CLAIM NOS. E711749 and E905201
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 18, 2002
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 E. DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal to the Full Commission an administrative law judge’s opinion filed January 8, 2002. The administrative law judge found that the claimant was entitled to temporary total disability compensation beginning March 29, 1999 and continuing through a date yet to be determined. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY A. Background
The parties stipulated that Sharrion Barnes, age 50, sustained a compensable injury to her right elbow on July 28, 1997. Dr. Robert Bishop diagnosed “acute extension tendon sprain right forearm” and treated the claimant conservatively. The claimant was referred to Dr. Greg T. Jones, who diagnosed “traumatic extensor tendon injury, right lateral epicondyle” in September 1997. The respondents began paying temporary total disability compensation on September 20, 1997.
Dr. Claude L. Martimbeau began treating the claimant in January 1998 and diagnosed “status-post epicondylitis, right elbow.” Dr. Martimbeau performed a tendon release, right elbow in March 1998. Dr. Martimbeau pronounced maximum medical improvement in July 1998 and October 1998.
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 ceased paying temporary total disability compensation after January 6, 1999.
Dr. G. Thomas Frazier, a hand surgeon, evaluated Ms. Barnes for the respondent-carrier on March 29, 1999:
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.
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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.
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If Ms. Barnes’ 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.
On June 9, 1999, Dr. Martimbeau prescribed physical therapy to try to increase range of motion of the claimant’s right elbow.
Ms. Barnes claimed entitlement to additional worker’s compensation. The claimant contended, among other things, that she was entitled to additional medical treatment and a change of physician to Dr. Frazier. The claimant contended that she was entitled to additional temporary total disability compensation beginning January 6, 1999 and continuing through a date to be determined. The respondents contended that the claimant was not entitled to a change of physicians. The respondents asserted that if the claimant required additional treatment for her right elbow injury, then they would agree to the claimant obtaining such treatment from either Dr. Martimbeau or Dr. Jones.
On June 30, 1999, meanwhile, Dr. Martimbeau diagnosed “status-post stiffness of the right elbow.” Dr. Martimbeau continued conservative treatment and took the claimant off work, and 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 testified.
Dr. David Collins, an orthopaedic specialist, examined the claimant on August 23, 1999, and his impression was “Status post tendon releasing procedure with apparent loss of elbow extension, painful.” Dr. Collins wrote:
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 on 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 Dr. Collins’ consultation, Dr. Martimbeau wrote:
The patient is status post right elbow pain.
The patient 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.
Dr. Martimbeau indicated in September 1999 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.” After the respondents 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 did not make herself available for surgery, and testified that she “no longer trusted” Dr. Martimbeau.
After a hearing before the Commission, the administrative law judge found, among other things, that the claimant proved that she 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 was entitled to additional medical treatment for her compensable elbow injury, and he awarded the claimant a change of physician to Dr. Frazier.
The Full Commission reviewed the entire record de novo and filed an opinion on July 3, 2000. The Full Commission affirmed the administrative law judge’s finding that the claimant proved entitlement to additional medical treatment for her right elbow. We found that the claimant was entitled to additional medical treatment for her elbow from Dr. Frazier. The Full Commission found that the claimant had reached the end of her healing period on January 6, 1999, so that the claimant was not entitled to additional temporary total 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.
The claimant appealed to the Arkansas Court of Appeals, which reversed the Full Commission’s finding that the claimant was not entitled to additional temporary total disability compensation after January 6, 1999. Barnes v. Alma School District, CA 00-1182, slip op. (Ark.App. Sept. 19, 2001). The Court held:
We remand to the Commission and direct it to render findings on the beginning date of appellant’s post-January 6, 1999, healing period as relates to her right elbow; whether she was employed thereafter; and the applicability of
Ark. Code Ann. § 11-9-512, which permits the
Commission to take into account the unreasonable refusal of a claimant to undergo surgery, in the treatment of a compensable injury. Appellant’s entitlement to temporary disability benefits, or a lack thereof, is dependent upon these facts that must be determined upon remand.
The Full Commission subsequently remanded to the administrative law judge for additional findings consistent with the mandate from the Court of Appeals.
B. Remand to the administrative law judge
The administrative law judge filed another opinion on January 8, 2002. The administrative law judge found that the claimant re-entered her healing period as of March 29, 1999, and that she had not returned to work subsequent to March 29, 1999. The administrative law judge found that Ark. Code Ann. § 11-9-512 did not apply to the facts of the case. The administrative law judge therefore found that the claimant was entitled to temporary total disability compensation beginning March 29, 1999 and continuing through a date yet to be determined. The respondents appeal to the Full Commission.
II. ADJUDICATION A. Temporary disability
A claimant with a scheduled injury is entitled to temporary total disability compensation while she is in her healing period and has not returned to work. Ark. Code Ann. § 11-9-521(a). The healing period continues until the claimant 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. Roberson v. WasteManagement, 58 Ark. App. 11, 944 S.W.2d 858 (1997). The determination of when the healing period ends is a factual question to be decided by the Commission. Carroll General Hospital v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).
In the present matter, the Court of Appeals has directed the Commission to determine when the claimant’s healing period began after January 6, 1999, and whether the claimant was employed thereafter. Based on a preponderance of the evidence, the Full Commission affirms the administrative law judge’s finding that the claimant re-entered her healing period as of March 29, 1999, and that she had not returned to work after March 29, 1999.
The claimant sustained a compensable injury to her right elbow in July 1997. The respondents ceased paying temporary total disability compensation after January 6, 1999, on which date Dr. Martimbeau pronounced maximum medical improvement. The Dissenting Opinion contends that the claimant is not entitled to temporary total disability compensation. However, Dr. Frazier examined the claimant for the respondents on March 29, 1999, and opined that the claimant had not reached maximum medical improvement. Dr. Frazier recommended several treatment options, including possible surgery. We also note that Dr. Martimbeau prescribed additional physical therapy for the claimant’s elbow in June 1999. Dr. Frazier assigned work restrictions, and the respondents had stated that they could no longer employ the claimant with her work restrictions. As a result of the claimant’s compensable injury, Dr. Martimbeau took the claimant off work entirely in June 1999. The Full Commission affirms the administrative law judge’s finding that the claimant re-entered her healing period on March 29, 1999 and did not return to work after that date.
The Dissenting Opinion asserts that the claimant’s complaints of pain are not sufficient to extend her healing period. The record indicates, however, that the opinions of Dr. Frazier and the other treating physicians are based on structural problems with the claimant’s elbow which are causally related to the claimant’s compensable injury, not merely continued complaints of pain. The Dissenting Opinion also contends that the claimant did not attempt to obtain treatment from Dr. Frazier. The claimant credibly testified, however, that she wanted to return to Dr. Frazier for treatment, but was prevented from doing so during the appeal process.
Based on the preponderance of evidence before the Full Commission, we affirm the administrative law judge’s finding that the claimant re-entered her healing period on March 29, 1999 and had not returned to work after that date.
B. Refusal to submit to operation
The Court of Appeals cited Ark. Code Ann. § 11-9-512, which statute provides:
Except in cases of hernia, which are specifically covered by § 11-9-523, where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least (2)
qualified physicians and where the recommended operation does not involve unreasonable risk of life or additional serious physical impairment, the Workers’ Compensation Commission, in fixing the amount of compensation, may take into consideration such refusal to submit to the advised operation.
The Court directed the Commission to determine the applicability of Ark. Code Ann. § 11-9-512. The administrative law judge found that the statute did not apply to the instant case: “There is insufficient evidence that claimant has unreasonably refused to submit to a surgical operation which had been advised by two qualified physicians at the time of the hearing. While Drs. Frazier and Collins had opined that surgery was possible, those physicians had not opined at the time of the hearing that surgery was being recommended at that time.” The ALJ therefore found that the claimant was entitled to temporary total disability compensation beginning March 29, 1999 and continuing through a date to be determined.
The Full Commission affirms the administrative law judge’s finding that Ark. Code Ann. § 11-9-512 does not apply to the instant case. We find that the claimant did not unreasonably refuse to surgery advised by two qualified physicians. Dr. Martimbeau performed a tendon release, right elbow in March 1998. The respondents sent the claimant to Dr. Frazier, who stated in March 1999 that the claimant “may wish to consider” additional surgery on her elbow. The respondents controverted any further treatment from Dr. Frazier. Dr. Martimbeau subsequently scheduled a “debridement” of the claimant’s elbow, but the claimant testified that she (1) was afraid of Dr. Martimbeau and (2) did not trust Dr. Martimbeau.
Dr. Collins told the claimant in August 1999 that further surgery might be helpful, but could also result in further serious problems. The claimant did not want further surgery at the hands of Dr. Martimbeau after visiting with Dr. Collins. The evidence shows that the respondents would not allow the claimant to treat with Dr. Frazier, who the Commission has determined is now the primary treating physician. The preponderance of evidence supports the administrative law judge’s finding that Ark. Code Ann. § 11-9-512 does not apply to the instant case.
III. CONCLUSION
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge’s finding that the claimant proved entitlement to temporary total disability compensation beginning March 29, 1999 and continuing through a date to be determined.
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 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
____________________________________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I respectfully dissent from the majority’s opinion finding that the claimant re-entered her healing period on March 29, 1999, and the finding that Ark. Code Ann. § 11-9-512 was not applicable to the facts of this case. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
While I recognize that in March of 1999, Dr. Frazier opined that the claimant had not reached maximum medical improvement, I find that Dr. Frazier’s explanation in his deposition as to why he concluded that the claimant had not reached maximum medical improvement was sufficient to find that the claimant had not re-entered the healing period at that time. Dr. Frazier testified that the basis for his opinion was that he believed that the claimant had treatment options available and that she should elect to take advantage of those options because she was still complaining of pain. However, the mere existence of one form of potential treatment does not mean that the claimant’s healing period has not ended. The existence of available treatment options does not extend the healing period if the claimant refuses to submit to such treatment. Further, the claimant’s complaints of pain are not sufficient in and of themselves to extend the claimant’s healing period. See Thurman v. ClarkInd., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994).
The evidence shows that the claimant has refused to undergo any further treatment. Although the claimant alleges that she wants to be treated by Dr. Frazier, the evidence is clear that she has not sought treatment in any form from Dr. Frazier since her one and only visit to him on March 29, 1999. In short, I cannot find that the claimant re-entered her healing period on March 29, 1999, to a date yet to be determined.
I also find that the claimant is precluded from receiving any additional temporary total disability benefits because she has refused to undergo surgery recommended by both Dr. Martimbeau and Dr. Collins. Ark. Code Ann. § 11-9-511 provides that:
Except in cases of hernia, which are specifically covered by § 11-9-523, where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two (2) qualified physicians and where the recommended operation does not involve unreasonable risk of life or additional serious physical impairment, the Workers’ Compensation Commission, in fixing the amount of compensation, may take into consideration such refusal to submit to the advised operation.
In the present case, Dr. Collins performed an independent medical evaluation on the claimant on August 23, 1999, and concluded that the claimant needed to be examined under anesthesia to determine the cause of her injuries. Dr. Martimbeau agreed with Dr. Collins’ conclusion and stated that he wanted to perform the procedure. Dr. Martimbeau explained the procedure to the claimant and scheduled her for surgery twice and the claimant refused to undergo the surgery.
Clearly, two of the claimant’s physicians have recommended that she undergo treatment. However, the claimant has consistently refused to do so and, instead, alleges that she wishes to be treated by Dr. Frazier. In fact, the claimant sought a change of physician from Dr. Martimbeau to Dr. Frazier and that request was granted. However, the claimant has made absolutely no attempt to obtain any form of treatment from Dr. Frazier. Accordingly, I find that under the provision of Ark. Code Ann. §11-9-511 that the claimant is not entitled to any temporary total disability benefits.
Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority’s opinion.
_______________________________ JOE E. YATES, Commissioner