CLAIM NOS. E711749 and E905201
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 3, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LAWRENCE FITTING, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of administrative law judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals and the respondents cross-appeal an administrative law judge’s opinion filed December 9, 1999. The administrative law judge found that the claimant failed to prove by a preponderance of the evidence that her depression is a compensable injury, and that the claimant failed to prove that her depression arose out of and in the course of her employment with the respondents. The administrative law judge found that the claimant has failed to prove that her current shoulder problems are causally related to the injury of June 3, 1996, and that the claimant’s claim for compensation related to the June 3, 1996 injury is barred by the statute of limitations. The administrative law judge found that the claimant has failed to prove that she suffered a compensable injury in the form of an aggravation, recurrence, or new injury to her shoulder as a result of the (elbow) injury which occurred on July 28, 1997. The administrative law judge found that the claimant has proven that her current shoulder problems are a compensable consequence of the surgical treatment she received for her elbow injury. He found that the respondents are liable for payment of medical treatment relating to the claimant’s current shoulder condition. The administrative law judge found that the claimant is entitled to additional medical treatment as a result of the compensable injury to her right elbow, and that “This medical treatment is to be provided by Dr. Frazier who is hereby recognized as claimant’s authorized treating physician.” The administrative law judge found that the respondents are entitled to a credit for overpayment of temporary total disability compensation in the amount of $950.00 for the period August 19, 1998 through October 27, 1998. He found that the claimant is entitled to additional temporary total disability beginning June 30, 1999 and continuing through August 30, 1999.
The Full Workers’ Compensation Commission has reviewed the entire record de novo. The Full Commission affirms the administrative law judge’s finding that the claimant has failed to prove that her depression is a compensable injury which arose out of and in the course of her employment with the respondents. The Full Commission affirms the administrative law judge’s finding that the claimant failed to prove that her current shoulder problems are causally related to the injury of June 3, 1996. We affirm the administrative law judge’s finding that the claimant failed to prove that she suffered a compensable injury in the form of an aggravation, recurrence, or new injury to her shoulder as a result of the injury which occurred on July 28, 1997. The Full Commission reverses the administrative law judge’s finding that the claimant proved that her current shoulder problems are a compensable consequence of the surgical treatment she received for her elbow injury. We affirm the administrative law judge’s finding that the claimant is entitled to additional medical treatment as a result of the compensable injury to her right elbow; we find that the claimant is entitled to reasonable, necessary, and related medical treatment for her compensable elbow injury from Dr. Frazier. Finally, the Full Commission affirms the administrative law judge’s finding that the respondents are entitled to a credit for overpayment of temporary disability compensation from August 19, 1998 through October 27, 1998. We reverse the administrative law judge’s finding that the claimant is entitled to additional temporary total disability beginning June 30, 1999 and continuing through August 30, 1999. The Full Commission thus affirms in part and reverses in part the opinion of the administrative law judge.
I. HISTORY
Sharrion Barnes, age 48, was assessed with depression related to personal problems in 1989. Her doctor prescribed Prozac and continued to treat her for anxiety, depression, and other problems through 1991. Ms. Barnes became employed with Alma School District in 1992. She eventually contracted for two separate jobs with the respondent-employer, bus driver and custodian.
A. The June 3, 1996 Compensable Shoulder Injury
The parties stipulated that Ms. Barnes sustained a compensable injury to her right shoulder on June 3, 1996. The claimant said that she slipped while scrubbing the top of a bus and broke her fall by grabbing an emergency hatch with her right arm. The sole treatment of record for this injury occurred on June 6, 1996, when Dr. Robert Bishop reported that an x-ray of the right shoulder showed no fracture or subluxation. He diagnosed acute right shoulder strain, and prescribed medication, heat, and range of motion exercises. The claimant testified regarding her treatment with Dr. Bishop:
Q. Okay, and did you have any follow-up visits with him?
A. I was supposed to but it didn’t bother me, so I didn’t go back.
Q. Okay, did you have to have treatment for your shoulder or for anything associated with that injury of June 3, 1996 after that until your injury the following summer?
A. No.
Ms. Barnes was hospitalized with acute non-cardiac chest pain in December, 1996. Dr. Bishop’s assessment at that time included episodic anxiety, and he prescribed Xanax.
B. The July 28, 1997 Compensable Right Elbow Injury
The parties stipulated that Ms. Barnes sustained a compensable injury to her right elbow on July 28, 1997. Dr. Bishop reported on a Form AR-3 that the claimant said she was moving a toilet bowl with her arms and felt immediate pain in her lateral right elbow. Dr. Bishop diagnosed “acute extension tendon sprain right forearm”, and he treated the claimant conservatively. Ms. Barnes testified that she worked light duty through the rest of the summer. Dr. Bishop referred the claimant to an orthopaedic surgeon, Dr. Greg T. Jones, in September, 1997.
Dr. Jones saw the claimant in September, 1997, at which time no osseous abnormality was seen on an x-ray. Dr. Jones diagnosed “traumatic extensor tendon injury, right lateral epicondyle.” Dr. Jones treated the claimant conservatively and indicated that he did not favor surgery. Brenda Sellers, an employee of Management Claims Service, testified as custodian of the claimant’s worker’s compensation records. Ms. Sellers stated that the respondents began paying temporary total disability compensation on September 20, 1997.
The claimant said was not happy with Dr. Jones. “He liked to get in your face and screech at you,” she testified. A representative of the carrier indicated to Ms. Barnes that she could change physicians, and recommended Dr. Claude L. Martimbeau. The claimant agreed. Dr. Martimbeau, another orthopaedic surgeon, saw the claimant beginning in January, 1998. Dr. Martimbeau reported that x-ray of the right elbow remained normal, and he diagnosed “status-post epicondylitis, right elbow.” The claimant testified that she experienced no immediate problems with her right shoulder after the July 28, 1997 injury.
Dr. Martimbeau operated on Ms. Barnes in March, 1998, performing a tendon release, right elbow. Dr. Martimbeau kept the claimant off work. Ms. Barnes testified that she began having right shoulder symptoms approximately four to five weeks after surgery on her elbow. She reported in June, 1998 that she had increased her amount of exercise and started having more severe pain over the arm and shoulder. Dr. Martimbeau diagnosed “status-post myositis and tendinitis of the right arm and elbow.” Dr. Martimbeau wrote on July 8, 1998 that the claimant “has reached the maximum of medical improvement. She will be returned to work with some restrictions of no lifting and carrying more than 15 pounds. Her permanent impairment is rated at 4% of the upper extremity following the Guides to the Evaluation of Permanent Impairment. So, there is recommendation not to be driving a school bus.”
The record includes a School Employee’s Contract, dated July 8, 1998. The contract indicated that Alma School District #30 and Sharrion Barnes agreed that Ms. Barnes would perform janitorial services from July 1, 1998 through June 30, 1999. Annual compensation under the contract would be $13,965.58 to be paid in 12 installments at the rate of $1,163.80 per month beginning in July, 1998. The respondents paid temporary total disability through July 12, 1998. In addition, the respondents paid permanent partial disability in an amount equal to 4% to the body as a whole (a lump-sum payment effective July 13, 1998 through September 9, 1998).
Ms. Barnes signed the contractual agreement on July 20, 1998. On the same date, the claimant signed a Bus Driver Contract for Alma School District. The time period covered was “178 days of school, from August 18, 1998 to May 31, 1999.” Annual compensation under the contract was to be $7,621.94 to be paid monthly at the rate of $42.82 per day. Ms. Sellers testified that the respondents paid some temporary partial disability compensation in the amount of $950 after the claimant returned to work in July, 1998. Claimant’s Exhibit 5, however, indicates that the respondents began paying temporary partial disability compensation for a period beginning August 19, 1998. Dr. Martimbeau stated on August 24, 1998 that Ms. Barnes “has been working with some restriction, but at times it hurts. . . . The patient is unable to drive a school bus but she is at work with the same restrictions.” In October, 1998, Dr. Martimbeau again opined that the claimant had reached maximum medical improvement. She was to remain with the same restrictions, which were permanent.
The respondents ceased paying temporary partial disability compensation after October 27, 1998. Claimant’s Exhibit 5
indicates that the amount of temporary partial disability paid was $950.00, the amount testified to by Ms. Sellers. The record includes unsigned correspondence written on Alma School District letterhead, dated October 30, 1998:
On Thursday, October 29, I met with Sharrion Barnes concerning her doctor’s restrictions for employment. The restrictions stated she have light duty, no lifting or carrying more than fifteen pounds. These restrictions are for a permanent basis.
After reviewing the restrictions and discussing the implications for her job, it was decided she would continue in her current job description. This involves sweeping the school hallways, vacuuming, dusting, changing paper towels, cleaning restrooms, etc. This job description will be followed for a reasonable amount of time and a re-evaluation will be done at a later date. Dr. Bishop reported that he saw the claimant in November, 1998, when she presented for worsening anxiety and depression. “I started crying and couldn’t quit,” Ms. Barnes testified. “Couldn’t pay my bills. They was hounding me about my house. I lost my house.” Dr. Bishop reported multiple psychosocial stressors, which included chronic pain, financial hardships, not coping with her disability, and inability to work. Dr. Bishop wrote that the claimant had “recently failed the trial of part-time work.” Dr. Bishop assessed chronic generalized anxiety disorder and situational depression. He started the claimant on Paxil.
On December 16, 1998, Dr. Martimbeau diagnosed tendinitis of the claimant’s left elbow and left wrist. The claimant testified that “My left arm at the elbow and the wrist was swelling because it was over extension from taking up the slack for my right arm.” Dr. Martimbeau took Ms. Barnes off work, to return in three weeks. “At that time,” he wrote, “she should go back to work mostly as a bus driver on local routes instead of doing janitorial work.” The respondents reinstated temporary total disability compensation effective December 16, 1998, but in a lesser amount than previously.
Dr. Martimbeau reported on January 6, 1999, “The patient actually remains with permanent restriction, more or less sedentary work where she should sit down as much as possible, no lifting, no carrying, no push, pulling. The patient should apply for Social Security and she has reached maximum medical improvement. No other specific choice of treatment is available now and she is discharged.” The respondents once again ceased paying temporary total disability after January 6, 1999. The assistant superintendent of Alma School District wrote the following on January 12, 1999:
Sharrion Barnes . . . has been an employee with the Alma Schools for several years. She has been a bus driver and worked in the janitorial department where on July 28 of 1997 she received an injury. Since this injury we have worked with Ms. Barnes on providing her with a job complying to her restrictions with full consideration of her injured arm.
On January 12, 1999 we received a copy of a letter from Dr. Martimbeau, stating, Ms. Barnes’ permanent job restrictions. In compliance with these restrictions, Alma Schools is unable to offer her a job which would meet those restrictions.
The claimant testified that the assistant superintendent wrote this letter in order to assist her in obtaining social security disability and teacher retirement disability. Dr. G. Thomas Frazier, a hand surgeon, evaluated Ms. Barnes for the carrier on March 29, 1999. The claimant complained at that time of pain in both elbows, bilateral hand numbness, and pain and stiffness in her right shoulder. Dr. Frazier wrote:
It is my assessment that Ms. Barnes continues to have a complex set of problems in regards to her right upper extremity. She has a significant right elbow flexion contracture of 40x which cannot be passively correctable. She has a probable underlying radial tunnel syndrome which was addressed at Dr. Jones’s initial evaluation, but for which she has not had direct treatment. She has subsequently developed a moderately severe adhesive capsulitis of the right shoulder.
***
It is my recommendation today that Ms. Barnes undergo a course of outpatient therapy in regards to her right shoulder to help improve her shoulder motion and I have recommended an adhesive capsulitis protocol for her. She may wish to consider surgical treatment of the right elbow flexion contracture to help improve elbow extension, as well as proceed with radial tunnel decompression for her right forearm symptoms.
***
If Ms. Barnes’s right shoulder symptoms do not improve, then I would recommend an arthroscopic lysis of adhesion of the right shoulder with manipulation to help improve her shoulder motion. This possibly could be done at the same time that the right elbow flexion contracture is released if she wishes to pursue this.
It is my opinion also that Ms. Barnes has not reached maximum medical improvement in regards to her right upper extremity problems and that she requires additional treatment. This treatment regimen may entail the surgical options outlined, as well as outpatient therapy, on a carefully monitored basis. I would continue to recommend moderate limitations of activity in regards to her right upper extremity and lifting restrictions which did not require her to lift more than 5 to 10 pounds and would avoid repetitive grasping, pinching, and lifting activities.
The claimant returned to Dr. Martimbeau on June 9, 1999, stating that she now had shoulder pain, mostly on the right side, with occasional stiffness and popping. Dr. Martimbeau prescribed physical therapy to try to increase range of motion of the claimant’s right elbow.
Ms. Barnes filed a claim for additional worker’s compensation. The claimant contended that her current right shoulder problems are related to either (1) the injury of June 3, 1996; (2) the injury of July 28, 1997; or (3) are a compensable consequence of treatment to her right elbow. The claimant sought additional medical treatment and a change of physician to Dr. Frazier. She claimed entitlement to additional temporary total disability compensation beginning January 6, 1999 and continuing through a date yet to be determined. The claimant also contended that her depression is “a compensable incident” of her compensable injuries.
The respondents contended that the statute of limitations bars the claim for additional benefits for the June 3, 1996 right shoulder injury. The respondents contended that the claimant’s depression was not compensable, but that if found compensable, they claimed an offset for any payments made by group health insurance. The respondents contended that the claimant is not entitled to a change of physicians. The respondents asserted that if the claimant requires additional treatment for the right elbow injury, then they would agree to the claimant obtaining that treatment from either Dr. Martimbeau or Dr. Jones. The respondents contended that they are entitled to credit against any future benefits in the amount of $950.00 due to the overpayment of temporary total disability compensation.
On June 30, 1999, meanwhile, Dr. Martimbeau diagnosed “status-post stiffness of the right elbow”, and “status-post impingement syndrome right shoulder.” X-ray of the shoulder and elbow was negative for any abnormality. Dr. Martimbeau treated the claimant conservatively and took her off work.
The claimant testified that she was angry with her employer, because her elbow injury was “not necessary.” “They ended up throwing the commodes and stuff in the dumpsters that they had me cleaning.” Upon Dr. Bishop’s recommendation, Ms. Barnes testified, she began counseling with Susan Smith, Western Arkansas Counseling and Guidance Center, on July 12, 1999. Ms. Smith wrote that “At the end of the session client was confronted on her somewhat martyr stance of only trying to get what her salary (sic) instead of trying to seek damages for pain and suffering. Client was challenged to consider whether this amount of money would be sufficient enough to pay for the pain and suffering that she endures on a daily basis or should she seek more compensation.”
Ms. Smith referred the claimant for a psychiatric evaluation by Dr. Norman Pointer, who wrote on July 14, 1999:
Essentially, she is a woman who for a couple of years has suffered with problems from an arm injury, and is very dissatisfied with the way she has been treated by her ex-employer. She continues to have problems with her arm. She also, most recently, has had symptoms of depression, and this has been characterized by irritability, rage attacks, tearfulness, depressed mood, insomnia, and hyperphagia.
She has been treated for six weeks by Dr. Bishop with Wellbrutin 150 mg 1 bid, and some Ambien for sleep difficulties. She feels as if the Wellbrutin has provided her with some benefit, although she still has marked symptoms of her depression.
***
DIAGNOSIS:
Axis I: Major Depression
Axis II: No Diagnosis
Axis III: Arm Injury
Axis IV: Employment and financial difficulties
Axis V: Current GAF: 58
Dr. Pointer’s “plan” was to increase Ms. Barnes’ medication. If the claimant was not feeling significantly better after one month, “we can say that we’ve given the Wellbutrin a good try and switch to another medication.” Dr. Martimbeau wrote on July 27, 1999 that “she will need a debridement of the posterior aspect of the elbow.” The claimant indicated that she feared elbow surgery from Dr. Martimbeau or shoulder surgery by Dr. Frazier. “I’ve lost so much from having the one surgery,” she said.
Dr. Pointer told the claimant’s attorney on August 12, 1999 that “I believe that Sharrion’s depression is directly related to, and caused by, the injuries that she suffered at work.”
Dr. David Collins, an orthopaedic specialist, independently examined Ms. Barnes for the respondents on August 23, 1999. Dr. Collins wrote:
IMPRESSION:
1) No evidence of a work-related problem related to the shoulder
2) Status post tendon releasing procedure with apparent loss of elbow extension, painful
3) Emotional lability The patient provides a good history of an acute tendinous injury event. She reports no problems with her shoulder at that time. The event would be less compatible with radial tunnel syndrome.
Her complaints have now become multifocal with multiple areas of tenderness, making a precise diagnosis extremely difficult. One has to assume, based upon the historical account and Dr. Jones’ evaluation, that the patient did have apparent isolated lateral epicondyle tendinous disorder.
Her response to surgical treatment for this condition has not been satisfactory on the basis of pain, and has been complicated with apparent loss of elbow range of motion.
At this point, it may be very difficult to elucidate the “cause”. Carefully placed local anesthetic injections may help. Specifically, this would include an intra-articular injection and injection into the radial tunnel, and possibly injection into the region of the lateral epicondyle. Examination under anesthesia would allow the determination of that portion of elbow extension which is a true loss from contracture versus functional loss. Unfortunately, Ms. Barnes may have an articular complication as a result of an extra-articular procedure. It becomes worrisome to think of the possibility of further motion loss as the result of another extra-articular procedure (radial tunnel release) and possibly an intra-articular procedure (capsular release with adhesiolysis). I believe that a satisfactory outcome for this patient would be very difficult to achieve, regardless of the diagnostic or therapeutic method. Pain management and emotional support may play an important role in her recovery.
The claimant testified that she had declined to undergo surgery after seeing Dr. Collins. Following this independent consultation, Dr. Martimbeau wrote:
The patient is status post right elbow pain. The patent was seen in the meantime by Dr. Collins, orthopedic surgeon in Little Rock, for an independent medical examination. I agree with his conclusion. She has a difficult condition related to an injury to her right elbow and at this point, I do recommend an examination under anesthesia to see if there is definitely a block of her extension that can be helped by debridement of the posterior olecranon fossa and in such case, the procedure will be performed. I explained the procedure to the patient and condition of her elbow. She seems to understand exactly what is going to be the procedure, the purpose of doing it and at that point, she will be scheduled for surgery.
(The “olecranon fossa” is part of the elbow joint).
In September, 1999, Dr. Martimbeau indicated that the claimant agreed to the recommended surgery. Dr. Martimbeau reiterated his intention to “proceed with debridement of the posterior aspect of the elbow and the olecranon fossa.” A subsequent note from Dr. Martimbeau’s office indicates that Brenda Sellers for the respondents had approved the operative treatment. Dr. Martimbeau scheduled “manipulation right elbow possible debridement posterior aspect right elbow” for October 21, 1999. This recommended procedure by the treating physician was evidently not carried out. The claimant apparently did not make herself available for surgery, testifying that she “no longer trusted” Dr. Martimbeau.
After a hearing before the Commission, the administrative law judge filed an opinion on December 9, 1999. The administrative law judge found that the claimant’s current shoulder problems are causally related to her compensable elbow injury as a compensable consequence of treatment received for the elbow injury. He found that the claimant is entitled to medical treatment for her shoulder condition and compensable elbow injury. The administrative law judge awarded the claimant a change of physician to Dr. Frazier. The administrative law judge further found that the claimant was entitled to additional temporary total disability compensation beginning June 30, 1999 and continuing through August 30, 1999.
The administrative law judge found that the claimant failed to prove that her depression is causally related to the compensable injuries she suffered while employed by the respondents. He found that the respondents are entitled to a credit of $950.00 “for overpayment of temporary total disability benefits for the period August 19, 1998, through October 27, 1998.” Both parties appeal to the Full Commission.
II. ADJUDICATION
A. Compensability of Depression
The administrative law judge found that the claimant failed to prove that her mental injury or illness arose out of and in the course of her employment. After de novo review of the entire record, the Full Commission affirms this finding. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-113 (Supp. 1999), provides:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
In the present matter, the administrative law judge recognized that the claimant was first assessed with depression in 1989, several years before her compensable injuries. She was prescribed Prozac and treated for anxiety and depression through 1991. Ms. Barnes sustained a compensable shoulder sprain in 1996 and a compensable elbow injury in 1997. The latter led to surgery at her right elbow. She reported in 1998 that she was anxious and depressed because she could not pay her bills and was about to lose her house. Dr. Bishop reported “multiple psychosocial stressors, including chronic pain, financial hardships, and not coping with her disability and inability to work.”
The employee filed a claim for additional worker’s compensation in June, 1999, contending that her depression was “a compensable incident” of her compensable injuries. The claimant subsequently presented to a counselor in July, 1999, Susan Smith, who reported that the claimant’s depression began after the 1997 injury. “Certainly, given claimant’s prior treatment for depression,” found the administrative law judge, “this history is incorrect.”
Dr. Pointer, a psychiatrist, saw the claimant on one occasion in July, 1999 and diagnosed “Axis I: Major Depression.” Dr. Pointer later told the claimant’s attorney that “I believe that Sharrion’s depression is directly related to, and caused by, the injuries that she suffered at work.” Nevertheless, the administrative law judge found that “the opinion of Dr. Pointer is entitled to no weight given the fact that there is no evidence that Dr. Pointer or Susan Smith were aware of the claimant’s prior history of depression.” The administrative law judge therefore found that the claimant failed to prove that her depression is causally related to the compensable injury she suffered while employed by the respondents.
The Full Commission affirms the administrative law judge’s finding that the claimant failed to prove a compensable mental injury. The preponderance of evidence indicates that the claimant’s depression preexisted her compensable injuries and was not caused by physical injury to her body.
B. Compensability of Shoulder
The claimant sustained a compensable injury to her right shoulder on June 3, 1996. The administrative law judge found that the claimant failed to prove that her current right shoulder problems are causally related to this injury. The administrative law judge also found that even if her right shoulder problems were causally related, the claim for additional compensation is barred by the statute of limitations found at Ark. Code Ann. § 11-9-702(b)(1). The Full Commission affirms the administrative law judge’s finding that the claimant failed to prove that her current right shoulder problems are causally related to the June 3, 1996 compensable injury. There is no medical evidence of record showing that the claimant’s shoulder problems beginning in 1998 are causally related to the strain she sustained in 1996. The claimant was treated on one occasion for this injury on June 6, 1996. With regard to the compensable elbow injury which occurred July 28, 1997, the administrative law judge found that the claimant failed to causally connect her current shoulder problems to that injury. The evidence shows no shoulder problems until April, 1998, some nine months after the elbow injury. Therefore, the administrative law judge found, the claimant failed to prove that she suffered a new injury, aggravation, or recurrence to her shoulder on July 28, 1997. We affirm this finding. The Full Commission affirms the administrative law judge’s findings that the claimant failed to prove that her current right shoulder complaints are causally related to the 1996 shoulder injury, nor are they related to the 1997 elbow injury. This finding therefore renders moot the question of whether the statute of limitations bars the claim for additional compensation filed May 13, 1999.
The administrative law judge found that the claimant has proven by a preponderance of the evidence that her current shoulder problems are a compensable consequence of the surgical treatment she received on her right elbow. The Full Commission reverses this finding. The claimant’s elbow injury occurred in July, 1997. Dr. Martimbeau surgically released a tendon in March, 1998, and the claimant began reporting shoulder pain in April, 1998. There is no opinion from Dr. Martimbeau nor any other credible evidence of record causally connecting these two events. Further, the respondents argue that the claimant’s right shoulder condition is not established by objective medical findings. They assert that this condition does not meet the Act 796 definition of a compensable injury. We agree with the respondents. There must be objective findings to support a finding of a compensable consequence. Cooper v. City of Fouke, Full Workers’ Compensation Commission, Oct. 14, 1999 (E807244). Our de novo review of the entire record simply yields no objective findings of a compensable shoulder injury related to the elbow surgery. We specifically note that x-ray was negative for any abnormality of the shoulder and elbow.
The Full Commission further finds that the clear weight of evidence shows that the claimant’s current shoulder problems do not relate to her elbow surgery. Dr. Collins’ independent orthopaedic impression was “No evidence of a work-related problem related to the shoulder.” Nor are there objective findings establishing the claimant’s shoulder difficulties as a compensable consequence of her elbow injury (or past shoulder injury).
C. Additional Medical Treatment for Right Elbow
The administrative law judge found that the claimant proved that she was entitled to additional medical treatment as a result of the compensable injury to her right elbow. The Full Commission affirms this finding. The claimant sustained a compensable injury to her right elbow in 1997, leading to surgery by Dr. Martimbeau in March, 1998. Although Dr. Martimbeau pronounced maximum medical improvement on three subsequent occasions, he prescribed physical therapy for the claimant’s elbow in June, 1999. Dr. Frazier recommended that the claimant consider additional surgery to her elbow, as did Dr. Martimbeau in July, 1999, which the claimant refused. Dr. Collins recommended additional treatment for her elbow, although he also opined that a satisfactory outcome will be difficult to achieve.
D. Change of Physicians
On this issue, neither the parties nor the administrative law judge discussed the relevant change of physician rules, as detailed in Savage v. City of Little Rock, Full Workers’ Compensation Commission, opinion filed Oct. 7, 1999 (E708648). We noted in Savage that Ark. Code Ann. § 11-9-514(a)(1) and (2) became null and void after an Arkansas managed-care system was established in September, 1995. If there is no evidence indicating that the respondents have contracted with a certified managed-care entity, then an injured employee can seek reasonable and necessary medical treatment from any physician she chooses.See, Byars v. Byars Construction, Full Workers’ Compensation Commission, opinion filed Nov. 9, 1999 (E605910).
In the present matter, the claimant sought additional medical treatment and a change of physician to Dr. Thomas Frazier. The administrative law judge found that the claimant is entitled to a change of physician to Dr. Frazier for treatment of her right shoulder and right elbow. The administrative law judge found that the claimant has shown a compelling reason to change physicians to Dr. Frazier, who should be recognized as the claimant’s authorized treating physician.
The Full Commission has found supra that the claimant is entitled to additional medical treatment for her elbow but not for her shoulder. Therefore, we find that the claimant is entitled to additional medical treatment for her elbow (not her shoulder) from Dr. Frazier in Little Rock if she so chooses.
E. Temporary Disability
Ms. Barnes sustained a scheduled injury on July 28, 1997, bringing her case within the guidelines of Act 796 of 1993. Therefore, the claimant is entitled to temporary total disability compensation while she is within her healing period and has not returned to work. See, Ark. Code Ann. § 11-9-521(a) (Supp. 1999);Armstrong v. Wheeler Construction Company, Full Workers’ Compensation Commission, May 26, 2000 (E615744). 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(12) (Supp. 1999). The healing period continues until the employee is as far restored as the permanent character of her 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. The claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Brock v. Elk’s Lodge #1714, Full Workers’ Compensation Commission, opinion filed May 13, 1997 (E407346). Persistent pain, in itself, does not suffice to extend the healing period. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present matter, Ms. Barnes sustained a compensable scheduled injury to her right elbow on July 28, 1997. The respondents began paying temporary total disability compensation on September 20, 1997. Dr. Martimbeau operated on Ms. Barnes in March, 1998, performing a tendon release, right elbow. Dr. Martimbeau wrote on July 8, 1998 that the claimant “has reached the maximum of medical improvement.” Dr. Martimbeau returned Ms. Barnes to restricted work duties and assigned a permanent anatomical impairment rating. The respondents therefore paid temporary total disability through July 12, 1998. Although the claimant subsequently returned to work, the respondents paid temporary partial disability compensation from August 19, 1998 through October 27, 1998. The amount of temporary partial disability paid was $950.00.
The claimant contends that she is entitled to temporary total disability compensation beginning January 6, 1999 and continuing through a date to be determined. The respondents contend that they are entitled to a credit of $950.00 against any future benefits, due to overpayment of temporary disability. After de novo review of the entire record, the Full Commission finds that the claimant is not entitled to additional temporary disability, because she reached the end of her healing period on July 8, 1998. Dr. Martimbeau reported on January 6, 1999, “The patient actually remains with permanent restrictions, more or less sedentary work where she should sit down as much as possible, no lifting, no carrying, no push, pulling. The patient should apply for Social Security and she has reached maximum medical improvement.”
The claimant asserts that Dr. Martimbeau prematurely released her on July 8, 1998, October 28, 1998, and January 6, 1999. The claimant asserts that her treatment and healing had not been completed, and that she continued to be temporarily totally disabled from and after January 6, 1999. Dr. Martimbeau has been the claimant’s primary treating physician. He again pronounced maximum medical improvement on January 6, 1999 and discharged the claimant from his care. Temporary disability cannot be awarded after the healing period has ended. Trader v. Single SourceTransportation, Full Workers’ Compensation Commission, opinion filed Feb. 12, 1999 (E507484). We find from a preponderance of the evidence that the claimant’s healing period has ended. Therefore, she is not entitled to additional temporary disability compensation.
We recognize that in March, 1999, Dr. Frazier opined that “Ms. Barnes has not reached maximum medical improvement in regards to her right upper extremity problems and that she requires additional treatment.” Dr. Martimbeau stated in July, 1999 that the claimant needed additional elbow surgery. Even Dr. Collins thought that additional surgical procedures may be needed. Ms. Barnes has to date declined further surgical treatment from any physician. The Full Commission finds that should the claimant submit to additional reasonably necessary medical treatment, including surgery, for her elbow, she may reenter a healing period and be entitled to additional temporary total disability compensation.
III. CONCLUSION
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission affirms the administrative law judge’s finding that the claimant has failed to prove by a preponderance of the evidence that her depression is a compensable injury which arose out of and in the course of her employment with the respondents. We affirm the finding that the claimant has failed to prove by a preponderance of the evidence that her current shoulder problems are causally related to the injury of June 3, 1996, and that the claimant failed to prove that she sustained an aggravation, recurrence, or new injury to her shoulder as a result of the injury which occurred on July 28, 1997.
The Full Commission reverses the administrative law judge’s finding that the claimant’s shoulder problems are a compensable consequence of surgery to her elbow, because there are no objective findings establishing a compensable shoulder injury as a consequence of elbow surgery. However, we find that the claimant has proven by a preponderance of the evidence that she is entitled to additional medical treatment as a result of the compensable injury to her right elbow. The claimant can seek reasonable and necessary medical treatment for her elbow from Dr. Frazier if she chooses. Finally, the Full Commission affirms the finding that the respondents are entitled to a credit for overpayment of temporary disability from the period August 19, 1998 through October 27, 1998, because the claimant reached the end of her healing period on July 28, 1998. At this time, the claimant is not entitled to additional temporary total disability compensation. The Full Commission therefore affirms in part and reverses in part the decision of the administrative law judge.
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.
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ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I concur with the award of continuing benefits, specifically additional medical treatment for claimant’s right elbow and the appointment of Dr. Frazier to provide this treatment. However, I must respectfully dissent from the findings in the principal opinion that claimant is not entitled to benefits for her current shoulder and psychological problems; that respondents are entitled to a credit for an overpayment of temporary disability benefits from August 19 through October 27, 1998; and that claimant is not entitled to additional benefits for temporary total disability from January 6, 1999 to an uncertain future date.
______________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson concurs and dissents.
CONCURRING AND DISSENTING OPINION
I concur with the majority opinion affirming in part and reversing in part the decision of the Administrative Law Judge, except that I must respectfully dissent from the majority opinion that claimant is entitled to additional medical treatment as a result of the compensable injury to her right elbow, and that claimant is entitled to reasonable necessary and related medical treatment for her compensable elbow injury from Dr. Frazier.
_______________________________ MIKE WILSON, Commissioner