CLAIM NO. D600839
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 24, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant appeared PRO SE.
Respondent No. 1 represented by SCOTT G. LAUCK, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by NELSON V. SHAW, Attorney at Law, Texarkana, Arkansas.
Decision of Administrative Law Judge: Affirmed as Modified.
[1] OPINION AND ORDER
[2] Respondent No. 1, Lee Douglass, Arkansas Insurance Commissioner, in his capacity of ancillary receiver for Rockwood Insurance Company appeals from the decision of the Administrative Law Judge filed November 13, 1996. In his opinion the Administrative Law Judge found that claimant developed a bipolar disorder as a result of sustaining multiple back injuries and finding that as a result of the bipolar disorder claimant became temporarily totally disabled on July 4, 1996. The Administrative Law Judge further found respondent No. 1 to be responsible for all temporary total disability benefits at the rate of $212.67 per week until such time as claimant’s healing period has ended and finding that respondent No. 1 remains liable for the treatment of claimant’s back condition as well as his psychological bipolar disorder. The Administrative Law Judge further found that claimant sustained a temporary aggravation of his compensable back injury on November 9, 1995, for which respondent No. 2, CNA Insurance Company, is liable. However, the Administrative Law Judge found that the November 9, 1995, was merely a temporary aggravation and that after claimant’s treatment by Dr. Bohmfalk in November of 1995 for the temporary aggravation, respondent No. 1 again resumed all liability for the treatment of claimant’s original compensable back injuries. Based upon our de novo review of the entire record, we find that claimant did sustain compensable back injuries in 1985, 1986, and 1990 for which respondent No. 1 is liable. We further find that the November 9, 1995, was merely a temporary aggravation of claimant’s pre-existing back condition which occurred while respondent No. 2 provided coverage for respondent employer. We find that respondent No. 2 is liable for the medical treatment for the temporary aggravation however, once the temporary aggravation resolved (approximately one week) respondent No. 2 is no longer liable for claimant’s medical treatment. Therefore, we affirm these findings of the Administrative Law Judge. With regard to claimant’s bipolar disorder, we find that claimant has proven by a preponderance of the evidence that he did sustain a compensable bipolar disorder. However, we find that claimant’s bipolar disorder did not manifest itself until 1994 when claimant sought professional help from Dr. Edward Tobey. Therefore, we find that claimant’s bipolar disorder is governed by Act 796 of 1993. Consequently, we affirm the decision of the Administrative Law Judge with regard to claimant’s bipolar disorder as modified.
[7] When asked if he related claimant’s manic depressive bipolar illness to claimant’s back problems, Dr. Tobey testified:The question comes as when do symptoms become an illness, when does a cough become pneumonia, and I think that a cough becomes pneumonia when it’s diagnosed. So Johny I think did have some symptoms of manic depressive illness prior to his first diagnosis in 1995, but it was never so severe as to cause him impairment or cause him hospitalization or for him to seek any type of psychiatric care or physician evaluation on that.
[8] Dr. Tobey was later asked if he could state within a reasonable degree of medical certainty that claimant’s manic depressive condition was related to claimant’s compensable workers’ compensation injury which he responded, “Yes. I have a definite opinion that his illness is related to his injuries.” When asked to explain the basis for his opinion, Dr. Tobey stated:Well, certainly his — as I’ve seen Johny over the past year or so, as his functioning has deteriorated and he has been able to do less and less, his symptoms of manic depressive illness have escalated . . . Well, the headaches, I’m afraid you’ll have to refer to the specialist in that area because it’s hard for me to comment on that. As Johnny has been able to — I mean, Johnny has bipolar illness. And as he has had more problems with bipolar illness and he’s been less functional at work and he’s been — he’s felt a great sense of loss with his ability as a wage earner, his ability to function with his family, his ability to take care of his child and be a parent. I mean, as this has accrued on him, his symptoms of bipolar illness have gotten worse. So I guess you can also connect with him that as his injuries — as he began to lose his physical health with things, it certainly correlates that he’s been more prone to have symptoms of manic-depressive illness for that also. I mean, I think Johny — Johnny’s a cowboy, and being macho and strong and tough is part of his personality, and it’s been very hard for him to lose that as he’s gotten older and his health has declined.
[9] Although claimant may have displayed some vague signs of depression prior to seeking treatment from Dr. Tobey in 1994, we find that claimant’s bipolar disorder or his full blown symptoms for bipolar disorder did not manifest themselves until 1994 when claimant first sought treatment from Dr. Tobey for his condition which was eventually diagnosed in 1995. Our opinion is supported by Dr. Tobey’s testimony that claimant’s condition was never “so severe as to cause him impairment or cause him hospitalization or for him to seek any type of psychiatric care or physician evaluation” until that time. Accordingly, we find that claimant’s bipolar disorder accrued and manifested itself in 1994 and is therefore governed by Act 796 of 1993. See Patsy Buttrum v. Cityof Fouke, FC Opinion January 2, 1994 (E313688). [10] Ark. Code Ann. § 11-9-113(a)(1) provides:Well, again, I think that we definitely know that psycho-social stressors relate to a persons illness as far as the symptoms that they have, and I think that as Johny has had decline of his physical health and his ability to provide for his family, be a wage earner, his self-image of himself, I think all that has hinged upon his injuries and his inability to do what cowboys do as far as ride and rope and those type of things. I think that’s really affected his opinion of himself and his self-use, his self-image.
[11] As explained by Dr. Tobey, claimant’s mental illness although it did not manifest itself until several years after the physical injury, was in fact, related to and caused by claimant’s physical injuries to his back. Therefore we find that subsection (a)(1) has been satisfied. Ark. Code Ann. § 11-9-113(a)(2) further provides:A mental illness or injury is not a compensable injury unless it is caused by a physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence . . .
[12] Obviously, claimant’s bipolar disorder was diagnosed by a licensed psychiatrist. Although the psychiatrist never testified claimant’s diagnosis of bipolar disorder specifically meets theDiagnostic and Statistical Manual of Mental Disorders, when we review this manual we find that the diagnosis of bipolar I disorder satisfies this statutory requirement. [13] In finding that claimant has sustained compensable bipolar disorder which manifested itself in 1994, we find that Ark. Code Ann. § 11-9-113(b)(1) limits claimant’s entitlement to benefits for his mental illness or injury to 26 weeks. Therefore, we find that claimant is entitled to disability benefits for his bipolar disorder commencing on July 4, 1996, and continuing through the end of his healing period or for 26 weeks, whichever occurs first. We further find that since claimant’s bipolar disorder first manifested itself in 1994, respondent No. 1 is responsible for all temporary total disability benefits up through 26 weeks of benefits, as well as medical benefits associated therewith. [14] In its brief, we note that respondent No. 1 contends that claimant did not present sufficient evidence to establish temporary total disability benefits at the rate awarded by the Administrative Law Judge. Since we are not concerned with claimant’s injury date in 1990, we do not address the quality of the evidence presented regarding claimant’s average weekly wage at the time of his 1990 injury. Claimant’s bipolar disorder did not occur until 1994, thus, it is claimant’s average weekly wage at the time of his compensable bipolar disorder on which we base claimant’s entitlement to temporary total disability benefits. The evidence clearly shows that in 1995, and for the three years prior to that, claimant was earning $377 per week before taxes which computed to $319.26 per week after taxes. Therefore, we find that claimant is entitled to temporary total disability benefits for his bipolar disorder based upon an average weekly wage of $377.00 which is $251 per week. [15] Finally, with regard to claimant’s injury which occurred on November 9, 1995, we find that respondent No. 2 was liable for the treatment claimant received by Dr. Bohmfalk resulting from that incident. The evidence reveals that in November of 1995, claimant was run over by a large cow which stepped on claimant’s back. As a result of that incident, claimant sought treatment from Dr. Bohmfalk and was sore for several days thereafter. Claimant’s testimony, and Dr. Bohmfalk’s testimony in his deposition supports the finding that the November 1995 incident was merely a temporary aggravation of claimant’s pre-existing back injuries. Claimant did not sustain any serious injury as a result of the November 1995 incident and only required a one time office visit to Dr. Bohmfalk for evaluation. Insomuch as the November ’95 incident occurred while respondent No. 2 was on the risk for respondent employer, we find that respondent No. 2 is responsible for the medical treatment of claimant directly resulting from that incident. However, since the medical evidence and claimant’s testimony clearly show that the November ’95 incident was merely a temporary aggravation which did not change or alter claimant’s underlying pre-existing condition, we find that respondent No. 1 remains liable for all further treatment of claimant’s reasonable, necessary, and related medical treatment for his original compensable injuries. [16] Therefore, after conducting a de novo review of the entire record, and for those reasons stated herein, we find that claimant has proven by a preponderance of the evidence that he sustained a compensable bipolar disorder. However, we find that this disorder is governed by Act 796 of 1993 since it did not manifest and become compensable until after the effective date of that Act. Therefore, we find that respondent No. 1 is responsible for claimant’s bipolar disorder, but such responsibility is limited to 26 weeks of disability benefits. In addition, we find that claimant has proven by a preponderance of the evidence that he sustained a temporary aggravation of his underlying back problems in November of 1995 when he was involved in an incident wherein a cow stepped on claimant. As a result of the November 1995 incident, we find that respondent No. 2 is responsible for the medical treatment directly related to that incident. We further find that respondent No. 1 remains liable for all reasonable, necessary and related medical expenses associated with claimant’s prior compensable back injuries. Accordingly, we find that the decision of the Administrative Law Judge should be and hereby is affirmed as modified. [17] IT IS SO ORDERED.No mental injury or illness under this section shall be compensable unless it is diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[18] Commissioner Humphrey concurs.