CLAIM NO. E806893
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JANUARY 26, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appeared Pro Se.
Respondent represented by the HONORABLE MICHAEL MAYTON, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
[1] The claimant, pro se, appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed June 14, 1999. The administrative law judge found that the claimant has failed to prove that she is entitled to any additional temporary total disability benefits for her compensable injury, and that the claimant has failed to prove that any further medical treatment is reasonable and necessary for her compensable injury. The Full Commission has reviewed the entire record de novo. We find that the claimant has failed to prove that she is entitled to additional temporary total disability compensation, but that the claimant has proved that she is entitled to additional reasonable and necessary medical treatment. We thus affirm in part and reverse in part the opinion of the administrative law judge.
[3] The claimant testified that the tray weighed 35 pounds, and that “I felt something different all through my muscles back there by my neck.” The claimant said her whole body was affected, but that the pain was primarily in her shoulders and neck, mostly on the left side. The claimant did not have to work full time over the course of the next several days and therefore thought she would be able to recuperate from her work-related injury. [4] The claimant testified that her last day at work was June 2, 1998, and that she presented to an emergency room for the pain. The emergency room doctor diagnosed chest wall sprain, and the respondents began paying medical benefits and temporary total disability compensation. The claimant continued to complain of chest pain after being referred to Dr. Joel Patterson, a neurosurgeon, on June 24, 1998. Dr. Patterson’s clinical impression was “possible cervical strain that sounds more like costal chondritis (inflammation of rib cartilage) to me. I doubt there is any neurosurgical problem. She needs an MRI to rule out a herniated disc.” The impression from an MRI examination dated July 6, 1998 was “degenerative disc disease seen throughout the cervical spine, most evident at the C5-C6 level, where there is generalized disc bulging. This generalized disc bulging results in mild spinal canal stenosis.” Dr. Patterson reported on July 21, 1998 that MRI demonstrated “a right sided C5-6 disc. She has no right upper extremity radiculopathy. She has this abnormal chest wall pain which is now resolved.” Dr. Patterson arranged physical therapy for the claimant. The claimant reported that physical therapy afforded some relief, but that she still felt neck pain. The claimant did not want to proceed with cervical discectomy. [5] The respondents ceased paying temporary total disability on October 6, 1998. The claimant underwent a work capacities assessment at HealthSouth Rehabilitation Center on October 8, 1998. This work capacities assessment included a musculoskeletal evaluation which showed mild limitation of range of motion in the cervical spine, and consistency of effort on four out of five tests. Functional testing revealed that the claimant was lifting in the light category of work, for example, shoulder to overhead lift of 12.5 pounds, carry of 15 pounds 100 feet with pivoting. The evaluators stated that the claimant’s performance was not adequate for her to return to work at her usual and customary job. They recommended that the claimant would benefit from a referral for pain management, as well as a program of work hardening to assist in improving overall strength, endurance, and education on use of proper body mechanics. [6] The respondents controverted further medical treatment after October 13, 1998, however, on which date Dr. Patterson reported:I was carrying a big heavy tray of food from the kitchen to the bar, and I went to grab a tray jack with one hand to take the tray off of my shoulder, and when it happened I almost fell. And I did not drop the tray, instead I caught myself and held on to the tray and strained real hard holding on to this tray.
[7] Ms. Barker claimed entitlement to additional temporary total disability compensation from October 7, 1998 to a date to be determined, and she claimed entitlement to additional reasonable and necessary medical treatment. The respondents contended that they had paid all benefits to which the claimant was entitled, and that they owed no further temporary total disability or medical treatment. [8] On February 16, 1999, after speaking with legal counsel for the claimant, Dr. Patterson again stated, “I don’t think that any surgical intervention is indicated in Ms. Barker’s case. Furthermore, I don’t feel that her left arm complaints are referable to this degenerative disease/herniated disc at C5-6.” The claimant sought additional neurological treatment on her own from Dr. Nancy Griffin in March, 1999. The claimant began a secretarial job on March 22, 1999, but she testified that her neck and shoulder areas were still painful after the compensable injury. Following a hearing before the Commission, the administrative law judge filed his opinion on June 14, 1999. [9] We find that the claimant has established by a preponderance of the evidence in the record that the C5-6 disc abnormality objectively indicated by a MRI performed on July 6, 1998 is causally related to the work-related incident that occurred on May 23, 1998. Moreover, when Dr. Patterson first examined the claimant on referral only four weeks after the incident, the claimant reported that the incident at work had caused anterior chest wall pain and pain into her shoulder blades and her neck. Dr. Patterson’s clinical impression at this first visit only four weeks after the incident was that the claimant needed a cervical MRI to rule out a disk herniation and, as indicated above, Dr. Patterson interpreted the MRI as indicating an abnormality at L5-6. In light of the close temporal relationship between the May 23, 1998 incident and the claimant’s onset of neck pain, and in light of the lack of evidence of the claimant having similar neck problems until the May 23, 1998, we find that the claimant has established by a preponderance of the evidence in the record that her C5-6 neck injury is causally related to the straining incident that she experienced at work on May 23, 1998. [10] The administrative law judge found that the claimant has failed to prove, by a preponderance of the evidence, that she is entitled to any additional temporary total disability benefits for her compensable injury of May 23, 1998. The Full Commission affirms this finding. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Departmentv. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The claimant sustained a compensable injury on May 23, 1998; the respondents paid temporary total disability from June 2, 1998 through October 6, 1998. [11] On October 8, 1998, the claimant underwent an assessment of her physical and functional capabilities at HealthSouth Rehabilitation Center. The evaluation at HealthSouth indicated that the claimant’s performance was not adequate for her return to work at her usual and customary job. However, the claimant demonstrated tolerance of sitting, standing, walking, repetitive bending, overhead reaching, kneeling, and pushing/pulling on a frequent basis. At hearing, the claimant testified, “I’m a very hard worker and I don’t like calling in unless I just can’t stand up.” The claimant further testified that the respondents offered her light duty work — “I was to do nothing but walk around the dining room and check on the guests and be dressed up in normal clothes, no uniforms, like a manager.” There is no indication from the record that the claimant was physically unable to perform this light duty. We further note that the claimant began working as a secretary for another employer on March 22, 1999. We find that the claimant was not totally incapacitated to earn wages after October 6, 1998, and that the claimant has failed to prove entitlement to additional temporary total disability compensation. [12] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Supp. 1997). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy.Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (D511255). [13] In the instant matter, the claimant sustained a compensable injury on May 23, 1998. The claimant testified that she felt pain primarily in her shoulders and neck, mostly on the left side. An emergency room physician diagnosed chest wall sprain, and the respondents began providing medical treatment. The claimant was subsequently referred to Dr. Joel Patterson, a neurosurgeon, who diagnosed possible cervical strain. MRI showed degenerative disc disease with bulging at C5-C6. The claimant underwent physical therapy which afforded some relief but did not render the claimant pain-free. Following the work capacities assessment at HealthSouth in October, 1998, a referral for pain management was recommended. Nevertheless, the respondents controverted further medical treatment for the claimant’s compensable injury after October 13, 1998. [14] Dr. Patterson, the claimant’s treating physician, subsequently wrote that he concurred with the HealthSouth recommendation for referral to a pain management center in addition to work hardening. Dr. Patterson, a neurosurgeon, also opined that it was possible the claimant’s herniated disc at C5-6 occurred on the date of her compensable injury. “I couldn’t even turn my neck at a certain point,” the claimant testified. Despite the credible recommendations for additional conservative management of the claimant’s compensable injury, the respondents contended that they had paid all benefits to which the claimant was entitled. Because the Full Commission reverses the administrative law judge’s finding that the claimant has failed to prove by a preponderance of the evidence that her neck/cervical problems are related to her compensable injury of May 23, 1998, we also reverse the administrative law judge’s finding that the claimant is entitled to the medical treatment for her neck injury at issue in this case. [15] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant has failed to prove entitlement to additional temporary total disability compensation. We find that the claimant has proven by a preponderance of the evidence that she is entitled to additional reasonable and necessary medical treatment. The Full Commission thus affirms in part and reverses in part the opinion of the administrative law judge. [16] IT IS SO ORDERED. [17] _______________________________Evidently she has been told by workers compensation that her problem is not related to her work related injury. She does have a herniated disc to the right at C5-6 which may be contributing to some of her neck pain. Unfortunately her exam is not consistent with a right C6 radiculopathy and therefore I feel that operation on this disc is not indicated. Although she is feeling a little bit better, she is still not 100%. A functional capacity evaluation from Health South has been obtained and reviewed. . . . I concur with the FCE recommendations that the patient be referred to a pain management center and undergo some work hardening.
Evidently the patient has an attorney and the question at hand is whether her current problems are related to her work related injury of 5-30-98. I told the patient that it is possible that this disc herniation occurred on this date and that it is also possible that she had a pre-existing condition. . . . We will arrange the work hardening and a referral to a pain management center. I will see the patient back as needed.
The claimant testified that she desired work hardening, and that “I couldn’t even turn my neck at a certain point.”
ELDON F. COFFMAN, Chairman [18] Commissioner Humphrey concurs. [19] Commissioner Wilson concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
[20] I must respectfully dissent from the principal opinion finding that the claimant proved her entitlement to additional medical treatment, because the record does not contain sufficient evidence to satisfy the claimant’s burden of proof regarding entitlement to additional medical benefits. However, I concur with the finding that claimant is not entitled to additional temporary total disability benefits, because she was not totally incapacitated to earn wages after October 6, 1998.