CLAIM NO. E120197
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 2, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by RICHARD SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; reversed in part.
[1] OPINION AND ORDER[2] Respondents appeal an opinion and order filed on May 19, 1997, wherein an Administrative Law Judge found that claimant was entitled to an additional award of temporary total disability benefits from April 1, 1996, through November 27, 1996, and that respondents had controverted claimant’s entitlement to an additional permanent anatomical impairment rating of 10% to the body as a whole. [3] Respondents now appeal from that opinion and order, contending that claimant is not entitled to additional temporary total disability benefits and that they did not controvert claimant’s entitlement to an additional permanent impairment rating. [4] Following a de novo review of the entire record, we find that claimant has proven, by a preponderance of the credible evidence, that she is entitled to an additional award of temporary total disability benefits from April 1, 1996, through November 27, 1996. However, we also find that respondents have not controverted claimant’s entitlement to an additional 10% permanent anatomical impairment rating. The decision of the Administrative Law Judge is therefore affirmed in part and reversed in part. [5] Temporary total disability is that period within the healing period in which the 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). [6] Though claimant’s original injury occurred some years ago in 1991, we are persuaded that she did remain in a healing period during late 1995 and most of 1996, and stood a reasonable chance of seeing her condition improve. MRI scans of claimant’s cervical spine performed on September 13, 1995, and October 28, 1996, reveal that claimant suffered from a reversal of her normal cervical curve — a clear indication that her cervical musculature was in a state of considerable spasm. The treatment offered by Dr. Robert C. Thompson, in the form of neck bracing, was directed at alleviating this condition:
Q. So what you’ve got here is a flare-up of her symptomatology?
A. Yeah. The muscles get irritated, and they go into spasms.
Q. Okay.
[7] Dr. Thompson went on to explain that he thought claimant “could undergo significant healing” when he implemented a long-term neck brace. Accordingly, while it may be true that Dr. Thompson was actively trying to reduce claimant’s pain, such relief depended heavily on the diminution of her muscle spasms an observable, underlying condition beyond mere pain (though it should be noted that “objective findings” are not determinative with regard to the duration of a given claimant’s healing period; see Larry Graham v. Chamber Door Indus., Full Workers’ Compensation Commission, Opinion Filed January 9, 1997 (Claim No. E400258) (aff’d December 3, 1997, at 59 Ark. App. ___, ___ S.W.2d ___ (1997)). We would thus find that claimant remained in her healing period during the time in question, and that she did not reach maximum medical improvement until, in Dr. Thompson’s words, she had “failed on the epidural steroids . . . the middle of November here.” Claimant appears to have received her last injection on November 6, 1996, and on November 27, 1996, Dr. Thompson expressed doubt that claimant would improve enough to function as a secretary. He does not appear to have attempted further injection therapy at that point. In our opinion, claimant did not reach the end of her healing period until November 27, 1996. [8] Furthermore, on July 29, 1996, Dr. Thompson indicated that claimant was “temporarily totally disabled” and had been “out of work for an extended time period.” Given Dr. Thompson’s comments of November 27, 1996, there seems to be little to suggest that claimant’s work status had improved during the interim. Based on the foregoing, we would find that claimant remained in her healing period and totally incapacitated to earn wages from April 1, 1996, through November 27, 1996, and is entitled to a corresponding award of temporary total disability benefits. [9] During his deposition of January 13, 1997, Dr. Thompson opined that claimant had sustained a permanent impairment of 10% to the whole body due to her cervical injury. It does not appear that permanent impairment benefits had been previously raised, and claimant’s attorney thereafter requested (by way of a letter dated January 14, 1994, to the Administrative Law Judge) that the pending hearing be expanded to include that issue. The Administrative Law Judge informed respondents of claimant’s request in a letter dated January 17, 1997, to which respondents replied on January 27, 1997:A. And that causes more pain, of and by itself. The therapy will help you get those muscles to relax, and that will help you to treat the pain. When the muscles tighten up, they defeat the purpose of the brace. The brace is expected to hold the head’s weight, and hold it in such a way that the muscle’s don’t have to be active at all, or at least minimally. So if the muscles really do relax, and if the brace really holds up the head, then the compression load on the discs and these structures in her neck that are in trouble is minimized. And it really goes down a lot. I mean, it goes down by eighty percent or so. But if something causes a lot of pain, then the person develops a tendency to try to restrict their motion, and the natural way that occurs is they tighten up their muscles. Well, that tightening leads to more pain, actually, because it compresses these bad areas, and the thing kind of feeds on itself. And you end up with a spasm situation, where they can’t quit tightening up because it hurts too much, and you have to break this cycle. One of the ways of breaking it is with the use of muscle relaxants, such as Valium. The other way is with the use of physical therapy techniques, including ultra-sound and heat massage, and so forth. And the combination of these, plus continuing through with the brace will usually break through the muscle spasms and relieve the pain, and allow the brace to continue doing it’s thing. This is the sort of thing that happens with these people in episodes. I mean, they’ll have a period of time where it will go real well, and then there’ll be a period of time where everything hurts.
[10] The parties stipulated at the hearing that neither of them had received a transcript of Dr. Thompson’s deposition until February 17, 1997, the day before the hearing. At the hearing itself, respondents conceded liability for the 10% impairment rating. However, they had not commenced payment of such benefits by early March, as a March 11, 1997, letter from claimant’s attorney to the Administrative Law Judge indicates. By way of a letter dated March 18, 1997, a representative of respondent carrier stated that “Ms. Brooks will have a check in hand by Saturday March 22, 1997 at the latest.” [11] Ark. Code Ann. §§ 11-9-803(a)(1) and (b)(1) (Repl. 1996) state that:Please be advised that I have discussed this with the claim manager, and we have no objection, in principle, to this matter being addressed at the hearing. As Mr. Walker indicated in his letter of 1/14/97, however, Dr. Thompson gave this rating on a somewhat ad hoc basis, in response to questions at a recent deposition. Respondents believe that we are entitled to wait until we actually receive the transcript of the deposition, and have an opportunity to review it against the existing medical record, before taking a position on the issue of the ten percent (10%) impairment rating. It will be our position that, should we accept additional permanent disability at any time up to the date of the scheduled hearing, we should not be held to have controverted the request for additional benefits.
Each employer desiring to controvert the right to compensation shall file with the Workers’ Compensation Commission, on or before the fifteenth day following notice of the alleged injury or death, a statement on a form prescribed by the commission that the right to compensation is controverted and the grounds therefor, the names of the claimant, employer and carrier, if any, and the date and place of the alleged injury or death.
And,
[12] In Ridgeway Pulpwood v. Baker, 7 Ark. App. 214, 646 S.W.2d 711 (1983), the Arkansas Court of Appeals commented as follows:If an employer is unable to obtain sufficient medical information as to the alleged injury or death within fifteen (15) days following receipt of notice, although the employer has acted in good faith and with all due diligence, the employer may apply in writing for an extension of time for making payment of the first installment or controverting the claim.
[13] We are persuaded that respondents’ letter of January 27, 1997, amounts to a request for an extension of time in which to make payment or controvert a claim pursuant to Ark. Code Ann. § 11-9-803(b)(1) (Repl. 1996). A request for time to receive a formal transcript of a deposition, upon which a claim is entirely based, does not appear unreasonable under the circumstances presented herein, nor does it give the appearance of bad faith. Within one day of receiving the transcript, respondents conceded liability for the benefits at issue, thereby eliminating them as a potential source of litigation during the hearing of February 18, 1996. Thereafter, respondents unexplained delay in payment appears to have been remedied by a brief letter from claimant’s attorney, and no further hearing was required. In our opinion, this does not amount to “requiring the services of an attorney” to an extent which justifies a finding of controversion particularly where respondents have already conceded liability for the benefits involved. Accordingly, we find that respondents did not controvert claimant’s entitlement to an additional permanent impairment rating of 10% to the whole body. [14] Based on a de novo review of the entire record, and for the reasons discussed herein, we find that claimant is entitled to an award of additional temporary total disability benefits from April 1, 1996, through November 27, 1996, and that respondents have not controverted claimant’s entitlement to an additional 10% permanent anatomical impairment rating to the whole body. The decision of the Administrative Law Judge is therefore affirmed in part and reversed in part. [15] 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). [16] 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). [17] IT IS SO ORDERED.The right to determine the necessity of a claimant’s securing the service of an attorney to preserve his benefits has been placed within the discretionary power of the Commission . . . We agree with the appellant that the mere fact payment of benefits is delayed does not amount to controversion per se. A determination of whether a claim has been controverted may be a question of fact and is not to be determined mechanically upon ascertaining whether the employee has filed his claim the employer promptly responds by accepting or controverting the claim (sic). There are other factors which the Commission may consider in determining whether the services of the attorney were necessitated by the employer’s action. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976); Hamrick v. Colson Company, 271 Ark. 740, 610 S.W.2d 281
(Ark.App. 1981).
DAVID GREENBAUM, Special Chairman
[18] Commissioner Humphrey concurs in part and dissents in part. [19] CONCURRING AND DISSENTING OPINION[20] While I concur with the principal opinion’s finding that claimant is entitled to an award of additional temporary total disability benefits from April 1, 1996, through November 27, 1996, I must respectfully dissent from the finding that respondents did not controvert claimant’s entitlement to an additional 10% permanent anatomical impairment rating. [21] PAT WEST HUMPHREY, Commissioner [22] Commissioner Wilson concurs in part and dissents in part. [23] CONCURRING AND DISSENTING OPINION
[24] While I concur with the principal opinion finding that respondent did not controvert the claim for an additional 10% permanent anatomical impairment, I must respectfully dissent from the finding that claimant is entitled to an award of additional temporary total disability benefits. Based upon my de novo
review, I find that claimant has failed to meet her burden of proof on this issue. [25] MIKE WILSON, Commissioner