CLAIM NO. F011971
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 28, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE NEAL L. HART, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal from an opinion finding in relevant part that: MRI scans ordered by Dr. Hill were reasonable and necessary; Dr. Hill’s referral to Dr. Schlesinger was a valid referral; Dr. Schlesinger’s recommendation for continuing medical treatment is reasonable, necessary and related to the claimant’s compensable injuries; the claimant is entitled to temporary total disability benefits from September 10, 2000, to a date yet to be determined, such benefits from September 10, 2000, through November 21, 2000, to be paid at the rate of $394.00, and such benefits during the period of time the claimant draws unemployment benefits, from November 22, 2000, to a date yet to be determined, to be paid at the rate of $73.00. After conducting a de novo review of the entire record, we affirm the Administrative Law Judge’s decision.
The claimant sustained two compensable injuries, the first in a lifting incident on June 6, 2000, and the second in a motor vehicle accident on June 26, 2000. The claimant was off work from June 27 through July 11, 2000, but was paid his full salary during this period. The claimant’s treating physician, Dr. Hill, released him to light duty work on July 14, 2000. Her note in this regard did not indicate that the claimant was to receive any more medical treatment. The claimant’s employer and the adjuster did not become aware that the claimant continued to receive medical treatment following that date, until October 3, 2000, when Dr. Hill called the adjuster regarding the claimant’s treatment.
The claimant resigned from his position with the respondent on September 9, 2000, after being asked to do so by his supervisor, Mr. Trout. The claimant testified that he doesn’t know why he was asked to resign. He did state that Trout did not tell him that he wanted him to resign because of his injuries affecting his work. Mr. Trout testified at length regarding the discussion between himself and the claimant regarding the resignation, and stated that he asked the claimant to resign for professional reasons, including that their management styles were different, and because there were rumors that the claimant was misusing company equipment. He specifically testified that it had nothing to do with the claimant’s accidents or injuries and that he had not observed any problems with the claimant performing his duties. Mr. Trout further testified that the claimant never indicated to him verbally or through his performance that he was having any problems completing his work, stating specifically that he never observed the claimant having difficulties with his work following the motor vehicle accident. He testified that he had followed up after the claimant’s accidents and felt that the claimant was completing his job duties. He also stated that he had received no complaints from the claimant’s co-workers that the claimant was not doing his job. The Administrative Law Judge did not consider Mr. Trout’s testimony to be credible.
Shortly after resigning, the claimant applied for unemployment benefits which he began receiving on November 21, 2000. The claimant testified that he did not feel he was physically able to work, and stated that when he applied for unemployment benefits, he lied when he wrote that he was ready, willing, and able to work.
The medical evidence included a letter from Dr. Hill to the adjuster dated October 11, 2000, which stated that:
The reason I am referring Mr. Brooks to a neurosurgeon [Dr. Schlesinger] is because of sciatica in the left buttocks (sic) and leg. The thoracic pain and spasms should resolve with rest, anti-inflammatories and muscle relaxers.
This referral had apparently actually occurred some time earlier, as the evidence also contains a letter from Dr. Schlesinger to Dr. Hill dated October 5, 2000, stating that:
I have read the MRI scan of the thoracic and lumbar spine and of the cervical spine. The cervical MRI is normal and shows only degenerative changes. The MRI of the lumbar spine also shows degenerative changes, but no disc herniation, nerve root compression or spinal stenosis. He has an old mild anterior compression fracture at T7. This is of no significance neurosurgically. There is a small T12-L1 disc protrusion on the left which does not appear to be the cause of any symptoms either. I think he should do well with conservative care. I have set him up with physical therapy of the thoracic and lumbar region. I have made him an appointment with pain management.
The deposition of Dr. Ridout was also entered into evidence. Dr. Ridout testified regarding an MRI of the claimant’s lumbar spine performed on September 14, 2000. Regarding the L1-2, L2-3, and the L3-L4 levels, Dr. Ridout stated, “There would seem to be nothing unusual about these discs and they would probably be within normal limits for a patient’s age at those three levels.” On the L4-L5 level, Dr. Ridout saw mild desiccation, which he stated he would not normally consider particularly significant. He also found degenerative changes, and explained that, “generally speaking the term degenerative is implying the aging process.” Concerning the L5-S1 level, Dr. Ridout stated that:
There was some mild what we call broad-based posterior annular dislodging of the L5-S1 disc, . . . I think generally we’re saying that we felt like this was more in keeping with a long-standing degenerative process and the aging process more likely.
Regarding an MRI of the claimant’s thoracic spine done on September 22, 2000, Dr. Ridout noted a moderate anterior wedge compression deformity of the T-7 thoracic vertebrae, which he stated was likely a compression fracture of longer standing duration. It was his opinion that this deformity was years old or more than a couple of months old. Dr. Ridout stated that the thoracic MRI also revealed degenerative changes and other clinical findings of no particular significance. A cervical spine MRI was also done on September 22, 2000, and Dr. Ridout found this study to be essentially unremarkable, normal and showing only degenerative changes. Dr. Ridout offered no recommendations regarding further treatment for the claimant.
A letter from Dr. Schlesinger also states that the cervical MRI was normal, that the MRI of the claimant’s lumbar spine showed only degenerative changes, and that the compression fracture at T7 was old.
Respondents are obligated to furnish reasonable and necessary medical treatment. The Administrative Law Judge determined that all diagnostic testing and referrals were reasonably necessary for the treatment of claimant’s work-related injuries. We agree. Claimant had no difficulty performing his duties for six years prior to the accidents in June 2000. Thereafter, Dr. Hill documented muscle spasms. Diagnostic testing revealed disc bulges. Dr. Schlesinger recommended further treatment. The evidence supports a finding that continued medical treatment is causally connected to claimant’s compensable injuries.
An injured worker with a non-scheduled injury is entitled to temporary total disability compensation while he remains within his healing period and totally incapacitated from earning. In the present case, even during the period that the claimant was returned to work by the respondents, his doctor had the claimant under light-duty restrictions, and the doctor’s routine office notes from June through October of 2000 clearly indicate that the claimant was experiencing significant ongoing problems during his heavy manual labor between July and September. Therefore, it appears that the claimant never had any business trying to return to work in heavy manual labor during the period for which he was released to return to light duty. Claimant remains on restricted duty. As a manual laborer, he cannot obtain employment without a medical release. Therefore, we find that the claimant remained incapacitated from earning from the time of his separation and continuing at the time of the hearing. Furthermore, the claimant’s primary treating physician, Dr. Hill, indicated in a letter dated October 11, 2000 that the claimant was referred to a neurosurgeon, Dr. Schlesinger, because of ongoing sciatica in the left buttocks and leg. In addition to these problems, Dr. Hill indicated that the claimant’s ongoing thoracic pain and spasms should resolve with rest, anti-inflammatories, and muscle relaxers. The treatment recommended to improve his condition was never administered prior to the hearing. Therefore, we also find that the claimant remained within his healing period at the time of the hearing.
The dissent suggests that the claimant’s healing period actually ended on July 11, 2000. However, as discussed, Dr. Schlesinger prescribed physical therapy of the thoracic and lumbar region in October 2000, which the claimant has not yet undergone. Therefore, it appears that the dissent’s suggestion that the claimant’s healing period ended on July 11, 2000 is inconsistent with both the ongoing office notes of Dr. Hill after that date, inconsistent with Dr. Schlesinger’s October 5, 2000 letter, and inconsistent with Dr. Hill’s November 22, 2000 letter. Therefore, we agree with the Administrative Law Judge’s determination that the claimant was both within his healing period and incapacitated from earning in manual labor during all periods in question after September 9, 2000 and continuing to a date yet to be determined.
Although claimant received unemployment insurance benefits during a portion of his current disability, this is not a complete bar to an award of temporary total disability benefits. There is an offset resulting in a decrease to $73.00 in his temporary total disability rate. This represents the difference between claimant’s temporary total disability rate and his ESD benefit rate.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we affirm the Administrative Law Judge’s award of additional benefits. 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 (Supp. 2001).
For prevailing 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
(Supp. 2001).
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION MIKE WILSON, Commissioner
I respectfully dissent from the majority opinion. I would find that the claimant reached the end of his healing period when he returned to work full time on July 11, 2000. The administrative law judge found the testimony of Mr. Trout unconvincing. I disagree and find his testimony reliable, and I do not find that the claimant’s resignation had anything to do with his ability to perform his job. Rather, I find the testimony of the claimant regarding his ability to work unreliable, particularly in light of his statement that he lied on his application for unemployment benefits. Therefore, I respectfully dissent from the majority opinion.
_____________________________ MIKE WILSON, Commissioner