GILL v. SEVIER HEALTHCARE, INC., 2003 AWCC 11

CLAIM NO. F013374

TOBITHA GILL, EMPLOYEE, CLAIMANT v. SEVIER HEALTHCARE, INC., EMPLOYER, RESPONDENT, CANNON COCHRAN MANAGEMENT, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 14, 2003

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by HONORABLE MARSHALL MOORE, Attorney at Law, Texarkana, Arkansas.

Respondents represented by HONORABLE MIKE RYBURN, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed in part and reversed in part.

OPINION AND ORDER
The claimant appeals an opinion and order filed by the Administrative Law Judge on March 8, 2002. In that opinion and order, the Administrative Law Judge found in relevant part that the claimant failed to prove that she is entitled to any temporary total disability compensation after November 6, 2000. In addition, the Administrative Law Judge found that the claimant failed to prove that any additional medical treatment, including that medical treatment proposed by Dr. Rosenzweig, is reasonably necessary in connection with her compensable injury. After conducting a de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to any additional temporary disability compensation after November 6, 2000. Therefore, the Administrative Law Judge’s decision in this regard is affirmed. However, we also find that the preponderance of the evidence establishes that the claimant is entitled to continued care, including the anti-inflammatory medication and a course of physical therapy proposed by Dr. Rosenzweig. Therefore, we find that the Administrative Law Judge’s decision in this regard must be reversed.

The claimant was a 60-year old dietician when she fell at work at the respondents’ nursing home on November 6, 2000. She went to the company doctor on November 7 and again on November 14. The company doctor’s first cryptic report diagnosed knee and shoulder contusion, and also mentions the claimant’s wrist. His second report indicates that the claimant’s knee and wrist are “okay” and that he injected her shoulder. Both reports release the claimant to return to work. The claimant returned to work for a short period of time. She reported that she couldn’t continue to perform her present duties, and the claimant testified that she was terminated. The claimant also testified that the respondents terminated her access to additional medical treatment at that time.

The claimant presented to the DeQueen Regional Medical Center on December 20, 2000, with continuing hand and shoulder complaints. She later hired an attorney. The attorneys agreed to send the claimant to Dr. Kenneth Rosenzweig for an independent medical evaluation, which was performed on October 3, 2001, approximately one year after the original injury at work.

In that independent medical evaluation, Dr. Rosenzweig essentially concluded in part that (1) the incident at work aggravated pre-existing arthritis in the claimant’s shoulder and in her wrist, (2) the injury had not yet resolved and become asymptomatic as of October 3, 2001 because of the pre-existing arthritis, and (3) Dr. Rosenzweig recommended continued care in the form of anti-inflammatories and a short course of physical therapy.

We are persuaded by Dr. Rosenzweig’s independent medical evaluation conclusions that the claimant has established by a preponderance of the evidence that the additional anti-inflammatories and the course of physical therapy that Dr. Rosenzweig recommends are reasonably necessary for the treatment of the claimant’s compensable injuries. In reaching this conclusion, we note that Dr. Rosenzweig’s recommendation appears to be consistent both with his clinical finding of crepitance and grinding at the CMC joint in the claimant’s hand and consistent with the claimant’s description that she has lost strength and function in her left arm.

However, we also find that the claimant has failed to establish that she is entitled to any period of disability compensation after November 6, 2000. In this regard, we note, as did the Administrative Law Judge, that no physician has explicitly taken the claimant off work, and a company doctor explicitly released the claimant to regular work in November of 2000. As discussed above, the claimant did in fact return to work for a short period of time. Under these circumstances, a preponderance of the evidence indicates that the claimant had, in fact, returned to work, and a preponderance of the evidence establishes that the claimant was capable of working after November 6, 2000. Furthermore, we also note that Dr. Rosenzweig indicated that the claimant has already reached maximum medical improvement when he saw her for an independent medical evaluation in October of 2001. Consequently, we find that the claimant has failed to establish that she was incapable of returning to work after November 6, 2000, and that she failed to establish that her healing period extended beyond November 6, 2000.

Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has proven by a preponderance of the evidence in the record that she is entitled to the additional medical treatment at issue in this case, but has failed to prove by a preponderance of the evidence that she is entitled to any other period of additional temporary total disability compensation at issue in this case. Therefore, the decision of the Administrative Law Judge is affirmed in part and reversed in part.

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).

The claimant’s attorney is entitled to the maximum statutory fee on the medical benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondents, pursuant to Ark. Code Ann. § 11-9-715(a). See Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990). For prevailing in part 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 (Repl. 1996).

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman

Commissioner Turner concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION

SHELBY W. TURNER, Commissioner

While I concur with the finding in the principal opinion that claimant is entitled to additional medical treatment, I must respectfully dissent from the denial of any benefits for temporary total disability.

On November 6, 2000, claimant sustained an admittedly compensable injury when she slipped and fell at work. Respondent directed claimant to Dr. Ridlon, the company’s physician. Claimant was first examined by Dr. Ridlon on November 7, 2000. Claimant complained of pain in her left shoulder, left hand, and right knee. Claimant was seen one more time by Dr. Ridlon on November 14, 2000. During each office visit, Dr. Ridlon advised claimant to return to work without restrictions and return to the clinic for treatment as needed.

Claimant worked three days but had considerable difficulty performing her job duties. Claimant was subsequently terminated when she advised the employer of her inability to continue working. At about this same time, respondent informed claimant that benefits would no longer be paid for her work-related injury. On November 27, 2000, claimant filed a claim with the Commission. Shortly thereafter, claimant filed a petition for a change of physician. On December 20, 2000, claimant presented to the emergency room of the local hospital and was informed to follow-up with her private physician.

The parties finally agreed to allow Dr. Kenneth Rosenzweig to perform an independent medical evaluation, which was done on October 3, 2001. As I interpret Dr. Rosenzweig’s report, he opined that the work-related fall caused claimant’s current symptoms.

Further, Dr. Rosenzweig noted that claimant had not received appropriate treatment for the symptoms caused by the work-related fall. Even though Dr. Rosenzweig stated several times in his report that claimant had reached maximum medical improvement, he recommended additional conservative treatment as well as diagnostic studies to delineate the extent of claimant’s problems. Based on this evidence, I find that claimant remained within her healing period. Additionally, claimant presented credible testimony that she is unable to perform any work as a result of the compensable injury. Thus, I find that she is totally incapacitated to earn wages. Therefore, since claimant is still within her healing period and totally incapacitated to earn wages, she is entitled to benefits for temporary total disability. The opinion of the Administrative Law Judge should be reversed on this issue.

For the above reasons, I respectfully concur in part and dissent in part.

_______________________________ SHELBY W. TURNER, Commissioner

Commissioner Yates concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION JOE E. YATES, Commissioner

I respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I concur in the majority’s opinion finding that the claimant failed to prove by a preponderance of the evidence that she was entitled to any additional temporary total disability benefits after November 6, 2000. However, I must dissent from the majority’s opinion finding that the claimant proved by a preponderance of the evidence that she was entitled to continuing medical treatment, including the anti-inflammatory medication and a course of physical therapy proposed by Dr. Rosenzweig. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.

_______________________________ JOE E. YATES, Commissioner