CLAIM NO. E318814
BRENDA GOSA, EMPLOYEE, CLAIMANT v. THREE RIVERS NURSING CENTER, EMPLOYER, RESPONDENT and ALEXSIS INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 14, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE R. THEODOR STRICKER, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE CHUCK GSCHWEND, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The claimant and the respondents appeal an opinion and order filed by the administrative law judge on January 27, 1995. In that opinion and order, the administrative law judge found that he lacked authority to enforce the provisions of Ark. Code Ann. § 11-9-107 (1987). In addition, the administrative law judge found that the respondents are liable for services provided by Dr. Michael Tedder and by Dr. Russell Dixon.
[3] After conducting a de novo review of the entire record, we find that we lack authority to enforce the criminal provisions provided in Ark. Code Ann. §
11-9-107 (1987). Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. However, we find that the claimant failed to prove by a preponderance of the evidence that the services provided by Dr. Tedder or Dr. Dixon were reasonably necessary for treatment of the compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [4] The claimant worked for the respondent nursing home as a licensed practical nurse. On May 31, 1993, a major fire occurred during the claimant’s shift. There were 120 residents in that nursing home at the time, and the claimant assisted in evacuating these residents. During much of this evacuation, the building was completely filled with smoke. However, many of the residents were bedridden, and the claimant was very concerned about the safety of all of the residents. Therefore, she continued to enter the smoke filled building until all of the residents were safely evacuated. [5] Afterward, the claimant lost consciousness, and she was transported to the hospital, where she was admitted and treated for smoke inhalation. While in the hospital, the claimant was evaluated by Dr. Meredith Walker, a pulmonary specialist. Dr. Walker’s May 31, 1993, report indicates that the claimant was complaining of a mildly sore throat. She also indicates that the claimant denied any coughing or wheezing, and her examination did not reveal any pulmonary problems. However, she recommended keeping the claimant in the hospital overnight for observation. Subsequent lung x-rays did not reveal any abnormalities, and she was discharged on June 2, 1993, with no restrictions on her activity or diet. [6] The claimant then returned to work. However, she testified that she began having nightmares about the fire and that she feared a recurrence of similar event. In addition, she testified that she began to experience difficulty with concentration and recall. In addition, she testified that she experienced depression and weight loss, and she testified that she occasionally coughed up mucus. However, she did not seek any further medical treatment until December 21, 1993, when she saw Dr. Arnold Gilliam, a general practitioner. Dr. Gilliam’s office note indicates that she was complaining of a purulent cough, a hemorrhoid problem, depression, and weight loss. Apparently, she also saw Dr. Michael Tedder, who is in the same office with Dr. Gilliam, and his office note indicates that she also related a three month history of grinding her teeth at night, a loss of appetite, and difficulty sleeping. Dr. Gilliam referred the claimant to Dr. Russell Dixon, a clinical psychologist. [7] On December 17, 1993, prior to seeking additional medical treatment, the claimant’s employment with the respondent employer was terminated. She contends that she was discharged in retaliation for filing a workers’ compensation claim, and she asks us to enforce the criminal penalties of
Act 796 of 1993 for discrimination for filing a claim. In this regard, we note that the claimant’s injury occurred prior to the effective date of Act 796. Therefore, the provisions added to Ark. Code Ann. §
11-9-107 are not applicable to this claim. The law in effect at the time of the claimant’s injury did provide that an employer found guilty of willfully discriminating “in regard to the hiring or tenure of work or any term or condition of work of any individual on account of his claiming benefits under this chapter . . . shall be guilty of a misdemeanor and on conviction shall be punished by a fine of not to exceed one hundred ($100) dollars, or by imprisonment of not to exceed six (6) months, or by both fine and imprisonment.” The jurisdiction over criminal offenses such as this is established by the Constitution and statutes of the State of Arkansas. See, Ark. Const. Art.
7, §
1; Ark. Const. Art.
7, §
11; Ark. Const. Art.
7, §
43; Ark. Const. Art.
7, §
45; Ark. Const. Art.
7, §
40; Ark. Code Ann. §
16-88-101 (1987). However, this Commission is not granted any authority whatsoever over criminal offenses. Therefore, while Act 796 amended the law to provide penalties for discrimination for the filing of claims which this Commission can enforce, we find that we are without power to enforce the provisions of Ark. Code Ann. §
11-9-107 that were in effect prior to the effective date of
Act 796 of 1993. Consequently, we would find that the administrative law judge’s decision in this regard must be affirmed. [8] In addition, we find that the claimant failed to prove by a preponderance of the evidence that treatment provided by Dr. Gilliam or Dr. Tedder was reasonably necessary for treatment of her compensable injury. 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. Deborah Jones v.Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No.
D511255). However, respondents are only responsible for medical services which are causally related to the compensable injury. [9] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that the services provided by Dr. Gilliam and Dr. Tedder were causally related to her compensable injury. In this regard, the claimant opined that this treatment, including treatment for the hemorrhoid, was related to the May 31, 1993, injury. However, the medical evidence does not support her conclusion. In this regard, the record contains two short, hand written office notes and one short, typed report from these physicians. However, neither of these reports even mention the May 31, 1993, incident. Furthermore, other than the claimant’s opinion, there is no evidence suggesting that the sinusitis or hemorrhoid which were treated by Dr. Gilliam and Dr. Tedder are related to the May 31, 1993, compensable injury. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that the treatment provided for these conditions was reasonably necessary for treatment of her compensable injury. [10] Likewise, we find that the claimant failed to prove by a preponderance of the evidence that her depression was causally related to the May 31, 1993, compensable injury. In this regard, she testified that she had suffered from depression since the occurrence of the fire. However, Dr. Gilliam’s December 21, 1993, report indicates that she told him that she had been suffering from depression for only slightly over one month. Moreover, the reports of Dr. Gilliam and Dr. Tedder do not indicate that the claimant related her depression to the fire or to her employment, other than the termination of her employment. Furthermore, Dr. Dixon testified that the claimant related her depression solely to the termination of her employment and that she told him that her termination preceded the onset of the depression. Moreover, although he sought to discover other stressors, Dr. Dixon testified that he was not able to detect any causes for her depression, other than the termination of her employment. He does indicate that she was frustrated over problems she was experiencing with recall. In addition, his testing revealed a slight brain dysfunction, and, based on the history related by the claimant, he opined that she sustained a head injury when she fell after evacuating the residents of the nursing home. However, the evidence does not support a conclusion that she fell and hit her head. The claimant did not recall hitting her head. Also, Lena Marie Brown was present when the claimant fell, and she testified that the claimant did not hit her head. Moreover, there is no evidence of a head injury in the hospital reports related to her subsequent hospitalization. Consequently, we find that the preponderance of the evidence failed to establish that the brain dysfunction or the recall problems are causally related to the May 31, 1993, compensable injury. [11] In short, the only evidence connecting the claimant’s depression with the May 31, 1993, compensable injury is found in the claimant’s testimony. However, her testimony is not consistent with the statements of her physicians and Dr. Dixon. Therefore, we find that she failed to prove by a preponderance of the evidence that the treatment provided for her depression was causally related to her compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [12] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that this Commission does not have the authority over the criminal offenses provided for discrimination for filing a claim under the law in effect prior to
Act 796 of 1993. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, reversed. However, we find that the claimant failed to prove by a preponderance of the evidence that the services provided by Dr. Gilliam, Dr. Tedder, and Dr. Dixon was reasonably necessary for treatment of her compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, reversed. This claim is hereby denied and dismissed. [13] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[14] Commissioner Humphrey dissents.