CLAIM NO. E318119
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 11, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CHRISTOPHER D. ANDERSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE GAIL K. PONDER GAINES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified in part and reversed in part.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on August 4, 1995. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that the claimant remained within her healing period after December 23, 1993, and thus found that the claimant was not entitled to temporary total disability compensation after that date. The administrative law judge also found that the medical treatment received by the claimant was reasonably necessary medical treatment for her injury. The respondents cross appeal that portion of the decision.
[8] On December 13, 1993, the claimant visited Dr. Michael Weber, who noted that she had a ruptured disk at L4-5, and advocated treatment with anti-inflammatory medicines and rest. He also suggested that if she failed to improve, she should undergo an MRI. In a December 17, 1993, letter, Dr. Six indicated that the claimant could not return to work. This was followed by a December 27, 1993, letter from the claimant requesting chiropractic care. On January 3, 1994, Dr. Weber indicated to the respondents that he did not feel that chiropractic treatment was reasonably necessary for the claimant. On the same day, Dr. Six referred the claimant to a neurologist for an MRI. [9] On January 4, 1994, the respondents sent a letter to claimant and to Dr. Six indicating that they were no longer responsible for treatment rendered by Dr. Six. The evidence reflects that they told the claimant that her treatment from Dr. Weber was authorized, however, if she chose to return to his care. On January 13, 1994, Dr. Weber indicated that because the claimant had made no improvements, he thought an MRI was warranted. The claimant chose to return to Dr. Six, and upon his referral, she underwent an MRI on January 27, 1994, under the care of Dr. Ronald Williams. A February 3, 1994, report from Dr. Williams indicated that the MRI was negative, and that the claimant was being asked to return to the care of Dr. Six. [10] The claimant was then referred by Dr. Six to Dr. Bob Smith, who administered an epidural injection of steroids on April 4, 1994. A May 12, 1994, report from Dr. Williams indicated that the claimant’s symptoms on that date were essentially the same as they had been. He noted that the claimant had an epidural steroid injection without much benefit, and that he saw nothing to indicate that surgery would be helpful. The claimant received a functional capacity evaluation on June 23, 1994, at Search Workable Center, which indicated that she had the potential to increase her maximal work tolerances through physical therapy treatment. A report by Dr. Williams on August 11, 1994, again indicated that the claimant felt very little relief from physical therapy or an epidural steroid injection, and he recommended she continue treatment with Dr. Six, since she had received the most relief from his treatment. Claimant is now no longer employed by respondent. [11] The claimant contends that she is entitled to temporary total disability compensation from December 24, 1993, to an unspecified date. The respondents contend that the claimant’s healing period ended November 8, 1993, and that in any case, temporary total disability compensation should not extend past December 23, 1993. It was stipulated that temporary total disability compensation has been paid from October 28, 1993, to December 23, 1993. The respondents also contend that the medical treatment received and requested by the claimant after her healing period had ended is not reasonably necessary medical treatment. [12] Both the administrative law judge and the claimant couched the case in terms of a change of physician issue, indicating that it was the claimant’s choice that she receive chiropractic treatment. However, the respondents have already paid for chiropractic services rendered through December 1993. Respondents also acknowledge that as of the December 27, 1993, letter from the claimant, the chiropractor was an authorized medical provider, even if he was not prior to that date. The issue in this case as to the treatment received by the claimant afterShe only made one appointment to Physical Therapy and did not keep the others because she said she went back to her chiropractor. She says she did not take the DayPro because she heard it was a new medicine and didn’t have any information on it. We had explained to her how to take it and what it was for on her previous visit and she did not call the office to ask us about it that I am aware of. She said the Flexoril made her sleepy and so she only took 2. I am unsure why she didn’t take it in the evening or at bedtime. She did not take the Darvocet because she said she didn’t like to take pain medicine. She comes in today stating basically that she has had no improvement in her symptoms. I reviewed Mr. Hull’s evaluation from her visit from physical therapy. He evidently has some concerns about her symptoms not being consistent with her physical findings.
that date is, therefore, only whether it is reasonably necessary medical treatment. [13] Act 796 did not change the basic law regarding temporary total disability compensation. Since the claimant’s injury occurred after July 1, 1993, the provisions of Act 796 of 1993
are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, 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 Highway and 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. § 11-9-102 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his 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. [14] Act 796 also did not change the general law with regard to medical treatment. 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 Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. DeborahJones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No. D511255). [15] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that her healing period extended beyond November 8, 1993. We find that the evidence establishes that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary total disability compensation beyond that date. In this regard, we find that the decision of the administrative law judge that the claimant’s healing period ended on December 23, 1993, should be affirmed as modified. In addition, we find that any medical treatment received after November 8, 1993, was not reasonably necessary medical treatment for her injury. In this regard, we reverse the administrative law judge’s finding that the claimant’s treatment by Dr. Six and by the physicians on referral from him were reasonably necessary for the claimant’s injury. [16] The parties stipulated that the compensable injury occurred on October 27, 1993. In addition, the evidence reflects that in the notice of injury, the claimant stated that the injury occurred because the “continuous motion of cutting machine put to [sic] much stress on my back causing injury on or around 10-28-93.” It is clear from the record, however, that the actual “injury” occurred on October 19, 1993. Claimant’s own testimony indicates that she thought that her numbness on that date was due to heart problems that she had experienced for several years. The evidence also reflects that the claimant had even missed work a few days earlier with heart problems. [17] In addition, the record indicates that as of November 8, 1993, Dr. Yates saw no relationship between the claimant’s symptoms and his physical findings. He noted that “[a]t this point I have recommended that she return to work, and I see no reason why she can’t return to full duties.” At this stage, the evidence reflects that the claimant was unwilling to participate in physical therapy and was unwilling to take the medication prescribed by both her family doctor and by Dr. Yates. Although it was indicated that physical therapy might provide some relief of her pain, the evidence reflects that she only attended one session. However, the claimant continued to see Dr. Six, who also had opined that the claimant could return to work on November 8, 1993. The claimant also testified that the treatment rendered by Dr. Six only provided her temporary relief. This was despite the fact that she continued to see Dr. Six at least five times a week from the first of November until the end of December and four times a week since the end of December. In short, the evidence shows that the claimant’s medical provider had indicated that she was able to return to work by November 8, 1993. Moreover, the evidence fails to show that any symptoms she experienced after this date were related to her compensable injury. Therefore, we find that she failed to prove by a preponderance of the evidence that she remained in her healing period and incapacitated from earning after that date. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that medical treatment provided after that date was reasonably necessary for treatment of the compensable injury. First, as discussed, the evidence indicates that the claimant’s problems after November 8, 1993, were unrelated to the compensable injury. Moreover, the claimant testified that the epidural administered by Dr. Smith provided no relief, and the treatment provided by Dr. Six four times a week only provided temporary relief. This was all in light of the fact that both Dr. Yates and Dr. Six indicated that the claimant could return to work on November 8, 1993 and that her symptoms after that date were not related to her compensable injury. In addition, the evidence reflects that as of November 8, 1993, none of the physicians that the claimant had seen indicated that their objective findings suggested that she needed an MRI or epidural injections. Both Dr. Yates and Dr. Six indicated on November 8, 1993, that the claimant could return to work. Dr. Yates also noted that the relationship between the claimant’s symptoms and his physical findings was suspect. Therefore, we find that the treatment received by the claimant after her November 8, 1993, visit to Dr. Yates was not reasonably necessary medical treatment. [18] 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 disability compensation after that date. We therefore find that the administrative law judge’s decision in this regard must be affirmed as modified. We also find that the preponderance of the evidence establishes that the treatment received by the claimant after her November 8, 1993, visit to Dr. Yates was not reasonably necessary medical treatment. Therefore, we find that the administrative law judge’s decision in that regard must be reversed. [19] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[20] Commissioner Humphrey dissents.[21] DISSENTING OPINION
[22] I must respectfully dissent from the majority opinion finding that claimant’s healing period ended on November 8, 1993, and that medical services rendered for treatment of her compensable injury after that date were not reasonable and necessary.