CLAIM NO. E712614
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 31, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable J. Leslie Evitts, III, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the Honorable Phillip Cuffman, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed December 9, 2004. The administrative law judge found, among other things, that the claimant proved she was entitled to additional temporary total disability from September 7, 2000 to a date to be determined. After reviewing the entire record de novo, the Full Commission reverses the opinion of the administrative law judge. We find that the claimant did not prove she was entitled to temporary total disability compensation after September 7, 2000.
I. HISTORY
The parties stipulated that Marcia Barnes Hendrick, age 52, sustained a compensable injury to her low back on July 23, 1997. Ms. Barnes testified that she squatted down to pick up catalogs and hurt her back.
In October 1997, Dr. J. Michael Standefer performed a right L5-S1 hemilaminotomy, L5 diskectomy, and complete decompression right S1 root including foraminotomy. Dr. Standefer subsequently performed a surgical repair of linear dural defect. “I woke up from the second surgery,” the claimant testified, and “my head was still — I couldn’t move, my throat was killing me. . . . headaches, my jaw hurt, I couldn’t open my mouth, and my throat hurt.”
Dr. Standefer assigned a 15% permanent impairment rating on January 28, 1998. The parties stipulated that the respondents had accepted and were paying “15% to the back” beginning on or about January 28, 1998.
The record indicates that the claimant began treating at an orthopedic center with Dr. David S. Wilgarde in June 1998. Dr. Wilgarde copied his correspondence to Dr. Roland D. Reinhart, a pain manager.
A pre-hearing order was filed on July 8, 1998. The claimant contended, among other things, that she was entitled to additional temporary total disability compensation from October 9, 1997 to a date to be determined. The respondents contended that they were paying all benefits to which the claimant was entitled.
A hearing was held in September 1998, and the administrative law judge filed an opinion on November 12, 1998. The ALJ found, in pertinent part:
6. The claimant has proven by a preponderance of the evidence that her need for treatment for her TMJ, headaches and cervical problems are a compensable consequence of her surgery for her compensable injury. . . .
7. This claimant is entitled to temporary total disability from January 28, 1998, to a date to be determined.
8. The respondents should pay for the cost of this claimant’s medical treatment for her compensable injury as well as for the treatment for her cervical problems, headaches and TMJ which resulted from her surgery.
The respondents appealed to the Full Commission, and the Full Commission affirmed the administrative law judge’s decision in an opinion filed August 3, 1999. The Full Commission found:
[T]he claimant’s need for treatment for temporomandibular joint syndrome, headaches, and cervical problems are a compensable consequence of surgery for her compensable injury. We find that the respondents should pay for the cost of the claimant’s medical treatment for her compensable injury, as well as treatment for her cervical problems, headaches, and TMJ syndrome. We find that the claimant is entitled to additional temporary total disability benefits from January 28, 1998 until a date yet to be determined. We thus affirm the opinion of the administrative law judge in all respects.
The parties have stipulated that prior opinions are res judicata and the law of the case.
Dr. Harold L. Tarleton, a family practitioner, wrote the following on July 14, 2000:
Ms. Barnes is a 47-year-old Caucasian female who, some 2½ to 3 years ago underwent surgical manipulation for discogenic disease involving the lumbar spine. Following surgery, she developed CSF leak requiring additional surgical manipulation. Ultimately, she developed chronic pain syndrome that is, in my opinion, a sequel of adhesive arachnoiditis. She suffers headaches, neck pain, and low back disability with radicular symptoms into the lower extremities.
In my estimation, she is not competent to be gainfully employed due to the physical limitations imposed by the above depicted disease process.
Dr. Reinhart stated on August 21, 2000, “In my opinion, Ms. Barnes should remain off work while she continues to undergo further treatment. It is difficult to predict if Ms. Barnes will be able to return to work on a part or full time basis or will be permanently disabled. At this time it is my recommendation that Ms. Barnes continue with her pain management therapist due to physical limitations by the above depicted disease process.”
Dr. Tarleton reported on September 7, 2000, “Ms. Barnes today presents for ongoing management of her disability referable to the axial skeleton. She has headache, neck pain, and pain, legs. Evaluations by various specialty types have failed to reach a diagnosis other than adhesio of arachnoiditis.” Dr. Tarleton planned a regimen of medication treatment.
The record indicates that the respondents ceased paying temporary total disability compensation after September 7, 2000.
Dr. Tarleton examined the claimant on October 6, 2000 and stated, “There are no findings different from prior encounters.” Dr. Tarleton referred the claimant for physical therapy.
Dr. Tarleton reported on February 26, 2001:
This lady presents for ongoing management of apparent persistent, chronic, arachnoiditis, lumbar spine. She has continued disability but seems to have accepted this as her lot in life. . . .
Periodically, she will require reassessment.
We will be available to her to assist in whatever paperwork is necessary for her to continue to maintain income and status.
Dr. Tarleton wrote on September 20, 2001:
Mrs. Barnes suffers chronic retractile arachnoiditis involving the cervical and lumbar spines. Her disability is incapacitating, rendering her ineffective in any sort of work force or participation in any sort of rehabilitation program.
She has failed to respond effectively to various physiotherapeutic modalities, analgesics, and anti-inflammatory agents as well as epidural steroids.
Her disability is persistent and incapacitating.
Dr. Tarleton wrote on May 30, 2003, “At the request of this patient and her attorney, I am referring Marcia Barnes Hendrick to Dr. Edward Dawson at the Spine Clinic for evaluation of her back pain. I have been assured by Mrs. Barnes/Hendrick that she is going to the Spine Clinic under her Medicare and that this is not Workman’s Comp related.”
In June 2003, Dr. Tarleton again stated that the claimant suffered from “chronic intractible arachnoiditis involving the cervical and lumbar spine,” that the claimant was “rendered ineffective in the work force or a rehabilitation program,” and that the claimant’s “disability is persistent and incapacitating.”
Another pre-hearing order was filed on March 29, 2004. The claimant contended, among other things, that the respondents had “wholly disregarded the Commission’s previous order and unilaterally decided that the claimant had reached the end of her healing period, at which point they ceased paying temporary total disability benefits[.]” The claimant contended that she was entitled to reinstatement of temporary total disability compensation from the date the respondents ceased paying until a date to be determined.
The respondents contended that the claimant was not entitled to additional temporary total disability compensation.
The issues the parties agreed to litigate included additional temporary total disability from September 7, 2000 to a date to be determined.
The following impression resulted from an MRI taken May 26, 2004:
1. A 3 MM left greater than right broad-based posterior disc bulge at L5-S1 results in mild left greater than right L5-S1 lateral recess stenosis with potential for impingement on the traversing S1 nerves, left greater than right. There is also mild right L5-S1 neural foraminal encroachment.
2. Mild degenerative disc disease is noted at L1-L2 with a 2 MM broad-based posterior disc bulge without evidence of neural impingement.
In a note entered in September 2004, Dr. Wilgarde assigned a “Disability Status” of “Totally temporarily disabled.”
The parties deposed Dr. Tarleton on September 17, 2004. Dr. Tarleton testified that he first examined the claimant in May 2000, and that “the only objective finding that I discovered was a weakness involving the right extensor hallucis longus muscle with a diminished right Achilles tendon reflex. These findings are relatively common in people who have low back disability and have had back surgery.” The respondents’ attorney questioned Dr. Tarleton about the July 14, 2000 letter, in which Dr. Tarleton had stated the claimant was “not competent to be gainfully employed”:
Q. Now, was that written at the request of Ms. Hendrick?
A. It beats the hell out of me. I don’t know why I wrote it. I’m sure I didn’t write it because I wanted to. . . .
Q. And the conclusion of it was basically that you didn’t feel like she was able to be gainfully employed?
A. Yes.
Q. Was this based primarily on her complaints of pain?
A. Her complaints of pain and the type of medications she was taking at the time, namely various and sundry analgesics and medications of that nature. . . .
Q. Now, with the benefit of approximately four years of treating this lady, can you say that her condition has appreciably improved?
A. It hasn’t appeared to.
Q. I’ll ask it a different way. In your opinion, is she any better today than she was the first time she saw you, according to her complaints?
A. No. . . .
Q. Would you say that she was at maximum medical improvement from her 1997 surgery and any sequel from it when you first saw her in 2000?
A. I don’t think she’s changed significantly from 1997 until my last office visit. I think her complaints have been relatively constant, relatively the same.
Q. Would she have improved as much as she was going to improve by the time you first saw her in May of 2000?
A. I think so, yeah.
Q. What kind of prognosis would you project for this lady?
A. I don’t think that she’s ever going to be pain free or ever realize any potential for returning to the active work force at this point in time in her life.
The claimant’s attorney questioned Dr. Tarleton:
Q. Doctor, you said that in your opinion, there is possibly a surgical procedure that may alleviate Ms. Barnes’ complaints; but at the moment, you don’t think that she’s a candidate for surgery?
A. I really — I don’t have any real opinion that has any weight. Based on her MR findings, there is no concrete evidence that she would be a surgical candidate; and I don’t know that she would get any relief or improve from a surgical procedure.
Another hearing was held on September 23, 2004. The claimant testified that she had pain in her neck and lower back. The claimant further testified:
Q. Why can’t you work at this time?
A. Because I can’t sit very long at a time. I’m up and down. There’s days I can’t even — I mean, I’m in bed — literally in bed.
The claimant was seen at Desert Pain Medicine Group (Dr. Wilgarde) in October 2004, at which time she was diagnosed with chronic pain syndrome, “radiculitis; post-laminectomy.” It was indicated that the injury was work-related, and “Temporary Total Disability” was checked on a Form under the Term, “Off Work.” The claimant was referred for physical therapy, injections, and medication. The respondents deposed Dr. Wilgarde on October 21, 2004. Dr. Wilgarde described his specialty as physical medicine and rehabilitation. The respondents’ attorney questioned Dr. Wilgarde:
Q. If my count from your letter is correct, you have seen her ten times since 1998, with six of the ten visits being in 1998 and four of the ten being in 2004. Does that sound right; were the bulk of the visits in `98?
A. I think that’s pretty accurate. I haven’t counted them, but that sounds about right.
Q. So you didn’t see her for approximately six years between 1998 and 2004; is that correct?
A. That’s correct. . . .
Q. Based on her complaints, is she any better now than the first time you saw her?
A. From her complaints to me, I’m not sure that she’s necessarily any better from her perspective. . . . I think she’s had some temporary improvement with some of the injections that Doctor Reinhart has done, but I think she continues to have problems.
Q. Okay. Is it fair to say that her condition is one which will not appreciably improve in the future, based on what you’ve seen to this point?
A. I think she’s got a chronic pain syndrome. I think there will be periods of time when she may be a little bit better and periods of time when she may be worse, but I think this is sorta where she’s going to be.
Q. Is there any other treatment for her condition that occurs to you beyond chronic pain management?
A. Well, if there’s not going to be any additional surgeries — and I’m not aware that anything has been recommended for her — other than pain medications, physical therapy and injections, the only other thing that might be of some benefit to the chronic pain patient would be what’s called a functional restoration program. That is that in patients who have chronic pain for whatever reason, we may not be able to cure the pain; but there are programs — what I call interdisciplinary programs composed of physical therapists, occupational therapists, pain management specialists, psychologists and psychiatrists who basically take a patient at whatever level they are and try to make them more functional. They don’t guarantee that they’ll get rid of their pain, but they try to help them have a more functional life in spite of the pain.
Q. Teaching them to deal with the pain in a more effective manner?
A. Yes, you could say that. It’s a conditioning program and basically teaching the patient although they may hurt, it doesn’t mean they’re going to have more tissue injury.
The administrative law judge filed an opinion on December 9, 2004 and found that the claimant proved she was entitled to additional medical treatment. The administrative law judge also found that the claimant proved she was entitled to additional temporary total disability from September 7, 2000 to a date to be determined. The respondents appeal the administrative law judge’s finding with regard to temporary total disability.
II. ADJUDICATION
Temporary disability is determined by the extent to which a compensable injury affects a claimant’s ability to earn a livelihood. Temporary total disability is defined as that period within the healing period in which an employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp.Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).
In the present matter, the Full Commission reverses the administrative law judge’s award of temporary total disability compensation from September 7, 2000 and following. The claimant sustained a compensable low-back injury in July 1997. Dr. Standefer subsequently performed low-back surgery and assigned a permanent impairment rating on January 28, 1998. The respondents accepted the rating, and this was the end of the claimant’s healing period for her low-back injury. Johnson v. GeneralDynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).
In a November 1998 opinion, the administrative law judge found that the claimant was entitled to temporary total disability compensation from January 28, 1998 to a date to be determined. The Full Commission affirmed the ALJ’s opinion and found that the claimant’s need for treatment “for temporomandibular syndrome, headaches, and cervical problems are a compensable consequence of surgery for her compensable injury.” The Commission therefore awarded reasonably necessary medical treatment and additional temporary total disability for the claimant’s temporomandibular syndrome, headaches, and cervical problems. The record indicates that the respondents thereafter reinstated temporary total disability, even after paying permanent partial disability benefits for the claimant’s low back. Dr. Tarleton stated in July 2000 that the claimant suffered from headaches, neck pain, and “low back disability.”
The respondents ceased paying temporary total disability compensation after September 7, 2000, and the Full Commission reverse the administrative law judge’s award of an additional five years of temporary total disability compensation for the claimant’s temporomandibular syndrome, headaches, and cervical problems. Dr. Tarleton stated in October 2000, “There are no findings different from prior encounters.” In February 2001, Dr. Tarleton noted he was managing the claimant for “apparent persistent, chronic, arachnoiditis, lumbar spine.” The preponderance of evidence does not demonstrate that the claimant was entitled to additional temporary total disability for her post-surgical degenerative lumbar condition, especially in light of the January 1998 lumbar anatomic rating, which rating ended the claimant’s healing period for that region.
Beginning in September 2001, Dr. Tarleton began diagnosing “chronic retractile arachnoiditis involving the cervical and lumbar spines.” This diagnosis does not indicate that the claimant remained within a healing period for her headaches, temporomandibular joint syndrome, and cervical pain. Dr. Tarleton agreed at deposition that the claimant “had improved as much as she was going to improve” by May 2000, before the respondents stopped paying temporary total disability compensation in September 2000. Dr. Tarleton also agreed with the claimant’s attorney that the claimant was not a surgical candidate. Dr. Wilgarde testified, “I think she’s got a chronic pain syndrome. I think there will be periods of time when she may be a little bit better and periods of time when she may be worse, but I think this is sorta where she’s going to be.” It is true that Dr. Wilgarde recommended a “functional restoration program,” but there is no indication of record that such a program would extend the claimant’s healing period. In addition, no physician has recommended additional surgery for the claimant’s low back or surgery for her neck or cervical spine.
A claimant may be entitled to ongoing medical treatment after her healing period has ended, if the medical treatment is geared toward management of the claimant’s compensable injury.Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845
(1983). The respondents in the present matter have implicitly agreed to continue providing medical treatment in connection with the claimant’s temporomandibular joint syndrome, headaches, and cervical problems. However, the clear weight of evidence before the Commission does not demonstrate that the claimant remained within her healing period for these conditions after September 7, 2000. The Full Commission therefore reverses the opinion of the administrative law judge, and we deny and dismiss the claim for additional temporary total disability compensation.
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.