KNIGHTON v. HOPE LIVESTOCK AUCTION, 1998 AWCC 351

CLAIM NO. D600839

JOHNNY KNIGHTON, EMPLOYEE, CLAIMANT v. HOPE LIVESTOCK AUCTION, EMPLOYER, RESPONDENT ARKANSAS PROPERTY CASUALTY GUARANTY, CARRIER, RESPONDENT #1 and CNA INSURANCE COMPANY, CARRIER, RESPONDENT #2

Before the Arkansas Workers’ Compensation Commission
ORDER FILED OCTOBER 6, 1998

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

Claimant represented by WILLIAM R. WRIGHT, Attorney at Law, Hope, Arkansas.

Respondent #1 represented by JASON D. FILES, Attorney at Law, Little Rock, Arkansas.

Respondent #2 represented by NELSON V. SHAW, Attorney at Law, Texarkana, Arkansas.

[1] ORDER
[2] This matter is currently before the Full Commission on remand from the Arkansas Court of Appeals. In an opinion delivered May 6, 1998, the Court of Appeals reversed and remanded the Full Commission Opinion in which we found that the claimant’s diagnosis of Bipolar Disorder specifically met the Diagnostic and Statistical Manual of Mental Disorder criteria. In reversing and remanding our finding, the Court stated:

The Commission’s de novo review is confined to the record established by the ALJ. The extra-judicial review of documentation not introduced into evidence was an error. We reverse and remand for further findings.

[3] Upon remand we issued an order on July 10, 1998 and remanded this claim to the Administrative Law Judge. In our July 10, 1998, order the Full Commission stated:

Pursuant to Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996) the ALJ, the Commission, and any reviewing Court must construe the provisions of the Workers’ Compensation Statute strictly. In our opinion, § 113 requires only that a licensed psychiatrist or psychologist render a diagnosis and that the diagnosis satisfy the criteria set forth in the DSM. While evidence by a psychiatrist or psychologist indicating that the criteria has or has not, been met is certainly preferable, there is nothing in the statute that requires such evidence in every case.
Accordingly, we hereby remand this matter to the Administrative Law Judge to supplement the record with the pertinent sections of the DSM and allow the parties a reasonable opportunity to respond thereto.
In accordance with our order, the Administrative Law Judge in an opinion filed August 24, 1998, found that the record generated as a result of the August 4, 1995, hearing should be supplemented. The Administrative Law Judge specifically incorporated by reference in the record the pertinent provisions of the Diagnostic and Statistical Manual of Mental Disorders, (DSM-IV) Bipolar I Disorder. Accordingly, the necessary records have now been made part of the record. It is important to note at this point, that although the parties were allowed an opportunity to respond to the inclusion of the DSM into the record, no one objected to its inclusion. Instead, Respondent No. 1 argued that allowing the DSM to be made part of the record was not sufficient to meet the requirements of Ark. Code Ann. § 11-9-113(a)(2) since it contends that this provision requires a medical opinion regarding whether claimant’s mental condition satisfies the requirement of the DSM. As previously set forth in our opinion filed July 10, 1998, as we strictly construe the Act it is the Commission’s duty to determine whether the mental condition diagnosed by a licensed psychiatrist or psychologist satisfies the criteria established in the DSM, just as it is the Commissions duty to assess physical impairment by utilizing the AMA Guides. See Terry Crawford v. Hudson Foods, Full Commission opinion June 10, 1998, (E701395); Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 441 (1994).

[4] As recognized by the Court of Appeals in its opinion, “Dr. Toby, Knighton’s treating psychiatrist, later diagnosed him with a Bipolar I Disorder.” This finding of the Full Commission in our original opinion was acknowledged and confirmed by the Court of Appeals. Consequently, with regard to whether claimant suffered from Bipolar Disorder I and whether this disorder was diagnosed by a licensed psychiatrist is now a finding acknowledged by the Court and not contested on remand. (But see Respondent Number Two’s brief dated August 7, 1998, which explains how Dr. Tobey’s diagnosis shows an overlap from Bipolar Disorder I to Bipolar Disorder II.) [5] In finding that claimant’s diagnosis satisfies the criteria of the DSM, we are particularly persuaded by Dr. Tobey’s deposition in which he was asked:

Q. Does Mr. Knighton have a bipolar I or bipolar II ?

A. Bipolar I.

Q. Describe that one.

A. Bipolar I is classic manic-depressive illness with cyclic mood swings, a severe depressive illness, depressive described as feeling of dysphoria, low motivation, lack of energy, could have either sleeping too much or sleeping too little, appetite changes, weight changes, problems with attention or concentration which are significant enough to either cause social, functional, or interpersonal impairment. The duration has to be of at least two weeks of duration. In manic-depressive illness you add on manic symptoms, which are severe difficulty with insomnia, racing thoughts, racing speech, increased kinetic activity or psychomotor activity, restlessness, pacing, it can have excessive spending, impulsiveness that happens with people. They also can get grandiose, think that they are smarter than they are or they can do more things than their capabilities are. And again, it’s significant enough to cause social, occupational, and interpersonal impairment. Bipolar II disorder is probably a lesser disorder where there’s cyclic mood swings downward and depressive illness, and little peaks of manic symptoms but not to the near severity or the significant impairment seen with bipolar I disorder.
Dr. Tobey’s psychiatry progress notes likewise confirm this diagnosis and meets the criteria of the DSM. On December 9, 1994, Dr. Tobey noted:
Johnny returns to my office in not as good a spirits since last seen in Sept. He has been feeling more dysphoric. He has been more irritable and anxious. He has been having more increasing problems with sleep. Physically he has been feeling run down and his HA’s have returned. He goes back to his HA Clinic on the 19th spending one wk. for continued evaluation. . . . He has been explained the possible risks and benefits to the medication including addiction. He understands. I have discussed with John that he appears to have cyclical swings. There will be times when he can’t sleep, is irritable, his activities are increased, and he involves himself into multiple projects. This alternates with times of feeling low and dysphoric.

[6] Claimant was next seen by Dr. Tobey on February 10, 1995. At that time, claimant advised Dr. Tobey that the psychiatrist in Houston who had been treating him for his migraine headaches diagnosed claimant as having manic depressive illness and placed claimant on Lithium. After being seen by Dr. Tobey in March of 1995 “in crisis” claimant’s medication was increased and claimant was sent to Baptist Medical Center in Little Rock for electroconvulsive therapy. On March 26, 1995, claimant was once again examined by Dr. Tobey. In the psychiatry progress note from that date Dr. Tobey stated “His diagnoses continues to be of bipolar illness, manic phase. We will continue to monitor for post-manic depression.” [7] In his deposition, Dr. Tobey was asked whether claimant’s mental problems were related to narcotic withdrawal to which he responded:

No. The narcotic withdrawal would have had some difficulty as far as anxiety, maybe some restlessness and insomnia at night, but it doesn’t relate at all with the bipolar illness that I’ve been treating him for since that time.

[8] Bipolar Disorder I is discussed in the Diagnostic andStatistical Manual of Mental Disorders, Fourth Edition on pages 350 through 358. The diagnostic criteria for 296.4x Bipolar I Disorder, most recent episode manic are:

A. Currently (or most recently) in a Manic Episode

B. There has previously been at least one Major Depressive Episode, Manic Episode, or Mixed Episode
C. The mood episodes in Criteria A and B are not better accounted for by Schizoaffective Disorder and are not superimposed on Schizophrenia, Schizophreniform Disorder, Delusional Disorder, or Psychotic Disorder Not Otherwise Specified.

[9] As evidence in Dr. Tobey’s progress notes and deposition, claimant’s illness falls within this criteria. The specifier for whether claimant’s condition is of mild severity, moderate severity, severe without psychotic feature, severe with psychotic feature, impartial remission, and full remission, or unspecified is not evident in the record. However, what is evident is that claimant was diagnosed by a psychiatrist as having Bipolar Disorder I without psychotic features but with cyclical mood swings which has not gone into either partial or full remission. [10] Employing our statutorily mandated authority to review mental injury or illness diagnoses made by licensed psychiatrist or psychologist to determine if the diagnosis meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders, the pertinent sections of which are now made part of the record, we find that claimant has proven by a preponderance of the evidence the compensability of his mental illness. Specifically, we find that claimant’s Bipolar Disorder was diagnosed by a licensed psychiatrist and that this diagnosis satisfies the criteria set forth in the Diagnostic and Statistical manual of Mental Disorders. 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 twenty-six weeks, whichever occurs first. We further find that since claimant’s Bipolar Disorder first manifested itself in 1994, Respondent Number One is responsible for all temporary total disability benefits up through the twenty-six weeks of benefits, as well as medical benefits associated therewith. [11] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman

MIKE WILSON, Commissioner

[12] Commissioner Humphrey concurs.