CLAIM NO. D916588
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 3, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by F.S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by BILL PENIX, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed January 30, 1996 finding that the claimant has failed to prove by a preponderance of the credible evidence that he sustained any injuries to his mid-back, left shoulder, or cervical spine in the employment related accident on July 24, 1987; that the issue regarding the claimant’s psychological or psychiatric difficulties was resolved by the Full Commission in its opinion of December 2, 1991 and is now res judicata; that the claimant has failed to establish that the medical treatment giving rise to the additional medical expenses he now seeks constitutes reasonably necessary medical treatment for the compensable injury; and that he was rendered permanently and totally disabled as result of the compensable injury of July 24, 1987. Based upon our de novo review of the entire record we find that the claimant has failed to meet his burden of proof for entitlement to additional medical expenses and we therefore affirm the Administrative Law Judge’s findings on this issue. We further affirm the finding of the Administrative Law Judge that the claimant has proven entitlement to permanent partial disability in the form of wage loss in the amount of 10% to the body as a whole.
[4] The issue of the claimant’s psychological problem was resolved adversely to the claimant. The claimant did not appeal our decision to the Arkansas Court of Appeals, thus our December 2, 1991 became final. [5] The record reveals that the psychological difficulties for which the claimant now seeks benefits are merely a continuation of the same difficulties for which he sought additional temporary total disability benefits at the time of the first hearing. We have previously held that the claimant’s psychological or psychiatric difficulties are not compensable. To allow the claimant to now relitigate the compensability of these problems would violate the doctrines of res judicata and collateral estoppel. Accordingly, we find that the issue of additional benefits due to psychological difficulties is res judicata and the claimant is not entitled to any benefits for his psychological problems. [6] The next issue presented is whether the claimant is entitled to various medical expenses. Employers are only liable for medical treatment and services which are reasonably necessary for the treatment of employee’s injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The burden rests upon the claimant to establish that medical expenses were incurred for the treatment that was reasonably necessary for a compensable injury. We specifically find that the claimant has failed to prove by a preponderance of the evidence that any of the medical expenses claimed are for reasonably necessary medical treatment of his compensable injury. [7] For those reason stated above, any medical treatment necessitated by the claimant’s psychiatric or psychological difficulties would not constitute expenses incurred for reasonably necessary medical treatment for the claimant’s compensable injury. The record reveals that a significant portion of the medication expenses are for drugs to treat the claimant’s noncompensable psychological or psychiatric problems. Moreover, many of the medications listed are not medications normally used for the treatment of soft tissue injury such as the injury experienced by the claimant on July 24, 1987. It is difficult to conceive that a prolonged and extensive regime of multiple medications would be reasonably necessary for the treatment of the claimant’s compensable injury. Over five years of medication for a soft tissue back injury which has produced no objective abnormalities is, in our opinion, clearly unreasonable and unnecessary. Furthermore, the testimony from the claimant and his witnesses indicated that he received little or no benefit from this prolonged and extensive treatment. If the treatment was not beneficial over such a long period of time, it clearly was not reasonable. Accordingly, it is our opinion that the claimant has failed to prove by a preponderance of the evidence that the medications and medical expenses sought were not for the treatment of his compensable injury. [8] Claimant’s Exhibit Number Two contains billing statements from numerous medical providers. It is our opinion that the claimant has failed to prove by a preponderance of the evidence that the billing statements contained in Claimant’s Exhibit Number Two are causally related to his compensable injury. Many of the bills and statements give no description of the services provided or the reasons such services were rendered. Moreover, several statements are clearly for services rendered in connection with complaints not associated with the claimant’s compensable injury. Consequently, we find that the claimant has failed to prove by a preponderance of the evidence that the medical benefits sought in claimant’s Exhibit Number Two are for the treatment of his compensable injury. [9] Moreover, the medical expenses associated with diagnosis and treatment of the claimant’s weight loss and liver dysfunction are not compensable. Although Dr. Kerr opined that the claimant’s abnormal results could have been due to the claimant’s medication, the evidence reveals that even though the claimant continued to take the medication his liver functions returned to normal. The evidence further reveals that liver dysfunctions are usually related to the consumption of alcohol and during this time frame the claimant was consuming two to three beers a day. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that the charges related to the claimant’s weight loss and liver dysfunction were incurred for reasonably necessary medical treatment of the compensable injury. [10] Likewise, the charges for an MRI of the claimant’s thoracic spine conducted on December 12, 1989 are not compensable. The claimant has failed to prove by a preponderance of the evidence that he sustained any injury to this portion of his body in the employment related accident on July 24, 1987. Therefore, we find that the expenses associated with this test are not compensable. [11] There is insufficient evidence in the record to prove that the bills and statement from Dr. Ronald Crow, an osteopath, are compensable. Apparently, Dr. Crow recommended a change in the claimant’s medication. However, there is insufficient evidence in the record to explain who Dr. Crow is, how the claimant got to him and what he was supposed to be doing for the claimant. Without further evidence regarding the role Dr. Crow played in the claimant’s treatment, it would be pure speculation and conjecture to find that Dr. Crow treated the claimant for his compensable injury. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. ofCorrection v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991).Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155In summary, while a claimant is entitled to compensation benefits if they suffer from a psychological injury which is caused or aggravated by their employment, this claimant has failed to prove by a preponderance of the evidence that he suffers from a psychological injury which was caused or aggravated by his employment or the compensable injury.
Accordingly, for the foregoing reasons, we find that the claimant failed to prove by a preponderance of the evidence that he suffers from a psychological condition which is causally related to his original compensable injury or to his employment with this respondent.
(1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that the treatment by Dr. Crow is reasonable and necessary. [12] Furthermore, it is our opinion that the statement for charges incurred for x-rays performed at the Baxter County Medical Hospital on December 6, 1990 are not compensable. The billing statements are for x-rays of the claimant’s shoulder and cervical spine. There is simply insufficient evidence in the record to establish that the claimant injured his shoulder and cervical spine in his work-related accident on July 24, 1987. Accordingly, we find that the claimant has failed to prove that these expenses are reasonable and necessary for the treatment of a compensable injury. [13] Claimant has also requested reimbursement for payment of bills from Baxter County Hospital and Mountain Home Radiology for services rendered on October 2, 1991, October 3, 1991, and December 16, 1991. However, the claimant has failed to present any evidence indicating what these services were for. There are no reports or records indicating what studies were performed. It is important to note that prior to this time the claimant has previously undergone numerous x-rays, CT scans, myelograms, and MRI’s all of which were negative. Without any further explanation as to what services were rendered on the above dates, we cannot find that these services are compensable. [14] Contained in these medical bills is a statement from Dr. Kerr’s office visit on July 16, 1993 for which the claimant sought treatment for neck pain and headaches. The greater weight of the credible evidence fails to show that the claimant sustained any injuries to his neck or cervical area or any injuries that would produce headaches in his employment related incident on July 24, 1987. Accordingly, the claimant has failed to prove that these expenses are compensable. Likewise, we find that Dr. Kerr’s statement of September 21, 1994 for the treatment of the claimant’s hip pain is not compensable. The greater weight of the credible evidence fails to establish that the claimant sustained any injuries to his hip in the employment related incident of July 24, 1987. Moreover, there is insufficient evidence to reflect that the claimant sustained any radicular or referred pain in his hip from his compensable injury. Therefore, the claimant has failed to prove by a preponderance of the evidence that this treatment constituted reasonable and necessary medical treatment for the compensable injury and such expenses are not compensable. [15] We further find that the continuing treatment rendered to the claimant by Dr. Kerr is not compensable. In Dr. Kerr’s April 27, 1994 report he stated: “I have seen him monthly since then [October of 1993], mainly treating him with antidepressant medications and anti-inflammatory medications and counseling. The counseling is mainly in trying to encourage Ron to go ahead and be as active as he can and try to do activities through his pain.” The evidence clearly shows that this type of treatment has produced no successful results. Even the claimant testified that it has simply been of no benefit. When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., FC Opinion filed Dec. 13, 1989 (D512553). Although prolonged treatment may be required for certain injuries before success is obtained, there comes a point when continuing treatment without producing any benefit becomes useless. In this case, Dr. Kerr’s prolonged treatment has proven that there is no reasonable expectation of achieving the desired goal. The prolonged treatment, in our opinion, is simply unreasonable and unnecessary for the treatment of the claimant’s compensable injury. If the treatment was going to help, the claimant’s condition would surely have improved. Accordingly, we find that the prolonged treatment by Dr. Kerr is not reasonable and necessary treatment of the claimant’s compensable injury. [16] Next, there is insufficient evidence in the record to prove that the checks made out by the claimant or the claimant’s wife to various physicians, drug stores or other medical institutions are for reasonably necessary medical treatment. There is no corroborating evidence associated with these checks to establish what services were provided, when they were provided, the amount of such services, or the purpose for which the services were provided. Consequently, the claimant has failed to prove by a preponderance of the evidence that these checks were for the treatment of the compensable injury. [17] The final issue presented is whether the claimant is entitled to any permanent disability over and above the physical impairment rating assigned. As noted above, the claimant’s compensable injury occurred on July 24, 1987 when he sustained a soft tissue injury to his lower back. The voluminous record reveals that over an eight year period of time, the claimant’s complaints have grown to not only involve his lower back, but also his mid-back, his cervical back, his shoulders, and the entire left side of his body. In addition, the claimant continues to complain of psychological complaints, and dizziness. The claimant has undergone extensive medical treatment, x-rays, CT scans, MRI’s, EMG-NCV studies and enhanced CAT scans just to name a few tests. The claimant has seen in excess of nine physicians and specialists for his complaints. All objective studies have been interpreted as negative or normal. The only diagnosis remains that of soft tissue or muscular skeletal injury to the lower back. For this condition, the claimant has been assigned a 5% physical impairment rating to the body as a whole. [18] The claimant has undergone at least two physical capacity evaluations. The restrictions set forth in the physical capacity assessments coincided with the restrictions placed upon the claimant by his various treating physicians. The claimant is capable of performing regular gainful employment of a lighter or more sedentary nature. The only physician of the opinion that the claimant is not capable of returning to gainful employment is Dr. Kerr. Dr. Kerr bases his opinion solely upon the fact that the claimant experiences too much chronic pain and discomfort to be employable. [19] In determining wage loss disability, the Commission may take into consideration the workers’ age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers’ future earning power. Such other matters are motivation, post-injury income, credibility, and demeanor. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961);City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946
(1984). Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). The claimant’s lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to our full assessment of wage loss. [20] The claimant’s relatively young age, his work experience, and lack of objective medical findings clearly reveal that the claimant is not permanently and totally disabled. In our opinion, the claimant has experienced some wage loss. However, the claimant’s lack of interest in pursuing employment plays a large role in my assessment. The claimant’s past work experience involved supervisor roles. The claimant is capable of returning to work in numerous positions in the light manufacturing, clerical fields, and delivery areas. However, these potential employments do not routinely pay wages comparable to those the claimant was receiving at the time of his compensable injury. Accordingly, we find that the claimant has established that he received some permanent disability or loss of earning capacity as a result of his compensable injury. After considering all of the evidence presented, and after taking into consideration the claimant’s age, education, work experience, medical evidence and other matters which we routinely consider in determining wage loss, we find that the claimant has sustained a loss in wage earning capacity in the amount of 10% to the body as a whole. [21] Accordingly, based upon my de novo review of the entire record, and for those reasons stated herein, we find that the decision of the Administrative Law Judge should be affirmed. [22] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[23] Commissioner Humphrey dissents.