CLAIM NO. E516080
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 27, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE HOWARD GOODE, Attorney at Law, Texarkana, Texas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The Arkansas Court of Appeals has reversed a decision of the Full Workers’ Compensation Commission in the above-styled matter and has remanded for further proceedings consistent with the Court’s opinion. Smith v. County Market/Southeast Foods, 73 Ark. App. ___, ___ S.W.3d ___ (2001). After reviewing the entire record de novo, the Full Commission finds that the claimant sustained a compensable injury on October 2, 1995, for which she is entitled to additional temporary total disability compensation and reasonable and necessary medical treatment. However, we find that the claimant failed to prove by a preponderance of the evidence that she sustained any permanent physical impairment as a result of the compensable injury. The Full Commission therefore affirms in part and reverses in part an administrative law judge’s opinion filed June 9, 1999.
I. HISTORY
Bobbie Smith, age 63, testified that she sustained an accidental injury while working for County Market on October 2, 1995:
I just started falling face forward and I hit my right hip — I had a severe bruise on my right hip, my left knee, my right elbow, and the palms of my hands.
The respondents initially accepted the injury as compensable, and the claimant began treating with Dr. Freddie Contreras, a neurosurgeon. The respondents began paying temporary total disability compensation after the claimant left work on October 12, 1995. Dr. Contreras eventually referred the claimant to Dr. Roshan Sharma, a physical medicine and rehabilitation specialist. Dr. Sharma wrote in February, 1996 that “Inspection seems to indicate a smaller R calf in comparison with the L, 21 cm from the Medial Malleolus Prominence, R calf 33 ½ cm, L 34 cm.” Dr. Sharma treated the claimant conservatively.
The respondents controverted further worker’s compensation benefits after July 19, 1996, citing “no objective findings.” Dr. Sharma reported on July 23, 1996 that the claimant still had significant low back pain, and he continued conservative treatment modalities. Dr. Patrick Peavy provided the following impression after performing a lumbar discogram on August 22, 1996:
Positive response to provocative injection of the L4-5 interspace associated with midline fissure. The findings suggest internal disc disruption syndrome.
Dr. Peavy gave the following impression after a CT of the lumbar spine, taken August 22, 1996:
Fairly large central annular fissure at L4-5
associated with positive provocative response during performance of the diskogram. There is a small amount of central bulging of what is probably the posterior longitudinal ligament into the sac, but there is no lateralization of extrinsic effect. The fissure does extend along both sides of the paramedian central posterior longitudinal ligament. Findings are consistent with internal disc disruption syndrome at L4-5.
Dr. Sharma wrote on August 28, 1996, “I believe the patient would benefit from a work conditioning program which will allow her, hopefully, to slowly enter into the work field again.” Dr. Peavy corresponded with the claimant’s attorney on September 17, 1996:
In the case of Ms. Bobbie Smith, she did appear to have a degenerated disc at L4-5 which appeared to significantly reproduce her clinical pain.
The patient was not aware of when the disc was injected, and although some of the provocative response is subjective, in cases such as Ms. Smith, there was an unequivocal pain response to the injection of small amount of contrast into the affected disc which raised the intradiskal pressure. This was confirmed with fissuring seen on the accompanying CT scan.
Diskography is not suitable as a screening examination and is only reserved for the very difficult cases such as this in which it can be useful in determining if there is indeed an organic cause for pain and localization of the particular disc space from which the pain originates. The pattern of fissuring seen can be useful in determining if there is a pathway which could lead to eventual protrusion of disc material.
On a form dated May 27, 1997, Dr. Sharma opined that as a result of the workplace injury, the claimant had sustained a herniated disc, L4-L5, as shown by diskogram and clinical findings, in addition to muscle atrophy of the right calf as a result of the “herniated disc.” Dr. Sharma opined that the claimant was “not still in her healing period” as of May 27, 1997, and he assessed a “Permanent Impairment Rating” of 17%. An MRI of the lumbar spine was taken May 29, 1997:
Mild disc degeneration at predominantly the
L3-4 and L4-5 levels with minimal posterior subligamentous bulging without herniation or significant neural compromise.
Dr. Sharma assigned the claimant a revised “Total Whole Body Impairment” of 15% on July 28, 1997. Dr. Sharma reported “palpable muscle spasms” in August, 1997. Dr. Peavy corresponded with the claimant’s attorney on August 7, 1997:
The significant objective anatomic findings at the time of the diskogram were confined to the L4-5 level where a fairly large central annular fissure was demonstrated and best observed on the CT scan. The fissure allowed the centrally injected contrast to extend through the fissure back to the posterior longitudinal ligament with some extension beneath the posterior longitudinal ligament both to the right and left of midline at this level. There is a small focal associated bulge at this level.
The other described findings in my report are thought to be of no particular clinical significance.
Dr. Sharma continued to report muscle spasms in the claimant’s lumbosacral area in January, April, and May, 1998. Dr. Sharma continued conservative treatment. Dr. Contreras reported in September, 1998, “She describes a hole in her right leg and indeed when I examiner (sic) her she has a pretty significant right gastrocnemius atrophy, especially at her upper gastrocs (sic) on the right lateral part of her leg.”
Ms. Smith claimed entitlement to additional worker’s compensation. The claimant contended that she was entitled to additional temporary total disability compensation from July 30, 1996 through May 27, 1997; that she was entitled to a physical impairment rating of 17% to the body as a whole, as well as wage loss disability; and that she was entitled to ongoing medical benefits. The respondents now controverted the entire claim, contending that no objective medical evidence supported the claim.
After a hearing before the Commission, the administrative law judge found that the claimant sustained an injury arising out of and in the course of her employment. The administrative law judge ordered the respondents to pay temporary total disability compensation “for the period covering October 12, 1995 through July 19, 1996, continuing through May 27, 1997.” The administrative law judge directed the respondents to pay permanent partial disability benefits in the amount of 75% (15% anatomical impairment, 60% wage loss), as well as reasonable and necessary medical treatment “growing out of the claimant’s compensable injury of October 2, 1995.” The respondents appealed to the Full Commission.
In an opinion filed February 23, 2000, the Full Commission reversed the administrative law judge’s decision, and found that the claimant failed to prove that she sustained a compensable injury pursuant to Act 796 of 1993. The claimant appealed to the Arkansas Court of Appeals, which reversed the Full Commission’s opinion and remanded in an opinion delivered April 25, 2001. See,Bobbie Smith v. County Market/Southeast Foods, supra. The Court of Appeals determined that “reasonable minds cannot conclude that evidence of Dr. Peavy’s visualization of a fissure is not objective in nature.” The Court found that the discogram as described in the present matter “is clearly an objective test that also takes into account a patient’s subjective pain response.” The Court reversed and remanded to the Commission for further proceedings consistent with the Court’s opinion.
II. ADJUDICATION A. Accidental Injury
The claimant contends that she sustained a compensable injury while working for the respondents on October 2, 1995. She has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that it caused internal or external physical injury to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. StephensTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d (1997).
In the present matter, the claimant testified that she sustained an accidental injury on October 2, 1995. Dr. Peavy first reported a “midline fissure” at L4-5 after a lumbar discogram and CT scan taken August 22, 1996. Dr. Peavy stated on August 7, 1997:
The significant objective anatomic findings at the time of the diskogram were confined to the
L4-5 level where a fairly large central annular fissure was demonstrated and best observed on the CT scan.
In accordance with the mandate of the Court of Appeals, the Full Commission finds that the claimant has established a compensable injury by medical evidence, supported by objective findings, pursuant to Act 796 of 1993. The objective medical evidence in the present matter consists of the “fissuring” at L4-5 as reported by Dr. Peavy. The Full Commission therefore finds that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on October 2, 1995, pursuant to the provisions of Act 796 of 1993. We therefore affirm the administrative law judge’s opinion filed June 9, 1999.
B. 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 she is within her 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) defines “healing period” as that 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 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. The claimant is no longer entitled to receive temporary total disability compensation, regardless of her 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 claimant sustained a compensable injury on October 2, 1995 and subsequently began treating with Dr. Contreras. The respondents began paying temporary total disability compensation after the claimant had to leave work on October 12, 1995. Dr. Contreras referred the claimant to Dr. Sharma, who assessed “Lumbar Radicular Syndrome” and began a lengthy course of various treatment modalities for the claimant’s compensable injury.
The respondents controverted payment of temporary total disability compensation after July 19, 1996. Commissioner Wilson’s Concurring and Dissenting Opinion would find that the claimant was entitled to temporary total disability only through July 30, 1996; however, Dr. Sharma essentially opined at that time that the claimant remained within her healing period and totally incapacitated to earn wages. Dr. Sharma stated by August 14, 1996 that the claimant required further diagnostic testing and medical treatment for her compensable injury. Dr. Peavy subsequently reported the “midline fissure” at L4-5 on August 22, 1996. Dr. Sharma prescribed a work conditioning program on August 28, 1996, in order for the claimant to “slowly enter into the work field again.” Dr. Sharma pronounced the end of the claimant’s healing period on May 27, 1997. Temporary disability cannot be awarded after the healing period has ended. Trader v. Single SourceTransportation, Workers’ Compensation Commission E507484 (Feb. 12, 1999). The Full Commission therefore affirms the administrative law judge’s finding that the claimant proved by a preponderance of the evidence that she was entitled to temporary total disability compensation from October 12, 1995 through May 27, 1997.
C. Anatomical Impairment
An injured worker must prove by a preponderance of the evidence that she is entitled to an award for a permanent physical impairment. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(F)(ii)(a) (Supp. 1999), provides that “Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.” “Major cause” means more than fifty percent (50%) of the cause, and a finding of major cause must be established according to the preponderance of the evidence. Ark. Code Ann. § 11-9-102(14).
In addition, Ark. Code Ann. § 11-9-102(16) provides:
(A)(i) “Objective findings” are those findings which cannot come under the voluntary control of the patient.
(ii) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the
Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.
(B) Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty[.]
Ark. Code Ann. § 11-9-522(g) directed the Commission to adopt an impairment rating guide to be used in assessing anatomical impairment, which guide could not include pain as a basis for impairment. The Commission thus established Rule 34 as an impairment rating guide:
To accomplish this purpose, the Arkansas
Workers’ Compensation Commission hereby adopts
Guides to the Evaluation of Permanent Impairment
(4th ed. 1993) published by the American Medical
Association exclusive of any sections which refer to pain and exclusive of straight leg raising tests or range of motion tests when making physical or anatomical impairment ratings to the spine.
To the extent that the Guides allow the use of subjective criteria for establishing an impairment rating, the Guides must yield to the statutory definition of anatomical impairment as defined by the Arkansas General Assembly. Rizzi v. Sam’sWholesale Club, Workers’ Compensation Commission E515370 E112991
(April 1, 1999). Finally, Act 796 of 1993 provides that any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1) (Supp. 1999).
In the present matter, Dr. Sharma assigned a 15% whole body impairment on July 28, 1997. Dr. Sharma wrote that he had calculated 7% of the impairment based on the following criteria from the Guides:
II. C. Unoperated on, stable, with medically documented injury, pain and rigidity associated with moderate to severe degenerative changes on structural tests; includes unoperated on herniated nucleus pulposus with or without radiculopathy
(p 113)
Dr. Sharma then assigned a “2.5 Lower Extremity Impairment” based on “Sensory Loss Table 83,” and “17.75% Lower Extremity Impairment,” also based on “Strength Loss.” The whole body impairment assessed by Dr. Sharma was “7+8 = 15%.”
The Full Commission finds that the claimant failed to prove that she was entitled to an award for a permanent physical impairment as assigned by Dr. Sharma. The 7% impairment rating assigned by Dr. Sharma was based on “unoperated on herniated nucleus pulposus with or without radiculopathy.” However, a May, 1997 MRI indicated that the claimant did not suffer from such a disc herniation. Dr. Sharma’s other 8% impairment rating was based on “sensory loss” and “strength loss,” that is, subjective responses of the claimant not beyond her voluntary control. As such, this impairment rating was not supported by objective and measurable physical findings, as required by Act 796 of 1993.See, Ark. Code Ann. § 11-9-704(c)(1); Dorn v. Tyson Foods, Inc., Workers’ Compensation Commission E217200 (March 25, 1997);Vandiver v. Wal-Mart Associates, Inc., Workers’ Compensation Commission E711036 (March 29, 2000).
The Commission is authorized to accept or reject medical opinions, and our resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). In the present matter, the Full Commission finds that Dr. Sharma’s assessment of a 15% anatomical impairment was based on improper subjective criteria and was not stated within a reasonable degree of medical certainty. Dr. Sharma based his assessment in part on a non-existent herniated nucleus pulposus. Commissioner Turner’s Concurring and DissentingOpinion would find that the claimant’s compensable injury resulted in a disc herniation at L4-5. Commissioner Turner’s Concurringand Dissenting Opinion asserts that Dr. Sharma’s impairment rating for the purported disc herniation was detected by discography, but that the herniation did not appear in a lumbar MRI performed in May, 1997. This assertion is erroneous and not supported by the preponderance of evidence. Dr. Peavy, the radiologist who interpreted the results of a lumbar discogram and CT of the lumbar spine in August, 1996, reported no such disc herniation at any level of the claimant’s spine.
Commissioner Turner’s Concurring and Dissenting Opinion also states that the majority has fallaciously ignored Dr. Contreras’ deposition testimony. That is, the Concurring and Dissenting
opinion concludes from Dr. Contreras’ testimony that the May, 1997 diagnostic testing was an “open-air” MRI with such questionable quality that the Commission could not rely on the absence of a herniated disc in the diagnostic report. Actually, Dr. Contreras testified that the “open air” MRI was performed after he had referred the claimant to Dr. Sharma; there is no record before the Commission of any such “open air” MRI. The record does show that Dr. Contreras found no abnormalities in an enclosed MRI taken in 1995 after the compensable injury. The record does not indicate that the additional MRI taken in May, 1997, from which Dr. Peavy determined that the claimant had not sustained a herniated disc, was “open air” and subject to misinterpretation.
Finally, Commissioner Turner’s Concurring and DissentingOpinion points to the findings of Dr. Greenspan, the physiatrist and pain manager who opined for the claimant’s attorney in 1999 that “discography is the diagnostic gold standard” when MRI and CAT scanning fail “due to their high false positive and high false negative rates.” From the record before the Commission, there is not a scintilla of evidence that any diagnostic study carried out in this case was subject to “false positive” or “false negative” results. Dr. Peavy, a radiologist, reported no such abnormalities. Dr. Contreras, a neurological surgeon, expressly minimized the efficacy of discography as a diagnostic tool, preferring MRI and CAT scanning for accuracy. Dr. Sharma’s assessment of a 15% anatomical impairment rating is entitled to no weight.
The Full Commission therefore reverses the administrative law judge’s finding that the claimant sustained anatomical impairment in the amount of 15% as a result of her compensable injury. To be entitled to any wage loss disability benefits in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that she sustained permanent physical impairment as a result of the compensable injury.Wal-Mart Stores, Inc. v. Connell, 340 Ark. ___, ___ S.W.3d ___ (2000), citing Smith v. Gerber Prods., 54 Ark. App. 57, 922 S.W.2d 365 (1996). Since the instant claimant has not proven that she sustained any permanent physical impairment as a result of her compensable injury, she likewise is entitled to no wage loss disability.
Based on our de novo review of the entire record, and in accordance with the mandate of the Arkansas Court of Appeals, the Full Commission affirms the administrative law judge’s finding that the claimant sustained a compensable injury on October 2, 1995, for which she is entitled to reasonable and necessary medical treatment, including treatment provided by Dr. Sharma. We affirm the administrative law judge’s award of temporary total disability compensation “for the period covering October 12, 1995 through July 19, 1996, continuing through May 27, 1997.” Because we find that the claimant failed to prove that she sustained any anatomical impairment as a result of her compensable injury, the Full Commission reverses the administrative law judge’s award of 75% permanent partial disability benefits. We therefore affirm in part and reverse in part 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
MIKE WILSON, Commissioner
I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the majority’s findings that the claimant proved that she sustained a compensable injury on October 2, 1995. I also concur in the majority’s finding that the claimant failed to prove by a preponderance of the evidence that she sustained any permanent impairment as a result of her compensable injury and that she failed to prove that she sustained any wage loss. However, I must respectfully dissent from the majority opinion finding that the claimant is entitled to temporary total disability benefits through May 27, 1997. In my opinion, the claimant is only entitled to temporary total disability benefits through July 30, 1996. Therefore, I respectfully concur in part and dissent in part.
__________________________ MIKE WILSON, Commissioner
SHELBY W. TURNER, Commissioner
I concur in the finding that claimant sustained a compensable injury. Moreover, I agree with the majority’s award of temporary total disability benefits. However, I respectfully dissent from the finding that claimant failed to prove entitlement to permanent partial disability benefits.
With respect to compensability, the majority determined that the fissuring at L4-5 observed on the discogram satisfies the objective findings requirement. I agree. However, I further find that claimant’s work-related accident resulted in a disc herniation at L4-5.
The impairment rating assigned by Dr. Sharma for a disc herniation at L4-5 was detected by discography, but did not appear on an MRI done in May of 1997. Based on the MRI results, the majority concludes that claimant failed to prove the occurrence of a disc herniation at L4-5. The fallacy of this reasoning is that it ignores Dr. Contreras’ testimony regarding the unreliability of the MRI results. At deposition, he explained that claimant had an open air MRI. He explained that some patients are claustrophobic, and unable to tolerate the closed machine. Dr. Contreras articulated the significance of the methodology used in this instance: “The problem [with open air MRI testing] is that generally the quality of the picture is not as good.” He elaborated, stating that in this case poor imaging quality prevented him from determining the existence of any abnormalities. Dr. Contreras recommended repeating the test; however, there is no evidence that this was done.
On a form entitled “MEDICAL OPINION REGARDING ON-THE-JOB INJURY,” Dr. Sharma indicated that claimant’s spinal impairment rating was based upon the disc herniation at L4-5 as evidenced by the discogram. Dr. Greenspan stated that the discogram performed on August 22, 1996, showed a “. . . 1 markedly positive disc and 4 distinctly negative control discs.” Comparing MRI scanning with discography he noted that:
It is implicitly clear in the medical literature that when MRI and CAT scanning fail to document existing disc pathology due to their high false positive and high false negative rates, discography is the diagnostic gold standard. Accompanying this letter is a list of 90 supportive references.
The medical evidence is conflicting. Our duty to resolve evidentiary conflicts extends to medical evidence. Johnson v. Democrat Printing Lithograph, 57 Ark. App. 274, 944 S.W.2d 138
(1997). Considering Dr. Contreras’ testimony with respect to claimant’s MRI, along with Dr. Greenspan’s comments regarding the comparative value of the various diagnostic tests, I find that the discogram results are entitled to greater weight than those of the MRI. The discography demonstrated a disc herniation at L4-5, for which claimant should be compensated. It is imprudent to predicate a denial of benefits for anatomical impairment on the results of the MRI conducted in May of 1997.
In reaching my decision, I recognize that claimant had additional diagnostic testing, including a CT scan. However, as Dr. Greenspan explained, discography is the “gold standard” with respect to diagnostic testing.
At a minimum, I would award permanent partial disability benefits totaling 7% to the whole body based on claimant’s disc herniation. Considering all appropriate factors, I further find that claimant is entitled to wage-loss benefits.
Based on the foregoing, I concur in part and respectfully dissent in part.
________________________________ SHELBY W. TURNER, Commissioner