CLAIM NO. E315872
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 20, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by R. BYNUM GIBSON, JR., Attorney at Law, Dermott, Arkansas.
Respondent represented by GLENN W. JONES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed August 28, 1995.
[7] (RX-1, Depo. of Dr. Frigon at 5, 6) [8] With respect to her diagnosis of the claimant’s condition at the time of her first examination, Dr. Frigon stated that:We examined his back, he had tenderness in his back. He had muscle spasms in the paraspinus muscle and also had some spasms and tenderness along the abdominal wall coming back onto the abdomen itself. Has tenderness up the paraspinous muscles to the rib cage and all this was by examination and palpitation. He had tenderness at the sciatic notch. And his reflex were diminished on the left as compared to the right.
[9] (Depo. of Dr. Frigon at 6) [10] Dr. Frigon testified that the claimant’s complaint of radicular pain in his left leg was not related to a ruptured disc which was identified through an MRI and that the bulging as L3-4 and L4-5 did not correlate or correspond with the claimant’s radicular leg pain. After consulting with Dr. Simpson, a neurosurgeon, he also concluded that the claimant’s complaint of pain was not the right distribution for the claimant’s complaint. Dr. Frigon additionally testified:My suspicions were that this was more of a stretch injury. He was squatting when it occurred, he was lifting a fairly heavy, one hundred-150 pounds worth, of material by his description. His main tenderness was in the sciatic notch area.
And it was felt that it was probably a nerve injury. I told him that at the time. In fact, did not order any Cat scans or MRI’s at that particular time because I wanted to see if he would get better with medication.
[11] (Depo. of Dr. Frigon at 13, 14) [12] Dr. Frigon explained that the claimant’s back spasms that were diagnosed by other physicians were not necessarily the same as the sciatica she diagnosed. The claimant altered the way he walked due to the pain in his sciatica thereby contributing to additional muscle spasms throughout his back. [13] Dr. Frigon addressed Dr. Fletcher’s diagnosis after reviewing Dr. Fletcher’s notes and correspondence to the Administrative Law Judge. Dr. Fletcher’s physical examination revealed the same findings as those of Dr. Frigon’s. Dr. Frigon testified that while the neurological tests revealed the same findings, Dr. Fletcher’s interpretation of those findings and of the CT scan was inconsistent with her diagnosis and the diagnosis of four other competent physicians. [14] Dr. Fletcher diagnosed the claimant with a lateral disc herniation at the L3-4 level on the left side. Dr. Frigon testified that she was familiar with the entity of a lateral defect and that it was a “very difficult problem to address.” Dr. Fletcher was of the opinion that the claimant should undergo surgery for the problem. However, Dr. Frigon stated that she had the opinion of two other neurosurgeons who felt that surgery was not necessary. Accordingly, she did not believe that the claimant should be operated on. [15] A claimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). Jackson v. PHPHealth Care Corp., Full Commission Opinion, January 3, 1996 (E313757). The testimony of interested parties is disputed as a matter of law. Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982). Dr. Fletcher has an interest in the outcome of the change of physician issue because he has agreed to perform the surgery on the claimant. Thus, Dr. Fletcher’s testimony is disputed as a matter of law. Four other highly competent physician’s dispute Dr. Fletcher’s interpretation as well. Given Dr. Frigon’s testimony, as well as the medical records and opinions of Dr. P.B. Simpson and Dr. Wilbur Giles and Dr. Tom Rooney, the claimant has not presented the Commission with sufficient evidence justifying a change of physician. [16] The claimant testified that Dr. Frigon refused to treat him anymore. However, Dr. Frigon testified that she never refused to see the claimant and she only refused to okay the surgery proposed by Dr. Fletcher. The claimant is receiving competent medical services from Dr. Frigon. The claimant’s treating physician has indicated that a change of physician for the purposes of surgery is not justified by the claimant’s objective medical findings. Moreover, Dr. Frigon has indicated a willingness to continue to treat the claimant and the evidence indicates that Dr. Frigon’s care has been appropriate. Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that there is a compelling reason or circumstance justifying a change of physician from Dr. Frigon to Dr. Fletcher. Accordingly, the Administrative Law Judge’s decision in this regard must be reversed. [17] The respondents contend that the claimant is not entitled to temporary total disability benefits from April 14, 1994, until a date yet to be determined. Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981); J.A. Riggs Tractor v.Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The healing period continues until the employee is a far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. The evidence indicates that the claimant’s condition has stabilized and nothing further in the way of treatment will improve the claimant’s condition. Accordingly, we find that the claimant reached the end of his healing period on April 13, 1994. [18] Dr. Frigon testified that she would not expect the claimant to improve much after April 13, 1994. When questioned about the claimant making improvements from September 30, 1993, Dr. Frigon responded:I think by September or certainly the fall, we had a number of problems going on at that time. We had the sciatica which I had diagnosed to begin with. We had a situation that had developed which you see many times in Workman’s Comp cases where there is a tension and stress between the patient, the patient’s family and the employer as to get back to work and a disagreement and continual argument over what you can do and what you can’t do.
And that adds tension, stress and an emotional component to an already difficult situation to treat which is sciatica whether it be someone that’s injured themselves on the job of not.
So you had a component of stress or depression, not being able to work, a person who had worked for many years on top of a diagnosis which in my opinion and with the consultations that I had had was primarily a nerve root injury and could not be fixed immediately and that it takes a long time to get better. That in assessment is what I think that you had going on.
A. No, I’m not saying that. But he had — in maximum medical improvement from the standpoint of what medicine can do for him. It’s going to take a healing process of the body itself from that time on, any further medication.
I don’t know how he is right now. I would hope he’s somewhat better than he was then just giving the nerve time to heal.
Q. What is the maximum length of time for it to heal in your opinion?
A. We first saw him in March —
Q. March of `93?
A. Now if he’s going to get a whole lot better from March or April of `94, probably not a whole lot better. (Depo. of Dr. Frigon at 26, 27)
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Q. In going through the examination you had from Mr. Gibson, you still believe though that from everything you’ve seen Mr. Mixon on, as you see him now, his maximum medical improvement from that condition was no later than April 18, 1994, when you last saw him?
A. If he’s no better than he was, if he doesn’t have surgery, then my feeling is he’s probably not going to get any better. He may with time, that sometimes happens over a long period of time.
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[19] Dr. Frigon earnestly maintains that the claimant’s condition has stabilized and the further treatment would not improve the claimant’s condition. The claimant’s continued complaints of pain are not sufficient to extend the claimant’s healing period past the date on which he reached maximum medical improvement. In addition, Dr. Giles and Dr. Rooney both stated that the claimant had reached maximum medical improvement. [20] The opinion of the Administrative Law Judge emphasizes the fact that in December of 1993 Dr. Frigon, the claimant’s treating physician, requested to examine the claimant before rendering an opinion regarding the end of the claimant’s healing period. Dr. Frigon explained in her testimony:The Witness: I’m basically going to say I have said, I’ve answered you guy’s questions more times than if I answer — try to say the same words I have said the last four times, they’re not going to come out the same way.
So I refer you back to my last answer which is the same as it is. I mean I have a feeling as how this man has done and that if he’s not any better than he has been, he’s probably not going to get a whole lot better. This is probably the way he’s going to be. (Depo. of Dr. Frigon at 59-61)
[21] Contrary to the Administrative Law Judge’s assertion, Dr. Frigon was capable of rendering an opinion. She had examined the claimant and treated him over an extended period of time. In addition, Dr. Frigon had reviewed the medical reports of Dr. Rooney, Dr. Giles, and Dr. Fletcher and had conferred with Dr. Simpson. Based upon all of these factors, Dr. Frigon was in the best possible position and the most qualified physician to render an opinion as to the claimant’s healing period. [22] There was additional evidence that the claimant had reached the end of his healing period. Dr. Fletcher, Dr. Giles and Dr. Frigon had all assigned the claimant a permanent impairment rating prior to April, 1994. A permanent impairment rating cannot be assigned until the claimant’s condition has improved to the point the permanent extent of his condition is known. “Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached.” Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). Dr. Fletcher as well as Dr. Frigon assigned the claimant a 15% impairment rating, therefore his permanent condition must be known. Accordingly, we find that the claimant’s healing period ended on April 13, 1994, and the Administrative Law Judge’s opinion awarding temporary total disability benefits subsequent to April of 1994, must be reversed and dismissed. [23] The respondents contended that the claimant received a 15% permanent partial disability rating to the body as a whole as of April 13, 1994. The respondents maintain that they are entitled a credit for the amount of temporary total disability benefits paid to the claimant for the period of April 14, 1994, to July 6, 1994. On August 10, 1994, the claimant received a disability check in the amount of $9,627.09 representing forty-one weeks of temporary total disability. The claimant was awarded temporary total disability benefits by the Administrative Law Judge on March 7, 1994. This award was affirmed and adopted by the Full Commission on June 13, 1994. The respondents did not make the payment until August 9, 1994. The Administrative Law Judge awarded the claimant a 20% penalty on that claim pursuant to Ark. Code Ann. § 11-9-802When I address that to an insurance or Workman’s Comp situation, I’m not only being asked to give a healing period. I’m usually asked to make a comment about work and all of those things and I am not willing to do so if I have not seen a patient in that period of time.
If I know that a patient has had the same — had no change in his physical presentation from the time of March until September to any great extent and that he came back to me in April for basically the same problem, there’s not been a whole lot of change even though I’m not the one who physically examined him. He hasn’t changed a whole lot in that period of time.
So that’s — you know, that I do feel knowing the type of injury that he had, I can give you a statement that is a pretty accurate statement since I was the one who saw him the most period of time. (Depo. of Dr. Frigon at 32-33)
(Repl. 1996). Ark. Code Ann. § 11-9-802(c) provides that:
[24] The key to this statute is that the penalty does not attach unless the installment is not paid within 15 days after it becomes due. The award does not become due until 30 days after the order is received by the parties because any party has 30 days from the date the order is received to file an appeal. [25] The respondents admit that the payments were made after 45 days from receipt of the Commission’s opinion. However, the respondents contend that the opinion does not have a date certain, an amount certain and that the respondents should not be saddled with a penalty in trying to make an effort to come up with a date and an amount. The respondents contend that Ark. Code Ann. § 11-9-802 does not apply and that a penalty should not be awarded on this claim. In addition, the respondents contend that the conduct of the claimant’s attorney led the respondent to believe that the claimant did not care when the payment was made, thereby waiving any right to a penalty. [26] The contention by the respondents that they did not know how much to pay the claimant is without merit. Ms. Joan Carr, the respondent’s adjustor testified that she knew the amount to pay the claimant before July 28, 1994:If any installment, payable under the terms of an award, is not paid within fifteen (15) days after it becomes due, there shall be added to such unpaid installment an amount equal to twenty percent (20%) thereof, which shall be paid at the same time as, but in addition to, the installment unless review of the compensation order making the award is had as provided in §§ 11-9-711 and 11-9-712.
Q. Have you, prior to that date, made any attempt to determine the amount that my client should receive?
A. Yes, I knew what amount he should have received.
Q. All right. Did you know that on July 28th?
A. Yes.
Q. By your own computations or were you going to rely upon the computations of your attorneys?
A. Both. I worked it out and also worked it out with Gail.
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Q. Prior to July 28th?
A. Yes. Uh-huh. (Witness nodding head up and down.)
Q. You computed the amount due my client.
A. That’s right.
[27] (Tr. at 23) [28] The record also contains correspondence from Ms. Carr dated July 28, 1994, which states in pertinent part:[29] The evidence is clear that the respondents were aware of the amount to be paid prior to the due date. [30] The respondents offered the affidavit of Ms. Gail Gaines in support of its contention that the claimant waived his entitlement to the penalty. However, the July 28, 1994, correspondence of Ms. Carr is evidence that the claimant’s attorney was not waiving the claimant’s entitlement to the penalty. In addition, on August 5, 1994, the claimant’s attorney, in correspondence to the respondent’s attorney, asked for the 20% penalty. [31] The Commission in Roosevelt Burnett v. RogersGroup WCC Claim No. Full Workers’ Compensation Commission opinion filed March 2, 1995 (E300876) noted:We have just received a call from our attorney’s office and they had a call from claimant attorney wanting payment of the temporary total disability today or they would ask for additional attorney fees.
Glenn Jones is out of town but Gail Gaines of his office figured the TTD from September 23, 1993, through July 6, 1994 which is the date Dr. Giles stated he might have reached maximum improvement. We need to get a check issued for $9,627.09 to the claimant and in [sic] $1,434.43 to Bynum Gibson. Please let me know today if the drafts can be issued and I can let our attorney know. (CX-3)
[32] There is no evidence in the record to reflect that there were circumstances beyond the respondents control which resulted in the late payment of the award. There was also no evidence that the claimant, by or through his attorney, said or did anything which would cause the respondents to think that the award need not be paid pursuant to the statutory provisions or that a penalty would not be sought. Accordingly, we affirm the opinion of the Administrative Law Judge finding that the respondents failed to comply with the terms of Ark. Code Ann. § 11-9-802(c) and find that the claimant is entitled to an additional 20% pursuant to the June 13, 1994, award. [33] The respondents have paid the claimant a 15% permanent impairment rating as of April 13, 1994. Therefore, the respondents are entitled to a credit for payment of temporary total disability benefits from April 14, 1994, to July 6, 1994. [34] IT IS SO ORDERED.Where indemnity compensation is payable under the terms of an award by the Commission which is not appealed, the first payment of compensation does not become due until the time for appeal has expired. Ark. Code Ann. § 11-9-802(c) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-711 (1987); Johnson v. American Pulpwood, 38 Ark. App. 6, 826 S.W.2d 827 (1992). Thereafter, indemnity compensation is to be paid every two weeks. Ark. Code Ann. § 11-9-802. If any installment of indemnity compensation payable under the terms of an award by the Commission is not paid within fifteen (15) days after it become due, Ark. Code Ann. § 11-9-802(c) provides for the imposition of a penalty equal to twenty percent (20%) of the installment. Under Ark. Code Ann. § 11-9-802(b), the Commission may excuse late payments of compensation payable without an award after a showing by the employer that, owing to conditions over which it had no control, the installment could not be paid within the prescribed time period. Ark. Code Ann. § 11-9-802(c), which addresses payments payable under an award, does not contain such a provision. (p. 31-32)
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[35] Commissioner Humphrey concurs.