BROCK v. ELK’S LODGE #1714, 1997 AWCC 220


CLAIM NO. E407346

ERMA JOE BROCK, EMPLOYEE, CLAIMANT v. ELK’S LODGE #1714, EMPLOYER, RESPONDENT and UNITED STATES FIRE INSURANCE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 13, 1997

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

Claimant represented by the HONORABLE FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.

Respondents represented by the HONORABLE THOMAS E. OSMENT, JR., Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] The claimant appeals and the respondents cross-appeal an opinion and order filed by the administrative law judge on March 21, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove that she remained within her healing period and totally unable to earn wages subsequent to October 6, 1994. In addition, the administrative law judge found that the claimant failed to prove that medical services provided by Dr. White were authorized, but that a December 1, 1994, evaluation by Dr. Thomas W. Shinder was reasonable and necessary and pursuant to a legitimate referral. The administrative law judge also found that the claimant proved by a preponderance of the evidence that depression medication prescribed by Dr. Richard Peek is reasonably necessary for treatment of the claimant’s compensable injury. In addition, the administrative law judge ordered the claimant to submit to an independent medical examination by a physician selected by the respondents pursuant to Ark. Code Ann. § 11-9-511.

[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation. In addition, we find that the claimant failed to prove by a preponderance of the evidence that the medical services of Dr. White were authorized, and we find that the claimant has proven by a preponderance of the evidence that the December 1, 1994, evaluation by Dr. Thomas W. Shinder was reasonably necessary and pursuant to a legitimate referral. We also find that the claimant must submit to an independent medical examination by a physician selected by the respondents pursuant to Ark. Code Ann. § 11-9-511
(Repl. 1996). Therefore, we find that the administrative law judge’s decision in these regards must be affirmed. However, we also find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable mental injury arising out of her compensable physical injury. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that depression medication is reasonably necessary for treatment of her compensable injury. Consequently, we find that the administrative law judge’s decision in this regard must be reversed.

[4] Since the claimant’s injury occurred after July 1, 1993, the provisions of Act 796 of 1993 are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. 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 Highwayand Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (13) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

[5] In the present claim, the claimant sustained injuries to her back and right ankle on May 5, 1994, in a slip and fall accident. The claimant was treated by Dr. Robert Long, Dr. Robert Foster, an orthopedic specialist, Dr. Richard Peek, a neurosurgical specialist, and Dr. Shinder, a pain specialist. During the course of the claimant’s medical treatment, Dr. Foster released the claimant to return to light duty on September 16, 1994, and Dr. Foster gave the claimant a full work release on September, 22, 1994. Although the claimant’s subjective complaint’s of pain continued after that date, the medical evidence indicates that subsequent medical treatment did not improve her persistent complaints. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that she remained within her healing period or was incapacitated from earning wages subsequent to October 6, 1994, when the respondents terminated the claimant’s temporary disability compensation. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation after October 6, 1994.

[6] With regard to the medical treatment at issue in this claim, we note that Dr. Peek referred the claimant to Dr. Shinder, a pain specialist, for additional symptom evaluation after Dr. Peek ascertained that the claimant is not a surgical candidate. Consequently, we find that Dr. Shinder was within the chain of proper referrals, and based on the observations and medical opinions of Dr. Peek, we find that Dr. Shinder’s December 1, 1994, evaluation was reasonably necessary for treatment of the claimant’s compensable injury.

[7] However, we note that Dr. White, the claimant’s family physician, was not within the chain of referrals from the claimant’s authorized treating physicians, and we note that the claimant did not seek a change of physician pursuant to Ark. Code Ann. § 11-9-514 prior to presenting to Dr. White for medical services. Moreover, the claimant has failed to establish by a preponderance of the evidence that the treatment provided by Dr. White represented “emergency services.” Consequently, we find that the respondents are not liable for Dr. White’s services. In addition, we find that the respondents are entitled to have the claimant evaluated by a physician of their choosing for an independent medical evaluation.

[8] Finally, the claimant asserts that she is entitled to benefits and treatment for depression. Under the provisions of Act 796 of 1993, employees are entitled to receive benefits only for injuries falling within the criteria for “compensable injuries,” which are set forth in the law. With regard to claims for mental illness and injuries arising after July 1, 1993, Ark. Code Ann. § 11-9-113 (a) (Repl. 1996) requires that every claim for a mental injury or illness be supported by a diagnosis from a licensed psychiatrist or psychologist, and also requires that the diagnosis meet specific published criteria.

[9] In the present claim, the medical record indicates that Dr. Peek prescribed anti-depressant medication for the claimant’s persistent complaints. However, the evidence submitted into the record provides no indication as to which of the conditions listed in the Diagnostic and StatisticalManual of Mental Disorders, if any, that the claimant contends that she is experiencing. In addition, the record contains no evidence that a licensed psychiatrist or psychologist has ever diagnosed the claimant with any mental disorder. In this regard, we note that Dr. Peek is a surgeon, not a licensed psychiatrist or psychologist. Moreover, the claimant has failed to show by a preponderance of the evidence that Dr. Peek’s prescription for anti-depressants, or any other evidence in the record, satisfies the requirement of a diagnosis that meets the criteria for any condition set forth in the Diagnostic and StatisticalManual of Mental Disorders. Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that she has sustained a compensable mental injury or illness caused by her physical injury. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to benefits for a mental injury or illness. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that anti-depressant medication is reasonably necessary for treatment of her compensable injury.

[10] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation. In addition, we find that the claimant failed to prove by a preponderance of the evidence that the medical services of Dr. White were authorized, and we find that the claimant has proven by a preponderance of the evidence that the December 1, 1994, evaluation by Dr. Thomas W. Shinder was reasonably necessary and pursuant to a legitimate referral. We also find that the claimant must submit to an independent medical examination by a physician selected by the respondents pursuant to Ark. Code Ann. § 11-9-511
(Repl. 1996). Therefore, we find that the decision of the administrative law judge in these regards must be, and hereby is affirmed. However, we also find that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable mental injury arising out of her compensable physical injury. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that depression medication is reasonably necessary for treatment of her compensable injury. Consequently, we find that the decision of the administrative law judge in this regard must be, and hereby is, reversed. The claimant and the respondents are hereby ordered to comply with the Order contained in the administrative law judge’s decision filed on March 21, 1996, except as specifically noted above with regard to the respondents’ liability for anti-depressant medication.

[11] 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). 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 (Repl. 1996).

[12] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[13] Commissioner Humphrey concurs in part and dissents in part.

[14] CONCURRING AND DISSENTING OPINION
[15] I concur with the majority opinion to the extent it finds that the December 1, 1994, evaluation by Dr. Shinder was reasonably necessary and conducted pursuant to a legitimate referral. I must otherwise respectfully dissent.

[16] In particular, I feel compelled to comment on the majority’s finding that the anti-depressant medication prescribed by Dr. Peek is not reasonably necessary for the treatment of claimant’s compensable injury.

[17] While the majority’s point that claimant has not proven the existence of a compensable mental injury is well-taken, I note Dr. Peek’s November 17, 1994, comment that “a low dose of anti-depressants is usually of benefit in controlling this type pain.” In my opinion, the foregoing excerpts from Dr. Peek’s records indicate that he was treating claimant’s physical pain — not an underlying depressive disorder. I would accordingly find that Dr. Peek’s prescription of anti-depressant medication was reasonably necessary for the treatment of claimant’s compensable injury.

[18] For the foregoing reasons, I must respectfully dissent from the majority opinion.

[19] PAT WEST HUMPHREY, Commissioner