CLAIM NO. E305472
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 11, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOHN FRANK GIBSON, Attorney at Law, Monticello, Arkansas.
Respondents represented by the HONORABLE KEITH M. McPHERSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on April 18, 1995. In that opinion and order, the administrative law judge found that the claimant’s headaches are a compensable consequence of her admittedly compensable injury, and the Administrative Law Judge found that the claimant is entitled to temporary total disability compensation for the period extending from August 17, 1994, through the end of her healing period. After reviewing this matter, we find that the claimant proved by a preponderance of the evidence that her headaches are a compensable consequence of her compensable injury. Therefore, we find that the Administrative Law Judge’s decision in this regard must be affirmed.
(1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. §11-9-704 (c)(4) (1987); Wade v. Mr. C. Cavenaugh’s, 198 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). In this regard, the claimant has the burden of proving by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). Consequently, the claimant must establish a causal relationship between the employment and the disabling injury. Lybrand v. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra. [7] In the present claim, we find that the claimant has proven by a preponderance of the evidence that her headaches are causally related to her compensable injury. In this regard, the claimant and her husband both testified that she did not experience problems with headaches prior to the accident, and they both testified that she began to experience frequent headaches after the injury, although the headaches were not severe enough to interfere with her activities. In addition, both the claimant and her husband testified that she began to experience severe headaches after the expander surgery that prevented her from working. [8] Likewise, the medical evidence indicates that she was complaining of a headache when she was treated at the Drew County Memorial Hospital. Although Dr. Talbert’s records indicate that she was not complaining of a headache when she was discharged from the hospital in April of 1993, his records also show that she complained to him in May of 1993 about headaches, and his records show that she began to complain of severe headaches after the expander surgery in February of 1994. According to Dr. Talbert, the expander procedure is expected to produce severe pain for at least one to two days after each injection during the one to two week period, and he indicated that some patients experience chronic pain which requires narcotic analgesics for pain relief as a result of the procedure. [9] Dr. Talbert referred the claimant to Dr. Mary Corbitt, a neurologist with the Arkansas Headache and Neurology Clinic, for treatment of her headaches. Notably, Dr. Corbitt’s reports indicate that the history of headaches related by the claimant during her initial visit on April 4, 1994, is consistent with the claimant’s testimony at the hearing. Dr. Corbitt described her clinical findings as follows:
[10] Dr. Corbitt also noted “tenderness to palpation of the paraspinous muscles and . . . some tenderness to palpation in the TMJ area with excursion of the joint.” Based on these findings, Dr. Corbitt diagnosed a “[m]ixed headache pattern including migraine and muscle contraction headaches as a result of the head and scalp injury that she suffered in March 1993.” Dr. Corbitt referred the claimant to Dr. Annette Meador, an anesthesiologist, for trigger point injections in the right trapezius, right levator scapula, and right posterior cervical muscles for relief of the muscle contractions she was experiencing. However, the claimant did not receive any relief from these injections. Dr. Meador also recommended an occipital nerve block, but the claimant was apprehensive of this procedure because of her injuries in that area. [11] Because of the involvement of the claimant’s cervical spine in her complaints, Dr. Talbert and Dr. Corbitt referred her to Dr. Steven L. Cathey, a neurosurgeon, for an evaluation. Dr. Cathey examined the claimant on one occasion and determined that the claimant’s problems were not caused by a cervical disc problem. Instead, he concluded that the headaches were caused by tension. In deposition testimony, Dr. Cathey expressed the opinion that 95% of all headaches are tension headaches and that the other 5% are “related to vasomotor activity of the blood vessels supplying the covering of the brain.” However, Dr. Corbitt disagreed with Dr. Cathey’s opinion regarding the etiology of the claimant’s headaches. In this regard, Dr. Corbitt made the following comments:There were no bruits heard over the head. There was a very large area of scarring with total skin graft area over the entire portion of the back of the head and partially up into the crown of the head. Around the borders of this area there was a very thick swollen type area and this apparently in the area where she has had the expander injections. This is on the right side and also in the posterior portion of the scar border. She had hair on the top of her head that she could pull down over this area to completely cover the scarring. This area would measure at least 8-10 inches across from side to side.
[12] We note that Dr. Cathey recognized that Dr. Corbitt was more qualified to render an opinion regarding the etiology of the claimant’s headaches, and he testified that he would “yield to what she said about the etiology of it.” We also note that Dr. Cathey only examined the claimant on one occasion and that his examination was limited to the consideration of whether claimant’s complaints were related to a cervical disc problem. On the other hand Dr. Corbitt has been the claimant’s treating physician for an extended period of time. Therefore, we find that Dr. Corbitt’s opinion is entitled to more weight than the opinion of Dr. Cathey. [13] The claimant was also evaluated by Dr. J. K. Smelz, a professor in the Department of Physical Medicine and Rehabilitation at the University of Arkansas for Medical Sciences. However, Dr. Smelz’s report indicates that his evaluation was limited to the muscular component of the claimant’s problems, and Dr. Smelz does not indicate what his conclusions are with regard to the relationship of the muscular component to the claimant’s headaches. The claimant apparently also came under the care of Dr. Smelz’s associate, Dr. Pam Brown. However, none of Dr. Brown’s reports are in the record. [14] In short, the preponderance of the evidence establishes that the claimant suffered a very severe traumatic accident to her scalp and that this accident also resulted in the jerking of her neck. In addition, the preponderance of the evidence establishes that she began to experience headaches soon after the compensable accident and that she reported these headaches to her treating physician. Likewise, the preponderance of the evidence establishes that these headaches progressively worsened and that they became very severe after Dr. Talbert performed the expander procedure. Moreover, Dr. Talbert’s records indicate that chronic pain such as that experienced by the claimant is an expected effect of the expander treatment, and Dr. Corbitt has opined that the claimant’s headaches are related to the compensable injury. Therefore, weighing the evidence impartially without giving the benefit of the doubt to either party, we find that the claimant proved by a preponderance of the evidence that her headaches are a compensable consequence of the compensable injury. Consequently, we find that the Administrative Law Judge’s decision in this regard must be affirmed. [15] However, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary total disability compensation after August 17, 1994. 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. ArkansasState 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 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. [16] In the present claim, the claimant continues to experience pain, and she continues to receive treatment for the maintenance of that pain. However, 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. Mad Butcher. Inc.v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The claimant was thoroughly evaluated and treated for her headaches prior to August 17, 1994. However, no problem has been found which can be expected to improve with additional treatment, and Dr. Corbitt indicated by August 17, 1994, that it is likely that this condition will continue indefinitely. Consequently, we find that the claimant is as far restored as the permanent character of her injury will permit. Therefore, we find that the claimant’s healing period had ended by that date and, consequently, that she failed to prove by a preponderance of the evidence that she is entitled to any additional temporary total disability compensation. [17] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant’s headaches are a compensable consequence of her compensable injury. Therefore, we find that the Administrative Law Judge’s decision in this regard must be affirmed. However, we also find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary total disability compensation after August 17, 1994. Therefore, we find that the Administrative Law Judge’s decision in this regard must be reversed. [18] 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 (1987). For prevailing in part on this appeal before the Full Commission, 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 (b) (1987). [19] IT IS SO ORDERED.. . . I do differ with his opinion. As you know, she has had a very traumatic injury to the scalp area with tearing of the muscle and fascia over the scalp. We are dealing with a much more complicated problem than simple tension headaches since there has been such a drastic injury to these tissues. I am using the Elavil primarily to try to afford her better pain relief and hopefully it might help her depressed mood. I think if any of us had suffered the severe injury she has and experienced the continued pain she has, we would have depressed mood and I think what she is telling me about is a very appropriate mood change for the traumatic events that have occurred. As you know, Elavil has been well documented to be helpful for chronic pain problems, even aside from any antidepressant effect.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[20] Commissioner Humphrey concurs in part and dissents in part.[21] CONCURRING AND DISSENTING OPINION
[22] I concur with the majority’s finding that claimant’s continuing headaches are a compensable consequence of her March 31, 1993 compensable injury, but must respectfully dissent from that portion of the majority’s opinion denying claimant additional temporary total disability benefits from August 17, 1994 through the end of her healing period.