CLAIM NO. E306619
JANET BOSCH, EMPLOYEE, CLAIMANT v. TRANS STATE LINES, EMPLOYER, RESPONDENT and CRUM FORSTER, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 12, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICHAEL A. CROCKETT, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE KAREN HART McKINNEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on April 12, 1994. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation subsequent to September 14, 1993, that she failed to prove by a preponderance of the evidence that she is entitled to a change of physician or to additional medical treatment subsequent to September 14, 1994, and that the claimant failed to prove by a preponderance of the evidence that respondents are liable for treatment rendered by Drs. Barron, Ward, and Giles. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed as modified herein.
[3] The claimant was employed by the respondent employer as a long haul trucker, and she worked as a team driver with her husband. On March 9, 1993, they were stopped at a fuel stop in Big Springs, Texas, when the claimant sustained an admittedly compensable injury. In this regard, the claimant was standing on a tire cleaning the windows, when the hood of the truck fell, striking her lower back and knocking her against the bracket that the hood rests upon. The claimant suffered a hematoma to her pelvic area, and she experienced pain in her low back. She reported the accident the following day, and she was advised to seek medical attention. However, the claimant did not seek any medical treatment until March 13, 1993, when she presented to a Medi-Stat Clinic in Little Rock near her home in Alexander and was treated by Dr. John Menard. Dr. Menard diagnosed a hematoma in the pelvic region and low back pain, and he released her to full duty work.
[4] The claimant subsequently became aware that she was not going to receive a periodic safety bonus from the respondent employer due to this accident. On April 15, 1993, the claimant and her husband confronted the safety director for the respondent employer, Frank Addis, about this when they were at the Fort Smith terminal for maintenance on the truck, and the claimant and her husband became very upset during this meeting. According to the testimony of Mr. Addis and Linda Williams, an employee of the respondent employer who was also in the room, the Boschs strongly indicated that the claimant would be claiming workers’ compensation which would cost the company much more money if she did not receive the $300 bonus. Both Mr. Addis and Ms. Williams interpreted the claimant and her husband to mean that the claimant would fabricate an injury.
[5] Mr. Addis made an appointment for the claimant to be evaluated at Available Medical Care in Fort Smith, and Dr. Terrell Smith, general practitioner, diagnosed a lumbosacral contusion. In addition, a B-200 back evaluation was performed at the Fort Smith Rehabilitation Hospital, and the results of this test were consistent with a moderate back dysfunction. However, the results of this evaluation indicated submaximal effort, and, the results were considered invalid. She was released by Available Medical Care with no restrictions.
[6] The claimant subsequently continued to complain of low back pain, and she continued to seek treatment from physicians at the Medi-Stat Clinic in Little Rock which was paid for by the respondents. On May 15, 1993, she was examined by Dr. John Coffman of the clinic. Dr. Coffman’s notes indicate that his examination revealed pain to palpation in the L-5 area, but he released her to full duty. On June 7, 1993, Dr. Scott Carle of the clinic administered a trigger point injection, and the claimant was kept off work until June 14, 1993, as a result of this injection. Dr. Carle’s June 11, 1993, note indicates that the claimant was markedly better and that she demonstrated full range of motion, and he released her to full-duty work. However, the employment of the claimant and her husband was terminated on June 18, 1993, because they declined to accept a load to New York City, apparently due to their dislike of the traffic conditions in the area.
[7] On June 29, 1993, the claimant returned to Dr. Carle, complaining of a recurrence of pain after she resumed driving after the earlier injection. Dr. Carle referred the claimant to Dr. Reginald J. Rutherford with The Pain Care Center at Doctors Hospital. After examining the claimant on July 28, 1993, Dr. Rutherford noted that the claimant appeared to be in physical discomfort, although she demonstrated full range of motion in all directions. He also noted that his examination revealed multiple active trigger points and that the Waddell’s tests for malingering were negative. Based on his findings, Dr. Rutherford diagnosed a myofascial pain syndrome, and he diagnosed an aggressive program of trigger point injections and physical therapy, which the claimant received over the following seven weeks. On September 14, 1993, Dr. Rutherford noted that the claimant was markedly improved except for residual pain localized to the right buttock with accompanying numbness. He also indicated that the claimant complained of these problems being aggravated by sitting, standing, and overhead reaching. Nevertheless, Dr. Rutherford determined that no further treatment was indicated, and he released the claimant to return to work trucking with no restrictions.
[8] The claimant subsequently sought treatment from Dr. Edwin Barron, a general practitioner, on her own initiative. Dr. Barron’s October 5, 1993, examination revealed some tenderness in the lumbosacral area and slight resistance to the straight leg raising test. However, there was no evidence of involuntary muscle spasm. Based on the extent of the treatment and testing that the claimant had previously received, Dr. Barron advised her that he had little else to offer. Nevertheless, he referred her to Dr. Thomas M. Ward, a physiatrist. After examining the claimant on October 12, 1993, Dr. Ward concluded that “her diagnosis is compatible with a sacroiliac ligament which is very palpable to [his] hands in the right posterior margin of her back.” Nevertheless, he also opined that the claimant was not “limited in what she should do,” and he opined that “coping skills are the primary area that she should work on in terms of adapting her lift and restricting her activities to avoid any further unnecessary pain.”
[9] Dr. Barron also referred the claimant to Dr. Wilbur Giles, a neurosurgeon. Dr. Giles’ physical examination revealed mildly limited range of motion and some tenderness, but it did not reveal any severe muscle spasm. Otherwise, the examination was normal. Dr. Giles concluded that he had nothing to offer from a neurosurgical standpoint and that the claimant should improve with time. Nevertheless, based on the claimant’s complaints of pain, Dr. Giles opined that the claimant was “not employable.”
[10] The claimant testified that she continues to experience discomfort which prevents her from working. According to her testimony, she experiences numbness in her buttocks. She also testified that any activities involving lifting causes problems with her back, and she testified that she experiences difficulty sleeping as a result of these problems. The claimant’s husband also testified that her ability to engage in physical activities has diminished since the accident, and he testified that he has observed the claimant demonstrating discomfort by squirming while sitting.
[11] Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highwayand Transportation Department v. Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 119-102 (6) (1987). 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, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher Inc. v. Parker,
4 Ark. App. 124,
628 S.W.2d 582 (1982).
[12] In the present claim, we find that the claimant failed to prove that she remained in her healing period and temporarily incapacitated from earning subsequent to September 14, 1993. On that date, Dr. Rutherford concluded that there was no further treatment that would be appropriate for the claimant’s complaints, and he opined that the claimant could return to trucking without limitation. Furthermore, after Dr. Rutherford’s release, the claimant was examined by three physicians of her own choosing through the referral process, and each of these physicians concluded that there was nothing further medically that could be offered to improve the claimant’s condition. Moreover, Dr. Ward, who specializes in injuries such as this, opined that the claimant was not limited in what she should do. Although Dr. Giles did opine that the claimant was not employable for two to three months, his opinion was clearly based on the claimant’s subjective complaints of pain. While the claimant may have continued to experience some pain and discomfort after September 14, 1993, this simply is not sufficient to extend the healing period. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation.
[13] We also find that the claimant failed to prove by a preponderance of the evidence that she is entitled to a change of physician. Under Ark. Code Ann. §
11-9-508 (a) (1987), employers must promptly provide medical treatment which is reasonably necessary for treatment of work-related injuries. In addition, Ark. Code Ann. §
11-9-514 (1987) establishes the procedures which must be followed if the injured employee later desires to change physicians. With regard to this procedure, Ark. Code Ann. §
11-9-514 provides the following:
(a)(1) If the employee selects a physician, the commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying a change.
(2) If the employer selects a physician, the claimant may petition the commission one (1) time only for a change of physician and if the commission approves the change, with or without a hearing, the commission shall determine the second physician and shall not be bound by the recommendation of claimant or respondent. . . .
[14] In the present claim, Mr. Addis testified that he advised the claimant to see a physician if she needed medical treatment, and he testified that he did not tell her to go to any specific doctor. In addition, the claimant testified that she went to the Medi-Stat Clinic because she “didn’t know where else to go,” and she indicates that she and her husband have previously used the clinic. Consequently, we find that the claimant made the initial selection of physician and, therefore, that she must show a compelling reason or circumstance to justify the change.
[15] Furthermore, we find that the claimant failed to show a compelling reason or circumstance to justify the change. The evidence shows that the claimant sustained a relatively minor injury which requires, at most, only routine care for maintenance of her complaints of discomfort. After the injury, she continued working, and she did not seek any medical treatment until she returned to Arkansas approximately four days later. Then, although she continued to experience some discomfort, she continued working for over one month without seeking any further medical treatment. Moreover, her condition has been thoroughly evaluated by the physicians at the Medi-Stat Clinic and by the physicians at the Pain Care Center, to whom the claimant was referred by the physicians she selected. In fact, none of the physicians who the claimant subsequently sought treatment from were able to suggest any further diagnostic procedures or to offer any significantly differing diagnosis or treatment. Furthermore, there is no indication that the physicians at the Medi-Stat Clinic do not continue to stand ready to provide the claimant any care which is reasonably necessary for the treatment of her injury.
[16] Likewise, we find that the claimant failed to prove by a preponderance of the evidence that the treatment provided by Drs. Barron, Ward, and Giles was reasonably necessary for the treatment of her injury. In this regard, employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. §
11-9-508 (a) (1987). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben PearsonInc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No.
D612291).
[17] In the present claim, the claimant selected the physicians at the Medi-Stat Clinic, and the evidence establishes that these physicians appropriately diagnosed the claimant’s condition and that they provided appropriate conservative treatment for the treatment of her persistent discomfort. In addition, when her complaints persisted, she was referred to a specialist capable of evaluating her condition and providing more aggressive treatment. Consequently, due to their familiarity with the claimant’s situation, the physicians at the Medi-Stat Clinic remained in a better position to evaluate the claimant’s situation, including the need for further referrals. Nevertheless, on her own initiative, the claimant went to Dr. Barron, another general practitioner. Significantly, even Dr. Barron conceded that there was little else that could be done diagnostically or therapeutically in light of the past evaluation and treatment provided to the claimant. Likewise, neither Dr. Ward nor Dr. Giles had any suggestions which differed significantly from the physicians who had previously evaluated and treated the claimant.
[18] In short, we find that the evidence establishes that the claimant received appropriate medical care from the physicians at the Medi-Stat Clinic and from the physicians to whom those physicians referred her. Nevertheless, apparently in an effort to obtain a different opinion, she sought treatment on her own initiative from Dr. Barron. However, Dr. Barron was not able to provide the claimant with anything that differed significantly from what she previously received. Likewise, neither of the two specialists to whom Dr. Barron referred the claimant were able to offer anything significantly different in the way of diagnosis or treatment. Consequently, we find that the claimant failed to prove by the preponderance of the evidence that the treatment provided by Dr. Barron and by the physicians to whom he referred the claimant was reasonably necessary for the treatment of the compensable injury.
[19] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary total disability compensation subsequent to September 14, 1993. In addition, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to a change of physician, and we find that she failed to prove by a preponderance of the evidence that medical care provided by Drs. Barron, Ward, and Giles is reasonably necessary for treatment of the compensable injury. Instead, we find that any care which may be reasonably necessary for treatment of the injury and the claimant’s continued complaints of discomfort can be provided by the physicians at the Medi-Stat Clinic. Therefore, we find that the administrative law judge’s decision must be affirmed as modified herein.
[20] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[21] Commissioner Humphrey dissents.
