CLAIM NO. F106415
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 28, 2007
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILLIP ALLEN, JR., Attorney at Law, West Helena, Arkansas.
Respondents represented by the HONORABLE SCOTT MORGAN, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed December 13, 2006. The administrative law judge found that the claimant proved Dr. Fowler’s treatment and authorized referrals were reasonably necessary. The administrative law judge found that the claimant proved he was entitled to temporary total disability from January 28, 2004 to a date yet to be determined. Based on our de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
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I. HISTORY
Arvel Bobby Graham, age 49, testified that he had been a farm manager for the respondent-employer. The parties stipulated that the claimant sustained a compensable injury on April 26, 2001. The claimant testified, “I was just going down a road on the backhoe and some unknown reason we don’t know yet, the bucket just dropped, stuck it into the ground and jammed my face into the steering wheel and dashboard. Lacerated my face and knocked my teeth out you know just my back, my head, arms, shoulder just knocked a hole through my arm come out over here, just one of them accidents, just happened, don’t know why.”
Dr. Garrett Elam authored an Emergency Room Progress Note on April 26, 2001:
This is a 43-year-old white male who comes in after injury he received while driving a back hoe. He says that he was pushing up rice levees and was traveling from one field to another down a rock road. He says that the bucket was up and he was driving approximately fifteen miles an hour when suddenly the bucket dropped and it immediately stopped him and when it did it slammed him into the steering wheel and gear shift levers. He primarily complained of soreness in the left shoulder and upper extremity on the left side. He complained of a little soreness in the neck and upper thoracic spine area. He presented with multiple abrasions about the knees and the left elbow. He also had an approximately three centimeter laceration to the ventral surface of the mid left forearm. The patient denied any loss of consciousness at the accident. . . . There is a 1.5 centimeter laceration to the mid upper lip. Upon inspection of the underneath surface of the upper lip there was also approximate one centimeter laceration
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present as well. . . . Cervical spine films were unremarkable. He did have some paravertebral spasm present. . . . Thoracic spine x-rays reveal some degenerative changes present and old anterior avulsion off of one of the thoracic segments. None of the changes appear to be acute. X-rays of the left shoulder, upper and lower left arm do not reveal any fractures or dislocations. . . . X-ray of the right knee does not reveal any acute trauma. . . . We cleaned the laceration to the left forearm and thoroughly irrigated it. We explored it completely and did not find any evidence of neurovascular or tendon injury and it appears that this injury was caused by some form of puncture wound, possibly a gear shift lever that penetrated down into the muscle and he had a small superficial laceration to the muscle. . . . The patient’s upper lip was cleaned, irrigated and then closed with 5-0 Vicryl times four. . . . We gave him instructions in wound care and dressing of all of the wounds and he will see his family doctor in a week for follow up or sooner as needed. . . .
An x-ray of the claimant’s cervical spine, thoracic spine, lumbar spine, left shoulder, left humerus, left forearm, right knee, and chest was taken on April 26, 2001. No trauma was shown in any of these anatomic regions.
An MRI of the claimant’s thoracic spine was taken on May 11, 2001, with the impression, “Some diminished signal intensity at the junction of the rib and T7 vertebral body on the left most likely arthritic or post traumatic in nature. Recommend thin section CT to further evaluate.” The following conclusion therefore resulted from a CT of the thoracic spine taken on May 11, 2001: “There is evidence for mild degenerative sclerosis at the costovertebral junctions on the left side at T5,6 and also at T7.”
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Dr. Gary L. Kellett stated on August 30, 2001, “With his normal studies, one has to be suspicious that there is no objective neurological injury here; however, it would seem reasonable in view of the marked pain that he describes that a myelogram should be performed.” Dr. Kellett kept the claimant off work until a myelogram could be done.
A CT of the claimant’s facial bones was taken on September 25, 2001, with the following opinion:
1. Mucosal thickening bilaterally with slight increase in density of left ethmoid sinuses consistent with sinusitis although trauma could have this appearance.
2. Evidence for intraorbital emphysema bilaterally of uncertain etiology but this could be related to previous trauma. No definite intrasinal hematomas or fluid collections were demonstrated.
A cervical myelogram was taken on October 2, 2001, and the resulting opinion was “Within normal limits.” A CT c-spine post-contrast, post-myelography on October 2, 2001 showed the following: “There is mild spondylosis present at the C3-4 level with some uncovertebral joint hypertrophic change on the right. No soft HNP is demonstrated. The C4-5, 5-6, 6-7, and 7-1 level show no definite evidence of soft HNP. There is a minimal central bulge at the C6-7 level.”
Dr. Riley Jones treated the claimant for left shoulder symptoms beginning in October 2001. Dr. Jones noted in November 2001, “He is inconsistent in his examination on this shoulder, but he will go through a full range of motion. He
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has had an EMG, now had a bone scan. He has had a full work up and I’m not finding anything objective here. He states he can’t grip and I can’t find any reason for him not to be able to grip. At this point I am going to get him to see Dr. Greg Cates and see what our psychological evaluation comes back.”
Dr. Alan M. Nadel examined the claimant on March 12, 2002 and gave the following assessment: “This gentleman appears to be suffering from musculoskeletal pain and a chronic pain syndrome. I see nothing to suggest any radiculopathy or significant neuropathy. I see nothing to suggest any major neurologic injury here. . . . I tend to concur with Drs. Riley Jones, Kellett and Parker that there is no objective abnormality here.”
An MRI of the claimant’s brain was taken on March 15, 2002:
The T2 weighted images show considerable increase signal within the mastoid air cells consistent with fluid. No significant enhancement is noted in this region with the post contrast T1 images. However, the post contrast T1 images suggest small focal area of enhancement of meninges on the left at the level of the body of the lateral ventricles seen two images of 11/18 and 12/18. This is not evident of any other sequences. It is conceivable this may be related to previous trauma. No discrete subdural evident not do I see any midline shifts.
IMPRESSION: Suggestion of enhancement of meninges on the left seen on only two images of unknown clinical significance. See comments above. Fluid noted within the mastoid air cells.
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On March 19, 2002, the claimant treated at The University Hospital of Arkansas for complaints including facial pain, headaches, vertigo, and ringing and echoing in his ears.
Dr. Jones reported on April 30, 2002, “orthopaedically I am at a loss to explain to this gentleman’s complaints.
It has been worked up thoroughly and fully. I am going to go ahead and let them do an MRI of the thoracic spine and of the chest and see if it shows anything that we are missing that could explain any of this.” Dr. Jones assigned a work status of “Regular Duty.”
An MRI of the claimant’s “thorax and thoracic spine” was taken on May 6, 2002, with the following opinion: “1. Remote compression of the T7 vertebra. 2. Otherwise, normal thorax and thoracic spine by magnetic resonance imaging. 3. Normal spinal cord.”
The claimant returned to Dr. Jones on May 14, 2002:
I have the results of his MRI of the thoracic area. It is negative. He had an old end plate fracture at T7, but this is old and going back to his bone scan, the bone scan showed no fractures in the thoracic spine. It only showed an area of the tip of xiphoid. He is complaining of pain in the chest and again, I do not find anything of consequence here. He has been worked up. All the results did not show us anything. I have measured his upper extremities today. There is less than a half inch difference between the forearm on the left and the right, the right being larger and he is right handed. At this point I think we have pretty well exhausted from the orthopaedic standpoint everything. He has had a functional capacity evaluation by Dr. Nadel, but he was so self limiting they really were not able to make and (sic) conclusions. I have already rated him at maximum medical improvement with no permanent partial
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physical impairment. He is discharged from the clinic.
WORK STATUS: REGULAR DUTY
Dr. Nadel stated on May 14, 2002, “there is a zero PPI rating was (sic) regard to his headaches. He is also at maximum medical improvement as far as his headaches are concerned as of 14 May, 2002.” Dr. Nadel returned the claimant to “Regular duties and normal activity with no restrictions.”
The parties stipulated that the claimant “was paid temporary total disability from the date of the injury until his employment was terminated,” but the record does not clearly show when the claimant’s employment was terminated.
Dr. Charles W. Bosch, D.O., indicated on May 16, 2002 that the claimant was “totally incapacitated.”
A pre-hearing order was filed on September 18, 2002. The parties agreed to litigate the following issues: “1. Is claimant entitled to temporary total disability from the last date he was paid temporary total disability to a date to be determined? 2. Is claimant entitled to be paid for past and future medical treatment as reasonably necessary medical treatment? Was the treatment of Dr. Bosch authorized medical treatment? 3. Is claimant entitled to an attorney’s fee?” The parties reserved the issues of rehabilitation and permanent impairment.
Dr. Bosch corresponded on November 26, 2002:
I first saw Mr. Graham on September 20, 2001, being referred to me by Dr. Campbell, a local dentist. At the
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initial visit, Mr. Graham related he had been involved in a backhoe accident during his work on April 27, 2001. He related that he had sustained injuries to his face, left shoulder, and left arm in this accident. He complained of pain in the right nostril area and pain along the right side of his nose. Additionally, he complained of decreased hearing in his left ear for the past one month prior to this office visit and episodic vertigo which lasted a few seconds with an onset approximately one month prior to the September office visit. The initial ENT examination revealed essentially normal findings with the exception of a septal deviation to the left, which was not significant, and tenderness in the right nasal vestibule area and paranasal region corresponding with right intraorbital nerve injury. I obtained a CT of the facial bones and an audiogram following the initial office visit. Those reports are in his medical records however, I would point out that his audiogram was inconsistent therefore an ABR test was obtained which showed mild high frequency hearing loss which would be compatible with the operation of farm machinery with no evidence of cochlear lesions. I saw Mr. Graham periodically over the next five months. During that time I treated him with various anti-inflammatory medications for the intraorbital nerve pain including medications used for treating inflammatory conditions of nerves. All of these treatments were unsuccessful in controlling his right facial pain. I resorted to an intraorbital nerve block consisting of xylocaine and a steroid and when Mr. Graham returned a month following the nerve block he stated that the facial pain was worse. His vertigo appeared to be worse as well. At that point, I obtained a MRI of the head and referred Mr. Graham to Dr. Verell at the Ear, Nose, and Throat clinic at the UAMS Medical Center in Little Rock, AR. I felt that Mr. Graham should have the benefit of an additional dizziness testing which was not available to us in our immediate area in Helena, AR. According to Mr. Graham he did meet with Dr. Verell on one occasion but was then told by representatives from workers compensation that they could not authorize any
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additional visits or evaluations at UAMS, therefore he did not obtain any further evaluation at that facility. . . .
My medical opinion, I feel that it is imperative that Mr. Graham be further evaluated for his complaints of his head and facial pain and more importantly, his complaints of dizziness. Because of the reported episodic nature of the dizzy attacks, which Mr. Graham states occur without warning, I feel that he is at risk in any gainful employment requiring the operation of machinery or motor vehicles. Additionally, he is at risk personally in operating a motor vehicle because of the potential of being involved in a motor vehicular accident with the potential of involving other motorists. . . .
For qualification purposes, I am board certified in otolaryngology since 1976. . . .
The record indicates that on January 30, 2003, the claimant presented to Dr. Scott A. Hall for neck pain following a motor vehicle accident, “trauma due to hitting 2 boys.” On March 31, 2003, the claimant gave Dr. Hall a history of “nerve problems — muscle spasms in back neck.” The claimant continued to occasionally follow up with Dr. Hall.
A hearing was held on July 10, 2003. The claimant testified, “My hearing, my headaches are just unbearable. My vision. My arm is still not right. My shoulder hurts. My back. My neck. My upper back.”
An administrative law judge filed an opinion on August 15, 2003. The ALJ found, in pertinent part:
3. The claimant sustained a compensable injury on April 26, 2001.
4. The claimant was paid temporary total disability from the date of the injury until his employment was terminated.
5. The preponderance of the evidence reflects that the claimant is not entitled to additional medicalPage 10
treatment from Drs Jones and Nadel. The additional treatment would not be reasonably necessary and related to the claimant’s compensable injury.
6. The preponderance of the evidence reflects that the claimant is entitled to additional treatment from Dr. Charles Bosch for his cranial injury (dizzyness, pain, etc.) Such treatment is reasonably necessary and related to claimant’s admittedly compensable facial injury.
7. The preponderance of the evidence reflects that the claimant is entitled to temporary total disability benefits for his facial injury from the last date he was paid temporary total disability until a date to be determined. He has remained in a healing period and totally incapacitated from earning wages.
The respondents’ attorney stated at hearing that temporary total disability was paid through January 27, 2004.
Dr. Bosch wrote to then-counsel for the claimant on July 7, 2004:
I did see Mr. Graham on June 14, 2004 in my office. We reviewed his current symptoms, primarily, moderately severe generalized headaches and continued problems with his left arm. I explained to Mr. Graham, as simply and as thoroughly as I could that I could not give him a disability rating for these conditions. They simply do not apply to my specialty of ear, nose and throat.
I also explained to Mr. Graham that I could not continued prescribing pain medication for these conditions since they are not within my scope of practice.
I suggested that he contact his family physician, Dr. Scott Hall or his neurologist for continued care. . . .
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Dr. Hall noted on September 10, 2004, “This patient is still under my care and is on disability at this time. He has an appointment at the rheumatology clinic at UAMS in Little Rock on 11-30-04.”
The claimant began treating with Dr. James H. Fowler, an ear, nose and throat specialist, in December 2004.
A CT of the sinus was taken on January 12, 2005, with the following impression: “1. Chronic right maxillary sinusitis. 2. Deviation of the nasal septum to the left. 3. No other significant findings.”
Dr. Fowler noted on February 16, 2005:
This is a 47-year-old Caucasian male with history of headaches (periorbital)and fullness in the cheek regions. In addition, he is a chronic mouth breather because of nasal obstruction. Physical examination of the nose did reveal severe left nasal septal deformity with turbinate hypertrophy. CT scan revealed no nasal fracture with fracture/dislocation of the nasal septum, deviated nasal septum, turbinate hypertrophy, chronic maxillary sinusitis, and bilateral chronic ethmoid sinusitis. He is brought to the operating room today for improvement of nasal and sinus ventilation, as well as to remove the mucosal disease from his paranasal sinuses. He is fully aware of the risks and complications of the procedure. He is also aware that some of this headache that he is having is probably not from sinus origin.
Dr. Fowler subsequently noted that the claimant had undergone “nasal septal reconstruction, submucous resection of the turbinates, right nasal antrostomy and bilateral intranasal ethmoidectomies.” The final diagnoses were, “1. Nasal obstruction. 2. Chronic sinusitis.”
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An MRI of the brain was taken on May 13, 2005, with the impression, “1. Mild ethmoid and right maxillary sinusitis. No other significant abnormalities seen on today’s MRI of the brain.”
Dr. Fowler apparently performed additional surgery on July 7, 2005: “1. Nasal Septal Reconstruction. 2. Bilateral Lysis Of Intranasal Synechiae. 3. Bilateral Intranasal Ethmoidectomy. 4. Revision Of Left Nasal Antrostomy. 5. Submucous Resections Of The Middle And Inferior Turbinates.” The pre-and post-operative diagnoses were as follows: “1. Persistent Nasal Airway Obstruction Secondary to Deviated Nasal Septum. 2. Airway Obstruction Secondary to Bilateral Intranasal Synechiae. 3. Bilateral Turbinate Hypertrophy. 4. Persistent Ethmoid and Left Maxillary Sinusitis with Pain.”
Also on July 7, 2005, Dr. Fowler performed “Bilateral tympanostomies with insertion of tympanostomy tubes.” The pre-and post-operative diagnoses were as follows: “Severe Eustachian tube dysfunction with atelectasis of both middle ears.”
A pre-hearing order was filed on July 21, 2005. The claimant contended that he “saw Dr. Bosch who referred him to Dr. Hall who then referred him to Dr. Fowler. The claimant remains symptomatic with head and facial pain and dizziness. He requests continuing treatment with Dr. Fowler, payment of medical expenses, additional temporary total disability benefits from ___ to ___ and attorney’s fees.” The respondents contended that additional medical treatment was not reasonably necessary. The parties agreed to litigate the
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following issues: “Continuing medical treatment (cranial injury) and payment of expenses; additional temporary total disability benefits; controversion and attorney’s fees. All other issues are reserved.”
A CT of the claimant’s head was done on October 6, 2005, with the impression, “1. Negative computerized tomography of the head.”
Dr. Fowler wrote on October 7, 2005:
Mr. Arvel Bobby Graham has been under my care since December 29, 2004. I have reviewed all the medical records that were provided to me. The treatment that I have rendered to Mr. Graham relate (sic) to symptoms he is experiencing in the face and head.
Based on my findings, the primary areas of concern are as follows:
1) A CT Scan performed 9/25/01, five months after his initial injury showing evidence of intraorbital emphysema bilaterally, (see attachment)
Intraorbital emphysema indicates that there is an abnormal passageway of air into the eye socket. This could only occur from disruption of bone in an air containing space, such as an Ethmoid sinus, or a nasal Ethmoid fracture. The sinuses are located behind the eye sockets, directly below the eye sockets and extend across the face to the nasal region and upwards towards the forehead. This injury was present five months after his injury, however no CT scan was done to his face initially after the accident.
The findings on the 9/25/01 CT scan could certainly be related to the sinus problems he was experiencing when I initially examined him on 12/29/04.
2) He continues to complain of dizziness and hearing loss
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Mr. Graham has hearing loss in both ears, but worse in the left ear. Audiological examination revealed a mild to severe hearing loss in the right ear and a moderate to profound hearing loss in the left ear. His understandings of words were judged poor in the left ear (24% as opposed to 92% in the right ear). Please see attachments
This type of hearing impairment could certainly be due to trauma associated with a severe blast of noise or pressure.
Mr. Graham complains of dizziness, which I feel is probably vertigo involving the inner ear balance organ. This has never been tested. The test needed to diagnose this is called an ENG (Electronystagmography). I do not have the equipment in my practice to perform this test.
As a result of the above symptoms and findings, it is my opinion that it is medically necessary for Mr. Graham to be evaluated at UAMS. I have scheduled an appointment with John Dornhoffer, M.D., a Neuro-Otologist at UAMS on December 12, 2005 at 1:00 p.m.
I am certified by the American Board of Otolaryngology, Head and Neck Surgery and am currently in private practice in Helena, Arkansas. . . .
Dr. Fowler stated on October 18, 2005, “Arvel B. Graham has been under my care since December 29, 2004 and is still under my care. He is unable to perform work of any kind and I will not release him to return to work at this time.”
Dr. John Dornhoffer, Assistant Professor of Otolaryngology at UAMS Medical Center, wrote to Dr. Fowler on December 12, 2005:
I recently saw Mr. Graham in my clinic upon your request for evaluation of his hearing and balance. As
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you know, Mr. Graham has a history of facial trauma back in April of 2001. He states that approximately one month after that, his hearing became progressively worse. He states that he also has diplopia with vertigo, and tinnitus. He states that he has not been evaluated until now. . . .
I want to go ahead and refer him to opthalmology to check for the double vision. I want to refer him on to my partner, Emre Vural, who is our trauma surgeon to evaluate his facial fractures. After I get the results of these tests, I will let you know of my findings. At this point in time, I do not know if his balance problem is coming from his ears or from his brain. Today, I did obtain an audiogram, which shows that he has a significant hearing loss in both of his ears, with the left being worse than the right. He states that he has significant difficulty hearing from the left ear. After I get the rest of the tests, I will let you know what I think is going on with Mr. Graham. . . .
An MRI of the brain was taken on December 15, 2005, with the following impression: “1. No acute intracranial process identified.”
Dr. Hugo Jasin of UAMS Medical Center examined the claimant and gave the following impression on January 3, 2006: “Left subacromial bursitis; possible fibromyalgia syndrome; rule out rheumatoid arthritis.”
A CT of the maxillofacial area and temporal bones was taken on January 23, 2006, with the following impression: “1) Left maxillary sinus near total opacifications with opacification of the infundibulum as well as some ethmoid air cells. Some mucosal thickening is also noted in the right maxillary sinus.” With regard to the claimant’s temporal bones, the following impression was given: “No mass or vascular anomaly noted in the temporal bone ct. There is mild
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developmental narrowing of the internal acoustic canals, of indereminate (sic) significance. Bilateral tympanostomy tubes.”
Dr. Joseph G. Chacko, Assistant Professor of Ophtalmology and Neurology at UAMS, reported on February 14, 2006:
I had the pleasure of seeing your patient Arvel Graham in the Neuro-Ophtalmology clinic today. As you remember, he is a pleasant 48-year-old white male who suffered a severe facial injury in 2001 due to a back hoe. This resulted in crush injuries to the face and right orbit. He complains of resultant headache, blurred vision episodes, and left deafness from this accident.
Presently, the patient complains of sharp pains and foreign body sensations in the right eye for the past six months. He also complains of tunneling of visual field in the right eye for the past six months which is gradually worsening. Blurred vision episodes occur about three times a week on average and last from five minutes to two hours. The patient denies diplopia, but admits to vertigo. . . .
Dr. Chacko gave the following impression: “1. Functional visual loss, right eye-status post trauma-constricted visual field in the right eye and spiral visual field on Goldmann testing. Patient saw 20/25 unaided in the autorefractor in the right eye today; this is an improvement from 20/40 in the past. 2. Refractive error.” Dr. Chacko treated the claimant conservatively.
Dr. Fowler stated on March 3, 2006, “In my opinion at this time, Mr. Graham has not reached maximum medical improvement and he is totally unable to perform work of any kind for wages.”
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A hearing was begun on March 14, 2006. The claimant contended that he was entitled to temporary total disability from January 28, 2004 through a date yet to be determined. The administrative law judge announced that the hearing would be continued in order to obtain medical evidence from Dr. Fowler.
The parties deposed Dr. Fowler on April 28, 2006. The respondents’ attorney questioned Dr. Fowler:
Q. Do you feel like that Mr. Graham’s deviated septum was due to trauma?
A. Well, I feel like that with — usually if you have a nasal bony fracture, which was not diagnosed at the time but was obvious on the x-ray, usually when the nasal bone is fractured, there is going to be a septal bucking or fracture simultaneously with that, so I felt there was a high probability that that could have been related to his injury. . . . I felt like he had a nasal fracture, I may have just screwed up there in the dictation, because, I mean, just on palpation, I could feel, you know, edges where there had been a fracture on his nose, so it was really my thoughts he definitely had had a nasal fracture and that the fracture had caused his septum to become deviated or buckled.
Q. And you mentioned that you were basing that opinion on his history that he gave you?
A. Well, and his physical, too, physical examination. . . .
The claimant’s attorney questioned Dr. Fowler:
Q. Scott, I believe, asked you earlier if the ethmoid sinusitis was — could you relate that to the injury, and I don’t recall if your response was positive or equivocal on that.
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A. It is kind of equivocal. You know, if you — it is like the sequence of events, you know, if he has had an injury and he now does not breathe well or ventilate well, the sinuses are air-filled cavities, they have to have air, they have to be able to breathe, and so it actually could contribute to the ethmoid sinusitis.
Q. I think the standard I’m looking for is do you think it is more likely than not that it is or is not related to the injury? I know you can’t give a positive answer unless you had him tested the day before and the day after.
A. I think with the basis of him having nasal fractures, which no one really else picked up on those x-rays, I would say it was more likely it was a result of it than not a result of it. That may be a little in conflict with what I told him, but that’s my feelings. . . .
Q. Was the reason for the surgery that you did related to the injury in your opinion?
A. Yes. . . .
Q. This may be my last question, and Scott may object to the form of it, but I think what he and I are trying to determine is if Mr. Graham has reached a plateau of healing at which point his underlying conditions are not going to get substantially better or do you think that’s yet to be determined by the additional testing or treatment recommended by the doctors at UAMS.
A. Well, he needs to complete those tests.
Q. Will those tests perhaps determine whether or not he has reached the maximum healing then?
A. I feel like he has most likely with a high probability, medical probability, reached maximum healing, but if they find something new that is treatable, then perhaps —
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Q. Revisit that question at that time perhaps?
A. Revisit that question at that time. . . . I think he has reached the plateau as far as my treatment goes. I never felt that when I treated him that it was going to make a substantial difference in all of his symptoms. I thought it might ease some of the pain that he was having. . . . But I didn’t feel like it was going to do anything else.
Q. When do you feel like he might have reached the best he was going to get from the treatment, even if it was just for pain relief?
A. Well, when I last operated on him, his revision was in July, I think —
Q. 2005, right?
A. Five. And he has reached that.
Q. Would you say recently or —
A. I think after about six months out. I mean, I would say that he has reached his maximum. . . .
I just felt like he had a real injury. I think he sustained damages. And I think — I mean, I think he sustained physical damage. . . .
Another hearing was held on September 14, 2006. The claimant testified on direct examination:
Q. If you would, tell the Judge what kind of pain that you have and — at first, tell her what kind of pain you have.
A. Well, it’s just a steady — it’s like a spike driving through my forehead coming out my back of my head with the headaches. My eyes hurt, my ears. It’s justPage 20
like my head is wanting to blow up. My vision is just — it’s unbearable.
I don’t know, it’s just pain all the time in my head. . . .
Q. And Bobby, are you able to work?
A. No, sir.
Q. Have you tried to work?
A. Yes, sir. . . . I’ve tried to do yard work. I’ve tried to, you know, do gardening. I can’t do anything that I used to could do. I’ve had problems falling. My head just gets to hurting so bad, and my vision, I just can’t do anything that I used to do.
The administrative law judge found, in pertinent part:
2. The claimant has proven by a preponderance of the evidence of record that treatment provided by Dr. Fowler and his authorized referrals was reasonable and necessary in relation to the compensable injury pursuant to Ark. Code Ann. § 11-9-508.
3. The respondents are directed to pay medical expenses within thirty days of receipt pursuant to Rule 30.
4. The claimant has proven by a preponderance of the evidence of record that he is entitled to temporary total disability benefits from January 28, 2004 to a date yet to be determined as he remains in his healing period and incapacitated from working based on Dr. Fowler’s deposition and the claimant’s ongoing diagnostic testing at UAMS.
The respondents appeal to the Full Commission.
II. ADJUDICATION A. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury
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received by the employee. Ark. Code Ann. § 11-9-508(a). The claimant must prove by a preponderance of the evidence that he is entitled to additional medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999).
The administrative law judge found in the present matter, “The claimant has proven by a preponderance of the evidence of record that treatment provided by Dr. Fowler and his authorized referrals was reasonable and necessary in relation to the compensable injury pursuant to Ark. Code Ann. § 11-9-508.” The Full Commission affirms this finding.
The parties stipulated that the claimant sustained a compensable injury on April 26, 2001. The claimant, a generally credible witness, testified that his face “jammed into the steering wheel of a backhoe” when the bucket of the machine dropped. The record demonstrates that the claimant indeed sustained trauma to his face that day. Most of the diagnostic testing on the date of injury was normal. However, the claimant was treated for a puncture to his left forearm and a 1.5 centimeter laceration to his lip. In September 2001, a CT of the claimant’s facial bones showed “evidence for intraorbital emphysema” which “could be related to previous trauma.” The medical records document facial pain, headaches, and vertigo beginning in March 2002. In November 2002, Dr. Bosch noted that the claimant complained of pain in his right nostril area and
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that physical examination showed a septal deviation on the left. The evidence indicates that trauma affected the claimant’s left arm, i.e., the left side of his body. The record also does not show any cause for the deviated septum other than the April 2001 compensable injury.
An administrative law judge filed an opinion on August 15, 2003. The ALJ found that the claimant proved he was entitled to treat with Dr. Bosch “for his cranial injury (dizzyness, pain, etc.)” The ALJ also determined that the claimant was entitled to temporary disability “for his facial injury.” The respondents did not appeal either one of these findings. The preponderance of evidence before us and the unchallenged legal findings of an administrative law judge thus show that the claimant sustained some sort of cranial trauma in addition to facial trauma as a result of the April 26, 2001 compensable injury.
The respondents apparently controverted additional benefits beginning in January 2004. The claimant began treating with Dr. Fowler in December 2004. In February 2005, Dr. Fowler performed surgery after noting a septal deformity and other associated abnormal findings. Dr. Fowler performed additional nasal-related surgery in July 2005. In October 2005, Dr. Fowler explained that the “intraorbital emphysema,” which condition was first noted in September 2001, “could only occur from disruption of bone in an air containing space,” i.e., trauma. Dr. Fowler recommended additional diagnostic testing at UAMS. Dr. Fowler was a credible expert witness at deposition. Dr. Fowler testified that the
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claimant “definitely had a nasal fracture.” Dr. Fowler essentially opined that the claimant’s condition was causally related to the April 2001 injury.
The Full Commission affirms the administrative law judge’s award of additional medical treatment. The preponderance of evidence before us demonstrates that the claimant’s treatment and referrals by Dr. Fowler were reasonably necessary in connection with the April 26, 2001 compensable injury.
B. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). “Healing period” means “that period for healing of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12). Whether or not an employee’s healing period has ended is a question of fact for the Commission. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).
In the present matter, the administrative law judge found that the claimant proved he was entitled to temporary total disability “from January 28, 2004 to a date yet to be determined as he remains in his healing period and incapacitated from working based on Dr. Fowler’s deposition and the claimant’s ongoing diagnostic testing at UAMS.” The Full Commission affirms this finding.
The parties stipulated that the claimant sustained a compensable injury on April 26, 2001. The claimant testified that his face was “jammed” into a
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steering wheel of a backhoe. The claimant was treated for lacerations to his mouth and left forearm. The parties stipulated that temporary total disability was paid “from the date of the injury until his employment was terminated.” The record does not clearly show exactly when the claimant’s employment was terminated.
A CT of the claimant’s facial bones in September 2001 showed mucosal thickening and intraorbital emphysema consistent with trauma. The claimant was treated post-injury for headaches, vertigo, and facial pain. Dr. Bosch stated in November 2002 that the claimant should be treated for these symptoms. In August 2003, an administrative law judge found that the claimant proved he was entitled to temporary total disability “from the last date he was paid TTD until a date to be determined.” The ALJ determined that the claimant remained in a healing period and was totally incapacitated from earning wages. The respondents did not appeal this finding, but they controverted temporary total disability after January 27, 2004. Dr. Fowler began treating the claimant and December 2004. Dr. Fowler subsequently performed surgery related to a deviated nasal septum. Dr. Fowler opined that this condition was causally related to the April 2001 injury. Dr. Fowler stated in October 2005 that the claimant was “unable to perform work of any kind and I will not release him to return to work at this time.”
At the March 2006 hearing, the claimant contended that he was entitled to temporary total disability from January 28, 2004 through a date to be
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determined. The parties deposed Dr. Fowler on April 28, 2006. Dr. Fowler testified that the claimant had reached a plateau with regard to treatment provided by Dr. Fowler, but that the claimant needed to complete diagnostic testing at UAMS before a final determination of maximum medical improvement. The Full Commission affirms the administrative law judge’s finding that the claimant proved he was entitled to temporary total disability “from January 28, 2004 to a date yet to be determined as he remains in his healing period and incapacitated from working based on Dr. Fowler’s deposition and the claimant’s ongoing diagnostic testing at UAMS.”
Based our de novo review of the record currently before us, the Full Commission affirms the administrative law judge’s finding “that treatment provided by Dr. Fowler and his authorized referrals was reasonable and necessary in relation to the compensable injury pursuant to Ark. Code Ann. § 11-9-508.” We affirm the administrative law judge’s finding that the claimant proved he was entitled to temporary total disability compensation “from January 28, 2004 to a date yet to be determined as he remains in his healing period and incapacitated from working based on Dr. Fowler’s deposition and the claimant’s ongoing diagnostic testing at UAMS.” The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(a) (Repl. 1996). For prevailing on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of two-hundred fifty dollars ($250), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
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IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that the claimant is entitled to temporary total disability benefits from January 28, 2006, and continuing through a date yet to be determined as well as to additional medical benefits. Based upon my de novo review of the entire record, I find that not only has the claimant failed to meet her burden of proof, but that the parties specifically limited the scope of the hearing to temporary total disability benefits only through July of 2005.
As reflected in the prehearing Order dated July 21, 2005, the Administrative Law Judge initially noted that the claimant contended entitlement to temporary total disability benefits “from January 28, 2004 through a DYTBD” (a date yet to be determined) but marked through “DYTBD” and wrote “July 2005 (see Dr. Fowler’s depo).” A review of the entire record reveals that the claimant was represented by attorney Phillip Allen during this telephone conference. It is axiomatic that the respondents
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prepared their defense of this claim based upon the claimant’s contentions as set forth in the Prehearing Order. Despite this contention, both of claimant’s attorneys requested entitlement to temporary total disability benefits through a date yet to be determined at the hearing. As a discussion ensued between claimant’s two attorneys and the Administrative Law Judge concerning an attorney’s lien filed by yet another of the claimant’s attorneys, focus was removed from the glaring inconsistency between the claimant’s contention at the Prehearing Telephone Conference as enumerated in the Prehearing Order and his expanded request for benefits at the hearing. Although claimant expanded his request for benefits at the hearing, beyond that requested at the Prehearing Telephone Conference, I find that it was error for the Administrative Law Judge and now the majority to find that the claimant is entitled to temporary total disability benefits beyond July 2005, as the Prehearing Order clearly limited the scope of the hearing to the claimant’s entitlement to benefits only through July 2005. By rendering a finding that the claimant is entitled to benefits beyond the dates set forth in the Prehearing Order, the respondents who were only prepared to defend against a request for benefits through July 2005 were clearly prejudiced. Accordingly, I must respectfully dissent from this finding.
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I further find that the Administrative Law Judge and now the majority have erred in awarding temporary total disability beyond the actual hospitalization for the surgery performed by Dr. James Fowler. 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 he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway TransportationDept. V. Breshears, 272 Ark. 244, 613 S.W.2d (1981). 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 regardless of his physical capabilities. Moreover, 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 wages. MadButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
Dr. Fowler testified in his deposition that the claimant reached maximum medical improvement from his treatment by July 2005. However, Dr. Fowler also admitted that the sole purpose for his surgery and treatment was to ease the claimant’s pain. In this regard, Dr. Fowler specifically testified:
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I think he has reached the plateau as far as my treatment goes. I never felt that when I treated him that it was going to make a substantial difference in all of his symptoms. I thought it might ease some of the pain that he was having. . . . But I didn’t feel like it was going to do anything else.
Although Dr. Fowler testified that the claimant needed to undergo a few additional tests, Dr. Fowler stated: “I feel like he has most likely with a high probability, medical probability, reached maximum healing, but if they find something new that is treatable, then perhaps — revisit that question at that time.” However, when asked whether it would be hard to determine whether the claimant had reached all the healing that he can achieve without having these additional tests, Dr. Fowler testified:
Well, I’m not a specialist in the — I’m not a neurootologist. Dornhoffer is. And you will probably have to get that information from him. I don’t — in my mind, I don’t see much chance that whatever they would find would probably give him much more improvement in his symptoms.”
Thus, as I interpret Dr. Fowler’s testimony, the primary purpose for his treatment of the claimant was to alleviate pain, not to improve the claimant’s underlying condition. Moreover, according to Dr. Fowler, the additional recommended testing is to determine the cause of the claimant’s continued complaints, but that any additional treatment will not continue to improve his present level of healing. Therefore, I find that
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the claimant has failed to prove by a preponderance of the evidence that he is entitled to any additional temporary total disability benefits beyond that for the actual period that he underwent and was recovering from surgery.
Finally, I find that the Administrative Law Judge and now the majority erred in awarding additional medical treatment which Dr. Fowler specifically testified to was not related to the claimant’s compensable injury. While Dr. Fowler testified that the claimant’s deviated septum and surgery were related to the claimant’s compensable injury, he specifically opined that claimant’s chronic right maxillary sinusitis, middle ear function, eustachian tube surgery and ethmoid sinuses and related treatment for these conditions were not related to the claimant’s compensable injury. Accordingly, I must specifically dissent from any finding awarding medical benefits for these conditions.
Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority opinion.
_________________________________ KAREN H. McKINNEY, Commissioner
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