STANSELL v. AMI NATIONAL PARK MEDICAL CENTER, 1997 AWCC 126

CLAIM NO. E507183

ANGELA STANSELL, EMPLOYEE, CLAIMANT v. AMI NATIONAL PARK MEDICAL CENTER, EMPLOYER, RESPONDENT and INSURANCE COMPANY-STATE OF PENNSYLVANIA, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 10, 1997

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

Claimant represented by CHARLES PADGHAM, Attorney at Law, Hot Springs, Arkansas.

Respondents represented by FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on July 26, 1996, finding that claimant was entitled to an award of additional temporary total disability benefits from October 17, 1995, through a date yet to be determined, and to continued reasonably necessary medical care for her compensable injury.

[3] Respondents now appeal from that opinion and order, contending that claimant is entitled to neither aspect of the Administrative Law Judge’s award. [4] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she is entitled to an award of continued temporary total disability benefits from October 17, 1995, through the date of the hearing, and to continued reasonably necessary medical treatment for her compensable injury. The decision of the Administrative Law Judge is therefore affirmed as modified. [5] Claimant sustained a compensable injury on April 11, 1995, while lifting a patient during the course of her duties as a home health nurse. She received an initial diagnosis of cervical and thoracic strain from Dr. Michael Young on April 21, 1995. However, an MRI performed on May 26, 1995, revealed the presence of a likely disk herniation at the C5-C6 level. Claimant has undergone extensive conservative therapy with only limited success, including a period of hospitalization in June of 1995, as well as epidural steroid injections, cervical facet joint blocks, cryotherapy, and trigger point injections. [6] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway andTransp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). The healing period itself continues until the injured employee is as far restored as the permanent character of the injury will permit, and will end once the underlying condition has become stable and nothing further in the way of treatment will improve that condition. MadButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582
(1982). The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id. Finally, the question of when the healing period has ended is a factual determination that is to be made by the Commission. Id. [7] While we are aware that Dr. Fred Lyles recommended that claimant return to light duty on October 6, 1995, we note that claimant was receiving active medical treatment (trigger point injections) from Dr. William S. Warren as late as September 12, 1995. Shortly thereafter, on October 18, 1995, Dr. Warren offered the following comments in a letter to claimant’s attorney:

I find no reversibility of her spinal strain. I feel she will not be able to return to this type of LPN work and will have to be totally disabled.

[8] Claimant has also presented credible testimony regarding her ongoing difficulties, which include headaches and pain in both her cervical and lumbar spine. In addition to ongoing pain, claimant also testified that she remains on medication prescribed by Dr. Warren and experiences a “collapsing” phenomena in her left leg:

Yeah, that’s what it does. It just — it’s like — all of a sudden it’s like jello. It cannot hold all of my weight.

[9] In light of claimant’s credible testimony regarding her continuing symptoms, and considering Dr. Warren’s letter of October 18, 1995, we specifically find that claimant remained in her healing period and totally incapacitated to earn wages beyond October 17, 1995, through the date of the hearing on this matter. Accordingly, we further specifically find that she is entitled to an award of additional temporary total disability benefits from October 17, 1995, through the date of the hearing. [10] Because we have found that claimant remained in her healing period through the date of the hearing, we are also compelled to find that she is entitled to additional reasonably necessary medical care for the treatment of her compensable injury during that time. [11] In reaching our conclusion, we are not unaware of videotaped surveillance efforts that respondents have entered into the record. We are persuaded that this evidence does little more than demonstrate that claimant is not bedridden, which is not a prerequisite to an award of temporary total disability. [12] Based on our de novo review of the entire record and for the reasons discussed herein, we specifically find that claimant is entitled to an award of additional temporary total disability benefits from October 17, 1995, continuing through the date of the hearing on this matter, and that she is further entitled to continued reasonably necessary medical care for the treatment of her compensable injury. The Administrative Law Judge must therefore be, and hereby is, affirmed as modified. [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 (Repl. 1996). [14] 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 as provided by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996). [15] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[16] Commissioner Wilson dissents.

[17] DISSENTING OPINION
[18] I respectfully dissent from the majority’s opinion finding that claimant is entitled to additional temporary disability benefits from October 17, 1995, and continuing through the date of the hearing. Based upon my de novo
review of the entire record, I find that claimant has failed to meet her burden of proof.

[19] Claimant did sustain an admittedly compensable injury to her back on April 11, 1995, during the course and scope of her employment. As a result of her injury claimant has received medical treatment from at least six different physicians. Claimant has undergone epidural spinal blocks, facet injections, cryosurgery, and trigger point injections. Multiple diagnostic tests have been performed and claimant has received a variety of medications. Despite all of these efforts, claimant contends that her pain has yet to be alleviated. After being released to return to work on at least four occasions by three separate physicians, claimant finally sought the treatment of Dr. William Warren who in a report dated October 18, 1995, stated claimant was totally disabled and could not return to work as an LPN. [20] In order to be entitled to temporary total disability benefits claimant must prove by a preponderance of the evidence that she remains within her healing period and is totally incapacitated from earning wages. Pain, in and of itself, is not sufficient to extend one’s healing period. [21] I find that by at least October 17, 1995, when claimant was released to return to work by Dr. Fred Lyles her condition had stabilized as she had failed to receive any benefit from the extensive treatment rendered to her since the date of her injury. [22] On or about November 7, 1995, respondent referred claimant to Judy White Johnson, Ph.D., a psychologist, for testing and evaluation. While Dr. Johnson noted in her report that claimant did not complete the family history portion of her examination, such information is not necessary for Dr. Johnson to form an opinion regarding claimant’s psychological profile. The entire testing protocol was completed. This fact was acknowledged by the claimant at the hearing. After completing the necessary tests, Dr. Johnson noted that “the pattern of clinical scales is consistent with conversion, somatization, and long standing character problems.” Dr. Johnson further noted:

She reports a broad range of vague physical symptoms. There is a general lack of real concern about these physical symptoms which will tend to wax and wane. Secondary gain is often present in this type of clinical profile. This type of individual is typically described as self-centered, dissatisfied, demanding of attention, complaining, pessimistic, negativistic, and immature. Physical problems are used to control and manipulate others. She is the kind of patient who is highly skilled in frustrating and sabotaging of the help provided by others. Expect an escalation of physical complaints in response to stress and to avoid responsibility.

[23] A review of the medical records clearly show that Dr. Johnson’s assessment is right on point. Each time claimant was released to return to work as opposed to returning to work claimant would return to a physician with increased symptoms. [24] Of all the physicians treating claimant, including Dr. Warren who has stated that claimant is totally disabled, none have provided any additional active treatment of the claimant other than pain management. Claimant is not currently undergoing any active treatment to alleviate her symptoms and according to claimant’s own testimony her symptoms have failed to improve. Accordingly, it is my opinion that claimant’s healing period has ended as there is nothing that will help this claimant. Claimant’s psychological profile indicates as much. [25] Furthermore, I find that claimant is not totally incapacitated from earning wages. Contrary to claimant’s allegations in her brief, respondent has made light duty work available to claimant. Claimant possesses numerous secretarial type skills. In early July, 1995 when claimant was released to return to work, she did work for a couple of hours for respondent in a light duty position answering telephones. Claimant described this work as easy and non-strenuous. Claimant has made no showing nor any allegations during the hearing that such additional light duty work is no longer available to claimant. In fact, the record tends to show that respondent has made a good faith effort to work with claimant in an attempt to return her to the work force. However, as opposed to returning to work claimant has done nothing. Claimant returns to doctor after doctor and seeks test after test for her exaggerated complaints of pain and refuses to return to work. Claimant should not be awarded benefits for her failure to cooperate. [26] Finally, I feel compelled to address the videotaped evidence introduced by respondent. Although the Administrative Law Judge characterized such evidence as boring and the majority merely mentioned it in passing, the tapes do reveal the claimant performing physical activities such as hauling trash to the curb side and installing a screen window. In fact, while claimant was installing the screen window she raised her hands above her head without any apparent distress. Not only do these tapes show that claimant is not “bedridden”, they also show that claimant is physically capable of performing numerous activities. Clearly, if claimant can perform such activities which involve hauling trash and raising her hands above her head, she could perform such light duty activities as answering a telephone. Physical exertion as needed to haul trash and lift arms over your head to install a screen door are not necessary or required in the light duty activity of merely answering a phone. [27] Accordingly, based upon those reasons stated herein, I find that claimant has failed to prove by a preponderance of the evidence that she remained temporarily totally disabled after October 17, 1995, when she was released to return to work by Dr. Lyles. Therefore, I respectfully dissent from the majority opinion. [28] MIKE WILSON, Commissioner