BATSON v. STEPHENS, INC., 1996 AWCC 249

CLAIM NO. E503989

JOHNNY R. BATSON, EMPLOYEE, CLAIMANT v. STEPHENS, INC., EMPLOYER, RESPONDENT and WAUSAU INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 21, 1996

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by JAMES A. McLARTY, III, Attorney at Law, Newport, Arkansas.

Respondents represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on March 15, 1996, having found that claimant was entitled to an additional period of temporary total disability benefits commencing July 5, 1995, and extending through a date yet to be determined, that claimant was entitled to a change of physician to Dr. Rebecca Barrett-Tuck, and that respondents were liable for reasonable and necessary medical treatment rendered subsequent to July 5, 1995, for claimant’s compensable injury. Respondents now appeal those findings.

[3] Following our de novo review of the entire record, we find that claimant has proven, by a preponderance of the credible evidence, that he is entitled to continued temporary total disability benefits from July 5, 1995, until a date yet to be determined, that he is entitled to a change of physician to Dr. Rebecca Barrett-Tuck, and that respondents remain liable for all reasonable and necessary medical expenses incurred in the diagnosis and management of his compensable injury subsequent to July 5, 1995. The decision of the Administrative Law Judge must therefore be affirmed.

[4] Claimant sustained a compensable injury on January 30, 1995, when a large tractor tire he was attempting to move fell and landed across his back and hips. He remained pinned under the tire for what he believed to be fifteen minutes, and may have lost consciousness for a brief time as well. Claimant’s co-workers discovered his plight and managed to free him.

[5] Dr. Charles E. Smith rendered emergency treatment at the White River Medical Center, but soon ordered claimant transferred by helicopter to Little Rock for specialty care. Upon his arrival in Little Rock, claimant was admitted to the Baptist Medical Center where he came under the initial care and observation of Dr. Scott M. Schlesinger. Radiologic studies performed at both White River and Baptist revealed no fractures or cervico-thoracic damage beyond “moderate degenerative disc disease . . . at C3-4, C4-5, and C5-6.” These diagnostic efforts also revealed moderate spondylosis at C4-5 and C5-6, “with resultant moderate canal stenosis at these two levels.” Spondylosis was also present at C3-4, but without accompanying stenosis. Based on the foregoing studies, spinal cord and closed head injuries were ruled out.

[6] Dr. Schlesinger discharged claimant on February 1, 1995, noting that, upon admission, he had complained of pain in the left hip area and “weakness to the entire left side of his body as well as numbness to the entire left side of his body.” At the time of discharge, claimant still complained of left hip and ankle pain, prompting Dr. Schlesinger to arrange for an orthopedic consultation with Dr. Barry Thompson.

[7] Dr. Thompson first examined claimant on February 1, 1995, and attributed his persistent left ankle and left hip pain to a sprain and crush injury with contusion (no fracture), respectively. Dr. Thompson also thought that claimant might have suffered a left rotator cuff tear.

[8] Claimant returned to Dr. Thompson for follow-up on February 22, 1995, with “continued marked swelling in his ankle and leg.” After further diagnostics ruled out deep vein thrombosis, Dr. Thompson stated that “I think therefore this just represents soft tissue swelling. . . Crush injuries are always more than they appear on x-ray and I think it will just take some time for this to resolve.”

[9] On February 20, 1995, claimant consulted again with Dr. Schlesinger who, in a February 27 letter to Dr. Smith, noted that claimant still complained of left foot problems but also presented with low back pain. Dr. Schlesinger felt as though claimant’s neurologic symptoms had largely resolved, and referred him to Dr. Barry Baskin, a physical medicine and rehabilitation specialist.

[10] Claimant presented to Dr. Baskin on February 27, 1995, with left shoulder, left hip, and left low back pain. Dr. Baskin’s primary concern was claimant’s continued significant swelling in the left lower leg, and he agreed with Dr. Thompson’s previous prescription of a TED hose. For his additional complaints, Dr. Baskin recommended that claimant engage in frequent walking and aerobic activities.

[11] Claimant’s difficulties still persisted by April 18, 1995, when he returned to Dr. Baskin. The latter once again suspected deep vein thrombosis and recommended physical therapy. Claimant’s lower leg swelling had now become significant enough that he required the assistance of crutches when walking. By May 8, claimant had enjoyed some success in physical therapy, although he did state that his swelling would return once he gone approximately a week without therapy. Dr. Baskin also noted that claimant was walking more, though with the assistance of a cane, and stated that “he is still unable to do much work due to his continued pain and swelling.” Though confused by claimant’s lack of progress, Dr. Baskin specifically stated that he did “not get the opinion at all that this gentleman is malingering.”

[12] By June 19, 1995, claimant’s lower extremity swelling had begun to improve, but he still had need of a cane when walking. Noting claimant’s overall lack of improvement, Dr. Baskin ordered further MRI testing of the cervico-thoracic region in order to rule out any “obvious cord compression.” These essentially confirmed the findings from the studies conducted at the time of the injury. By July 5, 1995, claimant still suffered from pain and swelling in the left ankle and hip. Though still not of the opinion that claimant was malingering, Dr. Baskin released him from care on that date, stating that he did “not have anything further to offer him, at this time.”

[13] Concerning a return to work, Dr. Baskin recommended that claimant seek some form of sedentary employment “such as a desk job or a job that does not require a lot of walking, lifting or carrying” — a contrast to his previous recommendation that claimant engage in “frequent walking and aerobic activities.” Dr. Baskin also acknowledged that claimant was “not really trained for anything much other than what he has done.” In letters dated July 17 and July 27, 1995, Dr. Basking informed claimant’s attorney that he could not assess a permanent impairment rating owing to the lack of “objective findings” such as “advanced arthritic changes of the hip, knee, or ankle.”

[14] Claimant’s problems did not subside with the passage of additional time, and he testified that he was unable to obtain another appointment with Dr. Baskin. As a result, claimant consulted Dr. Rebecca Barrett-Tuck, a neurosurgeon, on his own initiative. Dr. Barrett-Tuck reported on November 8, 1995, that:

Mr. Batson returned today for follow-up. He is still complaining of low back pain but his left leg pain was a bit better. He is now having considerable pain in the right sacroiliac region. He reports that the numbness in the leg may be a bit better, he still, however, has severe pain in the knee and leg with ambulation. He still has posterior neck pain. CT scan of the lumbar spine does indeed show a lateral disk herniation at L2-L3 on the left that appears to touch but not really compress the exiting L2-L3 nerve root. It may be that this disk rupture has caused Mr. Batson’s pain but I do not think that he does have neural compromise and currently he does not have any groin pain to suggest that this disk should be removed. . . I think, in all likelihood, Mr. Batson suffered a cervical spinal cord contusion at the time of his accident, resulting in his left hemiparesis which has slowly improved. He also appears to have suffered the disk rupture with resultant back pain. (Emphasis added).

[15] While Dr. Barrett-Tuck did opine that surgery was not yet appropriate, she did indicate that “there is a fairly high likelihood at some point in the future that Mr. Batson will require a cervical decompression laminectomy or anterior cervical decompression.”

[16] Claimant expressly stated at trial that his lower back and left leg were his primary areas of injury. However, despite claimant’s presentation of low back complaints to his prior treating physicians, his lumbar spine appears to have received remarkably little diagnostic attention until he consulted Dr. Barrett-Tuck. Unfortunately, respondents had previously terminated benefits on July 5, 1995, relying mainly on Dr. Baskin’s release of claimant on that date. Thus, Dr. Barrett-Tuck’s treatment was deemed unauthorized.

[17] Claimant’s hearing testimony of January 11, 1996, which we specifically find to be credible, explained his current difficulties:

Well, weakness in my left leg and my back, it still hurts. My back don’t work too good. My leg don’t work. . . It’s just weak and drawn. . . I use a cane.

[18] Claimant also stated that he continues to take prescription medication including blood thinners, anti-inflammatories, and pain medication. He further explained that he can only be on his feet for about an hour-and-a-half and is unable to assist with any household chores. At the time of the hearing, he and his wife were renting out their mobile home in order to generate sufficient income to cover their mortgage payments, and had moved in with claimant’s mother.

[19] Because claimant contends he sustained a compensable injury after July 1, 1993, the provisions of Act 796 of 1993 are controlling in this case.

[20] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway andTransp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). The healing period itself continues until the employee is as far restored as the permanent character of his injury will permit, and will end once the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id.
Finally, the determination of when the healing period has ended is a factual determination that is to be made by the Commission. Id.

[21] Our de novo review of the entire record persuades us that claimant has proven, by a preponderance of the credible evidence, that his healing period persisted beyond July 5, 1995, to a date yet to be determined, and that he also remained totally incapacitated to earn wages as of the date of the hearing on this matter. We therefore specifically find that he is entitled to continued temporary total disability benefits from July 5, 1995, to a date yet to be determined.

[22] With regard to claimant’s healing period, we note first of all that his continued complaints of pain have not stood alone, but have been accompanied by a documented lumbar disc herniation. Also, Dr. Barrett-Tuck stated in a December 18, 1995, letter that “neurologic healing, particularly from a spinal cord injury, can take as long as a year-and-a-half, therefore, I think that he may not have completely reached his healing period.” Claimant sustained his compensable injury on January 30, 1995. According to Dr. Barrett-Tuck, his healing period could have been expected to last well into 1996 — far beyond the date respondents chose for the termination of benefits (July 5, 1995). We find from the foregoing that claimant’s healing period extended beyond July 5, 1995, to a date yet to be determined.

[23] Concerning claimant’s capacity to earn wages during his healing period, respondents have pointed out that he has been offered light duty work at his prior place of employment (claimant had managed operations on a nine-thousand acre farm near Charlotte, Arkansas) but has declined each time. However, according to Mr. Steve Smith, a witness for respondents, those offers have consisted mainly of work that involved operating a motor vehicle, such as driving around the farm and “checking cows” or “going to town.” We note again that even Dr. Baskin recommended sedentary employment, such as a desk job, and are thus not persuaded that the “light duty” respondents have offered falls within the range of activities claimant could perform.

[24] Claimant testified that he had performed factory work and construction work prior to his employment as a farm manager for respondent employer (where his duties involved bushhogging, hay baling, feeding cattle, etc.), and was also skilled in cabinet building. He also stated that he had held foreman-type positions in the past, some of which involved working at a desk.

[25] In light of the lack of suitable light duty work with respondent employer, claimant’s limited non-sedentary work experience, and his own credible testimony regarding his current limitations (discussed above), we specifically find that claimant has proven, by a preponderance of the credible evidence, that he remained totally incapacitated to earn wages as of the date of the hearing on this claim.

[26] Based on our foregoing findings that claimant has demonstrated both the continuation of his healing period through a date yet to be determined, and his total incapacity to earn wages as of the date of the hearing on this claim, we specifically find that he has also proven, by a preponderance of the credible evidence, that he is entitled to continued temporary total disability benefits from July 5, 1995, to a date yet to be determined.

[27] In arriving at the these findings, we are not unaware of respondents’ complaint (within their brief) that Dr. Barrett-Tuck “did not state any opinions with a reasonable degree of medical certainty which is required by law.” We are, of course, cognizant of the fact that Ark. Code Ann. § 11-9-102 (16) (Repl. 1996) requires medical opinions addressing compensability or permanent impairment to be stated “within a reasonable degree of medical certainty.” It is our specific finding in this case that Dr. Barrett-Tuck’s opinions relied on herein are stated with a sufficient degree of definiteness to amount to a reasonable degree of medical certainty.”

[28] We also specifically find that claimant is entitled to a change of physician to Dr. Barrett-Tuck. There is no indication in the record that claimant ever chose any of his physicians other than Dr. Barrett-Tuck and he has expressly testified to that effect. It is therefore not necessary for him to demonstrate any “compelling circumstances” in order to justify his proposed change of physicians. See Ark. Code Ann. § 11-9-514(1) (1) (Repl. 1996).

[29] Regarding this issue, we note that Dr. Baskin has made it clear that he has nothing more to offer claimant and that claimant was apparently unable to obtain further appointments with Dr. Baskin. Also, despite claimant’s consistent presentation of left low back pain, neither Dr. Baskin nor any of claimant’s previous treating physicians seem to have paid much heed to his lumbar region — which turned out to be the situs of a considerable internal harm in the form of a herniated disk. Given that Dr. Barrett-Tuck has managed to identify the lumbar disk herniation which may have otherwise gone unnoticed and unmanaged, it is neither surprising nor unreasonable that claimant would seek a change of physician. Based on the foregoing, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he is entitled to a change of physician to Dr. Barrett-Tuck.

[30] Finally, because we find that claimant’s healing period persisted beyond July 5, 1995, and note that Dr. Barrett-Tuck has attributed claimant’s disk herniation to his compensable injury, we further specifically find that respondents remain liable for all reasonable and necessary medical expenses incurred in the management of claimant’s compensable injury after July 5, 1995, including diagnostics and treatment rendered by Dr. Barrett-Tuck.

[31] Based on our de novo review of the entire record, and for the reasons set forth herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he is entitled to additional temporary total disability benefits beginning July 5, 1995, and extending through a date yet to be determined, that he is entitled to a change of physician to Dr. Rebecca Barrett-Tuck, and that respondents remain liable for all reasonable and necessary medical expenses incurred in the treatment of his compensable injury subsequent to July 5, 1995, including diagnostics and treatment administered by Dr. Barrett-Tuck. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.

[32] 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).

[33] 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 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).

[34] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner DON CURDIE, Special Commissioner