CLAIM NO. F204656
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 30, 2004
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GREG GILES, Attorney at Law, Texarkana, Arkansas.
Respondents represented by HONORABLE MICHAEL RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed December 19, 2003. The administrative law judge found that the claimant proved she remained in her healing period and totally incapacitated from earning wages. The administrative law judge found, “The claimant has proven by a preponderance of the evidence that she remains entitled to temporary total disability benefits from February 26, 2003, until such time as her healing period ends or she regains her capacity to earn wages.” After reviewing the entire record de novo, the Full Commission reverses the opinion of the administrative law judge with regard to the awarding of temporary total disability compensation. The Full Commission finds that the claimant did not prove she was entitled to temporary total disability compensation after February 26, 2003.
I. HISTORY
Shandi Lynn Allen, age 28, testified that she began working at Domtar in April 2001. Ms. Allen testified that she was a production worker, which encompassed “anywhere from driving a forklift to working on machines, which we have a front and a back machine.” The parties stipulated that the claimant sustained a compensable injury on April 24, 2002. The claimant testified that she felt a pain in her lower back after lifting heavy boxes. The claimant began treating at Southern Clinic, P.A. on May 1, 2002. A physician at the Clinic appears to have diagnosed “SI strain with spasm.” The claimant was treated conservatively and was placed on light duty effective May 1, 2002. The claimant was placed on regular duty on May 10, 2002, but was again placed on light duty on May 13, 2002. On May 22, 2002, a physician opined that the claimant would reach maximum medical improvement and be ready for full duty by May 26, 2002. The claimant testified that the respondent-employer did not have light duty, but that she attempted to perform her job each time she was released to return to work. The claimant sought additional medical treatment on June 26, 2002, at which time it was noted, “Pt started having more problems with back 2 wks after going back to full duty.” The claimant was again placed on light duty.
An MRI of the lumbar spine was taken on July 3, 2002:
An open air MRI study of the lumbar spine was performed. . . . There is normal vertebral body height, alignment and overall marrow signal intensity. Disc heights are well maintained and show no abnormal desiccation or protrusion. There is no facet or ligamentum flavum hypertrophy. The conus is unremarkable.
IMPRESSION: 1. NORMAL MRI OF THE LUMBAR SPINE.
Dr. Mark Gabbie referred the claimant for physical therapy beginning July 9, 2002.
Dr. Richard M. Hilborn, an orthopedic surgeon, diagnosed “Low back pain, strain” on August 22, 2002. Dr. Hilborn arranged a functional capacity evaluation, carried out September 6, 2002:
Ms. Allen gave a valid effort during the Functional Capacity Evaluation on 9/6/02. She does meet her material handling job demands. She reports the boxes she lifts weights (sic) at least 75# as a posse (sic) to 50# reported by the job description. Ms. Allen meets all of the non-material handling aspects of the job, but reports pain with all bending activities. She demonstrates the ability to work at Medium Heavy Physical Demand Level, even with her small body frame.
When evaluating her she appears to have a sacral iliac dysfunction related mainly with a rotation at one of the axis of the sacrum. This appears to be where most of her pain is stemming from. The sacrum may be irritating a nerve root when rotated, thus causing her the burning pain.
Recommendation is for a radiographic picture which may reveal at what axis the sacrum may be rotated and/or further evaluation from therapist to attempt to correct the SI dysfunction before returning to work. . . .
Dr. Hilborn noted on September 12, 2002, “Since her last visit here, the patient has had a Functional Capacity Evaluation with this evaluation demonstrating the patient to meet her regular duty requirements as far as lifting. . . . The patient’s back has a normal clinical appearance. . . . A decision was made to allow her to return to work regular duties.”
The claimant testified that she did not attempt to work after October 10, 2002.
The claimant saw Dr. Chris Alkire, an orthopedic surgeon, on October 24, 2002:
X-rays brought with her today, AP/lat. x-ray of the lumbosacral spine from Dr. Richard Hilborn’s office from August of this year, are completely normal except for a little bit of loss of the normal lumbar lordosis. Disc space is well maintained.
MRI with her from July of this year from SMH shows really no significant pathology with all discs well hydrated and no signs of HNP. No tumor. No stenosis. Really pretty much cold normal.
P — The patient and I talked about further treatment today. I’ve told her that at times it may not be possible to get a diagnosis for the kind of low back pain she’s having. We’ve discussed the fact that she is very slightly built, thin, not very muscular and the kind of work she’s doing she may not have the bodily capacity to perform. We’ve talked about how Troy Aikman, even though he’s otherwise fairly healthy, can’t play professional football anymore because of his head injuries. I’ve likened her condition to the same kind of predicament. . . .
Dr. Alkire arranged additional diagnostic testing, excused the claimant from work, and noted, “I told her at the very least if all these other tests are normal, she may have to consider finding other work rather than putting herself through this kind of strain she’s currently doing.”
A bone scan taken November 5, 2002 was negative. Dr. Alkire reported on November 7, 2002:
The patient returns for follow-up having had bone scan which is completely normal. She’s had MCTD workup to include uric acid, C-reactive protein, rheumatoid factor, sed rate — all normal. HLA-B27 pending.
P — The patient and I talked about further treatment today. She says Dr. Gabbie has recommended ESI. I told her normally I would prescribe ESIs when there’s something to treat, some kind of pathology. I can’t tell her what’s wrong with her. I can’t find anything on the tests to show what’s causing her pain. I recommended that she call me back in 4 days and we’ll go over the results of her HLA-B27. If that’s normal, then she either needs chronic pain management or an evaluation at TBI. In order to cover her at work, note off next 3 weeks given. . . .
Dr. Alkire informed the claimant on November 22, 2002, “I have found the results of your HLA-B27 today, and it is completely normal.” The claimant returned to Dr. Alkire on December 2, 2002:
All of her studies have been basically normal without significant pathology. I’ve recommended chronic pain management. She wants to go to S’Port to see a doctor there, and I’ve recommended Dr. Ross Nelson who is down in S’Port. Will give her excuse off work for 6 weeks. . . . I told her I think there’s a good chance she may not be able to go back and do the kind of work she did at Domtar in the past.
Dr. Alkire reported on January 23, 2003:
I visited today with Linda Saffel, RN, Liberty Mutual Group, Rehab nurse. She and I talked about the fact that Ms. Shandi Allen had extensive workup to include x-rays, lab tests, and I can never find anything significantly objective wrong with her. I told Ms. Saffel I didn’t give Ms. Allen any specific work instructions but instead referred her to see one of the chronic pain management doctors. I did tell her that I didn’t think she was going to be able to go back to Domtar again. I’ve told Ms. Saffel in my opinion I suspect this young lady had simply a severe overuse work syndrome from having to do all the lifting and pulling at her job and that I think the treatment is really going to be for her to find different light duty work for the future. We’re going to send her for completeness sake for an FCE and a percentage impairment rating with Dr. Barry Green. I do think she would benefit from seeing the chronic pain management doctor as I recommended. Kay White, my nurse, is going to find Ms. Allen and get her in to see Dr. Barry Green for percentage impairment rating and FCE.
Dr. Barry M. Green, an orthopedic surgeon, reported on February 26, 2003:
A complete workup has been done, including MRI, bone scan and studies for inflammatory arthritis, which were all within normal limits. I have reviewed available medical records and x-rays, which were within normal limits. There are no birth defects, fractures, tumors, etc. She has a stress overload to the lumbar spine. . . . she needs no further diagnostic studies and, for sure, she doesn’t need surgery.
In my opinion, she needs to go back to school or be trained for lighter work or she needs to undergo vigorous training to develop strong lumbar and abdominal muscles to be able to carry out the work she is doing.
Her diagnosis is facet sprain of the lumbar spine.
Based on the definition of maximum medical improvement (MMI), having had appropriate treatment and being at plateau, not likely to improve with future treatment, she is at MMI as of 2/26/03.
Based on the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1993 version, using the DRE Model for diagnostic related estimates (also known as the Injury Model) found on Page 110, Table 72, II, she receives 5% whole person impairment. She has no motor or sensory deficits; thus Tables 11 and 12 are not used. She has no vascular deficits and no other specific disorders. . . .
Based on her own residual functional capacity evaluation, she should be able to perform medium work based on the Dictionary of Occupational Titles.
Her maximum lift should be 20-50 pounds (0-33% of a workday), and her frequent lift should be 10-25 pounds (34-66% of a workday). There are no limitations in sitting, standing, walking or climbing stairs. She should not do repetitive bending, but she can squat occasionally. She should not climb to unprotected heights. She has no limitations to her upper extremities. She can drive a motor vehicle.
In summary, Ms. Allen is at MMI as of 2/26/2003 with 5% whole person impairment. Her lifting capacity, based on the Dictionary of Occupational Titles, is medium.
The parties apparently stipulated that the respondents paid temporary total disability compensation through February 26, 2003.
The claimant returned to Southern Clinic on March 5, 2003. It was noted at that time by an unidentified individual, “She has had no work hardening to attempt to improve strength. I do not agree at MMI or % impairment.” On or about March 10, 2003, however, another physician indicated on a Texas Workers’ Compensation Commission form that he agreed with Dr. Green’s findings of MMI and impairment rating. (Dr. Alkire later agreed at deposition that he was the physician who signed the form.)
The claimant was examined by an orthopedic specialist, Dr. Pierce D. Nunley, on April 4, 2003. Dr. Nunley’s impression included “low back pain with probable discogenic etiology.” In the meantime, it was indicated by someone at Southern Clinic on April 7, 2003 that the claimant had not reached maximum medical improvement. Dr. Nunley filled out a questionnaire on May 7, 2003, and opined that the claimant had not reached maximum medical improvement.
Dr. Nunley provided an “Independent MRI Interpretation” on June 4, 2003, with the impression, “1. Very mild degenerative disc disease appreciated L4-5 and L5-S1. No signs of disc herniation or neural impingement appreciated throughout the study.” Dr. Nunley stated on June 4, 2003, “At this point her options are either to live with this, or to continue the work-up for discogenic pain with lumbar discogram. She would like to proceed with that and we will send in for approval for lumbar discography.” The claimant underwent discography on July 10, 2003, at which time Dr. Nunley provided a “radiographic interpretation” of “1. L3-4 no fissuring. 2. L4-5 mild fissuring. 3. L5-S1 mild fissuring.” Dr. Nunley provided the following summary:
The patient had a control level at L3-4. At L4-5 and L5-S1 the patient had 8 of 10 and 7 out of 10 respectively with injection. The pain was both pressure and similar. There was some concordant to it, but she also noted that the pain felt “a little higher”. . . .
INTERPRETATION: Discogenic pain at L4-5 and L5-S1 with a control level at L3-4.
Dr. Nunley subsequently submitted approval “for IDET L4-5 and L5-S1.”
Dr. Nunley wrote to the claimant’s attorney on August 20, 2003:
Based upon the patient’s condition and findings of the discography, I do not feel that Ms. Allen is at MMI at this time. Based on the discography findings and the patient’s expectations, I feel that IDET is appropriate surgery for her in an effort to alleviate her low back pain. The IDET is a procedure that would help her condition as she has discogenic low back pain. This, coupled with physical therapy and other rehabilitative measures would help Ms. Allen get back to a more comfortable and functional state of being.
Dr. Nunley stated on September 4, 2003, “The insurance company has again denied it. They have cut off all of her benefits as well. She wants to be fixed so we will go ahead and put this under her regular insurance and schedule her IDET L4-5 and L5-S1.” The claimant testified that her health insurance “didn’t go through,” and that she had not undergone the IDET procedure.
The parties deposed Dr. Alkire on September 29, 2003. Dr. Alkire agreed with the respondents’ attorney that all of the laboratory and diagnostic testing he had seen had been normal. The respondents’ attorney questioned Dr. Alkire:
Q. After you assessed the information that was available to you through these tests, what was your impression of the condition of Ms. Shandi Allen?
A. I felt that she had low back pain of an unknown etiology, kind of a diagnosis of exclusion really, based on her symptoms.
Q. Did you suggest any surgery?
A. No.
Q. Did you suggest any invasive type procedure of any kind?
A. No. . . .
Q. Let me ask you, at that point in time could she have gone and done something else as far as — was she as good as she was going to get when you saw her in January of `03 and said you couldn’t find anything wrong with her?
A. In my opinion she was, yes. I didn’t think that there was — except for, you know, seeing the pain management physician who I hoped would be able to improve her pain enough for her to become productive at some kind of work again, from an orthopedic point of view, I didn’t think that I had anything further to offer her.
Q. And did you feel like it was not in her best interest to go back to Domtar and do the kind of heavy work that they have there?
A. That was my opinion. . . .
Q. Is there any contra-indication to her returning to some type of job where there wasn’t this heavy duty type work?
A. The only contra-indication would be how much it would increase her pain. . . .
Dr. Nunley stated on October 8, 2003, “She explained that one of the reasons WC was not covering it because they don’t think that she has an annular tear. The discogram shows clear fissuring, which represents a significant annular tear in the disc. Obviously whoever read the report doesn’t understand this.”
Hearing before the Commission was held on November 13, 2003. The claimant contended that the IDET procedure recommended by Dr. Nunley was reasonably necessary in connection with the compensable injury. The claimant contended that she had not reached maximum medical improvement as of February 26, 2003, so that she was entitled to additional benefits after that date. The respondents contended that the IDET procedure was not reasonably necessary, and that the claimant’s healing period had ended.
The claimant testified that she remained employed with Domtar, although she was not “physically working.”
The administrative law judge (ALJ) found that the claimant proved she was entitled to additional medical treatment, including “the IDET procedure and related treatment recommended by Dr. Pierce Nunley.” The ALJ found that the claimant proved she remained in her healing period, and that the claimant proved she was totally incapacitated from earning wages.” The ALJ therefore found, “The claimant has proven by a preponderance of the evidence that she remains entitled to temporary total disability benefits from February 26, 2003, until such time as her healing period ends or she regains her capacity to earn wages, whichever occurs first.”
The respondents appeal to the Full Commission.
II. ADJUDICATION
Temporary disability is that period within the healing period in which an employee suffers a total or partial incapacity to earn wages. Thurmanv. Clarke Indus., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). “Healing period” means that period for healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(12). The healing period continues until the employee is as far restored as the permanent character of the injury will permit. Arkansas Highway and Transp. Dep’tv. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). Whether an employee’s healing period has ended is a question of fact for the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). If the underlying condition causing the disability has become stable and if nothing further will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. McWilliams, supra; J.A. Riggs Tractor Co.v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990).
In the present matter, the respondents state that the only issue for review is the claimant’s entitlement to temporary total disability compensation from February 26, 2003 to a date yet to be determined. The respondents do not appeal the administrative law judge’s award of additional medical treatment, but argue that the administrative law judge erred in awarding temporary total disability compensation beyond February 26, 2003. The Full Commission finds that the claimant reached the end of her healing period no later than February 26, 2003. The parties stipulated that the claimant sustained a compensable injury on April 24, 2002. The claimant was originally diagnosed with “SI strain with spasm.” The claimant subsequently alternated between releases to light and regular duty, but was never able to consistently work after the compensable injury. We note that an MRI taken July 3, 2002 was entirely normal. An August 2002 functional evaluation indicated that the claimant could perform medium work. Beginning in October 2002, Dr. Alkire reported that all diagnostic testing was normal. This diagnostic testing included MRI’s, x-rays, a bone scan, and other tests. There were no spinal abnormalities found.
Dr. Alkire wrote in December 2002, “All of her studies have been basically normal without significant pathology.” Then, on February 26, 2003, Dr. Green assigned an impairment rating and pronounced maximum medical improvement. Given each and every credible and expert report of normal diagnostic findings up to the assignment of MMI on February 26, 2003, the Full Commission minimizes the weight given to Dr. Nunley’s findings in July 2003 of “fissuring” at L4-5 and L5-S1.
The Full Commission also finds that the claimant did not prove she was totally incapacitated to earn wages after February 26, 2003. The Full Commission notes, based on the September 2002 functional capacity evaluation, that the claimant could perform medium work and was not incapacitated from earning wages. Dr. Hilborn attempted to return the claimant to regular work in September 2002. Dr. Green’s February 26, 2003 report also indicated that the claimant was not incapacitated from earning wages. Since the claimant reached the end of her healing period no later than February 26, 2003, the claimant’s complaints of pain are not sufficient to extend the claimant’s healing period or to find that she remained incapacitated from earning wages. Parker, supra.
Based on our de novo review of the entire record, the Full Commission finds that the claimant did not prove she was within her healing period and totally or partially incapacitated from earning wages after February 26, 2003. The Full Commission therefore reverses the administrative law judge’s award of temporary total disability compensation after February 26, 2003. This claim is denied and dismissed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ MIKE WILSON, Special Commissioner
Commissioner Turner dissents.