REED v. ALL TECH MACHINE TOOL, 1995 AWCC 79

CLAIM NO. E306090

DAVID A. REED, EMPLOYEE, CLAIMANT v. ALL TECH MACHINE TOOL, EMPLOYER, RESPONDENT NO. 1, AETNA INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 1, and SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 28, 1995

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

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

Respondents No. 1 represented by the HONORABLE JOHN R. BEASLEY, Attorney at Law, Fort Smith, Arkansas.

Respondent No. 2 represented by the HONORABLE MARK LONG, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part, affirmed as modified in part, and reversed in part.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on July 7, 1994. In that opinion and order, the administrative law judge found that claimant failed to prove by a preponderance of the evidence that treatment by Dr. Zwibelman is reasonably necessary for treatment of his compensable injury. However, the administrative law judge found that the claimant is entitled to additional temporary total disability compensation from June 28, 1993 to January 11, 1994, with the exception of two days that he worked. Finally, the administrative law judge found that the claimant is entitled to compensation for a 15% permanent physical impairment.

[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that treatment by Dr. Zwibelman is reasonably necessary for treatment of his compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. Finally, we find that a preponderance of the evidence establishes that the claimant sustained a 5% permanent physical impairment. Consequently, we find that the administrative law judge’s decision in this regard must be affirmed as modified. [4] The claimant was employed by the respondent employer as a machinist, and he made replacement machine parts out of metal. On March 29, 1993, a large part he was working on slipped off of the work table. The claimant grabbed it and tried to put it back on the table, but, in doing so, he experienced the immediate onset of pain between the shoulder blades in the thoracic spine area. The respondents accepted the compensability of this incident. [5] The claimant first received treatment for this injury at a MediQuik clinic. However, he ultimately came under the care of Dr. Paul L. Raby, an orthopedic specialist. Diagnostic tests revealed a compression fracture at T-9, with no disc herniation. Dr. Raby treated the claimant conservatively with medication and physical therapy, and subsequent diagnostic tests and clinical examinations indicated that the compression fracture was healing appropriately. Consequently, Dr. Raby released the claimant to return to light duty work on March 29, 1993, with lifting restricted to twenty (20) pounds. [6] The claimant testified that he talked to Bill McAlester, the owner of the respondent employer about returning to light duty work, and he testified that Mr. McAlester advised him that no light duty work was available. However, Mr. McAlester’s testimony is not consistent with that of the testimony. According to Mr. McAlester’s testimony, he did have work which was within the restrictions imposed by Dr. Raby, and he testified that he offered this work to the claimant. Mr. McAlester also testified that the claimant agreed to accept the work and that he was to report to work the following morning. However, Mr. McAlester testified that the claimant failed to report as agreed. Three days later, Mr. McAlester sent another employee to the claimant’s residence, and this employee discovered that the claimant had moved. [7] The claimant had moved in with his mother-in-law in Joplin, Missouri. In Joplin, the claimant started working for a machine company with light duties. However, he contends that the repetitive movement required by the job caused his back problems to worsen, and he only worked two days. Due to the increase in his symptoms, he returned to Dr. Raby on July 19, 1993. Dr. Raby’s clinical examination on that date was essentially normal, but he made the following comment with regard to his examination of the claimant’s thoracic spine:

There is important and abnormal sensitivity of the skin. Only light pressure causes the patient to react when touching the thoracic spine between the scapulae.

[8] Nevertheless, Dr. Raby concluded that the compression fracture had healed and that the claimant was experiencing myofascitis of the thoracic spine. [9] Since the claimant had moved, he came under the care of Dr. Christopher R. Andrew, a neurologist in the Joplin area. Dr. Andrew’s initial report of August 16, 1993, indicates that the claimant was tearful at times during the interview. In addition, Dr. Andrew noted that the claimant’s posture was stiff and that his range of motion was decreased secondary to his complaints of pain. Dr. Andrew also noted that the claimant described tenderness to percussion of the entire lumbar, thoracic, and cervical spines. However, Dr. Andrew’s neurological examination was completely normal. Based on these findings, Dr. Andrew reached the following conclusions:

The patient has no evidence of a myelopathy. There is no evidence of a thoracic radiculopathy. The patient appears to have thoracic muscle spasm. It is inconceivable that this pain did not change over the past five months with conservative therapy if the patient had a simple compression fracture. There is a significant functional aspect to his examination and his interview.

[10] When the claimant returned to Dr. Andrew on September 15, 1993, he was complaining of increases of pain that radiated into his extremities, and he described “a burning dysesthetic pain in the left thoracic paraspinal region.” However, again, Dr. Andrew’s examination did not reveal any abnormalities, other than range of motion limitations secondary to the claimant’s complaints of pain. Dr. Andrew next saw the claimant on November 1, 1993, and the claimant was continuing to complain of severe pain. Again, Dr. Andrew’s examination was normal except for the claimant’s subjective pain. Dr. Andrew determined at that time that he had nothing further to offer the claimant, and he referred him to a Dr. Zwibelman with a chronic pain clinic in Kansas City. In doing so, Dr. Andrew noted that the claimant had “complaints which far exceed his physical findings.” In addition, Dr. Andrew has made the following statements with regard to his assessment of the claimant:

. . . I initially saw David Reed on August 16, 1993 for evaluation of his back discomfort. The etiology of this back discomfort was apparently secondary due to a compression fracture of the thoracic spine which apparently occurred on March 27, 1993. Patient had not returned to work since that time. He has not responded to any specific medication including various chronic pain medication. In each of his office visits his pain has been significantly out of proportion to that which would be expected from a thoracic compression fracture. Through out the evaluation there was no evidence of muscle spasm in the thoracic spine. Patient only had subjective tenderness in that region.
As for the vertebral compression fracture, this fracture is not unstable and it offers no danger of neurological impairment if he were to work with this fracture. Patients with vertebral fractures typically have pain for three months or less.
I believe that Mr. Reed should have been able to return to work within three months of his initial injury. I do not believe that any of his complaints after that time are valid and that even on my initial evaluation on August of 1993 there is no objective evidence to collaborate severe disabling injury that would have kept Mr. Reed from work. There is again no evidence of an actual physical injury to collaborate Mr. Reed’s disability. Mr. Reed is complaining of only subjective discomfort which cannot be verified by any clinical means. This subjective pain and discomfort is far out of proportion to what is expected for this type of simple compression fracture and, as I mentioned, I would have certainly expected the patient to have recovered in the first three months and I believe that the patient should be returned back to work without limitations or further delay.

[11] Prior to authorizing treatment by Dr. Zwibelman, the respondents scheduled an independent medical examination by Dr. Kevin Komes. Dr. Komes’ examination on December 30, 1993, also revealed essentially normal results, with the only exception being those findings relying solely on the claimant’s subjective complaints of pain. Based on his findings, Dr. Komes made the following comments:

Despite Mr. Reed’s subjective complaints, there are very few objective findings. I suspect that he does have a debilitative back secondary to prolonged disuse in that he would-need to undergo an aggressive physical therapy program. I will obtain a bone scan in order to make sure that he is not having continued evidence of fracture. The fracture should be stable by now. If he is not, I will put him in an aggressive therapy program. Because of the great deal of functional overlay, his prognosis is somewhat guarded. I will see him back after the bone scan to make appropriate therapy recommendations.

[12] Dr. Komes ultimately opined that the claimant sustained a 15% percent permanent physical impairment to the body as a whole. [13] This Commission has a statutory duty to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704 (c)(2) (1987); see, Gencorp Polymer Products v. Landers,36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704 (c)(4) (1987); Wade v. Mr. C. Cavenaugh’s, 198 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). In this regard, the claimant has the burden of establishing his entitlement to the compensation sought by a preponderance of the evidence. Bates v. FrostLogging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992); Lybrandv. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra. [14] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (1987). 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. 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 proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No. D511255). [15] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that treatment by Dr. Zwibelman at the pain clinic is reasonably necessary for treatment of his compensable injury. As discussed above, the medical evidence shows that the claimant’s persistent complaints are drastically out of proportion with the objective findings and with the nature of the injury he sustained. In fact, both Dr. Andrew and Dr. Komes expressed doubt regarding the existence of an organic basis for these complaints. Moreover, Dr. Andrew has indicated that he referred the claimant to Dr. Zwibelman merely because he had nothing else to offer. In this regard, Dr. Andrew made the following comments:

In reference to referring Mr. Reed to Dr. Zwibelman for pain management, Dr. Zwibelman is a neurologist who specializes in chronic pain. I only referred [the claimant] to Dr. Zwibelman as I felt I had nothing further to offer Mr. Reed because his pain was purely subjective and I felt there was no physical component to his pain.

[16] With regard to treatment by Dr. Zwibelman, Dr. Komes made the following comments:

In regard to Dr. Andrew’s suggestion for treatment at the Pain Center, I have several comments. There are no objective findings that would give an appropriate diagnosis for treatment at a pain center other than subjective complaints of pain. Mr. Reed certainly could qualify as a chronic pain patient, however, any prolonged Workmen’s Compensation case could be claimed as a chronic pain case if there has not been total resolution. That is why there are physicians available to evaluate for maximum medical improvement. I have done such and felt that this patient has reached maximum medical improvement. Also, at this point I have found that Workmen’s Compensation has not been approving patients for treatment at pain centers other than for medical procedures for diagnoses which have been substantiated. Mr. Reed’s only diagnosis is thoracic compression fracture and, therefore, would not requires these services. . . .

[17] In short, Dr. Andrew did not refer the claimant to Dr. Zwibelman due to any reasonable determination that the claimant could benefit from that treatment. Instead, Dr. Andrew made the referral because he had nothing else to offer. Moreover, the evidence fails to establish that the claimant is suffering from any condition that would benefit from treatment by Dr. Zwibelman. Therefore, we find that the preponderance of the evidence fails to establish that this treatment is reasonably necessary for treatment of the compensable injury. [18] We also find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. 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 andTransportation 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 incapacitated from earning wages. MadButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582
(1982). [19] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that he was incapacitated on and after June 28, 1993, from earning the wages he was earning at the time of the injury. As discussed, Dr. Raby released the claimant to light duty work as of that date, and Mr. McAlester testified that he offered to make light duty work available to the claimant. However, although the claimant initially agreed to accept this work, he failed to report when scheduled, and he failed to contact Mr. McAlester to explain his failure to do so. We recognize that the claimant’s testimony is inconsistent with that of Mr. McAlester, but we find Mr. McAlester to be more credible. In this regard, we note that the claimant admitted to testifying untruthfully about the occurrence of an automobile accident several years ago which resulted in a fatality. [20] With regard to the claimant’s capacity to earn, we also note that the claimant apparently was engaging in activities during this same time which were inconsistent with the physical limitations he described. In this regard, he admitted to driving a four-wheel drive vehicle over rough terrain for sport, and after consuming large amounts of alcohol, at about this same time. He also admitted that this activity involved substantial bouncing up and down and twisting. The testimony of a former co-employee, Jimmy Wilkinson, also indicates that the claimant was able to play pool with no difficulty during this time. [21] Consequently, we find that the claimant was offered light duty work at the same wages that was within his physical restrictions, but he unjustifiably refused to accept this employment. Furthermore, we find that the medical evidence and the activities of the claimant are not consistent with the severe physical limitations described by the claimant. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. [22] With regard to the claimant’s entitlement to compensation for a permanent physical impairment, an injured worker has the burden of proving by a preponderance of the evidence that he is entitled to an award for a permanent physical impairment. Therefore, when considering claims for permanent physical impairments, the Commission must impartially weigh all of the evidence in the record to determine whether the preponderance of the evidence establishes that the worker sustained a permanent physical impairment as a result of a compensable injury. With regard to this determination, Ark. Code Ann. § 11-9-704 (c)(1) (1987) provides that “[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” The Arkansas Court of Appeals has found that a finding is objective if it is based on observable phenomena or it indicates a symptom or condition perceived as a sign of an underlying abnormality by someone other than the person afflicted. Keller v. L. A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992); Reeder v. Rheem Manufacturing,38 Ark. App. 248, 832 S.W.2d 505 (1992); Taco Bell v. Finley,38 Ark. App. 11, 826 S.W.2d 213 (1992). As discussed by the Court, objective findings are not limited to those that can be seen or ascertained by touch. Keller, supra. With regard to measurable findings, the Court has noted that measurable has been defined to mean “great enough to be worth consideration.” Keller, supra (quoting Webster’sThird New International Dictionary (Unabridged) (1976). In addition, the Court has recognized that “measurable findings may involve the extent, degree, dimension, or quantity of the physical condition.” Keller, supra. According to the Court, findings do not have to be exact to be measurable, and physicians are not “confined to any specific chart or guideline in making their evaluation of the existence or extent of physical impairment.” Keller, supra. [23] The Court has also found that findings may satisfy the statutory requirements of Ark. Code Ann. § 11-9-704 (c)(1) even though there is a subjective component involved.Keller, supra; Reeder, supra; Taco Bell, supra.
Furthermore, the Court has found that Ark. Code Ann. § 11-9-704
(c)(1) does not prohibit the Commission from considering other factors, even if purely subjective, so long as the record contains objective and measurable findings to support the Commission’s ultimate decision. Keller, supra; TacoBell, supra. In fact, the Court has found that Ark. Code Ann. § 11-9-704 (c)(1) “precludes an award for permanent disability only when it would be based solely on subjective findings.” Keller, supra (quoting Reeder, supra) (emphasis in original). [24] Finally, the determination of the existence and precise degree of permanent physical impairment is a function of this Commission. Johnson v. General Dynamics, 46 Ark. App. 188, ___ S.W.2d ___ (June 22, 1994); Keller, supra; Reeder,supra. In this regard, this Commission has the authority and the duty; to weigh medical evidence to determine its medical soundness, and we have the authority to accept or reject medical evidence. Reeder, supra; Mack v. TysonFoods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989); Wassonv. Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984). In fact, this Commission must make a determination regarding the precise degree of impairment even where there is no medical opinion addressing this issue. Johnson, supra. Likewise, the Commission is entitled to examine the basis for a doctor’s opinion, like that of any other expert, in deciding the weight to which that opinion is entitled. Reeder,supra. However, as with any evidence, we cannot arbitrarily disregard the testimony of any witness. Reeder, supra. [25] In the present claim, Dr. Komes opined that the claimant sustained a 15% permanent physical impairment to the body as a whole. However, Dr. Komes based his opinion on the A.M.A. Guides to the Evaluation of PermanentImpairment, 4th ed., and Dr. Komes admitted that the rating might be excessive for the claimant’s condition, and he expressed his hope that the editors would revise this rating in the next edition. Consequently, we find that Dr. Komes’ rating is entitled to little weight. In making this determination, we note that Dr. Komes indicated that the rating was based on objective factors without regard to his subjective complaints. However, we note that the rating appears to be based, at least in part, on range of motion measurements which could have been manipulated by the claimant, considering the evidence indicating that he tended to distort his complaints. [26] Nevertheless, the healed compression fracture has been shown by x-rays. Consequently, objective and measurable findings clearly show that the claimant has sustained a permanent physical impairment. However, the medical evidence indicates that the fracture is stable and that it healed appropriately. In addition, the medical evidence indicates that individuals with fractures of this nature typically experience pain for only three months or less, and the medical evidence indicates that the healed fracture should not limit the claimant’s ability to engage in activities involving heavy exertion without limitations. However, the medical evidence also indicates that a compression fracture of this nature will result in some weakening of the anatomical structure. Therefore, after considering all relevant factors, we find that the claimant sustained a 5% permanent physical impairment to the body as a whole. [27] Accordingly, based on our 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 is entitled to treatment by Dr. Zwibelman, and we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. [28] However, we find that a preponderance of the evidence establishes that the claimant sustained a 5% permanent physical impairment to the body as a whole. [29] 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
(1987). For prevailing in part 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) (1987). [30] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[31] Commissioner Humphrey dissents.