CLAIM NO. E707745
STANLEY LUMMUS, EMPLOYEE, CLAIMANT v. COOPER TIRE RUBBER CO., EMPLOYER, RESPONDENT and SEDGWICK JAMES CO., INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 27, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE WILLIAM H. MOWREY, Attorney at Law, Texarkana, Texas.
Respondents represented by the HONORABLE WILLIAM G. BULLOCK, Attorney at Law, Texarkana, Texas.
Decision of Administrative Law Judge: Affirmed.
[1]
OPINION AND ORDER [2] The respondents appeal and the claimant cross-appeals an administrative law judge’s opinion filed April 21, 1999. The administrative law judge found that the claimant proved that medical treatment and subsequent referrals rendered by Dr. DeHaan are reasonable and necessary for treatment of the claimant’s compensable left lower extremity injury. The administrative law judge found that the claimant proved entitlement to additional temporary total disability benefits beginning October 12, 1998 and continuing to a date yet to be determined. In addition, the administrative law judge found that the respondents are entitled to an offset pursuant to Ark. Code Ann. §
11-9-411(a) against benefits paid under their self-insured health, accident, and disability policies against workers’ compensation benefits awarded. The Full Workers’ Compensation Commission has reviewed the entire record
de novo, and we affirm in its entirety the opinion of the administrative law judge. [3] The claimant, age 41, became employed with the respondents in 1976. The parties stipulated that the claimant suffered a compensable injury on June 23, 1997, when his left lower extremity was trapped beneath a piece of equipment. The emergency room diagnosis was fracture/dislocation of the left ankle. Dr. Jeffrey DeHaan performed a closed reduction of the left ankle dislocation and “ORIF” of the bimalleolar of a trimalleolar fracture of the left ankle. Dr. Dehaan’s records reflect that the fracture appeared to have healed as of August 21, 1997, but “quite a bit of osteoporosis” was present. Dr. DeHaan was concerned about possible reflex sympathetic dystrophy (RSD) and he prescribed physical therapy. Dr. DeHaan also continued treating the claimant and noted that the claimant’s symptomatology indicated reflex sympathetic dystrophy. The respondents did not controvert the claimant’s entitlement to reasonable and necessary medical treatment at this time. [4] Dr. DeHaan released the claimant to light work duty on December 16, 1997, but opined that the claimant should undergo additional surgery to remove hardware in the left lower extremity. Dr. Steven Kulick saw the claimant on January 2, 1998 in view of providing a second opinion regarding the need for surgery. Dr. Kulick agreed with Dr. Dehaan’s surgery recommendation, and he stated that the claimant needed further evaluation for reflex sympathetic dystrophy. The claimant underwent surgical removal of the hardware on January 13, 1998. On January 28, 1998, Dr. DeHaan reported articular cartilage damage to the Talus at surgery, and he stated that the claimant was unable to return to work. The claimant continued treating with Dr. DeHaan through March, 1998. [5] Dr. Reginald Rutherford performed an independent medical examination on April 14, 1998. Dr. Rutherford disagreed with the other physicians’ suggestions of possible reflex sympathetic dystrophy, instead opining that the claimant’s current complaints were consistent with post-operative change and orthopedic-related pain, rather than RSD
per se. Dr. Rutherford recommended additional testing, to include a triphasic bone scan, phentolamine test, and lidocaine infusion test. On May 8, 1998, Dr. Rutherford opined that the results of these tests did not suggest RSD. Dr. Rutherford also had the claimant psychologically evaluated; Dr. Judy Johnson reported on May 29, 1998 that the claimant’s findings indicated “an overall pattern and diagnosis of pain disorder associated with psychological factors.” [6] The claimant returned to his treating physician, Dr. DeHaan, on May 12, 1998. Dr. DeHaan opined that the claimant should undergo a functional capacity evaluation and be assessed for a possible impairment rating with Dr. Barry Green. On May 20, 1998, Dr. Green opined that the claimant had reached maximum medical improvement and had suffered an 11% impairment to the left lower extremity as a result of the compensable injury. The respondents paid the impairment rating. Dr. Green provided work restrictions for the claimant’s return to work, and the respondents controverted any further medical benefits at this time. Dr. DeHaan reported on June 23, 1998 that the claimant had returned to work for the respondents but was experiencing significant swelling in the left ankle. Dr. DeHaan thus referred the claimant to Dr. James Lillich for pain management, and on June 30, 1998, Dr. Lillich opined that the claimant should undergo an arthroscopic debridement and possibly a laser chondroplasty for relief of ankle pain and “impingement.” Dr. DeHaan noted the pain manager’s recommendations on July 30, 1998 and further noted that the claimant was performing sedentary work for the respondents. [7] The claimant returned to Dr. DeHaan on September 10, 1998. The claimant’s left lower extremity symptoms had worsened, and Dr. DeHaan thought that the claimant should undergo sympathetic blocks for pain relief secondary to reflex sympathetic dystrophy. Dr. DeHaan took the claimant off work on October 12, 1998, “due to the effects of his current medication.” The claimant reported excellent results from the lumbar sympathetic blocks, so in October and November 1998 Dr. DeHaan continued to recommend additional injections and physical therapy. By January, 1999, Dr. DeHaan opined that the claimant had received a lumbar sympathetic block five weeks earlier, which was “working.” Dr. DeHaan wanted at that point to wean the claimant off pain medication. On February 25, 1999, Dr. DeHaan opined that the claimant should be able to return to light work duty in four weeks. [8] The employee claimed entitlement to additional workers’ compensation benefits. The claimant contended that he has not reached the end of his healing period for the compensable injury, and that he has incurred reasonable and necessary medical expenses for the treatment of same, which the respondents should continue to pay. The claimant contended entitlement to temporary total disability benefits beginning September 29, 1998 and continuing to a date to be determined. The respondents contended that the unpaid medical bills are not related to the compensable injury, and that no further medical treatment of the compensable injury is reasonable and necessary. The respondents contended that they owed no further temporary total disability compensation, but that if the Commission awards additional benefits, they are entitled to an offset pursuant to Ark. Code Ann. §
11-9-411. [9] Hearing was held before the Commission on March 23, 1999, and the administrative law judge filed an opinion on April 21, 1999. The administrative law judge held that whether or not reflex sympathetic dystrophy had been properly diagnosed would not determine the claimant’s entitlement to additional medical treatment: “Regardless if claimant’s current diagnosis is RSD, psychological pain disorder, or simply swelling and pain associated with previous surgeries, I find that the medical treatment rendered by Dr. DeHaan and his subsequent referrals was causally related to claimant’s left lower extremity compensable injury.” The administrative law judge noted that the claimant had experienced continued swelling in the left lower extremity, and even Dr. Rutherford’s testing indicated continued medical problems related to the compensable injury. The claimant’s condition did improve to the point where Dr. DeHaan opined that he could return to work light duty four weeks after his February 25, 1999 examination. Therefore, “I find that the medical treatment rendered by Dr. DeHaan and his referrals subsequent to May, 1998 to the date of the hearing to be reasonable and necessary medical treatment and therefore owed by respondent.” [10] With regard to temporary total disability, the claimant had returned to work in May, 1998 but now contended entitlement to temporary disability beginning September 29, 1998 until a date yet to be determined. The administrative law judge found that the claimant’s healing period for his compensable injury continued “at least to the date of the hearing in this matter.” As for incapacity to earn wages during the healing period, none of the claimant’s treating physicians took him off work during the relevant time period until Dr. DeHaan did so on October 12, 1998. Dr. DeHaan anticipated releasing the claimant to light duty four weeks after February 25, 1999. Dr. Rutherford and Dr. Green opined that the claimant could return to work, although Dr. Green imposed restrictions on certain work. The administrative law judge found that “claimant is entitled to temporary total disability benefits beginning October 12, 1998 and continuing until a date to be determined. However, it is noted that Dr. DeHaan anticipated releasing claimant to perform light duty work around the first of April, 1999 at which point claimant’s entitlement to (TTD) benefits would discontinue upon his returning to work with respondent within the restrictions as imposed by Dr. DeHaan.” Respondents appeal to the Full Commission. [11] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. §
11-9-508(a) (Repl. 1997). 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. BenPearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (
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, Full Workers’ Compensation Commission, Dec. 13, 1989 (
D511255). [12] In the present matter, the claimant sustained a work-related fracture and dislocation of his left ankle in June, 1997, for which Dr. DeHaan subsequently performed surgery. Dr. DeHaan continued treating the claimant after surgery, and he noted concern in August, 1997 that the claimant had reflex sympathetic dystrophy. The respondents did not contest the claimant’s entitlement to reasonable and necessary medical treatment at this time. In January, 1998, Dr. Steven Kulick agreed with Dr. DeHaan that the claimant needed further evaluation for reflex sympathetic dystrophy. In the meantime, the claimant continued treating with Dr. DeHaan. [13] The respondents arranged a medical examination by Dr. Reginald Rutherford in April, 1998, and he opined that the claimant’s symptoms were consistent with post-operative change and orthopedic pain, rather than reflex sympathetic dystrophy. Further, Dr. Rutherford arranged various diagnostic testing which he opined did not suggest reflex sympathetic dystrophy. The respondents discontinued further medical benefits after May, 1998, when Dr. Barry Green pronounced maximum medical improvement and assigned an 11% impairment to the left lower extremity as a result of the compensable injury. Nevertheless, Dr. DeHaan reported significant swelling at the site of the injury, the left ankle, in June, 1998, for which he referred the claimant for pain management. Additional physical therapy and treatment with lumbar sympathetic blocks began in October, 1998, with excellent results. In fact, this aggressive conservative treatment was so successful that Dr. DeHaan, who had treated the compensable injury from the beginning, was able to anticipate releasing the claimant to work in March, 1999. [14] The respondents argue that the claimant failed to prove that he was entitled to medical treatment after Dr. Green declared maximum medical improvement. The respondents also rely on the findings of Dr. Rutherford, who said he could determine no physiological explanation for the claimant’s subjective pain. Nevertheless, we note that the claimant’s treating physician, Dr. DeHaan, reported left ankle swelling in June, 1998, despite Dr. Green’s supposed declaration of maximum improvement. Further, the respondents assert that the only recognized purpose of the “sympathetic blocks” and associated treatment is to treat reflex sympathetic dystrophy, which condition has not been proven. We do not glean from the record that the only purpose of the sympathetic blocks was to treat reflex sympathetic dystrophy, but rather to treat all of the claimant’s pain symptoms following his compensable injury. We further note that Dr. David Carlisle opined that the claimant’s complaints following the compensable injury were “classic objective manifestations of reflex sympathetic dystrophy.” This Commission has the duty of weighing medical evidence, and if the evidence is conflicting, its resolution is a question of fact for the Commission. Whaley v.Hardee’s,
51 Ark. App. 166,
912 S.W.2d 14 (1995). In this regard, we attach significant weight to the fact that four examining physicians, included two chosen by the respondents, agree that the claimant suffers from reflex sympathetic dystrophy. [15] In addition, Dr. DeHaan concluded that the pain management treatment the claimant received had improved his condition, in spite of Dr. Rutherford’s suspicion of a mere “placebo” effect. Treatment intended to reduce or enable a claimant to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment within the meaning of Ark. Code Ann. §
11-9-508(a). See, Chronister v. LavacaVault, Full Workers’ Compensation Commission, June 20, 1991 (
D704562). We affirm the administrative law judge’s finding that the claimant proved that medical treatment by Dr. DeHaan and subsequent referrals were reasonable and necessary for treatment of the compensable injury. [16] 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 and Transportation Department v.Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. §
11-9-102(13) (Repl. 1997). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. [17] In the within matter, the administrative law judge found that the claimant was entitled to additional temporary total disability compensation beginning October 12, 1998 and continuing to a date yet to be determined. The respondent argues that the claimant failed to prove that he was entitled to additional temporary total disability compensation for those periods when he did not work after the finding of “maximum medical improvement.” The claimant contends that he remains within his healing period, and that he was removed from work on October 12, 1998. Dr. DeHaan indeed took the claimant off work on October 12, 1998, and he opined on March 1, 1999 that the claimant remained within his healing period. The administrative law judge noted that Dr. DeHaan anticipated releasing the claimant to light-work duty approximately April 1, 1999. We find that the claimant proved that he remained within his healing period and totally incapacitated to earn wages as of the time of the March 23, 1999 hearing, and we thus affirm the administrative law judge’s finding that the claimant is entitled to additional temporary total disability compensation beginning October 12, 1998 and continuing to a date yet to be determined. [18] Finally, the claimant contends on appeal that the respondent-employer is not entitled to an offset pursuant to Ark. Code Ann. §
11-9-411. The claimant argues that the employer must clearly show that sums paid to an injured employee are advance payments of compensation, and that the respondents in this case should be procedurally barred from raising the offset statute. Nevertheless, we note that the offset provision of Act 796, as codified at Ark. Code Ann. §
11-9-411, is statutory and applies “automatically,” regardless of whether the respondents raise the issue. Turner v. Trane Unitary Products, Full Workers’ Compensation Commission, June 17, 1998 (
E616700). We affirm the administrative law judge’s finding that the respondents are entitled to the statutory off-set against benefits paid to the claimant under their self-insured health, accident, and disability compensation. [19] Accordingly, based on our
de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he was entitled to additional medical treatment and referrals by Dr. DeHaan for treatment of his compensable left lower extremity injury. We find that the claimant proved entitlement to additional temporary total disability compensation beginning October 12, 1998 and continuing until a date yet to be determined. We find that the respondents are entitled to the statutory offset provided by Ark. Code Ann. §
11-9-411(a) against workers’ compensation benefits paid to the claimant under their self-insured health, accident, and disability policies. We thus affirm in its entirety the opinion of the administrative law judge. [20] 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). [21] 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 in accordance with Ark. Code Ann. §
11-9-715(b) (Repl. 1996). [22] IT IS SO ORDERED. __________________________
ELDON F. COFFMAN, Chairman [23] Commissioner Humphrey concurs in part and dissents in part. [24]
CONCURRING AND DISSENTING OPINION [25] I concur with each finding in the principal opinion, except the finding that respondent is entitled to an offset. [26] _______________________________
PAT WEST HUMPHREY, Commissioner [27] Commissioner Wilson concurs in part and dissents on part. [28]
CONCURRING AND DISSENTING OPINION [29] I respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I concur in the majority’s finding that the respondents are entitled to an off-set pursuant to Ark. Code Ann. §
11-9-411(a) against benefits paid by their self-insured health, accident, and disabilities policies against workers’ compensation benefits awarded. However, I most respectfully dissent from the majority’s opinion finding that the claimant proved by a preponderance of the evidence that medical treatment and subsequent referrals rendered by Dr. DeHaan are reasonable and necessary treatment for the claimant’s compensable left lower extremity injury. I must also dissent from the majority’s finding that the claimant proved by a preponderance of the evidence that he was entitled to additional temporary total disability benefits beginning October 12, 1998, and continuing to a date yet to be determined. In my opinion, the claimant has failed to meet his burden of proof. [30] The evidence shows that the claimant has been evaluated by both a neurologist, Dr. Reginald Rutherford, and a clinical psychologist/neuropsychologist, Dr. Judy White Johnson. Dr. Rutherford’s medical reports indicate that the claimant does not suffer from reflex sympathetic dystrophy. Dr. Rutherford’s reports and opinions explain that there is no physiological explanation for the claimant’s subjective complaints of weakness and pain. Further, Dr. Johnson opined that the claimant’s responses on the Whaler Physical Symptoms Inventory were “consistent with conscious exaggeration of physical symptoms”. She further opined that the claimant’s test results were consistent with the person who engages typically in “exaggeration of confirmed disease process,” and in reporting “vague somatic complaints . . . to be used to control and manipulate others and garner considerable secondary gain.” Dr. Johnson felt that the claimant was “skilled at frustrating and sabotaging attempts to help him.” In addition, she opined that there likely were other factors maintaining and reinforcing his physiological complaints. [31] The evidence shows that the claimant was released with a permanent impairment rating of 11% in May of 1998, when Dr. Barry Green pronounced claimant had reached maximum medical improvement. Dr. Rutherford suspicioned that the claimant’s further pain management treatments were merely a “placebo”. [32] When you consider all of the medical evidence, I find that the claimant is not entitled to any more medical treatment as a result of his compensable injury. In my opinion, the claimant has failed to prove by a preponderance of the evidence that the medical treatment provided by Dr. DeHaan and subsequent referrals was reasonable and necessary medical treatment for the claimant’s compensable injury. I further find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to receive temporary total disability benefits from the period beginning October 12, 1998, and continuing to a date yet to be determined. Accordingly, I respectfully dissent from the majority’s opinion on these findings. [33] _________________________
MIKE WILSON, Commissioner