CLAIM NO. E813082
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 1, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE THEODOR STRICKER, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an opinion and order filed by the Administrative Law Judge on July 5, 2000. In that opinion and order, the Administrative Law Judge determined that claimant proved entitlement to continued psychological treatment. Based on our de novo review of the record, we find that claimant proved by a preponderance of the credible evidence that she is entitled to additional psychological treatment. Therefore, we must affirm the Administrative Law Judge’s decision.
The initial hearing in this matter was conducted on September 21, 1999. The issue was whether claimant sustained a psychological injury in addition to her admittedly compensable physical injuries. In an opinion filed on October 21, 1999, the administrative law judge awarded benefits in accordance with Ark. Code Ann. § 11-9-113 (Repl. 1996). Also, medical benefits were awarded, including treatment by Dr. Douglas A. Brown, a clinical neuropsychologist. No appeal was taken.
On May 30, 2000, a second hearing was conducted, which is the subject of this appeal. According to the prehearing order, which is marked for identification as Commission’s Exhibit Number One, respondents requested a hearing to determine whether continued psychological treatment is reasonable and necessary pursuant to Ark. Code Ann.§ 11-9-509 (Repl. 1996). The order further stated that the doctrine of res judicata is applicable. Prior to the hearing, the parties agreed to incorporate the previous record by reference. The administrative law judge’s first opinion is marked for identification as Full Commission Exhibit Number One.
Claimant sustained a horrific injury on October 14, 1998. As she walked past a running machine, an open shaft encompassed her pony-tailed hair, resulting in “a traumatic avulsion of the scalp.” Claimant received extensive medical care as a result of the injury. Her treating physician is Dr. Ann K. Passmore, a plastic surgeon. Dr. Passmore performed surgery to replant claimant’s avulsed scalp. Also, she had forty-two hyperbaric oxygen treatments to salvage the graft. Moreover, Dr. Passmore performed serial debridements. Replantation of claimant’s scalp was unsuccessful. Thus, she must wear a wig. Dr. Passmore documented claimant’s nightmares and depression. However, she was not evaluated by Dr. Brown until August of 1999.
The medical evidence showed that in his initial report dated August 3, 1999, Dr. Brown noted that “[c]laimant did not want to return to work and still can’t walk out into the plant without having chills in her spine and having flashbacks of the exact event. She does have nightmares about the accident. . . .” Dr. Brown diagnosed Major Depression and Post-Traumatic Stress Disorder (PTSD). He recommended a neuropsychological evaluation, and this was done on August 27, 1999. As a result of the testing, Dr. Brown suggested “addressing the Depression in a more aggressive manner.”
Claimant commenced counseling sessions with Dr. Brown in September of 1999. She explained that since the accident, she has had difficulty with stress management. She stated that Dr. Brown recommended Prozac, and this was prescribed by one of her physicians in November or December of 1999. Claimant testified that the medication has been helpful. Recently, the dosage was increased. Also, she stated that the counseling sessions with Dr. Brown have been beneficial. She indicated that the sessions include discussions about life events, and the manner in which she deals with stressful situations. According to claimant’s testimony, she is asked by Dr. Brown to compare her pre-accident and post-accident responses. She stated that her treatment with Dr. Brown is ongoing. Claimant testified that she consults him about every four to six weeks.
According to the Diagnostic and Statistical Manual of MentalDisorders, 3rd Edition, Revised, the following impairment and complications are associated with PTSD:
Impairment may be either mild or severe and affect nearly every aspect of life. Phobic avoidance of situations and activities resembling or symbolizing the original trauma may interfere with interpersonal relationships such as marriage or family life. Emotional lability, depression, and guilt may result in self-defeating behavior or suicidal actions. . . .
To deny further benefits, respondents seek to invoke A.C.A. §11-9-509 (Repl. 1996). This section addresses itself to the amounts payable and time periods allowable for medical and other services under §§ 11-9-508 — 11-9-516. The Commission may approve further treatment, if warranted, in the event that respondents do not waive the limitations contained in § 11-9-509.
In our opinion, further psychological treatment at the direction of Dr. Brown is reasonably necessary. Thus, we find that it is warranted within the meaning of § 11-9-509. Since PTSD affects “nearly every aspect of life,” we find that discussions of a personal nature are related to claimant’s compensable injury. Dr. Brown’s notes do not reflect that the personal issues are unrelated. There is a close temporal relationship between the diagnoses and the treatment respondents contend is unrelated to her compensable injury. Within a month of diagnosing depression and PTSD, Dr. Brown commenced treatment. Claimant has had a limited amount of counseling.
Respondents offered no evidence whatsoever to support a finding that continued treatment is not reasonably necessary. Although her injury occurred in October of 1998, claimant was not evaluated by a neuropsychologist until August of 1999. Moreover, medication to treat her depression was not prescribed until November or December of 1999. Although claimant experienced personal problems following the injury which have contributed to her stress level, the psychological effects of claimant’s compensable physical injury are a substantial factor in her current psychological condition.
In reaching our decision, we have considered the argument advanced by respondents that the counseling claimant received involved only personal issues. Therefore, respondents suggested, claimant failed to prove that the treatment was related to her compensable injury. Respondents introduced five progress notes into evidence authored by Dr. Brown. These notes represent claimant’s counseling sessions from September 23, 1999, until December 21, 1999. Also, respondents cited Debra Wilson v. Amfuel, Full Commission Opinion filed Feb. 9, 1998 (E216994), to support their theory.
In Wilson, claimant developed carpal tunnel syndrome in August of 1992, and a surgical release was performed in October of 1992. She was diagnosed with a disc abnormality following surgery. After receiving some conservative care for the disc problem, claimant was diagnosed with reflex sympathetic dystrophy (RSD). She initiated weekly therapy sessions commencing on February 6, 1994, and continuing through the date of the hearing, which was held on September 17, 1996. A Commission majority held that respondents were not liable for additional psychological counseling, reasoning that claimant’s treatment related only to personal issues.
We are not persuaded, and take this opportunity to inform respondents that Wilson was reversed by the Arkansas Court of Appeals. In accordance with the court’s opinion, we filed an Order on February 12, 1999, awarding claimant additional psychological treatment. We conclude thatWilson supports an award of benefits. In this case, claimant was involved in a gruesome accident, which left her disfigured. She has received a minimal amount of psychological treatment. This is so even though her diagnoses are more complicated (PTSD and major depression).
Moreover, it appears that the complexity of PTSD eluded respondents. However, if respondents questioned the causal relationship between the diagnoses (PTSD and major depression) and therapy sessions, they could have easily deposed him. They have offered no evidence at all that the discussions between claimant and her therapist are unrelated to the conditions from which she suffers. Dr. Brown’s notes are very brief. However, there is no indication that he changed his diagnoses. Also, claimant’s credible testimony established that Dr. Brown was interested in both the issues she was confronting as well as the manner in which she handled them.
As a final matter, we note that the administrative law judge expressed the hope that any future hearing requests pursuant to § 11-9-509
would based upon more reasonable cause. We agree, and take this opportunity to expound upon the conduct of respondents in this case. In the current action, respondents seem to suggest in their reply brief that claimant did not sustain a mental injury. The administrative law judge’s initial opinion specifically held that claimant proved the occurrence of a mental injury in accordance with § 11-9-113. Rather than appealing that decision, respondents sought to neutralize the award by seeking an end to their liability through § 11-9-509. This is troubling.
Based on our de novo review of the entire record, and for the reasons stated herein, we find that claimant proved by a preponderance of the credible evidence that she is entitled to additional psychological treatment for her work-related injury. The decision of the Administrative Law Judge is affirmed. 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). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
________________________________ PAT WEST HUMPHREY, Commissioner
Chairman Coffman concurs.
Commissioner Wilson dissents.
I respectfully dissent from the majority’s opinion finding that claimant is entitled to continued psychological treatment. After my denovo review of the entire record, I find that the Administrative Law Judge’s decision should be reversed.
This claim presents a very difficult issue because claimant suffered a horrific and disfiguring injury when she was scalped from her eyebrows to the base of her neck and from ear to ear when her hair became caught in a drive shaft at work. One would have to be inhuman not to feel sympathy for her pain and suffering, both physical and mental. However, the Commission is bound to apply the law consistently to the sympathetic and unsympathetic cases.
In this claim, claimant has failed to prove that she requires further psychological treatment. I can imagine that she, in fact, may require further treatment, but my imagination is insufficient grounds to impose liability upon respondent. At the hearing, claimant testified, and the records from several psychological visits were presented into evidence. No other evidence was presented, other than the pre-hearing order. The records describe claimant’s personal problems, arising out of events other than her injury, which are very significant in and of themselves. However, in those notes, there is no mention of her injury. We can speculate that her injuries and subsequent problems were so obvious that her psychologist did not feel required to note them at every visit. However, speculation is inappropriate, and there is no indication in the record that this was the case. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v.Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co.v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas MethodistHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
In the current claim, no evidence was introduced other than the psychologist’s notes, which briefly noted claimant’s personal problems arising out of events involving her son, the neighbor’s daughter, sex, statutory rape, and legal action, her daughter, the neighbor’s son, sexual abuse, legal action and accusations of neglect. To repeat, no mention of her injury or problems stemming from it was in the psychologist’s notes in the record. There is no evidence to show that continued psychological treatment related to the compensable injury is necessary — no letter, no report, deposition, other kind of document or testimony.
After my de novo review of the evidence, I find that claimant has failed to prove by a preponderance of the evidence that she is entitled to continue psychological treatment at the expense of respondent. I would reverse the decision of the Administrative Law Judge.
Therefore, I respectfully dissent from the majority opinion awarding claimant benefits for continued psychological treatment.
______________________________ MIKE WILSON, Commissioner