ROUW v. TRIO TRANSPORTATION, INC., 2001 AWCC 216

CLAIM NO. F001558

BENITA ROUW, EMPLOYEE, CLAIMANT v. TRIO TRANSPORTATION, INC., EMPLOYER, RESPONDENT, COMMERCIAL COMPENSATION INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 3, 2001

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

Claimant represented by the HONORABLE HOWARD J. GOODE, Attorney at Law, Texarkana, Texas.

Respondents represented by the HONORABLE NEAL L. HART, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed in part and modified in part.

OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on December 14, 2000. In that opinion and order, the Administrative Law Judge found that the claimant was temporarily totally disabled for the periods beginning January 21, 2000 through March 3, 2000, and beginning June 28, 2000 to the end of her healing period, a date yet to be determined. In addition, the Administrative Law Judge found that treatment rendered to the claimant by physicians at Ark-La-Tex Health Center is reasonable, necessary, and related to claimant’s compensable injury of January 20, 2000. After conducting a de novo review of the entire record, we find that a preponderance of the evidence establishes that the claimant was temporarily totally disabled for the period beginning January 21, 2000 until she was released to full duty by Dr. Gabbie on March 3, 2000. However, we find that the claimant has failed to establish by a preponderance of the credible evidence that she remained within her healing period or was incapacitated to earn for any period thereafter. Likewise, we find that the claimant has failed to establish that the chiropractic treatment that she underwent at the Ark-La-Tex Health Center after March 3, 2000 was reasonably necessary for treatment of her compensable injury. Therefore, we find that the decision of the Administrative Law Judge must be affirmed as modified in part and reversed in part.

Claimant began employment with respondent-employer on June 11, 1999. While loading tires on January 20, 2000, claimant was hit from behind by a forklift, affecting her back, head and neck. Claimant testified that the pressure from the impact was severe and that she immediately became dizzy, unsteady and confused. She later suffered muscle spasms, major body aches, leg weakness and memory loss.

After the accident claimant went home and reported the accident to her employer by phone. The next morning she saw a chiropractor and complained of an extremely stiff neck and a severe headache. She reported to work the same day, but was still having difficulties.

The claimant subsequently went to an emergency room. She later came under the care of Dr. Mark Gabbie. Dr. Gabbie stated that he felt for a knot on the claimant’s head, examined her neck, and prescribed medications and sent her to physical therapy. The claimant contended that the physical therapy made her symptoms worse. She asked Dr. Gabbie for a release in March of 2000 and he honored that request.

The claimant contended that she told Dr. Gabbie about her arm symptoms, memory problems, head swelling, and inability to stand. However, the claimant conceded that she did not follow all of Dr. Gabbie’s treatment instructions and that she missed enough therapy sessions that she was ultimately discharged from therapy for “non-compliance”.

It is of note that since the claimant has quit working for the respondent-employer, she has filed a sex discrimination claim, an age discrimination claim, and an OSHA claim against the respondent-employer.

Following her release from Dr. Gabbie’s care, the claimant began treating with Dr. James Raker, a chiropractor. Dr. Raker started “therapy” in June of 2000. He also ordered several diagnostic tests. The claimant testified that she is currently suffering from memory problems, muscle spasms, shaking, and weakness in her arms and legs, among other things.

Dr. Raker reported after examination a decreased sensitivity on her left and right arms involving the C-6 nerve on both sides, the C-7 nerve on the right side and the C-8 nerve on the left side. He ordered nerve conduction studies and an MRI. He then prescribed a type of therapy which claimant stated decreased the swelling and pressure in her neck and helped alleviate her headaches.

Dr. Raker testified that Dr. Gabbie failed to perform any of the standard orthopedic tests necessary to properly diagnose and treat the claimant. He stated that it was likely that the rehabilitation therapy which Dr. Gabbie prescribed would have aggravated claimant’s pain since she had not yet acquired her full range of motion. Because of this, Dr. Raker opined that Dr. Gabbie’s treatment of claimant was insufficient to successfully treat her injuries.

Dr. Raker testified within a reasonable degree of medical certainty that a causal relationship exists between claimant’s accident at work and her current medical condition. He further stated that claimant remains in need of medical treatment.

Claimant testified that since her accident she is more sensitive to any kind of physical stress and is unable to do housekeeping and other such “normal” tasks.

Claimant has not received any indemnity benefits and believes that she is unable to work because of severe headaches caused by pressure and swelling in her neck. She said she also experiences pain and numbness in both shoulders and weakness in her right arm that causes it to become immobile at times. She further complains of low back pain.

At issue is claimant’s entitlement to temporary total disability benefits, medical benefits and controversion. While the parties stipulated that claimant sustained a compensable injury, respondents contend that: (1) additional medical treatment is neither reasonable nor necessary; (2) claimant’s current problems are not related to her compensable injury; (3) an award of temporary total disability benefits is improper; and (4) no change of physician should be authorized.

The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary.Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 (D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 (D7033346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees’ injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In workers’ compensation cases, the burden rests upon the claimant to establish her claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 (D512553).

We find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to any additional medical treatment after her release by Dr. Gabbie to full work duties on March 3, 2000. In reaching this decision, we are not persuaded by Dr. Raker’s suggestion that Dr. Gabbie’s treatment was inappropriate. To the contrary, we note that the claimant appears to have sustained a relatively minor degree of trauma in the incident at work, and are persuaded that a preponderance of the credible evidence establishes that the claimant’s work-related injury resolved on or about March 3, 2000. In comparing the weight to be accorded the opinion of Dr. Gabbie and Dr. Raker, we note that Dr. Gabbie was the claimant’s treating physician for her work-related injury. He noted that he was able to palpate muscle spasms on his initial visit with the claimant. These improved and disappeared with treatment and over time. Dr. Gabbie released the claimant to full work duties on March 3, 2000, and Dr. Gabbie testified that he would not have done this if the claimant’s physical problems had persisted. In Dr. Gabbie’s expert opinion, additional medical treatment subsequent to that date was not necessary. We are persuaded by Dr. Gabbie’s medical records and testimony as to the appropriateness and completeness of the care he provided the claimant for her work-related injury, so that we do not agree with Dr. Raker’s assertion that Dr. Gabbie ordered inadequate diagnostic testing, prescribed inappropriate therapy, and released the claimant prematurely. Moreover, we accord no weight to Dr. Raker’s assertion that he treated the claimant for a persistent work-related injury. Under these circumstances, we find that the chiropractic treatment in dispute provided at Ark-La-Tex beginning several months after the claimant’s release in March of 2000 was not reasonably necessary for treatment of the claimant’s work-related injury.

An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State HighwayTransportation Dept. V. Breshears, 272 Ark. 244, 613 S.W.2d (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she 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(13) (Supp. 1999). The healing period continues until the employee is as far restored as the permanent character of her 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 her 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. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

Dr. Gabbie’s records persuade us that the claimant was within her healing period and incapacitated from employment through March 3, 2000 when Dr. Gabbie released the claimant to full employment. Notably, Dr. Gabbie’s records indicate that the claimant was initially released to return to light duty work before March 3, 2000, but no light duty work was available. However, we find that the claimant has failed to establish that she remained within her healing period or incapacitated to earn after March 3, 2000. Instead, as discussed above, we find that a preponderance of the credible evidence indicates that the claimant’s work-related injury resolved on March 3, 2000. Although the Administrative Law Judge found, without explanation, that the claimant was incapacitated to earn again after June 28, 2000, we note that even Dr. Raker has testified that the claimant is capable of performing work consistent with jobs she held in the past. Further, there is evidence that the claimant actually worked in chicken houses part time for three or four months at some point after she sustained her injury at work. Therefore, for the reasons discussed herein, we find that the claimant failed to establish that she remained within her healing period or was incapacitated to earn after March 3, 2000.

Consequently, after conducting a de novo review of the entire record, and for the reasons discussed herein, we affirm the Administrative Law Judge’s award of temporary total disability compensation through March 3, 2000, and we reverse the Administrative Law Judge’s award of additional medical treatment and temporary disability compensation after that date.

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, the 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
______________________________ MIKE WILSON, Commissioner

Commission Turner concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner

Although I concur with the opinion of the majority finding that claimant is entitled to benefits for temporary total disability from January 21, 2000 through March 3, 2000, I must respectfully dissent from the denial of benefits for temporary total disability from June 28, 2000 to an uncertain future date, and from the finding that the treatment claimant received at Ark-La-Tex Health Center is not reasonable and necessary.

_______________________________ SHELBY W. TURNER, Commissioner