PALAZZOLO v. NELMS CHEVROLET, 1996 AWCC 45

CLAIM NO. E118067

DINO PALAZZOLO, EMPLOYEE, CLAIMANT v. NELMS CHEVROLET, EMPLOYER, RESPONDENT and SISCO, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 26, 1996

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

Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on September 12, 1995. In that opinion and order, the administrative law judge found that the respondents failed to prove by a preponderance of the evidence that the claimant’s claim is barred by the Statute of Limitations or the doctrine of res judicata. However, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary total disability compensation. The administrative law judge also found that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional medical benefits from the date of the previous hearing in this claim, held on July 2, 1992. In addition, the administrative law judge excluded from the record proffered depositions of Dr. Luke Knox and Dr. James McKenzie.

[3] After conducting a de novo review of the entire record, we find that the respondents failed to prove by a preponderance of the evidence that the claimant’s claim is barred by the Statute of Limitations or the doctrine of res judicata. We also find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary disability compensation. In addition, we find that the claimant failed to prove by a preponderance of the evidence that any medical treatment allegedly received since July 2, 1992, is reasonably necessary for treatment of his compensable injury. Finally, we also find that the proffered depositions of Dr. Knox and Dr. McKenzie were properly excluded from the record in this claim. Therefore, we find that the administrative law judge’s decision must be affirmed.

[4] The claimant previously filed a claim with regard to his compensable injury, and an administrative hearing was held on July 2, 1992. An administrative hearing on the claimant’s current claim for benefits after July 2, 1992, was held on August 2, 1995. We find it necessary to restate some of the evidence and findings obtained from the prior hearing in order to present an appropriate history to this case.

[5] The preponderance of the evidence from the hearing on July 2, 1992 indicated that the claimant sustained a work-related injury on September 23, 1991 when he slipped in a puddle of water, tripped on a 2 x 4, and fell to the floor, injuring his neck. The claimant received an emergency room examination by Dr. J. Audibert who initially diagnosed a cervical and left medial scapular strain with a contusion. However, the claimant continued to complain of severe neck pain, severe headaches, and a ringing sensation in his ears, so Dr. Audibert referred the claimant to Dr. James M. McKenzie, an orthopedic surgeon, on October 7, 1991. Dr. McKenzie’s initial examination revealed spasm in the paraspinous muscles of the neck, in the rhomboids of the parascapular region, and in the trapezius region, with some tenderness. However, Dr. McKenzie’s clinical findings largely subsided by a follow-up appointment on October 21, 1991. The claimant returned to Dr. McKenzie again on November 21, 1991, complaining of frequent headaches and pain sufficiently severe to require medication. In addition, the claimant reported that he could not sustain any type of continuous motion for more than 10 or 15 minutes without experiencing severe muscle spasm in the parascapular region.

[6] In contrast to the claimant’s reported severe limitations to Dr. McKenzie on November 21, 1991, however, the record for the hearing on July 2, 1992, contains a series of surveillance videotapes of the claimant performing physical activities. In particular, a tape recorded on November 11, 1991, shows the claimant washing three cars which required frequent bending over, squatting, neck rotation, flexing from the waist to the ground and returning to the erect position, extending, and reaching, all without visible demonstrations of pain or guarded behavior which would be expected if he actually experienced the severe spasms and pain reported to Dr. McKenzie. After reviewing the tape, Dr. McKenzie released the claimant to light-duty work on December 6, 1991, and later released the claimant to light duty for one-half day and regular duty for one-half day beginning December 19, 1991. The claimant testified at the first hearing that he returned to work sweeping floors for the respondent around December 6, 1991, but that about three weeks later his supervisor told him not to return to work until he could resume his regular duties as an automobile body repairman.

[7] A cervical MRI was ordered on January 6, 1992, and the claimant was examined by Dr. Luke Knox, a neurosurgeon, on January 28, 1992. At that time the claimant primarily complained of cervical spine discomfort and headaches for which Dr. Knox prescribed Elavil and a shot of DepoMedrol. Dr. Knox found the claimant’s MRI indicative of significant disc herniation at L3-4 and L4-5. Notably, Dr. Knox recommended that the claimant undergo myelography; however, in a letter to the claimant’s attorney, dated August 19, 1992, Dr. Knox explained that on January 28, 1992, he “was primarily impressed with hysterical sign and symptoms in light of the claimant’s Workers’ Compensation Claim”. Dr. Knox indicated that he was unable to determine “how much is real and how much is secondary gain,” and that he recommended myelography to “get to the bottom” of the claimant’s continued complaints.

[8] The claimant testified at the second hearing that he did not receive any additional treatment from Dr. Knox or Dr. McKenzie after January 28, 1992, although Dr. McKenzie did refer the claimant to Dr. Stevenson Flanigan, a neurosurgeon at the University of Arkansas Medical Center, for additional evaluation on October 30, 1992. At that time the claimant’s primary complaint was headaches localized in the suboccipital area. In addition, the claimant stated that he had been taking the narcotic pain medication, Vicodin, for several months and was continuing to take 5 or 6 per day. Dr. Flanigan’s clinical examination indicated essentially normal findings. The claimant had no symptoms in the upper extremities and no Horner’s syndrome. His range of neck motion was adequate, and lateral bending to the right was only slightly restricted as compared to the left. Dr. Flanigan also found no hypalgesia in the occipital distribution. Dr. Flanigan expressed concern about the claimant’s reported Vicodin usage, but in other respects indicated that he encouraged the claimant to consider adjusting to the permanent limitations in the use of his neck by observing proper mechanical use of the neck and shoulder girdle.

[9] Aside from Dr. Flanigan’s report dated October 30, 1992, the only other records in evidence regarding the claimant’s medical condition after January 28, 1992, are three letters from Dr. John Huskins addressed to the claimant’s attorney. The claimant testified that he was referred to Dr. Huskins by Dr. McKenzie. However, we note that none of the records in evidence indicate at whose request Dr. Huskins began to follow the claimant’s condition nor do the records indicate why Dr. McKenzie rather than Dr. Huskins referred the claimant to Dr. Flanigan in October of 1992, if Dr. McKenzie had in fact referred the claimant to Dr. Huskins prior to that time. The three letters from Dr. Huskins generally address the claimant’s prescription medication, but do not otherwise refer to any clinical or diagnostic tests which Dr. Huskins may have ordered or performed.

[10] As an initial matter, we note that the respondents contended prior to the latest hearing that the Statute of Limitations bars the claimant’s present claim for benefits. However, the Statute of Limitations is an affirmative defense which the respondents bear the burden of proving by the preponderance of the evidence. Consequently, while the claimant bears the burden of filing a claim for compensation within the limitations period, he is not required to prove that he filed in time; instead, the respondents must prove that he did not file in time. See, Margie Grant v.Penn Athletic., Full Worker’s Compensation Commission, May 27, 1992 (Claim No. D411709); George Hastings v. Marianna MotorCompany, Full Workers’ Compensation Commission, Jun. 11, 1986 (Claim No. D206442); Ellis Williams v. Bituminous. Inc., Full Workers’ Compensation, Sept. 23, 1985 (Claim Nos. B915325 C162509).

[11] In the present claim, the administrative law judge found that the respondents failed to present any evidence in support of their contention that the Statute of Limitations bars the claimant’s present claim, and we note that the respondents have not appealed the administrative law judge’s decision. However, after conducting a de novo review of the entire record, we find that the respondents failed to submit any evidence in support of their contention that the Statute of Limitations bars the claimant’s claim. Accordingly, we find that the respondents failed to prove by a preponderance of the evidence that the Statute of Limitations bars the claimant’s claim for additional benefits.

[12] The respondents also asserted prior to the hearing that the doctrine of res judicata bars the claimant’s present claim. Resjudicata applies where there has been a final adjudication on the merits of an issue by a court of competent jurisdiction on all matters litigated and those matters necessarily within the issue which might have been litigated. Perry v. Leisure Lodges, 19 Ark. App. 143, 718 S.W.2d 114 (1986). The doctrine of res judicata
bars the reopening of matters once judicially determined by competent authority. Gwin v. R. D. Hall Tank Co., 10 Ark. App. 12, 660 S.W.2d 947 (1983). Res judicata applies to decisions of the Workers’ Compensation Commission. Perry, supra; Gwin, supra. The rationale underlying the doctrine of res judicata is to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy. MohawkTire and Rubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126
(1976). However, the doctrine does not bar issues which were not previously decided and could not have been decided.

[13] The administrative law judge found that the doctrine of resjudicata does not bar the claimant’s claim, and the respondents have not appealed the administrative law judge’s decision in this regard as well. However, after conducting a de novo review of the entire record, we find that the claimant’s present claim only contends that he is entitled to temporary total disability compensation and medical benefits subsequent to the prior hearing on July 2, 1992. Thus, we find that the issues presented in the present claim were not, and could not have been, presented to the Commission at the prior hearing on July 2, 1992. Therefore, we find that the doctrine of res judicata does not bar the claimant’s present claim for temporary total disability compensation or for additional medical benefits subsequent to July 2, 1992.

[14] The claimant’s entitlement to 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 Highwayand Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. 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 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. MadButcher. Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

[15] In the present claim, the claimant testified at the hearing on August 2, 1995, that he has continued to experience headaches, dizziness, a ringing in his ears, and pain associated with his neck injury subsequent to the prior hearing on July 2, 1992, and that his symptoms required as much as 10 to 14 doses of the narcotic pain reliever, Vicodin, each day in order to relieve his neck pain. In that regard, he testified that his Vicodin medication make him “buzzed” and “incoherent”, allegedly causing an incapacity to return to work during the period that he took the drug.

[16] However, we have previously determined that his testimony is entitled to little weight. As discussed, surveillance video of the claimant was introduced at the hearing on August 2, 1992, which showed the claimant washing three cars. An additional video also showed the claimant trying to start a riding lawn mower, carrying a large cardboard box, moving a stereo speaker and amplifier, and forcefully kicking a volleyball, among other rigorous actions. Based on the submitted video and the testimony of a private investigator regarding the claimant’s activities, we made the following findings regarding the credibility of the claimant’s testimony in Dino Palazzolo v. Nelms Chevrolet, Full Workers’ Compensation Commission, Oct. 31, 1994 (Claim No. E118067):

In short, the only evidence suggesting that the claimant suffered any decrease in his capacity to earn the wages he was earning at the time of his injury is found in his own statements and testimony. However, there is evidence showing that the claimant is capable of engaging in physical activities much greater than the physical limitations he describes. In fact, this evidence indicates that the claimant is able to engage in relatively heavy physical activities for prolonged periods of time without the outward manifestations of difficulty which would be expected given the nature and severity of the problems he describes. Consequently, we find that the claimant’s testimony is entitled to little weight, and we find the medical opinions based on the claimant’s description of his symptoms and limitations are entitled to little weight. Furthermore, we find that these inconsistencies and contradictions severely impede our ability to assess the claimant’s earning capacity.

[17] In the present claim, we find nothing in the record before us which indicates that the claimant’s present testimony is entitled to greater weight than that accorded his prior testimony. In that regard, we note that the claimant testified at the August 2, 1995, hearing that he sustained a “ruptured disc”; however the claimant’s medical records and other evidence have consistently indicated that the claimant sustained only a relatively minor disc injury. In addition, we note that the claimant’s reported symptoms remain neck pain, headaches, dizziness, and a ringing sensation in his ears. However, we have previously found that these same complaints are inconsistent with the minor nature of the injury sustained, and that the claimant did not sustain any incapacity to earn from these symptoms prior to July 2, 1992. We also note that the record contains only one report of a clinical examination conducted after July 2, 1992. Based on his examination conducted October 30, 1992, Dr. Flanigan reported essentially normal clinical findings, and Dr. Flanigan encouraged the claimant to consider adjusting to the limitations in the use of his neck.

[18] We also find that the minor nature of the claimant’s neck injury would not warrant the type or amount of pain medication which he testified that he consumed. In that regard, the claimant reported to Dr. Flanigan on October 30, 1992, that “he has taken Vicodin for several months and is using five or six a day even now.” After performing his clinical examination and reviewing the claimant’s diagnostic test results, however, Dr. Flanigan indicated that ordinary Tylenol is an appropriate pain relief medication for the claimant’s symptoms.

[19] We also find the record fails to substantiate the claimant’s testimony with regard to the Vicodin allegedly supplied him by Dr. McKenzie. In that regard, the claimant testified that in March of 1992, approximately 6 months after his work-related injury, he was taking 4 or 5 Vicodins per day and that he obtained his Vicodin prior to March from a prescription ordered by Dr. McKenzie. During cross examination, the claimant testified to Dr. McKenzie’s Vicodin prescriptions as follows:

Q. Did you bring any records with you today to show how much they were prescribing and the quantities, the amounts, the dosages, like that?
A. No. McKenzie was giving them to me at 1,500 lots.

Q. Did you bring anything to —

A. I have —

Q. — support that testimony?

A. I have records, yes, I do, sir. It’s not here.

Q. Do you have it here?

A. Not unless my lawyer has my prescription.

Q. Did you give those prescriptions to your attorney?
A. Yes. I believe he has a copy of every one of them.
Q. Okay. Then if you got them, I’m sure he’ll want to show them.

[20] Directly contrary to the claimant’s testimony, however, in a letter dated February 5, 1993, Dr. McKenzie indicated that he only prescribed the claimant a single prescription for 30 Vicodin on October 24, 1991, without refills. Thus, based on the claimant’s alleged rate of consumption, i.e., 4 to 5 doses per day, the claimant was prescribed only a one week supply of Vicodin by Dr. McKenzie, and not “1500 lots” as he contends.

[21] We note that the claimant came under the care of Dr. John Huskins on March 23, 1993, although we find no evidence in the record to support the claimant’s testimony that he was referred to Dr. Huskins by Dr. McKenzie. At any rate, we also note that Dr. Huskins apparently provided the claimant a prescription for Vicodin for some period of time between March and December of 1992. However, the claimant has not submitted any record of Vicodin prescriptions ordered by Dr. Huskins or any other physician, although he testified that he supplied these records to his attorney. Moreover, without any substantiating record of the claimant’s source and supply of Vicodin, we place no weight on the claimant’s statement to Dr. Flanigan that he was taking five or six Vicodin per day in October of 1993, or on his testimony at the August 2, 1995, hearing that he at one time took 10 to 14 doses of Vicodin per day.

[22] In summary, the claimant seeks temporary total disability compensation after July 2, 1992, based on the same alleged symptoms which we have previously determined were not incapacitating in any way in light of the contradictory surveillance video submitted at the July 2, 1992, hearing. The current claim adds an additional wrinkle, in that the claimant now contends that he was incapacitated by pain medication as well as physical symptoms. However, based on the record before us, we continue to find that the claimant’s testimony is entitled to little weight in light of the inconsistencies and contradictions in the record. We also find that the minor nature of the claimant’s injury would not warrant taking the type and quantity of pain medication which contends caused his incapacity. In addition, we find that the claimant’s election to withhold his medication prescription from the record severely impedes our ability to ascertain the extent of any alleged incapacity.

[23] Accordingly, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he sustained any incapacity to earn wages as a result of his compensable injury after July 2, 1992. We also find that the claimant failed to prove by a preponderance of the evidence that he remained within his healing period for his compensable injury after July 2, 1992. We therefore find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary disability compensation.

[24] With regard to the claimant’s claim for additional medical services, employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (1987). In addition, the Commission has the authority to find that a medical service provider’s charge for services is unreasonable, and we may reduce the amount which respondents are liable to pay. Ark. Code Ann. § 11-9-513 (1987); Hulvey v. Kellwood Co., 262 Ark. 564, 559 S.W.2d 153 (1977); Tracor/MBA v. Baptist Medical Center, 29 Ark. App. 198, 780 S.W.2d 26 (1989); Savage v. General Industries, 23 Ark. App. 188, 745 S.W.2d 644 (1988). However, injured employees and medical service providers have the burden of proving by a preponderance of the evidence that medical treatment and associated charges are reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson. Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the procedure and the condition it is utilized to remedy. Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No. D511255). Also, respondents are only responsible for medical services which is causally related to the compensable injury.

[25] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional medical benefits for his compensable injury. In that regard, the only report of a clinical examination performed after July 2, 1992, was performed by Dr. James McKenzie on October 30, 1992, which reported essentially normal clinical findings with the exception of the claimant’s ongoing reports of neck pain. After reviewing the claimant’s MRI taken in January of 1992, and performing his clinical examination, Dr. Flanigan reported that he encouraged the claimant “to consider adjusting to the limitations that exist in the use of his neck,” and he recommended that the claimant use Tylenol for his pain instead of the narcotic, Vicodin.

[26] We note that the claimant testified that he was hospitalized to withdraw from Vicodin in late 1992, at a cost of $3,000 to $4,000 and that he underwent subsequent physical therapy in late 1992 and early 1993, which he believes greatly improved his medical condition. In addition, the claimant testified that he underwent an additional MRI at the request of Dr. Huskins or Dr. Flanigan, or both. However, the claimant has not submitted into evidence any medical record of any of the alleged treatment or therapy provided, or the results of the alleged second MRI. Moreover, the claimant’s failure to submit into evidence any medical records for the care which he alleges that he received severely impedes our ability to assess whether the alleged treatment, therapy, or MRI were reasonably necessary to the treatment of the claimant’s compensable injury.

[27] Additionally, we note that Dr. Huskins opined in a letter to the claimant’s attorney dated July 28, 1993, that the claimant would benefit from a repeat MRI “to determine his exact problem.” However, we also note that Dr. Huskins’ letter does not state any medical basis for his opinion, and we accord the opinion in that letter little weight in light of the claimant’s testimony that he underwent a subsequent MRI which we have not been provided.

[28] Moreover, it appears from the claimant’s testimony and the remainder of the record, that the claimant, or his attorney, have elected not to submit into evidence his highly relevant medication prescriptions, a report on his alleged MRI performed after July 2, 1992, or any medical reports regarding his alleged hospitalization and physical therapy. Thus, in light of Dr. Flanigan’s essentially normal clinical findings on October 30, 1992, the lack of medical records verifying the claimant’s testimony regarding his alleged medical treatment, and all other matters properly before us, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to medical benefits for his compensable injury subsequent to July 2, 1992.

[29] Finally, we also find that the administrative law judge properly excluded from evidence the claimant’s proffer of deposition testimony of Dr. Luke Knox and Dr. James McKenzie pursuant to Rule 20 of the Rules of the Commission.

[30] Rule 20 of the Rules of the Commission states in relevant part:

The charge or fee made by the attending witness at deposition or hearings shall be paid as follows:
(1) The party who seeks to introduce or is relying upon the testimony of a witness shall be liable for the attendance fee of said witness.

[31] As relates to the present claim, Dr. Knox and Dr. McKenzie were apparently deposed on October 14, 1994, pursuant to discovery in federal court litigation between the claimant and the respondent. The claimant subsequently offered these depositions into evidence at the workers’ compensation hearing on August 2, 1995. However, it appears from the deposition transcripts that the attorneys representing the claimant and the respondents in this workers’ compensation claim were not participants in the depositions taken for federal court litigation. The administrative law judge therefore correctly ruled that the proffered depositions would be admissible into evidence only if the claimant agreed to pay a deposition attendance fee to permit the respondents’ workers’ compensation attorney an opportunity to cross examine each doctor pursuant to Rule 20. The claimant refused to pay the attendance fee, and the proffered depositions were excluded from the record by the administrative law judge.

[32] We find that the claimant sought to rely on the proffered deposition testimony, and that the claimant was therefore required by Rule 20 to pay an attendance fee to provide the respondents’ workers’ compensation attorney an opportunity to cross examine the two physicians. Because the claimant refused to provide the necessary attendance fees, we find the administrative law judge properly excluded the proffered depositions from the evidence.

[33] Moreover, we also find that the proffered depositions lack relevance to the issues presented in the present claim. In that regard, at the hearing on August 2, 1995, the claimant’s attorney made it abundantly clear that the present claim was intended to address entitlement to temporary disability compensation and additional medical benefits only for the period after July 2, 1992. However, the claimant testified that he has not received any medical treatment from Dr. Knox or Dr. McKenzie since January 28, 1992. Thus, we find that neither physician had any relevant information to offer regarding the claimant’s medical condition after July 2, 1992.

[34] In summary, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the respondent failed to prove by a preponderance of the evidence that the claimant’s claim is barred by the Statute of Limitations or the doctrine of res judicata. However, we also find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary disability compensation. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to medical benefits after July 2, 1992. Finally, we also find that the proffered depositions of Dr. Knox and Dr. McKenzie were properly excluded from the record in this claim. Accordingly, we find the administrative law judge’s decision must be, and hereby is, affirmed.

[35] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman DAVID GREENBAUM, Special Commissioner

[36] Commissioner Humphrey dissents.