant’s weekly benefit rate. Following a prehearing conference, the Administrative Law Judge filed a prehearing order on July 1, 1996 indicating that the parties stipulated that claimant’s compensation rate was $267.00/$200.00. On August 13, 1996, respondents attempted to amend the prehearing questionnaire to state that claimant’s temporary total disability rate was only $157.00. At the hearing respondent raised the issue of claimant’s appropriate compensation rate. However, there was absolutely no evidence offered by either party concerning claimant’s average weekly wage. Furthermore, respondent filed a post hearing brief with the Administrative Law Judge and again failed to even mention this issue. On appeal before the Commission, respondents contend that the Commission should find that claimant’s temporary total disability rate should be $157.00 based solely on their proposed stipulation without offering any wage records. This we decline to do. Therefore, we find that claimant’s weekly benefit rates are $267.00/$200.00. [13] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant is entitled to benefits for temporary total disability from February 6 through March 27, 1996; that claimant is entitled to benefits for a permanent anatomical impairment of 25% to the body as a whole; and that claimant’s weekly benefit rates are $267.00/$200.00. Respondents are directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [14] IT IS SO ORDERED.Q. Doctor, the MRI findings are consistent with an impairment rating of Twenty-Five Percent (25%) to the body as a whole. Is that right?
A. The MRI findings are certainly part of the — yes, sir. I mean, they are consistent with the difficulties she’s having, the diagnosis, and certainly are consistent with her impairment rating.
Q. Okay. So the basis of the rating is she’s got a herniated disc at one, maybe two levels?
A. The diagnosis is that she has an abnormal disc at that level with evidence of involvement of the lumbosacral motion, lumbar motion segments at those levels with an element of radicular pain.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[15] Commissioner Wilson dissents.[16] DISSENTING OPINION
[17] I respectfully dissent from the majority’s opinion finding that the claimant’s healing period ended on March 27, 1996 and that the claimant has proven by a preponderance of the evidence that she is entitled to additional temporary total disability benefits from February 6, 1996 to March 27, 1996. In addition, the majority found that the claimant has proven by a preponderance of the evidence that she sustained permanent partial disability benefits equivalent to 25% to the body as a whole. Based upon my de novo review of the record, I find that the claimant’s healing period ended on February 6, 1996 and that the claimant is not entitled to any permanent partial disability benefits.
(1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663
(1987). [20] Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The healing period is defined as that period for healing of the injury resulting from the accident which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve the condition, the healing period has ended. Id. Temporary total benefits do not, in all cases, correspond to the healing period; temporary disability is not based on the claimant’s healing period, but is awarded where the claimant’s injury-caused incapacity prevents her from earning the wages she was receiving at the time of the injury. County Mkt. v. Thornton, 27 Ark. App. 235, 770 S.W.2d 156, supp. op. reh’g denied. 27 Ark. App. 241-A, 771 S.W.2d 793 (1989). [21] My review of the evidence indicates that the claimant is not entitled to any additional temporary total disability benefits. She failed to introduce any medical evidence that she was totally incapacitated from earning wages and still within her healing period from the date of February 6, 1996 through March 27, 1996. Therefore, it is my finding that the claimant, based upon my de novo review of the record, is not entitled to any temporary total disability benefits after February 6, 1996. [22] In my opinion, the evidence indicates that the claimant does not have a disc herniation. The record reflects that the claimant had a lumbar spine MRI scan on May 17, 1995 and again on March 29, 1996. Dr. Roger Dickinson, the claimant’s treating physician, conceded that there were no significant differences between the two MRI’s. Dr. Dickinson opined that the claimant’s two MRI scans were essentially the same and that the second scan revealed no real changes. Accordingly, there is no objective medical evidence of any structural change secondary to the claimant’s November 4, 1995 injury. It appears that the claimant had a preexisting degenerative condition and that the 25% impairment rating was an award for the claimant’s preexisting degenerative condition. [23] Arkansas Code Ann. § 11-9-704(c)(1) (Supp. 1996) requires that an impairment rating must be based upon objective and measurable physical findings. Objective findings, as defined in Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1996) are defined as those findings which cannot come under the voluntary control over the patient. Arkansas Code Ann. § 11-9-102(16) (Supp. 1996), provides that when determining anatomical impairment to the spine, complaints of pain, straight leg raising tests, and range of motions tests are to be disregarded. [24] In my opinion, the disability rating assessed by Dr. Dickinson was based in part upon pain, limitation of motion and straight leg raising tests. Dr. Dickinson’s deposition is especially enlightening.
Q. Doctor, if you will, turn to your correspondence dated June 12. I don’t know if you have that.
A. Yes, sir.
Q. Okay. It mentions down in that second paragraph that you would assign a Twenty-Five Percent (25%) rating and it says, `This is based upon positive straight leg raising on her left leg, limited motion, MRI changes, and history.’
A. Yes, sir.
Q. The straight leg raising and the limited motion, is that the clinical presentation that you just mentioned?
A. Yes, sir.
Q. Okay. So there, I guess are four components of this impairment rating: limited motion, straight leg raising, MRI changes, and her history. Is that correct?
A. Yes, sir.
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Q. The Twenty-Five Percent (25%) rating, I’d like to ask you a few questions, if I may, about that. What percentage, or component, of that Twenty-Five Percent (25%) rating would the straight leg raising tests represent?
A. Well, basically, what I did and where that figure came from is that I used the fourth edition of the AMA guide for permanent impairment. And for a spine, they basically have a couple of different ways of figuring it, which is a little different than what they used to have. They have one that is just strictly motion. However, they have another one in which I — it is called Diagnosis Related Estimate Model. And that’s the one I felt in this case was probably the most relevant to her problems and would be the best way to confine her impairment. So it takes in account the disc problem, nerve root irritation, limitation of motion, and it basically combines them all in coming to the Twenty-Five Percent (25%). It’s a summary of all of those above.
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Q. Okay. So would it require speculation to say that range of motion contributed X percent to this Twenty-Five Percent (25%), that the straight leg raising contributed Y percent to this Twenty-Five Percent (25%), and the history would . . .
A. Yes, sir . . .
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Q. Just so I’ve got it straight, when you wrote that the rating is based on positive straight leg raising of the left leg, limited motion, MRI changes, and history, that’s not exactly correct. Is that right?
A. Well, I mean, it’s based on those . . .
[25] My review of the evidence indicates that the doctor used range of motion and straight leg raising tests to assess the claimant’s permanent partial disability rating which is in direct violation of Arkansas law. Therefore, the impairment rating is based upon subjective components and, in my opinion, invalid. [26] In addition, it appears that Dr. Dickinson’s opinion regarding permanent impairment was based on speculation and was not stated within a reasonable degree of medical certainty as required by Ark. Code Ann. § 11-9-102(16). Conjecture and speculation, even if plausible, cannot take the place of proof.Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Dr. Dickinson admitted in his deposition that it would require speculation to state what specific portion of the claimant’s 25% impairment rating was attributable to the impermissible range of motion and straight leg raising tests. Dr. Dickinson testified as follows:Q. Okay. If you disregarded the findings as they relate to the straight leg test, the range of motion, and the history, would it be possible to a reasonable degree of medical certainty to state under that model what impairment, if any, she had, or was entitled to be assigned, disregarding those three components?
A. Okay. Disregarding, again, now?
Q. Disregarding the straight leg raising test results, the range of motion test results, and the history that the patient gave you. Would it be possible based strictly upon the MRI changes?
A. No.
[27] In addition, the claimant failed to produce any evidence that her injury was the major cause of her impairment as required by Ark. Code Ann. § 11-9-102(14). The evidence indicates that the claimant had degenerative disc problems and that these problems were a cause of some of the claimant’s back problems. The record reflects that the claimant had an MRI of her spine on May 17, 1995 prior to her second injury of November 4, 1995. There were no significant differences between these two MRI’s. Therefore, the claimant did not have any changes in her back prior to the November 4, 1995 injury. Based upon all this evidence and the invalid rating from Dr. Dickinson, the claimant failed to prove that she was entitled to temporary total disability benefits from February 6, 1996 through March 27, 1996 and that she is not entitled to any permanent partial disability benefits. Therefore, I respectfully dissent from the majority opinion. [28] MIKE WILSON, CommissionerQ. You could not give a rating to a reasonable degree of medical certainty?
A. No, sir, because I think that — I mean that’s just a — that’s an aid. I don’t think that — no. In this case, no.