CLAIM NO. E616344
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 19, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE TERENCE C. JENSEN, Attorney at Law, Benton, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals opinions and orders filed by the Administrative Law Judge on February 22, 2000 and on January 9, 2001. In these opinions and orders, the Administrative Law Judge found that the healing period for the claimant’s admittedly compensable knee injury ended on July 23, 1997. In addition, the Administrative Law Judge found that the respondents are entitled to a credit for temporary disability payments after September 8, 1999. The Administrative Law Judge found that there are no objective medical findings of the claimant’s back condition in the record. The Administrative Law Judge found that, absent objective findings of a back condition, the claimant has failed to prove by a preponderance of the evidence that his subjective complaints of back pain are a compensable consequence of his compensable knee injury.
After conducting a de novo review of the entire record, we find that a preponderance of the evidence establishes that the claimant remained within his healing period for his admittedly compensable knee injury at the time of the hearing held on February 7, 2000. Therefore, we find that the claimant is entitled to additional temporary total disability compensation beginning on September 8, 1999, and continuing to a date yet to be determined. Therefore, we find that the respondents are not entitled to a credit for any disability payments made after July 23, 1997. Consequently, the Administrative Law Judge’s findings in these regards must be reversed. However, we affirm the Administrative Law Judge’s finding that there are no objective medical findings in the record of a back condition. We also affirm the Administrative Law Judge’s finding that the claimant has failed to establish by a preponderance of the evidence that his subjective back complaints are a compensable consequence of his compensable knee injury.
1. Temporary Total Disability/Credit
The claimant sustained an admittedly compensable knee injury on August 22, 1996, when a large piece of limestone fell off of a forklift, striking the claimant’s leg. The claimant ultimately underwent knee surgery in December of 1996, performed by Dr. James Arnold. The claimant’s initial post-operative progress reports looked promising, and the claimant returned to work for the respondents in construction part time beginning in January of 1997.
Unfortunately, the claimant’s knee problems never resolved. The claimant last worked for the respondents in May of 1997. On August 5, 1997, Dr. Arnold determined that the 49 year-old claimant is incapable of working in construction. The respondents paid the claimant temporary total disability compensation for his ongoing knee problems through September 8, 1999. However, the respondents now assert that the respondents should have stopped paying the claimant temporary disability compensation some two years earlier, on July 23, 1997. The claimant asserts in the alternative that he remained within his healing period and incapacitated from earning as of the date of the hearing held on February 7, 2000. After conducting a de novo review of the entire record, we agree with the claimant.
Because the claimant’s admittedly compensable knee injury is to a scheduled portion of the body, the claimant’s claim for temporary benefits is subject to Ark. Code Ann. § 11-9-521(a), which provides that an employee is entilted to temporary benefits during the healing period or until the employee returns to work. See generally WheelerConstruction Co. v. Armstrong, 73 Ark. App. 146, ___ S.W.3d ___ (2001). The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. 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. Id.
The present case involves somewhat confusing and conflicting medical information on this issue. For example, although the respondents paid the claimant temporary benefits until September 8, 1999, Dr. Arnold later wrote a letter to the respondents’ attorney on January 24, 2000, indicating that July 23, 1997 was for the claimant “the peak of his maximum medical improvement” and that the claimant had achieved “maximum healing.” These are certainly key terms the Commission looks for in determining if/when an injured employee’s healing period has ended, and based on these comments, the Administrative Law Judge found that a preponderance of the evidence establishes that the claimant’s healing period ended on July 23, 1997.
The problem with the Administrative Law Judge’s conclusion in the present case, however, is that the claimant’s knee condition neverstabilized before, on, or after July 23, 1997. In fact, Dr. Arnold’s progress reports and his January 24, 2000 letter indicate that the claimant developed an antalgic gait from his knee condition after the July 23, 1997 visit. Moreover, Dr. John Wright opined in April of 1999 that the claimant’s painful left knee is affecting the entire kinetic chain of his lower extremity and placing extra strain on the peroneal muscle group as well as the left arch and the course of the left plantar fascia.” By November 18, 1999, Dr. Frankie Griffin opined that the claimant’s left knee was in sufficiently poor condition to warrant a total knee replacement.
When the claimant returned to Dr. Arnold for an evaluation on January 17, 2000, Dr. Arnold concluded that the claimant’s limp is causing the claimant to wear out the anterior half of his medical tibial plateau “at a remarkably accelerated rate.” While Dr. Arnold’s January 17, 2000 report does not reference knee replacement, his January 17, 2000 evaluation report did propose further diagnostic studies and potential treatment to allow the claimant to walk straighter. Then in his January 24, 2000 letter to the respondents’ attorney, Dr. Arnold explained further that the claimant’s changes are bone-on-bone, and that the claimant will require knee arthroplasty in the future.
In summary, while the claimant’s medical records indicate that the claimant may have reached post-surgical “maximum healing” on July 23, 1997, the claimant’s medical records also indicate that he developed a limp from his knee injury that has caused rapid degeneration in the knee process. One physician has already opined that the claimant is a candidate for knee replacement surgery, and another physician seeks to provide a means to get the claimant to walk straighter to slow the claimant’s knee degeneration and hopefully delay the claimant’s need for knee replacement. Under these circumstances, the claimant’s knee condition obviously never stabilized following surgery and the claimant’s physicians have proposed alternative additional treatments to improve the claimant’s knee condition. Therefore, we find that a preponderance of the credible evidence establishes that the claimant remained within his healing period at the time of the February 7, 2000 hearing. In addition, although the claimant returned to work part time after surgery, Dr. Arnold ultimately reversed course and removed the claimant from work in construction. Consequently, we find that the claimant has established that he was both within his healing period and had not returned to work during the period in question.
Because we find that the respondents were correct in paying the claimant temporary total benefits from July 23, 1997 through September 8, 1999, and in fact should have continued making these payments at least through the date of the hearing, we find that the respondents have failed to prove that the respondents overpaid temporary benefits after July 23, 1997, as they assert.
2. Lumbar MRI
In his January 17, 2000 evaluation report and his January 24, 2000 letter to the respondents’ attorney, Dr. Arnold has theorized that the claimant’s abnormal gait from his knee injury has aggravated the claimant’s back problems. On January 17, 2000, Dr. Arnold has diagnosed the claimant with a probable disk disorder at the L5-S1 level of the lumbar spine, in addition to his moderate degenerative changes in the left knee. Dr. Arnold has proposed a lumbosacral MRI to confirm whether or not the claimant does in fact have a disk disorder. Dr. Arnold has indicated that if the claimant has a disk disorder, then removal of the disk would allow the claimant to walk straighter, making it possible to determine “how much disorder is coming from his knee.” Approximately one year earlier, Dr. Stuart Benson indicated that he had been following the claimant for two to three years for chronic and recurrent low back pain complaints due to lumbosacral dysfunction, osteoarthritis, and degenerative disk disease, and Dr. Benson likewise attributed the claimant’s recurrent back and knee problems to the fact that the claimant has an abnormal gait secondary to his chronic knee pain and arthritis.
Because the claimant’s injury occurred after July 1, 1993, this claim is subject to the amendments of Act 796 of 1993. The Administrative Law Judge, relying on early Full Commission decisions construing Act 796, found that the claimant must establish his alleged back problems by objective findings, in order to establish that the respondents are responsible for the claimant’s alleged back problems as a compensable consequence of his admittedly compensable knee injury. In addition, the Administrative Law Judge found that the claimant failed to present evidence of objective findings with respect to his alleged back problems. Therefore, the Administrative Law Judge found that the claimant has failed to present evidence, an essential requirement to establish a claim for benefits for his back condition.
Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999) provides that “[a] compensable injury must be established by medical evidence supported by “objective findings” as defined in subdivision (16) of this section.” In interpreting this requirement, the Arkansas Courts have explained that the requirement of objective findings relates only to the existence andextent of an injury, and is not mandatory to establish other compensability requirements, such as causation. Stephens Truck Lines v.Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). Likewise, the Courts have held that a claimant is not required to offer objective medical evidence to show that his healing period continues for purposes of seeking temporary disability compensation or for purposes of seeking additional medical treatment. Williams v. Prostaff Temporaries, 336 Ark. 510, 988 S.W.2d 1 (1999); Chamber Door Industries, Inc. v.Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). Unfortunately, one question which the Courts have not specifically addressed is whether consequential injuries must also be established by objective medical findings or whether, as in the present case, the fact that the claimant has objective medical findings in his knee and leg sufficiently satisfies the objective findings requirement of Ark. Code Ann. § 11-9-102(4)(D) (Supp. 199) to hold the respondents liable for subjective complaints in the claimant’s back.
Absent further guidance from the Courts, we interpret Ark. Code Ann. § 11-9-102(4)(D) as requiring objective medical findings to establish the full extent of a compensable injury (including alleged compensable consequences), and not just requiring objective medical findings of the initial or primary injury involved (in this case, the knee). Consequently, as we interpret the current law, the claimant is required to establish the existence of any alleged back injury or aggravation by objective medical findings in order to receive an award of medical benefits for his alleged back condition.
In the present case, the record is undisputedly replete with objective medical findings of knee injury and subsequent degeneration. In addition, the record contains objective medical findings supporting the claimant’s antalgic gait, including but not limited to, the remarkably accelerated wear on the anterior half of his medial tibial plateau. However, the claimant has not presented objective medical findings of a low back injury or aggravation. Consequently, as we interpret the amendments of Act 796 of 1993, the respondents cannot be liable for the lumbosacral MRI proposed by Dr. Arnold.
In reaching that conclusion, however, we note that the Arkansas Courts have on several occasions considered claims for benefits for alleged “compensable consequences” in cases subject to Act 796 of 1993, and in each case, the Court has essentially indicated that:
When the primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for any natural consequence that flows from that injury; the basic test is whether there is a causal connection between the two episodes.
See generally Wackenhut Corp. v. Jones, 73 Ark. App. 158, ____ S.W.3d ___ (2001); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1
(2000); Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645
(1998). Clearly, if the Courts someday clarify that the primary test is actually the complete test, the objective findings requirement of Act 796 notwithstanding, then we have misconstrued the requirements of Act 796 of 1993, and the claimant is not required to establish his back condition by objective medical findings.
As regards the test discussed in Jones, Sword, and Jeter, we find that the claimant has established by a preponderance of the evidence (i.e., the opinions of Dr. Arnold and Dr. Benson discussed above) that the claimant’s current back difficulties at issue are a natural consequence of the claimant’s primary knee injury and associated altered gait. Therefore, but for the absence of objective medical findings establishing the existence and extent of the claimant’s back condition, the claimant is entitled to the lumbosacral MRI at issue.
In reaching these results, we have also considered the claimant’s argument on appeal that the lumbar MRI is reasonably necessary for treatment of the claimant’s knee, since relieving the claimant’s back symptoms can improve his gait and reduce wear on the knee, thereby delaying or preventing the need for knee surgery. The claimant’s argument in essence points out that the claimant’s knee injury has caused a problem in his back, and the back problems now exacerbate the original knee injury, apparently in an ongoing cycle involving his altered gait. However, we fail to grasp how that fact, by itself, would eliminate the requirement that the existence and extent of the claimant’s back condition be established by objective medical findings as a prerequisite to an award of benefits for a compensable consequence. Either the law requires that a compensable consequence be established by objective findings or it doesn’t. Absent any further guidance from the Courts, we find that the claimant must establish the existence of his back condition by objective findings to receive an award of benefits for that condition and has failed to do so in this case.
Therefore, after conducting a de novo review of the entire record, we find that the claimant has established that he is entitled to additional temporary total benefits continuing through the date of the hearing and to a date yet to be determined. We also find that, because the claimant has failed to establish the existence and extent of his back condition by objective findings, he has failed to establish his entitlement to the MRI proposed by Dr. Arnold. Consequently, we find that the decision of the Administrative Law Judge must be 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).
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).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
CONCURRING AND DISSENTING OPINION MIKE WILSON, Commissioner
I respectfully concur in part and dissent in part from the majority opinion. I concur in the majority’s finding that the claimant’s back problems were not a compensable consequence of his knee injury. However, I must dissent from the majority’s finding that the claimant remained within his healing period at least until February 7, 2000, and a finding that the respondents were not entitled to reimbursement for advanced payment of compensation to the claimant. In my opinion, the disability payments made by the respondent from July 24, 1997, through September 8, 1999, constituted advance payment of compensation for which the respondent is entitled to reimbursement pursuant to A.C.A. §11-9-807(a). I also find that this reimbursement should be deducted out of any unpaid installment or installments of disability compensation which becomes due and owing to the claimant as a result of his compensable injury.
Therefore, for all the reasons set forth herein, I respectfully concur in part and dissent in part from the majority opinion.
_______________________________ MIKE WILSON, Commissioner
CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner
I concur in part and respectfully dissent in part from the majority opinion in this case. I agree that claimant has yet to reach the end of his healing period for his compensable knee injury. Thus, respondents are not entitled to a credit. However, I must respectfully dissent from the majority’s holding that objective findings are a condition precedent to proving a compensable consequence.
Here, claimant sustained an accidental knee injury. According to Ark. Code Ann. § 11-9-102(4)(A), “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence . . .
Thus, claimant must satisfy the foregoing elements. Also, § 11-9-102
(4) (D) (Supp. 1999), requires medical evidence supported by objective findings. Act 796 did not address the elements necessary to prove the occurrence of a compensable consequence. Nevertheless, the majority has singled out one element of compensability, objective findings, which must be satisfied. No rationale is offered. Moreover, it is uncertain whether the majority’s scheme encompasses the remaining compensability elements in order to prove the occurrence of a compensable consequence.
We have considered compensable consequence claims since the passage of Act 796. In Maria Rivera v. Shelby Group, Full Commission Opinion filed Jan. 8, 2001 (Claim No. E605465), the Concurring Opinion articulated the test under prior law for compensable consequence claims, pointed out that our prior decisions on this issue were incongruous, and offered support for the proposition that the test was not altered:
Under the case law that existed prior to the amendments of Act 796 of 1993, when the primary injury was shown to have arisen out of and in the course of the employment, the employer was responsible for any natural consequence that flowed from that injury. McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). The basic test was whether there was a causal connection between the two episodes. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). If there was a causal connection between a primary compensable injury and a subsequent disability, there was no independent intervening cause unless the subsequent disability was triggered by activity of the claimant that was “unreasonable under the circumstances”. Guidry v. J. R. Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).
On a number of prior occasions, a majority of the Full Commission has stated (without explanation) that, in order to establish the compensability of an alleged compensable consequence under Act 796 of 1993, all requirements for proving compensability must be met. See, generally, Charles L. Cooper v. City of Fouke, Full Workers’ Compensation Commission, Op. filed Oct. 14, 1999 (W.C.C. No. E807244); Verna L. Freeman v. Pace Industries, Inc., Full Workers’ Compensation Commission, Op. filed June 2, 1998 (W.C.C. No. E508558); John Cotton v. Ball Prier, Full Workers’ Compensation Commission, Op. filed September 23, 1997 (W.C.C. No. E512437); Lori Leigh Dodd v. Service America Corporation, Full Workers’ Compensation Commission, Op. filed August 29, 1995 (W.C.C. No. E313993).
However, the Full Commission’s majority opinions in Cooper, Freeman, Cotton, and Dodd appear to be somewhat at odds with decisions of the Arkansas Court of Appeals and the Arkansas Supreme Court. See, generally, Davis v. Old Dominion Freight Lines, Inc., 341 Ark. 751, ___S.W.3d ___ (2000). In this regard, two of the essential requirements to establish compensability of an injury under Act 796 of 1993 are that (1) the injury must arise out of and in the course of employment and (2) the employee must be performing employment services at the time the injury occurs. See, Ark. Code Ann. § 11-9-102(4)(A) and (B) (1999 Suppl.). In Davis, an injured worker aggravated a work-related ankle injury in a second incident away from work. The Full Commission affirmed and adopted an administrative law judge’s decision essentially finding in Davis that Act 796 rejected the Guidry test, supra, regarding “independent intervening causes”. However, the Court of Appeals and the Supreme Court both determined that Act 796, in fact, codified the Guidry test, rather than rejecting the Guidry test for non-work-related complications . . .
There is no indication that the Legislature intended to alter the test for compensable consequence claims. The Turner and Bond decisions were not annulled. In my opinion, the analysis remains unchanged. I would not interject any new elements, including the objective findings requirement, in order to prove a compensable consequence.
Based on the foregoing, I concur in part and respectfully dissent in part.
__________________________________ SHELBY W. TURNER, Commissioner