DODSON v. McDONALD’S, 1994 AWCC 135

CLAIM NO. E001879

PHYLLIS DODSON, EMPLOYEE, CLAIMANT v. McDONALD’S OF LITTLE ROCK, EMPLOYER, RESPONDENT, and FIREMAN’S FUND, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 3, 1994

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

Claimant represented by the HONORABLE DONALD S. RYAN, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE MICHAEL L. ALEXANDER, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on March 18, 1994. In that opinion and order, the administrative law judge found that the claimant is entitled to an award of medical benefits for a MRI, supplies for a TENS unit, and treatment by Dr. Austin Grimes.

[3] After conducting a de novo review of the entire record, we find that the respondents are liable for the medical benefits sought by the claimant. Therefore, we find that the administrative law judge’s decision must be affirmed.

[4] The claimant sustained an admittedly compensable back injury on January 23, 1990. She experienced severe low back pain, sciatic nerve pain, and numbness in her right leg as a result of this injury. On October 2, 1991, Dr. Austin Grimes performed fusion surgery, but the claimant continued to experience sciatic nerve pain and pain and numbness in her right leg after the surgery. As a result of these problems, a TENS unit was prescribed for her use both before and after the surgery.

[5] On August 6, 1991, the claimant was involved in an automobile accident. She was treated at the emergency room at Baptist Hospital, where she again complained of sciatic nerve pain and low back pain, and she was released from the emergency room. She experienced a temporary increase in leg numbness and sciatica, but she ultimately reached the point where she only experienced the same type and degree of pain she experienced prior to the auto accident. After being released from the emergency room, she did not seek any further medical care until October 22, 1991, when she saw Dr. Grimes for a regularly scheduled appointment. She told Dr. Grimes of the automobile accident at that time, and she told him of the increase in numbness and sciatica. Due to the increase in symptoms which Dr. Grimes understood was caused by the automobile accident, he prescribed the use of a TENS unit. Dr. Grimes ultimately concluded that the claimant’s healing period for the compensable injury ended on February 18, 1992, but he opined that it would have ended on October 22, 1991, if the automobile accident had not occurred.

[6] A hearing was held before the administrative law judge on May 14, 1992, to determine whether the respondents were liable for the TENS unit. As a result of this hearing, the administrative law judge filed an opinion and order on June 2, 1992, finding that the claimant failed to prove by a preponderance of the evidence that the TENS unit was reasonably necessary for treatment of the compensable injury. Instead, the administrative law judge concluded that the unit was prescribed for relief of numbness and sciatic pain which Dr. Grimes thought stemmed from the automobile accident. No appeal was taken from the administrative law judge’s June 2, 1992, decision. A second hearing was held on December 17, 1992, to determine whether the claimant was entitled to rehabilitation benefits. At that hearing, the claimant testified that she continued to experience the numbness and sciatica which she had experienced since the surgery. With regard to her physical capabilities, she testified that she was unable to sit for long periods, and she testified that she was unable to do most housework. Likewise, she testified that most prolonged activities exacerbated her symptoms. On February 10, 1993, the administrative law judge filed an opinion and order finding that the claimant failed to establish her entitlement to retraining, although he found that she was entitled to job placement assistance. No appeal was taken from the administrative law judge’s February 10, 1993, decision.

[7] In October of 1992, the claimant was turning to get something when she felt a pop in her back. According to her testimony, this did not result in any increase in her pain. However, she was concerned that this might have caused further damage to her back, so she scheduled an appointment with Dr. Grimes on October 27, 1992. X-rays taken at that time showed no bony abnormalities, and the fusion seemed to be stable and intact. Dr. Grimes continued to prescribe medication, and he suggested that the claimant use the TENS unit. The claimant returned to Dr. Grimes on March 23, 1993, and, due to her continued complaints of right-sided sciatica, he ordered a MRI to assure that there were no problems with the fusion. Other than evidence of the previous surgery, this MRI was normal, and there was no evidence of instability or other problems with the fusion. The claimant continues to be followed by Dr. Grimes.

[8] The claimant filed the claim seeking compensation for the MRI, treatment by Dr. Grimes, TENS supplies, and medication expenses, and this claim resulted in a third hearing and the administrative law judge’s March 18, 1994, opinion and order. The respondents contend that the automobile accident and the twisting incident constitute independent intervening causes which relieve them of liability.

[9] When an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury.Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321
(1983). Consequently, when subsequent complications are the natural and probable result of the original injury, the employer remains liable. On the other hand, if the subsequent complications result from an independent intervening cause, the employer is relieved of liability for compensation benefits. However, the intervening incident must independently contribute to the claimant’s condition before the employer is relieved of liability. Bearden,supra.

[10] The Arkansas Supreme Court discussed this issue as follows in Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W.2d 465 (1976) (quoting 4 Arthur Larson, The Law of Workmen’sCompensation § 95.23 (1990)):

If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. . . . This group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.

[11] Likewise, the Arkansas Court of Appeals made the following comments in Halstead Industries v. Jones, 270 Ark. 85, 603 S.W.2d 456 (Ark.App. 1980):

When the symptoms of a back injury persist and culminate in a second disability without the intervention of a new injury the second disability is properly classified as a recurrence of the first injury, and the insurance carrier at the time of the original injury remains liable.

[12] Where “there is a causal connection between the primary injury and the subsequent disability . . . there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances.”Guidry v. J R Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).

[13] In the present claim, the preponderance of the evidence establishes that the claimant continued to experience low back pain, sciatic pain, and leg numbness continually after the surgery which remained essentially unchanged. She did experience a temporary increase in her symptoms. However, Dr. Grimes has opined that the claimant fully recovered from the effects of the automobile accident and that the problems which she continued to experience were the result of the January of 1990 compensable injury, including the problems she experienced after the twisting incident in October of 1990. Regarding this twisting incident, we note that the claimant did not experience any increase in her symptoms as a result of that incident. Moreover, there is no evidence that this incident resulted from any activity which was unreasonable on the part of the claimant. We also note that Dr. Grimes has stated that he prescribed the use of the TENS unit in October of 1992, for relief of symptoms causally related to the compensable injury. In addition, Dr. Grimes stated that he ordered the MRI in March of 1993 due to the compensable injury, and he stated that all services provided on and after February 18, 1992, were due to the compensable injury.

[14] Consequently, we find that the problems which the claimant has experienced since at least February 18, 1992, were the natural and probable consequence of her compensable injury, and find that respondents are responsible for expenses related to those services. In addition, we find that the medical benefits sought by the claimant were reasonably necessary for treatment of the compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed.

[15] However, we note that the administrative law judge found that the claimant’s attorney was entitled to the maximum attorney fees, with respondents liable for one-half (1/2) and the claimant liable for the other one-half (1/2). In controverted claims, the maximum allowable attorney’s fee is calculated on the basis of the total amount of compensation controverted and awarded, including medical benefits as well as indemnity benefits. Ark. Code Ann. § 11-9-715 (a)(2)(B) (1987); Darryl Coleman v. Holiday Inn,
Full Workers’ Compensation Commission, Nov. 21, 1990 (Claim No. D708577); Larry Chamness v. Superior Industries, Full Workers’ Compensation Commission, Mar. 5, 1992 (Claim No. E019760). In all controverted cases where the maximum attorney’s fee is awarded, respondents are liable for one-half of the amount of attorney’s fees resulting from this calculation. Id. However, the claimant’s portion of attorney’s fees can only be paid out of indemnity benefits payable to the claimant or dependents of the claimant.Holiday Inn-West v. Coleman, 31 Ark. App. 224, 792 S.W.2d 345 (1990); Darryl Coleman v. Holiday Inn, Full Workers’ Compensation Commission, Nov. 21, 1990 (Claim No. D708577);Larry Chamness v. Superior Industries, Full Workers’ Compensation Commission, Mar. 5, 1992 (Claim No. E019760). Consequently, claimant’s ultimate liability for attorney’s fees in controverted claims is limited to the amount of indemnity benefits controverted and awarded. Darryl Colemanv. Holiday Inn, Full Workers’ Compensation Commission, Nov. 21, 1990 (Claim No. D708577); see also, Larry Chamness v.Superior Industries, Full Workers’ Compensation Commission, Mar. 5, 1992 (Claim No. E019760). Thus, a claimant owes no attorney’s fees where only medical benefits are controverted and awarded. Chamness, supra. Since only medical benefits were controverted in the present claim, and since no indemnity compensation has ever been controverted and awarded to the claimant, the claimant has no liability for attorney’s fees.

[16] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the respondents are liable for the medical benefits sought by the claimant. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is affirmed. The respondents are directed to comply with the order contained in the administrative law judge’s decision. 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 (1987). 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 (b) (1987).

[17] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[18] Commissioner Tatum concurs and dissents.

[19] CONCURRING AND DISSENTING OPINION
[20] I respectfully dissent from the majority’s determination finding that claimant is entitled to an award of medical benefits for a MRI, supplies for a TENS unit, and additional treatment by Dr. Austin Grimes. However, I concur with the majority’s opinion modifying the decision of the Administrative Law Judge to indicate that claimant’s attorney is not entitled to an attorney’s fee.

[21] Based upon de novo review of the entire record, claimant has failed to prove by a preponderance of the credible evidence that on October 27, 1992, she sustained a compensable recurrence of her January, 1990 compensable injury. Therefore, I respectfully dissent from the majority’s opinion awarding claimant additional medical benefits.

[22] In my opinion, a preponderance of the credible evidence does not indicate that claimant sustained a compensable recurrence of her January, 1990 compensable injury. The evidence indicates that claimant sustained a compensable injury in January of 1990. Eventually, claimant reached maximum medical improvement and was assigned a 15% permanent physical impairment rating to the body as a whole. Presently, she contends that she is entitled to medical benefits totalling $2,222.48, as well as, attorney’s fees. Respondent maintains that claimant is not entitled to any additional medical expenses and that any expenses incurred were the result of an independent intervening cause.

[23] The record shows claimant was involved in a motor vehicle accident in August of 1991. Subsequently, she went to Dr. Grimes. Dr. Grimes prescribed the use of a TENS unit. As a result of a prior workers’ compensation hearing, it was ruled that the TENS unit was required because the motor vehicle accident aggravated her pre-existing condition. Therefore, respondent was not liable for the TENS unit. As a result of using the TENS unit, certain supplies such as adhesive and a cream were purchased by claimant. She wants these supplies paid for by respondent. The Administrative Law Judge specifically stated that the prescription of the TENS unit was the result of symptoms occurring due to the independent intervening cause. In my opinion, since the need for the TENS unit arose out of an independent intervening cause, the supplies therefore are associated therewith and not to claimant’s original compensable injury. Thus, I dissent from this portion of the majority’s opinion.

[24] Claimant contends that in October of 1992, she experienced a twisting incident at home. As a result of the twisting incident, Dr. Grimes ordered an MRI. Dr. Grimes stated:

. . . I got — ordered the new MRI, because she, prior to the injury, had not complained of right sciatica. Therefore, I kind of ruled out any changes that might be associated with that. Although, if you do an MRI, and you look back and you say, `well, there is scar tissue around the operative side’, you know, you can’t deny that that might be originally from the original injury. The reason I ordered the MRI was because of the subsequent injury. However, I would not have ordered it had she not had the injury, and then had the complaints of sciatica. Because heretofore, she had not had the sciatica, and was getting along fairly well with her back.

[25] Claimant states that the need for the MRI was because of her work-related injury; and, thus, respondent is liable. However, in my opinion, the evidence does not support this contention. Dr. Grimes ordered the MRI partly because of the twisting injury. In my opinion, Dr. Grimes states that he ordered the MRI because of the many different incidents.

[26] As stated, claimant was involved in an automobile accident and a twisting incident. These are independent intervening causes which resulted in claimant’s conditionworsening. However, the worsening of a claimant’s condition due to an independent intervening cause is an aggravation and not a recurrence. Bearden Lumber Co. v. Bonds, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Respondent should not be liable for treatment of an aggravation.

[27] A review of Dr. Grimes’ deposition indicates that claimant did not experience any sciatica nerve pain or numbness in her legs until after the automobile accident in August of 1991. This clearly was an independent intervening cause just as the October 1992 twisting incident is. Thus, in my opinion, the medical expenses incurred by claimant from August of 1991 through the present were necessitated by the motor vehicle accident and the October 1992 twisting incident. Respondent should not be responsible for medical expenses. Thus, I respectfully dissent from this portion of the Administrative Law Judge’s decision.

[28] I concur with the decision of the majority finding that the Administrative Law Judge erred in awarding attorney’s fees as to medical expenses.

[29] ALLYN C. TATUM, Commissioner