CLAIM NO. E307727
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 30, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by MICHAEL FRIEDMAN, Attorney at Law, Texarkana, Arkansas.
Respondents represented by NELSON SHAW, Attorney at Law, Texarkana, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned case on July 26, 1995, finding that claimant was entitled to additional temporary total disability benefits from November 3, 1993, to the end of her healing period (a date yet to be determined), and granting a change of physician to Dr. Kenneth M. Alo, a pain management specialist in Tomball, Texas. Respondents appeal from that opinion and order.
[8] Dr. Hyatt eventually referred claimant to Dr. Kenneth M. Alo, who she first visited on August 25, 1994. Dr. Alo’s report of that date noted that claimant “has been totally disabled and unable to work and as well unable to contribute and/or care for her children.” His musculoskeletal exam revealed “marked allodynia hyperpathia . . . and noted increase in swelling as well as mottling of the left lower extremity extending from approximately the mid-thigh into the foot.” Dr. Alo suspected the presence of a “severe left lower extremity causalgia” and recommended an aggressive course of treatment commencing with a “diagnostic left lower extremity sympathetic blockade.” [9] On October 20, Dr. Alo informed Dr. Hyatt of his findings, and explained that his requested course of treatment would consist of a series of lumbar sympathetic blocks:is diffusely hyperesthetic around the knee, almost any motion causes great discomfort. There is pitting edema in the left leg and the left leg is redder than the right. There are splotchy white discolorations throughout the left leg due to the sympathetic dystrophy. I was unable to perform any type of McMurray’s test because of the extreme tenderness and limited rom. . . I feel she has significant reflex sympathetic dystrophy of the left knee, status post meniscectomy and crush injury to the left knee in April and June of 1993.
[10] Dr. Alo reiterated this concern, and opined as to matters of causation, in an April 20, 1995 letter to claimant’s attorney:As you know, Barbara suffers from a significant left lower extremity, State II causalgia. This has been confirmed from a diagnostic standpoint on 9/01/94, after a left lumbar sympathetic block garnered greater than a seven day response in terms of over-all pain reduction, decreased allodynia, and hyperpathia, as well as a marked improvement in her ongoing vasomotor instability. . . It is noted that we have had some difficulty obtaining appropriate coverage for her to continue with this therapy. I have stressed to her in some detail that if the causalgia continues to progress, especially to the alternate extremities and torso, this may become an intractable and completely irreversal (sic) disease entity.
[11] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). In turn, an injured worker’s healing period continues:As you know, Ms. Boles suffers from a significant sympathetically maintained pain process which resulted from her work-related traumatic injury. This definitively has resulted in her current disability and physical restrictions which have been placed on her. If her symptoms continue to persist and she does not receive the appropriate care for this sympathetically maintained pain process, she may ultimately end up permanently dysfunctional and disabled.
[12] Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582until the employee is as far restored as the permanent character of his injury will permit. If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. (Emphasis added).
(1982). Finally, “the determination of when the healing period has ended is a factual determination that is to be made by the Commission.” Id. [13] For reversal on this issue, respondent argues first of all that Dr. Gregory found no cause to assess claimant a permanent impairment as of January 18, 1994, and further cleared her to return to work on January 24. As true as this may be, it is also true that Dr. Gregory wanted a second opinion as late as December 27, 1993, and his records do not indicate that he was ever aware that claimant suffered from the causalgia identified by Dr. Alo. We thus do not accept Dr. Gregory’s recommendations on January 18 as dispositive of claimant’s medical situation at that time. [14] Likewise, we are unimpressed with respondents’ second point for reversal — the “findings” of Dr. Gary C. Freeman, a Houston orthopedist who performed an August 17, 1994 independent medical evaluation at respondents’ request. Claimant’s testimony, which we find to be credible, indicated that she spent about five minutes of face-to-face time with Dr. Freeman, and his records show that he performed no diagnostic procedures other than a physical exam and x-rays. Following this evaluation, Dr. Freeman opined that:
[15] Oddly enough, even though he felt that claimant had exaggerated her symptoms and had “no credible pathology,” Dr. Freeman went on to assign claimant a 10% permanent impairment rating. [16] There are a number of inadequacies regarding Dr. Freeman’s opinion. First of all, we note that Dr. Freeman specializes in surgery of the hand, and yet purported to emphatically opine as to the pathology of claimant’s knee based on no more diagnostics than an x-ray. Also, his thoughts on claimant’s “inexorable resolution of a simple arthroscopic medial meniscectomy” are completely devoid of any consideration of her second knee injury. It was this injury that prompted her continuing difficulties in the first place. [17] In addition, respondents fail to acknowledge the disclaimer with which Dr. Freeman concludes his report:this claimant has no credible, demonstrable, ongoing pathology. I find no evidence of sympathetic dysfunction referable to the knee. I find no indication for pain management clinic, sympathetic nerve blocks, or another operation as suggested by Dr. Hyatt, according to the claimant. In my opinion, the claimant probably reached maximum medical improvement by at least 09-13-93, with inexorable resolution of a simple arthroscopic medial meniscectomy.
[18] The additional information garnered by Dr. Alo’s subsequent and far more thorough analysis, taken in conjunction with Dr. Freeman’s own disclaimer, essentially drains away what probative force the latter’s opinion may have initially had. Finally, we cannot reconcile Dr. Freeman’s denial that claimant has any “demonstrable pathology” on the one hand, and his assignment of a 10% permanent impairment rating on the other. A litigant-sponsored medical report wherein “patients” become “claimants” may have significant value in some cases, but owing to the shortcomings discussed above, such is not true in the instant case. [19] Dr. Gregory’s letter of December 27, 1993, and Dr. Alo’s findings throughout mid to late 1994 compel us to specifically find that claimant’s healing period did not end on October 22, 1993 — as respondents have contended. Instead, the preponderance of the evidence establishes that as late as April 20, 1995 (the date of Dr. Alo’s letter to claimant’s attorney), claimant’s condition had neither stabilized nor become as far restored as its permanent character might have allowed. Indeed, on that date, Dr. Alo spoke of claimant’s continuing symptoms and stated that treatment was still indicated in order to deter permanent disability — demonstrating that claimant’s condition could still be improved by further medical care. [20] We also specifically find that claimant was totally incapacitated to earn wages after October 22, 1993. At no point during his care of claimant did Dr. Alo recommend that she even attempt to return to work, and in his office notes of August 25, 1994, he clearly accepts without dispute the proposition that claimant had been totally disabled up until that point. For reasons already discussed, we are not moved by Dr. Freeman’s opinion that claimant was “physically capable of employment” on August 17, 1994. [21] Based on the foregoing, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she is entitled to continuing temporary total disability benefits from November 3, 1993, to a date yet to be determined. [22] Claimant is also entitled to a change of physician to Dr. Alo. Dr. Gregory apparently had nothing more to offer claimant when he released her from his care, yet subsequent medical examinations by Drs. Hyatt and Alo revealed that claimant’s problems were unresolved. Dr. Alo has not only identified claimant’s causalgia and offered her a course of appropriate treatment, he is much closer to her new locale in Houston than is Dr. Gregory — who is based in Texarkana, Texas. Because respondent selected claimant’s initial treating physician, it is not necessary for her to show a compelling reason for a change of physicians. See Ark. Code Ann. § 11-9-514(a) (Repl. 1996). We are persuaded that the foregoing evidence preponderates in favor of a finding that claimant is entitled to a change of physician to Dr. Alo. [23] Based on our de novo review of the record, and the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she is entitled to continuing temporary total disability benefits from November 3, 1993 to a date yet to be determined, and that she is further entitled to a change of physician to Dr. Kenneth M. Alo. The Administrative Law Judge’s opinion should therefore be, and hereby is, affirmed. [24] 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). [25] 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) (Repl. 1996). [26] IT IS SO ORDERED.The opinions rendered in this case are the opinions of this evaluator. This evaluation has been conducted on the basis of the medical examination and documentation as provided, with the assumption that the material is true and correct. If more information becomes available at a later date, an additional service/report/reconsideration may be requested. Such information may or may not change the opinions rendered in this evaluation. This opinion is based on a clinical assessment, examination, and documentation. This opinion does not constitute per se a recommendation for specific claims or administrative functions to be made or enforced. (Emphasis added).
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[27] Commissioner Holcomb dissents.[28] DISSENTING OPINION
[29] I respectfully dissent from the majority’s opinion finding that claimant is entitled to additional temporary total disability benefits from November 3, 1993 through a date yet to be determined or that claimant is entitled to a change of physician to Dr. Alo and Dr. Hyatt.