RICHARD SMITH v. ICI PAINTS, 2001 AWCC 182

CLAIM NO. E701664

RICHARD SMITH, EMPLOYEE, CLAIMANT v. ICI PAINTS, EMPLOYER, RESPONDENT, ESIS, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 16, 2001

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

Claimant represented by the HONORABLE WILLIAM A. HILL, Attorney at Law, Beaver, Arkansas.

Respondents represented by the HONORABLE E. DIANE GRAHAM, Attorney at Law, Little Rock, Arkansas.

Decision of administrative law judge: Affirmed.

OPINION AND ORDER
The claimant appeals and the respondents cross-appeal an administrative law judge’s opinion filed March 2, 2001. The administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he was entitled to temporary total disability compensation from February 1, 1999, to a date to be determined. The administrative law judge found that the claimant’s narcotic medication should be discontinued, and that any such treatment was neither reasonable nor necessary from the date of hearing. The administrative law judge found that the claimant failed to prove that he was permanently and totally disabled, but that the claimant did prove that he was entitled to a 2 percent wage loss disability over and above his 9 percent whole body impairment rating. Finally, the administrative law judge found that the claimant proved by a preponderance of the evidence that his psychological problems are as a result of his physical injury which he sustained while working for the respondents. The administrative law judge thus found that the respondents should pay for the treatment provided for the claimant’s compensable psychological problems. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.

I. HISTORY
Richard E. Smith, age 46, testified that he graduated from high school in 1973. Mr. Smith worked as a punch-press operator for two years, which position required lifting, bending, and stooping. The claimant served in the U.S. Air Force from 1975-1980, where his career fields involved carpentry and cryogenics fluids, both positions requiring manual labor. The claimant then went to work as a shipping clerk. He earned about six hours of college credit in business management in about 1982. The claimant worked six months for the U.S. Postal Service in 1982 and was self-employed as a wallpaper hanger in 1983. He began working as a counter clerk in a paint store beginning in 1984.

The record indicates that the claimant was involved in a motor vehicle accident in March, 1989, when he drove his automobile into a ditch. An April, 1989 x-ray of the lumbar spine revealed the following:
Mild superior end plate compression of T12, L1 and L2 are evident, L2 being the greater compressed, this being approximately 10 to 15%. No focal destruction is evident. There is a mild lumbar dextro scoliosis. The disc spaces are preserved.

Upper pelvis is unremarkable.

A physician reported in June, 1989:

Mr. Smith returns today, a patient who had fracture to the L1 and 2 vertebra in a motor vehicle accident
3-24. He at the present is asymptomatic and he has returned to work, working without difficulty. . . .
He is dismissed at this time to return as needed, p.r.n. basis.
X-RAYS: Today films show the presence of the compression fractures as noted, but these have healed completely without further progression.

The claimant became employed with ICI Paints in 1989, where he worked as a manager. The parties stipulated that the claimant sustained a compensable injury to his back on February 4, 1997. He testified:

A. . . .The paint comes in large gallons in a box wrapped up. It’s wrapped in Visqueen plastic, stretched, and I was cutting the plastic off with a razor knife and then pulling the plastic to throw it in the trash can, and the last pallet, when I bent over to pull the plastic, it pulled me down and I couldn’t stand back up. There was just a sharp pain.

The claimant began treating conservatively with a neurological surgeon, Dr. J. Michael Standefer, on February 10, 1997. The following impression resulted from a lumbar MRI taken February 11, 1997:

1. Small central disc herniation at L5-S1.

2. There is a small left paracentral disc herniation at the L2-3 level.

3. Mild disc bulging/posterior spur at T12-L1,

L3-4, and L4-5 levels.

4. Mild compression deformity (eccentric to the left side) involving the superior end-plates at L1 and L2. This appears to be chronic.

In April, 1997, Dr. John Spicegood diagnosed low back pain with right hip and leg pain, and he administered a series of lumbar epidural steroid injections. Dr. James S. Deneke examined the claimant in June, 1997, pursuant to Dr. Standefer’s referral. Dr. Deneke assessed “Degenerative disease of the spine aggravated by lifting with likely soft tissue injury.” Dr. Deneke recommended conservative treatment measures.

Another MRI of the lumbar spine was taken on September 10, 1997, with the following impression:

1. Small central disc protrusion at L5-S1

and left at L2-3 about the same as before.

Spurs and mild disc bulges at T12-L1 also remain stable. The mildly eccentric end-plate compressions at L1 and 2 also are stable.

Dr. Standefer corresponded with the claimant’s attorney on November 6, 1997:

I am in receipt of your letter dated 10-22-97 regarding the above noted patient. I am not adverse to him attempting to resume his occupation with a 70 pound lifting limit being applied.
Overall, I believe it would be best if he could avoid this degree of lifting, but if the patient feels comfortable attempting it, I am not adverse to the idea.
At this time, It certainly would be reasonable to consider that this patient has reached maximal medical improvement. Based upon The A.M.A.

Guidelines to the Evaluation of PermanentImpairment, Fourth Edition, page 113, section 2D and 2F, a permanent impairment rating of 9% regards the body as a whole may be applied to the patient.

The parties stipulated that the respondents accepted and paid a 9% impairment rating to the claimant’s back.

Dr. Standefer reported on July 2, 1998:

At present, his exam is stable and unchanged from previous exams. He has no evidence of overt radiculopathy on his clinical exam. Recent MR Scan obtained in September, 1997, demonstrates no evidence of overt focal disc protrusion and no surgical problems are identifiable. The mainstay of therapy for him will consist of non-narcotic anti-inflammatory medication, walking program, exercise program and recognition that he is going to have some pain. I have reviewed this with him. We will plan to release him from clinic as of today.

Dr. Joseph Queeney examined the claimant and reported on

September 19, 1998:

I had the opportunity of reviewing an MRI scan that was performed last week consisting of MRI
scan of the lumbar spine without contrast. This shows very minimal changes. I could not really see any evidence of herniated disc. No evidence of any overt degenerative changes. I also reviewed a bone scan that has been performed in the past that did not really show any increased uptake.

Dr. Queeney’s impression was “Low back pain,” and he did not recommend surgical intervention.

Dr. Vincent B. Runnels independently evaluated the claimant on November 24, 1998:

I have suggested that he give Arthrotec a trial.

I coached him on posture to keep the back out of extension and advised him to do William’s flexion exercises 10-15 minutes twice a day after a very hot bath. Basically, this patient has only facet pain, secondary to degenerative disc disease. He has no surgical pathology. He is somewhat worrisome regarding his narcotic usage with perhaps a tendency to addiction. I would get him off of this as soon as possible, limited him to no more than

#2 Darvocets a day, maximum, then taper that to

#1, and then hopefully get him on something like

Ultram to go along with his Arthrotec and back exercises. He should be able to return to his work,
I would say within a month, if he would vigorously pursue the course I have outlined. I recommended, though, that he follow up with Dr. Michael Callaway in about two weeks, as he will need someone near where he lives to monitor his medication and encourage him. When he returns to work, though, he should from lifting the heavy paint cans, etc., and he should largely do such things as taking the money in, inventory, and other things that would not require heavy lifting. I have coached him on posture and bent knee tricks and have advised him that he should never stop doing his back exercises, as he has underlying degenerative disc disease, which could cause him trouble in the future if he is not compulsive about his exercises. . . .
He does have a very small central disc herniation at 5-1 and L2-3, mild disc bulging and spurring at T12-L1, L3-4, and L4-5, and a mild old compression fracture of L1 and L2. At the age of 48, I think it would be wise for him not to engage in a lot of heavy lifting down the road.
Particularly, if one would restrict his lifting to no more than 25 pounds with no repetitive bending and no overhead work, I think that he should be able to return to his regular duties in one month.
There is no permanent disability. He has suffered a facet strain related to his pre-existing degenerative disc disease and in no way herniated a disc with the above-mentioned lifting event.

Dr. Michael W. Callaway, a family practitioner, reported in January, 1999 that the claimant “has recently had a hospitalization and has been found to have Crohn’s disease. This appears to be totally and completely unrelated to his previous back injury, but I did want to keep you apprised (sic) of his situation.” Dr. Spicegood wrote to the claimant’s attorney on January 9, 1999:

Rick relates having the onset of constant spine pain after an injury that he related to me that occurred on 02/04/97. . . .He was referred to our pain clinic to see if any interruption blocks, perhaps ultimization of his medications might improve Mr. Smith’s quality of life as well as his functional abilities. Different medications were titrated to his physical pain and the optimum dosing that was found to diminish his pain are the present medications that he is taking at this time. At present, I have placed him on

OxyContin 20 mg twice a day, with one to two

Roxicodone for rescue pain. He still has difficulties with episodes of pain that go unrelieved, however he is extremely motivated to stay with the least amount of medication that can provide him with some level of comfort. He has certainly come to accept a certain amount of discomfort in his back despite tryging (sic) to optimize his pain medications. . . .
In contrast to Dr. Runnels’ impression, I think physical pain should be appropriately treated with adequate doses of pain relieving medications, this including narcotic medications. I think that his suggestion that Richard has had some worrisome narcotic usage is unfounded, and is not with current medical studies in regard to the treatment of nonoperative refractory spine pain.
I would be concerned about Richard starting back on an NSAID such as Arthrotec without being closely followed by a gastroenterologist should he develop

NSAID gastric related problems. I have followed

Mr. Smith closely since he has come under my care in the Mercy Pain Clinic, and I have seen no evidence of any malingering. I have felt that
Richard had good history of pain supported and documented by studies such as the CT post myelogram study. Richard has been very proactive, very motivated to take his medications responsibly and has been interested in only taking a minimum of pain relievers that reduces his pain to a level that he can obtain relief and still function.

I am at a complete loss as to understanding how

Dr. Runnels can relate this to a facet strain syndrome. I strongly recommend a repeat independent medical review.

The claimant testified that the respondents terminated his employment on January 31, 1999. Dr. Callaway took the claimant “off work indefinitely” on February 2, 1999.

Dr. Spicegood referred the claimant to Dr. Richard F. Mauroner for a psychiatric evaluation. Dr. Mauroner provided the following assessment on February 19, 1999:

The patient states that he has been depressed, probably ever since the accident. He states that in mid January of this year, his wife stated that she wanted separation or divorce. They are now living apart. He states that with his back, he has definitely changed. His (sic) now very withdrawn socially. He says that he cannot stand for long but also cannot sit for more than thirty minutes. On January 20th, he states he was terminated from his job without a severance package. He states that he has an attorney to represent him. He feels that his depression has progressed despite receiving some treatment. He states that six months ago, he began taking Paxil 20 mg per day. He feels that the medication has helped him. He says that the circumstances, however, seem to be getting worse such as his wife separating and his termination from his work. . . .

DIAGNOSTIC IMPRESSION:

AXIS I: PRIMARY PSYCHIATRIC DIAGNOSIS:

Dysthymia.

Dr. Mauroner recommended increasing the claimant’s medication dosage and indicated the claimant would return for follow-up in four to six weeks.

Dr. Callaway again wrote to the claimant’s attorney on July 20, 1999:

In regard to his healing period, apparently I was misunderstood in how the healing period worked.
I believe that his healing period should never have been closed in the first place. What I mean is that he had a continuation of his pain ever since the initial injury. . . .let this letter serve as an indicative that I feel as though his case should be considered opened as one continuation of his original injury.

Mr. Smith claimed entitlement to additional worker’s compensation. The claimant contended that as a direct consequence of his work injuries, he had “suffered a psychological injury component and had required continuous psychiatric care. For his work injuries, Rick also has required extensive pain management treatment with narcotic pain medications. As a consequence of his work injuries, Rick has been permanently and totally disabled. . . .Following his total loss of income-earning capacity he was divorced and his home was sold. He has been forced to live with various friends and family members since that time. As a consequence, he has also experienced depression, the mental injury component of his claim.”

The claimant contended that “As of January 29, 1999, Rick became either entitled to additional TTD until October 13, 2000 (the date on which the treating physician, Dr. Cappocelli, changed his previous surgical recommendation to referral for continued conservative pain management), after which time Rick should be found permanently and totally disabled or Rick should be found permanently and totally disabled as a consequence of his work injuries after January 29, 1999, the date Rick’s treating physician, Dr. Callaway, placed him indefinitely on off work status and referred him for continued conservative pain management.”

The respondents contended that the claimant had not sustained a herniated disc as a result of his compensable injury, rather that the claimant suffered from degenerative disc disease. The respondents denied that the claimant’s depression was causally related to the compensable injury, but stated that the claimant’s depression was “due to the ending of a long term marriage as well as his financial difficulties. Claimant had undergone counseling relating to marital problems well before the work related injury.” The respondents denied that the claimant was entitled to temporary total disability compensation. The respondents denied that the claimant was permanently totally disabled or had any disability exceeding the 9% anatomical impairment rating accepted and paid. The respondents contended that “claimant’s continued use of Oxycontin is not reasonably necessary medical treatment.”

The parties agreed to litigate the following issues:

1. Temporary total disability from February 1, 1999, to a date to be determined.
2. Compensability of claimant’s psychological problems.

3. Medical for psychological treatment.

4. Reimbursement for prescription bills and mileage.

5. PTD or wage loss over the 9% impairment rating.

6. Attorney’s fees.

Dr. Mauroner wrote to the claimant’s attorney on April 4, 2000:

Mr. Smith presented to my office for psychiatric evaluation of depression. He had been referred to me by Dr. John Spicegood.
Mr. Smith related to me that his problems began in February 1997 when he injured his back in a work-related accident.
He presented with symptoms of intense depressive illness along with hopelessness and poor self esteem. These symptoms were also intensified with the events of his wife separating from him in January 1999 and the loss of his job also in January 1999.

It is in my opinion that Mr. Smith suffers from

Dysthmia (code 300.4) as a direct result of the pain suffered in the work-related accident of 2/4/97.

After a hearing before the Commission, the administrative law judge found that the claimant’s psychological problems were the result of his physical injury, and that the claimant was entitled to medical treatment for his psychological problems. The administrative law judge found that the claimant was not entitled to temporary total disability compensation but was entitled to wage loss disability in the amount of 2%. The administrative law judge found that the claimant failed to prove that he was permanently and totally disabled. Finally, the administrative law judge found that “the narcotic medications which this claimant has been receiving are now found to be unreasonable and not necessary for the treatment of his compensable injury and should be discontinued.” Both parties appeal to the Full Commission.

II. ADJUDICATION A. Temporary Disability
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). Ark. Code Ann. § 11-9-102(12) (Supp. 1999) defines “healing period” as the period necessary for healing of an injury resulting from an accident. 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. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. Persistent pain, in itself, does not suffice to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v.Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

In the present matter, the Full Commission affirms the administrative law judge’s finding that the claimant failed to prove that he was entitled to temporary total disability compensation from February 1, 1999 and following. Commissioner Turner’s Concurring and Dissenting Opinion would find that the claimant’s medical condition has continued to deteriorate since the compensable injury of February 4, 1997. Our de novo review of the evidence indicates, however, that Dr. Standefer pronounced maximum medical improvement, and thus the end of the claimant’s healing period for his compensable injury, as of November 6, 1997. Temporary disability cannot be awarded after the healing period has ended. Trader v. Single Source Transportation, Workers’ Compensation Commission E507484 (Feb. 12, 1999). We recognize Dr. Callaway’s finding in 1999 that the claimant’s healing period “should never have been closed in the first place.” The Commission is authorized to accept or reject medical opinion, and we are authorized to determine its medical soundness and probative force. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34
(1989). Dr. Callaway based his opinion on the claimant’s continued complaints of pain. Persistent pain does not suffice to extend the healing period. Parker, supra. The Full Commission finds that the administrative law judge properly minimized Dr. Callaway’s finding that the claimant was still in his healing period, because of pain, in February, 1999. The preponderance of evidence indicates that the claimant failed to prove that he was still within his healing period and totally incapacitated to earn wages as of February 1, 1999. The decision of the administrative law judge is affirmed.

B. Medical Treatment
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Supp. 1999). 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. Beatty v. Ben Pearson, Inc., Workers’ Compensation Commission D612291 (Feb. 17, 1989). In assessing whether a given medical procedure is reasonably necessary for treatment of a compensable injury, we analyze the proposed procedure and the condition it is sought to remedy. Jones v.Seba, Inc., Workers’ Compensation Commission D511255 (Dec. 13, 1989). What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. ArkansasDep’t of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420
(1994).

In the present matter, the parties stipulated that the claimant sustained a compensable injury to his back on February 4, 1997. The claimant subsequently received a series of lumbar epidural steroid injections, in addition to other conservative treatment measures. Dr. Standefer, a treating neurosurgeon, reported in July, 1998 that the claimant’s physical examination was stable and unchanged from previous examinations. There was no evidence of an overt focal disc herniation, and surgery was not recommended. Dr. Standefer opined, “The mainstay of therapy for him will consist of non-narcotic anti-inflammatory medication, walking program, exercise program and recognition that he is going to have some pain.”

Dr. Runnels independently evaluated the claimant and stated in November, 1998, “He is somewhat worrisome regarding his narcotic usage with perhaps a tendency to addiction. I would get him off of this as soon as possible . . . .” The preponderance of evidence of record does not support Commissioner Turner’s assertion in his Concurring and Dissenting Opinion that the claimant is “unresponsive to all but narcotic drug treatment.” The record indicates that the claimant’s gastric problems are in no way related to the compensable injury or to non-narcotic medication prescribed for the injury. The Full Commission affirms the administrative law judge’s finding that the claimant is no longer entitled to narcotic medication. We find that the administrative law judge properly determined that “Most of the claimant’s treating physicians have recommended that he discontinue this form of treatment and even the claimant admitted that he was becoming addicted to the narcotics.” The Full Commission affirms the administrative law judge’s determination from the preponderance of evidence rather than Dr. Spicegood’s wish to continue prescribing addictive narcotic medication indefinitely.

C. Wage Loss
The wage-loss factor is defined as the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). Ark. Code Ann. § 11-9-522(Supp. 1999) provides:

(b)(1) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably necessary to affect his future earning capacity.

If the employee is totally incapacitated from earning a livelihood, he is entitled to compensation for a permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).

In the present matter, the Full Commission affirms the administrative law judge’s finding that the claimant is not permanently and totally disabled. The claimant is a high school graduate, with some college credit, and has a diverse work history. The claimant sustained a compensable injury in February, 1997 and did not undergo surgery. After the claimant reached maximum medical improvement in November, 1997, the treating physician opined that the claimant could return to work, with a lifting restriction. Dr. Runnels opined in November, 1998 that the claimant had “no permanent disability.” In considering the preponderance of the evidence, we find that the record does not support Commissioner Turner’s assertion in his Concurring andDissenting Opinion that the claimant “is not physically able to work due to the extent and chronic nature of his pain.” However, in considering the claimant’s age, education, and work experience, and all other matters properly before us, the Full Commission affirms the administrative law judge’s finding that the claimant is entitled to wage-loss disability in the amount of 2%.

D. Mental Injury
The administrative law judge found that the claimant proved by a preponderance of the evidence that his psychological problems were as a result of the claimant’s compensable physical injury, and that the respondents should pay for the treatment provided for the claimant’s psychological problems. The Full Commission affirms the administrative law judge’s findings. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-113(Supp. 1999) provides:

(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental

Disorders.

Commissioner Wilson’s Concurring and Dissenting Opinion would find that the claimant failed to prove that his psychological problems resulted from his compensable physical injury. Although the claimant did testify that he participated in marital counseling at some distant time prior to the compensable injury, the record does not indicate that the claimant previously required the services of a psychiatrist. The claimant sustained a compensable injury to his back in February, 1997, for which he received a 9% anatomical impairment rating. One of the claimant’s treating physicians eventually referred the claimant for a psychiatric evaluation with Dr. Richard Mauroner. Dr. Mauroner noted in February, 1999 that the claimant had been depressed since the compensable injury two years earlier. Dr. Mauroner’s diagnostic impression was “Axis I: PRIMARY PSYCHIATRIC DIAGNOSIS: Dysthymia.” The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, describes “dysthymic disorder” as “a chronically depressed mood that occurs for most of the day more days than not for at least 2 years.”

In April, 2000, Dr. Mauroner opined that the claimant suffered from dysthmia “as a direct result of the pain suffered in the work-related accident of 2/4/97.” The Full Commission affirms the administrative law judge’s determination from the record that the claimant’s symptoms conformed with the criteria from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. We therefore affirm the administrative law judge’s finding that the claimant sustained a compensable mental injury as the result of his compensable physical injury, and that the respondents are liable for treatment related to the compensable mental injury.

Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove, by a preponderance of the evidence, that he was entitled to temporary total disability compensation from February 1, 1999 until a date to be determined. We find that the claimant failed to prove that he is permanently and totally disabled, but that the claimant proved that he is entitled to wage-loss disability in the amount of 2%. The Full Commission finds that the claimant is not entitled to continued narcotic medication for his compensable injury. The Full Commission finds that the claimant proved by a preponderance of the evidence that he sustained a compensable mental injury as the result of his compensable physical injury, and that the respondents are liable for treatment of the claimant’s compensable mental injury. The Full Commission therefore affirms the opinion of the administrative law judge.

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).

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 (Repl. 1996).

IT IS SO ORDERED.

________________________________ ELDON F. COFFMAN, Chairman
________________________________ SHELBY W. TURNER, Commissioner

Commissioner Wilson concurs in part and dissents in part.

I respectfully concur in part and dissent in part from the principal opinion. Specifically, I concur in the principal opinion’s findings that the claimant has failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits from February 1, 1999, to a date yet to be determined, the finding that the narcotic pain medication which the claimant has been receiving should be discontinued and that any such treatment is not reasonable and necessary medical treatment, the finding that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled, and finally, the finding that the claimant was entitled to a two percent (2%) loss in wage-earning capacity over and above his nine percent (9%) permanent impairment rating. However, I must respectfully dissent from the majority opinion finding that the claimant has proven by a preponderance of the evidence that his psychological problems are a result of his physical injury that he sustained while working for the respondent. In my opinion, the claimant has failed to meet his burden of proof. Accordingly, I would reverse the decision of the Administrative Law Judge.

The evidence shows that prior to his February 4, 1997, injury, the claimant sought psychological counseling with Dr. Hagemeir due to problems with his marriage. He saw Dr. Hagemeir approximately eight times.

The medical evidence also indicates that the claimant did not seek any help for any psychological problems until he was two years post-injury. The claimant sought treatment from Dr. Mauroner on February 19, 1999. Three events occurred the month prior to the claimant seeking treatment from Dr. Maroner:

His wife left him in mid January;

He separated from his employment the end of January; and
He was hospitalized in January with Crohn’s disease.

Dr. Mauroner’s evaluation consisted solely of recording what the claimant told him and how the claimant looked. There were no diagnostic tests performed. The claimant did not seek treatment from Dr. Mauroner again until August 10, 1999. Dr. Mauroner assessed that the claimant was “mildly depressed” and his condition was “improved”.

There is no indication that Dr. Mauroner reviewed any of the claimant’s voluminous medical records concerning the evaluation and treatment of the claimant’s back injury. His description of the claimant’s symptoms are based solely on what the claimant told him. Dr. Mauroner concludes that the claimant’s mental diagnosis of Dysthymia is a direct result of the pain the claimant suffered in his work-related accident of February 4, 1997. Pain is a subjective symptom which cannot be objectively verified or measured.

Arkansas Code Annotated § 11-9-113 provides that a mental injury or illness shall not be compensable unless the diagnosis of the condition meets the criteria established in The Diagnostic andStatistical Manual of Mental Disorders. In my opinion, the claimant does not meet the criteria for being diagnosed with Dysthymia. One of the criteria for this diagnosis is a depressed mood for most of the day, for more days than not, for at least two years. The claimant apparently told Dr. Mauroner that he had been depressed since the injury. However, his testimony is simply not credible. The claimant told Dr. Deneke on June 10, 1997, that he was not depressed. Further, the claimant has been examined by numerous doctors who have evaluated him and there is absolutely no mention of depression in his medical records until two years post-injury.

Therefore, for all the reasons set forth herein, I must dissent from the principal opinion’s finding that the claimant’s psychological problems are a result of his compensable injury. Accordingly, I concur in part and dissent in part from the principal opinion.

_______________________________ MIKE WILSON, Commissioner