CLAIM NOS. E102500 E112173
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 18, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by FREDERICK S. SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed December 20, 1995. After ade novo review, we find that the decision of the Administrative Law Judge should be affirmed in part and reversed in part. We affirm that portion of the Administrative Law Judge’s decision finding that the claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled, entitled to any permanent disability benefits in excess of the 10% permanent impairment rating or that any depression she may have is related to her work injuries. However, we reverse that portion of the Administrative Law Judge’s decision finding that Thomas Briggs is an authorized physician based upon a legitimate referral.
[4] In April of 1992, the claimant was examined and treated by Dr. John L. Wilson of Orthopaedic Associates in Little Rock. Dr. Wilson noted “Ms. Dixon is felt to have degenerative disc disease with a superimposed lumbosacral strain.” (CX-1, p. 110-111). [5] The claimant’s treating physician was Dr. R. Doug Foster. In his March 30, 1992 report, Dr. Foster stated that the claimant has chronic back pain of discogenic origin, and has reached maximum medical improvement from her compensable injury. Dr. Foster assigned her a 10% physical impairment rating. (CX-1, p. 30). [6] An independent medical evaluation was performed by Dr. John Wilson on April 8, 1992. Dr. Wilson opined that the claimant had degenerative disc disease in the lower lumbar area with a superimposed lumbosacral strain. Dr. Wilson assigned a 15% anatomical rating. However, Dr. Wilson stated that 5% of the impairment rating was due to the claimant’s pre-existing degenerative disc disease with only 10% related to the aggravation of her degenerative disc disease. (CX-1, p. 111). Accordingly, based upon the diagnostic tests and the expert medical opinions of Dr. Wilson and Dr. Foster, we find that the claimant has failed to prove by a preponderance of the evidence that she sustained an anatomical impairment rating for her compensable injuries over and above the 10% assigned by Drs. Wilson and Foster. Clearly, Dr. Wilson assigned a 5% of his total anatomical rating to the claimant’s pre-existing condition. [7] The claimant further claims to be permanently and totally disabled or, in the alternative, entitled to wage loss disability over and above her physical anatomical rating. Claimant’s lack of interest in returning to work and her negative attitude are impediments to the Commission’s full assessment of wage loss. In determining wage loss disability, the Commission may take into consideration the workers’ age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers’ future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors.Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City ofFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946The most informative study from 1991 is the MRI scan of the lumbar spine demonstrating minimal degenerative change at L2-3 and L4-5 levels. At the L4-5 level, there is evidence of a small annular tear. There is no evidence of disc herniation, spinal stenosis or other identified abnormality. (CX-1, p. 19).
(1984). Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). [8] The claimant is a 39 year old woman with a twelfth grade education. She has worked as a nursing assistant and as a secretary. The claimant was released by her treating physicians without any particular work restrictions, yet she has not tried to return to any type of work. Respondent produced evidence of a vocational evaluation and labor market study revealing jobs in the area which were compatible with the claimant’s limitations. The claimant has simply declined attempts to be placed in any of these jobs. Rather than attempt employment she has chosen to file for social security disability benefits. [9] The claimant was videotaped performing various activities around her house without any noticeable limitations. These activities consisted of washing her car, painting the trim on her house, carrying a chain saw, carrying a ladder, moving wood and brush, carrying groceries, bending, stooping and walking. The videotaped evidence of the claimant doing these various activities is clearly inconsistent with the claimant’s testimony that she is unable to work. If the claimant is capable of performing these various activities, she is capable of returning to the workforce. Based on the foregoing, we find that the claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled. [10] When considering the claimant’s age, education, work experience, credibility, and obvious ability to perform those activities shown on the videotape, we further find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to any permanent disability benefits in excess of the 10% anatomical rating assigned by her treating physicians. [11] The claimant contends that her permanent disability stems from both physical and psychiatric causes. The only evidence presented by the claimant regarding her depression were reports from the Ozark Counseling Services Center and the testimony of the claimant and her husband. This evidence is not conclusive in proving a causal connection between the claimant’s depression and her alleged injury. The claimant introduced an MMPI report from psychiatrist, Tammy Berke, Ph.D., in which Dr. Berke stated:
[12] This report does not state that the claimant’s depression is causally related to her compensable injury. To the contrary, it implies long standing family or marriage maladjustments. Moreover, the testimony of the claimant and her husband do not prove a causal connection between claimant’s depression and her compensable injuries. According to the claimant, it is not her injury that causes her anxiety attacks but rather her worrying. (Tr. 29). [13] There is simply not enough evidence in the record to reach the level of a preponderance of evidence to prove that claimant’s depression is in any way related to her compensable injury. Thus, we find that the claimant has failed to meet her burden of proof on this issue. [14] Finally, we find that the claimant has failed to prove by a preponderance of the evidence that the treatment of Dr. Thomas Briggs was a legitimate referral and is reasonable and necessary. Claimant was referred to Dr. Briggs by an unauthorized physician, Dr. Wilbur. The claimant acknowledged at the hearing that she was aware of the change of physician requirements in workers’ compensation causes. She further acknowledged that she chose to go to Dr. Wilbur on her own. (Tr. 17, 18). Thus, according to the claimant’s own testimony, she did not follow the appropriate steps in changing physicians from Dr. Foster to Dr. Paul Wilbur. Therefore, Dr. Wilbur is an unauthorized physician. As an unauthorized physician, all referrals made by Dr. Wilbur are likewise unauthorized. [15] Finally, we find that the Administrative Law Judge erroneously found that respondents had accepted Dr. Wilbur as the claimant’s treating physician since they had paid his bills. Other than the claimant’s testimony that the respondents paid Dr. Wilbur’s bills, there is no evidence in the record that the respondent ever paid Dr. Wilbur. In fact, Claimant’s Exhibit Number Two which consists of the medical record shows that a good portion of Dr. Wilbur’s bills have not been paid. Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that Dr. Wilbur or his referral to Dr. Briggs were authorized treating physicians. [16] For those reasons stated herein, we find that the claimant has failed to prove that she is permanently and totally disabled, or that she is entitled to any permanent disability benefits in excess of her 10% permanent impairment rating. We further find that the claimant has failed to prove by a preponderance of the evidence that her depression, if any, is related to her work injuries. Therefore, we affirm the Administrative Law Judge on these issues. However, we find that the claimant has failed to prove by a preponderance of the evidence that claimant came under the care of Dr. Briggs by a legitimate referral from an authorized treating physician, therefore, we reverse the Administrative Law Judge on this issue. [17] IT IS SO ORDERED.The Minnesota Multiphasic Inventory was administered as an objective measure of personality. Mrs. Dixon’s responses to the MMPI were valid and indicated that she cooperated with the test enough to provide useful information. Major characteristics of the profile she received are apathetic depression and over control. These people are `bottled up,’ are filled with self-doubts and feel helplessly unable to do things or even start them. Often they feel weak, fatigued and exhausted. Marked anxiety or episodes of anxiety are infrequent, and they have difficulty expressing their feelings. Typically their depression is of long standing and response to psychotherapy is poor. They tolerate unhappiness and have accepted a low level of efficiency in their functioning. They lack insight, are resistant to psychological interpretations, and seldom seek help. Women with this code show weakness and apathy, along with prominent depression. Unhappiness is typically chronic with a long history of family and marital maladjustment. Model diagnosis is reactive depression. (CX-1, p. 108)
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[18] Commissioner Humphrey dissents.[19] DISSENTING OPINION
[20] I must respectfully dissent from the majority opinion finding, inter alia, that claimant has failed to prove that she is permanently and totally disabled.
[22] The majority found Dr. Wilbur to be an unauthorized treating physician owing to claimant’s failure to comply with the change of physician rules found in Ark. Code Ann. § 11-9-514 (1987). However, the reports of an unauthorized doctor should be considered in determining the extent of disability of the claimant. Markham v. K-MartCorp., 4 Ark. App. 310, 630 S.W.2d 550 (1982) (citing Larson, Workmens’ Compensation Law, § 61.12 (j) (1981);Lee v. Indus. Comm’n, 592 P.2d 785 (Ariz.App. 1979); andGarland v. Anaconda Co., 581 P.2d 431 (Mont. 1978)). [23] Based on Dr. Wilbur’s letter of November 12, 1993, I would find that claimant is permanently and totally disabled. [24] For the foregoing reasons, I must respectfully dissent from the majority opinion. [25] PAT WEST HUMPHREY, CommissionerIt is my information and belief that she has been unable to work and totally disabled since her event in 1991. I have seen her recently for general medical support and pain control. It is also my impression that she is totally disabled from employment. Her prognosis for improvement and return to the work force is poor.