SIWOKV v. RED LOBSTER RESTAURANT, 1995 AWCC 187

CLAIM NO. E413025

CHUCK O. SIWOKV, EMPLOYEE, CLAIMANT v. RED LOBSTER RESTAURANT, EMPLOYER, RESPONDENT and LIBERTY MUTUAL INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 7, 1995

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

Claimant appears pro se.

Respondents represented by the HONORABLE WILLIAM J. STANLEY, Attorney at Law, West Memphis, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on April 18, 1995. In that opinion and order, the administrative law judge found that the claimant is entitled to ongoing medical treatment from Dr. Gibson and Dr. Tepper, and the administrative law judge found that the claimant is entitled to additional temporary total disability compensation. After conducting a de novo
review of the entire record, we find that the administrative law judge’s decision must be affirmed.

[3] The claimant sustained an admittedly compensable injury on August 14, 1994, when he slipped and fell on a wet floor while he was carrying a large stack of trays, landing on his buttocks. He immediately experienced pain, and, within fifteen minutes, pain was radiating into his right leg. He was treated at the emergency room that day, and, on August 17, 1994, he came under the care of Dr. Greg Smolarz. Dr. Smolarz’s clinical examination revealed a positive straight leg test and some tenderness. Otherwise, the examination was normal, and Dr. Smolarz diagnosed a lumbar sprain or strain with some sciatica. When the claimant’s problems persisted, Dr. Smolarz ordered a MRI. However, the MRI was not completed due to the claimant’s claustrophobia.

[4] In September of 1994, the claimant moved to Texas, and Dr. Smolarz referred the claimant to Dr. Hubert Gibson, also a orthopedic specialist in Arlington. Dr. Gibson’s September 22, 1994, clinical examination of the claimant revealed palpable spasm with loss of normal lordosis, and it revealed some nerve and sensory deficits. In addition, the examination revealed decreased bending from the waist with both visible and palpable spasm present. Based on these clinical findings, Dr. Gibson diagnosed a low back mechanical injury with radiculopathy and probable herniated or bulging disc. However, a CT scan and electrodiagnostic studies subsequently ordered by Dr. Gibson did not reveal any abnormalities. Subsequent examination by Dr. Gibson revealed a pelvic tilt which caused the left leg to be approximately 1/2 inch shorter than the right. Dr. Gibson treated the claimant conservatively with physical therapy and medications.

[5] Gibson also referred the claimant to Dr. Fred Tepper, a doctor of osteopathy, for evaluation and treatment, and Dr. Tepper’s report reflects findings consistent with those reported by Dr. Tepper. In addition, Dr. Tepper’s report indicates that his examination revealed “pelvic muscle spasm accompanied by posterior thigh spasm,” and he opined that this was “most likely the etiology of the clinical verses the x-ray findings as related to leg length.” In addition, Dr. Tepper opined that the claimant’s “[r]ight pelvic musculature and posterior thigh musculature abnormalities are felt to be due to this patient’s industrial accident.” Dr. Tepper has recommended additional physical therapy and other treatment modalities. However, subsequent to Dr. Gibson’s September 22, 1994, evaluation of the claimant, the respondents denied liability for any further medical treatment or temporary total disability compensation.

[6] At the March 29, 1995, hearing in this matter, the claimant testified that he remains unable to stand on his feet for more than ten minutes without pain radiating down his leg. He also testified that he is now better able to tolerate the pain than when the injury first occurred. However, he also testified that activity aggravates the condition and increases the pain, and he testified that he feels that he is unable to work at this time as a result of these problems.

[7] 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.

[8] 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).

[9] 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. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

[10] In the present claim, we initially note that the respondents have objected to the introduction of a February 24, 1995, narrative report from Dr. Gibson because they contend that they were not furnished a copy of the report at least 7 days prior to the date of the hearing, as required by Ark. Code Ann. § 11-9-705 (c)(2)(A) (Cumm. Supp. 1993). However, we also note that Dr. Gibson did submit the report to the respondent carrier’s Irving, Texas, office. Nevertheless, even if the February 24, 1995, report is not considered, we would find that the greater weight of the evidence establishes that further medical treatment by Dr. Gibson and Dr. Tepper is reasonably necessary for treatment of the compensable injury and that he is entitled to additional temporary total disability compensation.

[11] In this regard, the only evidence in the record is the testimony of the claimant and the medical records of Dr. Smolarz, Dr. Gibson, and Dr. Tepper. Moreover, this evidence indicated that the claimant continued to experience substantial incapacitating problems at the time of the hearing which were related to his admittedly compensable injury, and the existence of these problems are demonstrated by reliable, objective medical findings. Furthermore, this evidence indicated that the claimant’s condition at the time of the hearing was such that his condition had not stabilized and that he remained in need of reasonably necessary medical treatment for the compensable injury.

[12] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that a preponderance of the evidence establishes that he remained in his healing period and totally incapacitated from earning at the time of the hearing. Therefore, we find that he proved by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. In addition, we find that the claimant established by a preponderance of the evidence that further medical treatment by Dr. Gibson and Dr. Tepper is reasonably necessary for treatment of the compensable injury. Thus, we find that the administrative law judge’s decision must be, and hereby is, affirmed. The respondents are directed to comply with the order contained in the administrative law judge’s opinion and order. In reaching this decision, we recognize that the provisions of Act 796 of 1993 apply to this claim, and we note that the provisions of the law as amended by Act 796 have been considered and applied, where appropriate, in reaching our decision.

[13] 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 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).

[14] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[15] Commissioner Tatum dissents.