CLAIM NO. E615663
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 3, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHEILA F. CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Conway, Arkansas.
Decision of the Administrative Law Judge: Modified.
OPINION AND ORDER
The respondents appeal those portions of an opinion and order filed by the Administrative Law Judge on June 18, 2001 finding in relevant part that the respondents controverted and denied the claimant’s access to additional medical treatment and finding that the claimant is entitled to additional temporary total disability compensation from May 19, 1998 to a date yet to be determined. After conducting a de novo review of the entire record, we find that a preponderance of the credible evidence establishes that the claimant abandoned her authorized medical treatment from Dr. Greenspan as of February 5, 1999. We therefore find that the claimant’s healing period ended on February 5, 1999, and that the claimant has failed to establish that she is entitled to temporary total disability compensation for any period after that date. In addition, we find that a preponderance of the credible evidence establishes that the claimant should be entitled to return to her authorized treating physician, Dr. Greenspan, if she wishes to do so, to see what additional treatment, if any, that Dr. Greenspan might propose at this point after her having abandoned his treatment as of February 5, 1999. Finally, because the respondents’ notice of appeal asserts that the Administrative Law Judge erred in finding that the claimant is entitled to additional medical treatment, we find that the respondents have controverted the claimant’s entitlement to additional medical treatment by Dr. Greenspan in addition to controverting her entitlement to additional temporary total disability compensation after May 19, 1998.
1. Additional Temporary Total Disability Compensation
An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing opinion and totally incapacitated to earn wages. Arkansas State HighwayTransportation Dept. 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. § 11-9-102(13) (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, 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).
In the present case, the claimant experienced an incapacitating back injury on October 23, 1996. After a lengthy period of convalescence, Dr. Greenspan’s reports indicate that by December 22, 1998, Dr. Greenspan felt that the claimant could probably benefit from surgical decompression. This note also indicates that the claimant wished to proceed with surgery. Therefore, a preponderance of the evidence indicates that additional medical treatment intended to improve the underlying nature of the claimant’s injury was still being investigated after May 19, 1998.
Unfortunately, we have a difficult time understanding what, if any, independent recollection the claimant had at the April 21, 2001 hearing regarding her relevant course of medical treatment in 1998 and 1999. Moreover, the claimant’s testimony is not consistent with the medical records of Dr. Greenspan submitted into evidence as to “what happened” beginning in early l999.
For example, on page 7, the claimant’s attorney asked the claimant a number of leading questions regarding whether Dr. Greenspan recommended in July of 1999 that the claimant have surgery for a herniated disk and an annular tear, and whether the claimant agreed to submit to surgery. The claimant testified that what occurred to prevent her from having surgery was a problem with the insurance company paying the bills. However, Dr. Greenspan’s records paint a completely different picture.
In this regard, on January 19, 1999 Dr. Greenspan proposed performing a series of three translumbar epidural injections with physical therapy to determine whether or not the claimant was a surgical candidate. Dr. Greenspan’s January 19, 1999 note indicates that if this treatment helped the claimant, she would be a good candidate for decompression surgery. Furthermore, the handwritten notes from Dr. Greenspan’s office dated January 19, 1999 indicate that a conversation occurred on that date between personnel in Dr. Greenspan’s office and Leslie Hardin with Zenith Insurance Company, and that the epidural steroid injections wereapproved by the insurance company. Thereafter, Dr. Greenspan’s February 5, 1999 report and an April 21, 1999 report from Dr. Greenspan to Leslie Hardin indicate that the claimant did in fact undergo a scheduled epidural steroid injection on February 5, 1999, but failed to show up for a follow-up scheduled for February 11, 1999. Although the claimant testified at the hearing that in July of 1999 Dr. Greenspan proposed that she have surgery, in fact the medical records in this case indicate that the claimant has failed to offer any documentation indicating that the claimant has ever had any medical contact with Dr. Greenspan after failing to show up for a follow-up appointment on February 11, 1999. Moreover, the only contact documented between the claimant or her attorney with Dr. Greenspan after February 5, 1999 is a “reasonable degree of medical certainty questionnaire” which the claimant’s attorney sent to Dr. Greenspan and which Dr. Greenspan filled out on July 29, 2000. Notably, there is no indication in Dr. Greenspan’s responses to that questionnaire which indicate that Dr. Greenspan ever saw the claimant after February 5, 1999, or that Dr. Greenspan ever proposed that the claimant have surgery after she failed to show up for the scheduled follow-up on February 11, 1999.
In light of the medical records indicating that (1) Dr. Greenspan proposed three epidural steroid injections to determine what to do next (2) the respondents were wiling to pay for this treatment but (3) the claimant didn’t show up for the February 11, 1999 follow-up and never re-scheduled, we find that a preponderance of the evidence establishes that the claimant abandoned her medical treatment on February 11, 1999, and that she has therefore failed to establish that she remained within her healing period after February 5, 1999.
In reaching this conclusion, we note that in responding to the reasonable degree of medical certainty questionnaire in July of 2000, Dr. Greenspan wrote “no” to the question, “Has the claimant’s healing period ended?” However, we also note that Dr. Greenspan initially indicated in early 1997 that the healing period for a herniated disc is six months to two years from the date of injury, and we note that the claimant on this record appears to have had access to medical treatment if she wanted it during the time periods in question, but the claimant simply failed to follow-up with her treating physician after February 5, 1999, some sixteen months prior to the date that Dr. Greenspan filled out the reasonable degree of medical certainty questionnaire. Under these circumstances, where the medical reports indicate that the claimant simply chose to discontinue medical treatment in February of 1999, and there is no medical report documenting that the claimant ever saw Dr. Greenspan at any point thereafter, we accord no weight to the opinion written by Dr. Greenspan sixteen months later that the claimant remained within her healing period.
2. Controversion and Second Attorney’s Fee
In their brief on appeal, the respondents argue:
Since the Claimant has had access to treatment, it cannot be said that Respondents have attempted to prevent Claimant from seeking treatment. Thus, the Administrative Law Judge’s finding of controverted medical is contrary to the preponderance of the evidence and must be reversed.
The problem with that argument is that the first numbered contention in the respondent’s notice of appeal to the Full Commission argues that:
1. The Administrative Law Judge’s finding that Claimant is entitled to additional medical treatment is contrary to and is not supported by a preponderance of the evidence.
We respectfully point out that the respondents cannot argue in their notice of appeal that the claimant is not entitled to the medical treatment awarded by the Administrative Law Judge but then argue in their brief that the respondents are not controverting the claimant’s entitlement to additional medical treatment. Under these circumstances, even though the credible medical evidence establishes that the respondents did not controvert the claimant’s entitlement to additional medical treatment during any relevant period before the hearing, the respondents have clearly controverted the claimant’s entitlement to any future medical treatment in their notice of appeal.
3. Future Medical Treatment
We find that the claimant is entitled to return to Dr. Greenspan, if she chooses to do so, to see what additional treatment, if any, that Dr. Greenspan might propose for treatment of the claimant’s compensable back injury. In reaching this conclusion, we recognize that it has now been nearly three years since the claimant last saw Dr. Greenspan in February of 1999. However, we also note that the claimant unquestionably had persistent back complaints after her 1996 injury, and Dr. Greenspan’s medical reports in the record at no point indicate that Dr. Greenspan ever released the claimant from additional care altogether. Moreover, prior to filing their notice of appeal, even the respondents had agreed that the claimant could return for additional treatment anytime she chose to do so.
4. Overpayment Credit
Finally, we note that there appears to be no dispute at this time that the respondents previously overpaid benefits and are entitled to credit towards both additional disability benefits and attorney’s fees in the amounts of $12,076.72 and $1,513.66.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the Administrative Law Judge’s award of additional benefits and attorney’s fees must be affirmed as modified herein.
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, the 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
Commissioner Wilson dissents.
Commissioner Turner concurs.