CLAIM NO. F011654
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 28, 2006
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable William Kirby Mouser, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by the Honorable Frank B. Newell, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part, and reversed in part.
OPINION AND ORDER
The Arkansas Court of Appeals has essentially reversed and remanded the above-styled matter to the Commission for specific findings on the issues relating to unpaid medical benefits and additional temporary total disability compensation for the claimant’s compensable neck injury. Michael Bell v. IdealConstruction Company, Inc., CA 05-196 (October 26, 2005).
After reviewing the entire record de novo and pursuant to the Court’s remand, the Full Commission affirms in part, and reverses in part the administrative law judge’s opinion of March 16, 2006, relating to these issues. We affirm the administrative law judge’s finding that any and all unpaid medical bills and/or mileage expenses that were reasonably and necessarily incurred with regard to the claimant’s compensable neck injury, prior to his release at maximum medical improvement (MMI) and the issuance of the 10 percent impairment rating by Dr. Peeples, remain the responsibility of respondents. However, we reverse the administrative law judge’s finding that claimant failed to prove that any additional medical treatment was reasonably necessary in relation to his compensable neck injury of September 20 [sic], 2000, and, as such claimant is not entitled to additional benefits for same. Instead, we find that the claimant proved his entitlement to additional treatment geared toward management of his compensable neck injury as recommended by Dr. Peeples in the form of a psychological evaluation, physical therapy treatment, a TENS unit, and non-narcotic analgesics. We also affirm the administrative law judge’s finding that the claimant has failed to prove his entitlement to any additional temporary total disability (TTD) compensation for his neck injury.
I. History
On September 30, 2000, the claimant, age 56 (5/12/56), was performing light-duty work as a flagman for the respondent when he was struck by an automobile. The claimant was transported to Drew Memorial Hospital. X-rays were taken of the cervical spine with the following impression, “Findings were consistent with fracture of the pedicles or posterior elements of C-2 vertebral body.” It appears that these findings were immediately identified by the emergency room physician, and the claimant was then transferred to UAMS Medical Center for further neurosurgical care regarding the fracture of his C-2 vertebral body.
On October 2, 2000, Dr. Glenn Pait reported that the claimant had presented with a cervical spine fracture, for which surgery was proposed. The claimant underwent a diskectomy and fusion at C2-3, which was performed by Dr. Pait and Dr. Wade Ceola on October 3, 2000. According to the operative report, the claimant had a preoperative diagnosis of Hangman’s fracture, Type IIa.
On June 28, 2001, the claimant was seen for evaluation for the purpose of an independent medical examination by Dr. Earl Peeples. He wrote in pertinent part:
It appears to me that the patient’s cervical fusion is solid. I recommended that a physical therapy program be undertaken to wean him out of his brace. I think there is significant psychological attachment to this brace for its protective value and this may be a difficult step for the patient and will require some encouragement. In view of his failure to demonstrate neck and back range of motion and in view of his attachment to the brace, I think it is likely that the patient has a significant psychological factor in view of his symptoms and abilities at present. Psychological testing would, I think, be of benefit. I recommend Dr. Winston Wilson.
Maximum medical improvement has been achieved in the sense that the fusion, I believe, is solid at this point. On the other hand, rehabilitation has not been undertaken and, in that sense, maximum medical improvement has not been achieved. Once the neck has been rehabilitated, I think the patient would have minimal impairment and minimal restrictions related specifically to the C2-C3 fusion. He does have multi-level degenerative disc disease. . . .
Satisfactory fusion at this level, without major neurological deficit, would produce an impairment of approximately 10% of the body as a whole related to the fracture and its necessary treatment by arthrodesis or fusion.
On July 12, 2001, x-rays of the cervical spine revealed:
1. Stabilization of C-2-3 via surgical hardware with minimal deformity. No evidence of instability on today’s exam.
2. The cervical spine is unchanged from the study of 10-08-00.
The claimant underwent initial evaluation with Dr. Sonia Williams on September 21, 2001. With respect to the claimant’s cervical complaints, Dr. Williams recommended that neurology or neurosurgery be contacted to obtain restrictions for range of motion and weight bearing of the cervical spine, and to assess the claimant’s need for a soft collar. In addition, she also ordered physical therapy treatment for the claimant’s cervical and lumbar complaints.
A review of the medical evidence of record shows that the claimant underwent physical treatment to his cervical and lumbar spine at Drew Memorial Hospital, in Monticello, pursuant to orders from Dr. Williams beginning on or about March 22, 2002, and continuing until April 24, 2002.
Dr. Williams noted on May 20, 2002, that the claimant’s range of motion had improved in his neck. Her assessment was, “Some improvement of pain and cervical range of motion and posture; persistent radicular right-sided lower back pain, and compliant with home exercise program.” Therefore, Dr. Williams ordered additional physical therapy, and she stated that she believed the claimant would benefit from continued focus on the right lower back area and trial use of the TENS. She also referred the claimant for epidural steroid injections, if approved by the workers’ compensation carrier.
The claimant underwent assessment for additional physical therapy treatment at Drew Memorial Hospital, on May 24, 2002, pursuant to orders from Dr. Williams, with the focus being his lumbar spine. The claimant received subsequent physical therapy treatment for his lumbar spine from May 24, 2002, until June 7, 2002. Although in medical records dated August 29, 2002, Dr. Williams then noted the claimant had less than adequate compliance with his physical therapy schedule, the claimant and his wife denied this level of attendance for physical therapy treatment.
In a letter dated March 17, 2003, Dr. Williams wrote:
Dr. Peeples’s report was presented to me, for the first time, on the day of deposition. It was addressed as part of the deposition.
Because Mr. Bell was essentially lost to follow-up with my care, I was not able to comment on whether he has achieved maximum medical improvement (MMI) from a rehabilitative standpoint. As indicated in the note by Dr. Peeples, MMI was achieved as it related to the stability of the cervical fusion.
It is my hope that the above [in conjunction with the materials from the deposition] addresses your concerns.
The claimant was next seen by Dr. Williams on May 5, 2003. At that time, she noted that since his last visit, there had been no additional authorization for physical therapy.
On June 5, 2003, Dr. Winston Wilson reported that he had performed an independent psychological evaluation on the claimant on this date at the request of Dr. Peeples. Dr. Wilson reported that the claimant did not wear a brace to his attending appointment. Specifically, Dr. Wilson wrote, in pertinent part, “It appears to me that the appropriate surgeries and other medical interventions have been utilized in his treatment. I do not recommend psychotherapy because I think he would only use this arena to voice his multiple complaints. . . .”
On June 12, 2003, Dr. Peeples evaluated the claimant again for an independent medical examination. He reported that his opinion regarding the claimant’s function was unchanged, and that he was entitled to a 10% impairment rating to the body as a whole for the cervical fusion at C2-C3. Dr. Peeples further reported, “With respect to Dr. Williams’s comments, on page 23 of her deposition, wherein she stated “The goal of the program was basically to improve his range of motion and improve it to the point that he was having normal motion in the cervical spine,” Dr. Peeples specifically opined that in view of the claimant’s spondylosis and fusion, normal motion is an unattainable and inappropriate goal.” He further stated that in his opinion, the claimant had been appropriately treated. Dr. Peeples also reported that additional treatment in the form of a UAMS (TENS) unit, non-analgesic and strengthening exercises were appropriate.
The respondent accepted the claimant’s neck injury as a compensable injury and paid temporary total disability compensation from September 30, 2000, until October 14, 2001. The respondent also accepted and paid a 10% whole body physical impairment rating for the claimant’s neck injury, with the last payment being paid in March or April of 2002. During the hearing, the claimant’s attorney asserted that the respondent stopped paying the bills for the claimant’s physical therapy down in Monticello in about March or April of 2002.
The deposition of Dr. Sonia Williams, a physiatrist at UAMS, was taken on February 23, 2003. According to Dr. Williams, she first began treating the claimant on September 21, 2001, on a referral from UAMS Neurology. Dr. Williams essentially testified she evaluated the claimant for low back pain and cervical complaints, but she denied having ever evaluated him for a head injury or any such complaints. Dr. Williams gave extensive testimony concerning the claimant’s back complaints, however, since this alleged injury is not subject to this review, testimony concerning this condition has been omitted. With respect to the claimant’s neck condition, Dr. Williams testified that the claimant had not reached maximum medical improvement from her assessment, as of August 29, 2002, the date that she had last seen the claimant. She essentially testified that the claimant would not reach maximum medical improvement for his neck injury until he had full range of motion in his neck. However, Dr. Williams admitted that the claimant would never obtain normal neck motion due to his fusion.
Dr. Raymond Peeples, an orthopedic surgeon’s testimony was taken on July 15, 2003. Dr. Peeples admitted to seeing the claimant on June 28, 2001, for an independent medical examination. Dr. Peeples testified that additional cervical radiographs were taken on that day in his office, which showed “Excellent consolidation of the C2-C3 fusion, flexion/extension view done with as much movement as the patient was voluntarily able to tolerate and showed no instability.” He further testified that the claimant had significant degenerative changes at multiple adjacent levels, but this pre-existed the accident. Dr. Peeples stated that the claimant was at maximum medical improvement for his cervical condition, and as far as the physical healing was concerned, he was solid. Dr. Peeples testified that he felt that when he saw the claimant on June 28, 2001, the claimant had developed a psychological dependence on the cervical collar. However, he felt a period of rehab might be beneficial in overcoming that. Hence, Dr. Peeples specifically testified that he saw no healing issue that would impede the claimant from being at MMI when he saw him (on June 28, 2001). Dr. Peeples further testified that in view of the claimant’s psychological attachment to the brace, a short period of physical therapy might be positively reinforcing to him to improve his ability to function. Dr. Peeples essentially testified that he felt the claimant’s attachment to the brace had psychological factors in view of his symptoms and abilities. Dr. Peeples testified:
Q. Okay, so do you think he — and I think I know the answer to this question, but I’ve got to ask it anyway. Do you have an opinion within a reasonable degree of medical certainty about whether he needed additional medical care as of June 28, 2001 when you saw him, for his cervical condition?
A. Again, I think a short course of physical therapy might have been helpful to overcome basically some psychological hang-ups and fears regarding his neck. But as regarding specific physical treatment to the structures other than that, no. The fusion looked excellent. And I would expect most normal individuals to have already been out of the brace, back to pretty much functioning, and tickled that they weren’t paralyzed and that their fusion had healed. I certainly would be.
Dr. Peeples testified that as of June 28, 2001, the claimant could have returned to work without restrictions and pursued whatever activities he desired, including heavy construction. Dr. Peeples also gave extensive testimony concerning the claimant’s alleged lumbar injury. However, this testimony has been omitted since this alleged injury is not subject to this review.
Dr. Peeples testified that additional cervical films were taken on June 12, 2003, which showed that the fusion was maintained with good stability along with the same degeneration of adjacent levels noted. Dr. Peeples also testified that the 10% permanent physical impairment rating to the body as a whole was related to the claimant’s cervical fusion. (This rating has been paid out with benefits ceasing sometime in March or April of 2002).
Dr. Peeples stated the following concerning Dr. Williams’s opinion:
Q. And I recall, her opinion was that he just — he was not at MMI because he needed more either vocational rehabilitation or actual physical rehabilitation. And at some point he was lost to her for reasons that were obscure to her.
A. I recall that she said that he needed to recover full range of motion of her cervical spine. I think that is an unreasonable goal. He has a fusion at one level and multiple levels of degenerative change. I don’t think — I certainly wouldn’t anticipate that I would recover full motion. I think I would recover functional motion. But to say we’re gonna wait `til he has full motion before he’s at MMI, then he’s never going to reach MMI. And MMI is not perfection. MMI is maximum medical improvement. So you get to a certain point that’s as good as you’re gonna get, that’s when the rating is made.
A hearing was held in this matter on September 12, 2003. The claimant admitted he was on light-duty work at the time of the accident on September 30, 2000, due to a shoulder injury. The claimant testified that he does not remember a whole lot about the accident. According to the claimant, he just remembers being in the hospital. The claimant admitted to undergoing treatment with Dr. Sonia Williams in the form of therapy, medications and exercises. The claimant testified that he last saw Dr. Williams in the spring 2002. The claimant gave extensive testimony concerning his alleged closed head and low back injury, however, this testimony has been omitted for the reasons previously stated. The claimant admitted to seeing Dr. Earl Peeples and Dr. Winston Wilson pursuant to referral from the respondent.
According to the claimant, he has not been able to work a whole lot since the accident and is currently drawing Social Security Disability benefits. The claimant admitted to receiving a small amount of money from the driver’s insurance company, as she just had minimum coverage ($25,000.00).
Upon being questioned about Dr. Williams’s comments of the claimant being “lost to follow-up,” meaning that she did not know why he had not followed-up in treatment with her for several months, the claimant’s explanation for this was, “They never contacted me for an appointment.”
The claimant testified that as of the date of the hearing, he was physically and mentally unable to go back to work.
On cross-examination, the claimant testified that he receives monthly Social Security Disability benefits in the amount of $1,157.00. He admitted that he has not applied for work anywhere since his deposition of August 16, 2002. According to the claimant, as a flagman, he was required to stop traffic. However, the claimant maintains that he is unable to perform this job because he would probably be afraid of being hit by a car and due to it being very stressful. According to the claimant, he is unable to work due to problems with his memory, and leg pain and numbness. The claimant admitted to not being on any medication for his symptoms, except aspirin. The claimant admitted to telling counsel during his deposition in August of 2002, he does a lot of walking. However, the claimant maintains that he is unable to recall the furthest distance that he has walked at one time. The claimant admitted that when he walks, his neck does not bother him very much. According to the claimant, although occasionally his neck cramps, he is not in constant neck pain.
On redirect examination, the claimant testified that he is still getting medical bills for treatment from his accident that have not been paid. The claimant did recall getting a therapy bill from having received treatment in Monticello.
As a result of the September 30, 2000 incident, the respondent accepted an injury to the claimant’s neck and paid temporary total disability compensation from September 30, 2000, until October 14, 2001. The respondent also accepted and paid a 10% whole body physical impairment rating as a result of the claimant’s injury to his neck. The respondent subsequently controverted the claimant’s entitlement to any additional benefits. As a result, the claimant filed a claim seeking additional medical and temporary total disability benefits for his admittedly compensable neck injury. The claimant also contended that he sustained injuries to his head and to his low back as a result of the September 30, 2000, incident.
Pursuant to the hearing that was held in this matter on September 12, 2003, the administrative law judge issued an opinion dated October 16, 2003, wherein he denied and dismissed the claim. Specifically, the administrative law judge found, “In the instant case, the claimant simply does not meet the required burden of proving by a preponderance of the evidence that he sustained closed head injuries or low back injuries as a result of his compensable injury of September 30, 2000.” However, the administrative law judge failed to make a ruling on the issues relating to additional unpaid medicals and temporary total disability for his compensable neck injury.
The claimant appealed this decision to the Full Commission. In an opinion dated November 8, 2004, the Full Commission affirmed and adopted the opinion of the administrative law judge.
The claimant appealed this opinion to the Arkansas Court of Appeals. On appeal, the claimant argued that the Commission erred in finding that the clamant failed to prove that he sustained low back and head injuries as a result of his compensable injury,and in failing to make any ruling or findings regarding hisclaim for unpaid medical benefits and additional temporary totaldisability compensation. The Court of Appeals found that the claimant’s second issue had merit, and reversed and remanded the case to the Commission for specific findings on the issues relating only to unpaid medical benefits and additional temporary total disability compensation. Michael Bell v. IdealConstruction Company, Inc. CA 05-196 (October 26, 2005).
In an order dated December 14, 2005, the Full Commission remanded the case to an administrative law judge for specific findings consistent with the October 26, 2005 opinion of the Arkansas Court of Appeals.
After having reviewed the medical records, the deposition testimony of both physicians (Dr. Peeples and Dr. Williams), and the transcript of the claimant’s testimony, in an opinion dated March 16, 2006, the administrative law judge found, “That any and all unpaid medical bills and/or mileage expenses that were reasonably and necessarily incurred with regard to the claimant’s compensable neck injury, prior to his release at MMI and the issuance of the 10 percent impairment rating by Dr. Peeples, remain the responsibility of respondents; Claimant has failed to prove that any additional medical treatment was reasonable or necessary in relation to his compensable neck injury of September 20,[sic] 2000, and, as such claimant is not entitled to additional benefits for same; Claimant has failed to prove entitlement to any additional TTD benefits for his neck injury.”
The claimant has appealed this decision to the Full Commission.
II. Adjudication
A. Medical treatment
An employer shall 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). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary. Wal-Mart Stores, Inc. v. Brown,82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Wright Contracting Co. v. Randall,12 Ark. App. 358, 676 S.W.2d 750 (1984).
The administrative law judge found “That any and all unpaid medical bills and/or mileage expenses that were reasonably and necessarily incurred with regard to the claimant’s compensable neck injury, prior to his release at MMI and the issuance of the 10 percent impairment rating by Dr. Peeples, remain the responsibility of respondents.” The Full Commission affirms this finding. Although it is unclear when the respondent stopped paying for the claimant’s medical treatment for his compensable neck injury, (as the claimant’s attorney asserted that respondent stopped paying medicals in April of 2002), we find that the preponderance of the credible evidence shows that the claimant remained within his healing period beginning on September 30, 2000, the date of his compensable neck injury, and did not reach maximum medical improvement for his neck injury until June 28, 2001, the date that Dr. Peeples opined that his fusion was “solid” and declared MMI and assessed a 10% impairment rating. Therefore, considering that the claimant remained within his healing period from the date of his injury until June 28, 2001, we find that the administrative law judge correctly found that any and all unpaid medical bills/or mileage expenses that were reasonably and necessarily incurred with regard to the claimant’s compensable neck injury, prior to his release at MMI and the issuance of his impairment rating by Dr. Peeples, remain the responsibility of the respondent.
However, the administrative law judge further found, “Claimant has failed to prove that any additional medical treatment was reasonable or necessary in relation to his compensable neck injury of September 30, 2000, and, as such claimant is not entitled to additional benefits for same.” The Full Commission reverses this finding. Although the claimant reached the end of his healing period for his compensable injury on June 28, 2001, we find that the evidence clearly establishes that the claimant has required additional treatment geared toward management of his compensable injury as has been recommended by Dr. Peeples in the form of a psychological evaluation, physical therapy treatment, a TENS unit, and non-narcotic analgesics. It appears that this psychological evaluation was performed by Dr. Wilson on June 5, 2003, at which point, Dr. Wilson determined that psychotherapy was not needed and that the appropriate surgeries and other medical interventions had been utilized in the claimant’s treatment. Further review of the medical evidence shows that the claimant has also received the necessary physical therapy treatment for his neck from Drew County Memorial beginning March 19, 2002, and continuing until April 24, 2002, with no further treatment being ordered for his neck. Since it is unclear whether or not the aforementioned treatment has been paid by the respondent, the Full Commission hereby finds both of these treatments to be reasonably necessary in connection with the claimant’s compensable injury and direct the respondent to pay for these treatments if it has not already done so. Therefore, considering that the claimant has already undergone the psychological evaluation and physical therapy treatment, we find that he is only entitled to additional ongoing treatment in the form of a TENS unit and non-narcotic analgesics.
B. Temporary total disability
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 Highwayand Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).
The administrative law judge essentially found, that the claimant has failed to prove entitlement to any additional TTD benefits for his neck injury after October 14, 2001. The Full Commission affirms this finding. Although the respondent paid TTD benefits for the claimant’s neck injury from September 30, 2000, until October 14, 2001, the claimant’s healing period ended on June 28, 2001, for his compensable neck injury. Temporary disability cannot be awarded after the claimant’s healing period has ended. Trader v. Single Source Transportation, Full Workers’ Compensation Commission, opinion filed February 12, 1999, (E507484). Therefore, we find that the administrative law judge correctly found that the claimant has failed to prove his entitlement to any additional temporary total disability benefits. Accordingly, the administrative law judge’s finding concerning this issue is hereby affirmed. While we recognize that Dr. Williams testified during her deposition that the claimant had not reached MMI for his cervical condition as of August 29, 2002, because his range of motion had not yet returned to normal, we do not attach any weight to this opinion, considering that she has admitted that the claimant will never regain normal neck motion due to his fusion. In addition to this, Dr. Peeples has subsequently opined via letter and deposition testimony that normal range of motion in the claimant’s neck would be an unattainable and inappropriate goal in light of the claimant’s spondylosis and fusion.
Therefore, for those reasons set forth herein, the decision of the Administrative Law Judge is hereby affirmed in part, and reversed in part.
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).
Since the claimant’s injury occurred prior to July 1, 2001, the claimant’s attorney’s fee is governed by the provisions of Ark. Code Ann. § 11-9-715 as it existed prior to the amendments of Act 1281 of 2001. Compare Ark. Code Ann. § 11-9-715 (Repl. 1996) with Ark. Code Ann. § 11-9-715 (Repl. 2002). For prevailing in part 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) (Repl. 1996).
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ SHELBY W. TURNER, Commissioner
________________________________ KAREN H. McKINNEY, Commissioner