CLAIM NO. E404773
OLITA STOCKTON, EMPLOYEE, CLAIMANT v. ROSE CARE, INC., EMPLOYER, RESPONDENT EMPLOYERS SELF-INSURED SERVICES, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 13, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOHN R. BEASLEY, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE DAVID LANDIS, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on June 21, 1995. In that opinion and order, the administrative law judge found that the claimant’s claim for additional benefits, including additional temporary total disability compensation, proposed pain clinic treatment, and proposed psychiatric treatment, must be denied. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation in excess of the temporary disability compensation already paid by the respondents. We also find that the claimant failed to prove by a preponderance of the evidence that her proposed treatment at a pain clinic is reasonably necessary for the treatment of her compensable injury, and we find that she failed to prove by a preponderance of the evidence that she has sustained a compensable mental injury arising out of her compensable physical injury. In addition, we find that the claimant’s correct compensation rate is $97.00 per week. Therefore, we find that the administrative law judge’ decision must be affirmed.
[3] The claimant was employed by the respondent as a nurse’s assistant on March 25, 1994 when she injured her back while lifting a patient. She notified her supervisor and completed her shift. Her supervisor then took the claimant to Johnson County Regional Hospital where x-rays of the claimant’s lumbar spine were normal. She was diagnosed with lumbar sprain and released to return home for 3 days bed rest with medication.
[4] The claimant was followed initially by Dr. Patterson and Dr. Jacobs, general physicians at the Clarksville Medical Group. Their office notes indicate that the claimant returned to work for 2 days after her prescribed bed rest, but reported an exacerbation of her pain on her second day back at work. On March 30, 1994, Dr. Patterson placed the claimant off work until April 5, 1994, with restricted lifting thereafter until April 18, 1994. However, the claimant reported an acute onset of neck pain on April 7, 1994, and was prescribed an additional 3 days of bed rest. On April 21, 1994, the claimant again presented to the Johnson County Regional Hospital emergency room reporting severe pain, and the following day, Dr. Jacobs prescribed a change in medication, and ordered physical therapy, and a CT scan of the claimant’s lumbosacral back area. The CT report, dated April 22, 1994, did not identify any abnormalities at the L3-4 or L5-S1 levels, but indicated protrusion on the left side of the L4-5 disc, with some compression of the thecal sac.
[5] When the claimant did not respond positively to rest, physical therapy, and medication, Dr. Jacobs referred her to Dr. Terry Green, an orthopedic specialist, on April 29, 1994. At that time, the claimant indicated that her back pain was getting worse, not better, and also that she was experiencing pain radiating into her left leg. Dr. Green diagnosed the claimant with a suspected herniated disc at the L4-5 level and placed the claimant on off work status. In addition, Dr. Green ordered a myelogram and post-myelogram CT. However, after reviewing the May 2, 1994 myelogram study, Dr. Green diagnosed the claimant with a slight disc herniation at the L5-S1 level, but without herniation of the nucleus pulposus at L4-5, as was indicated on the earlier CT. Moreover, Dr. Green found significant the fact that “both nerve root sleeves filled out real well on the plain myelogram study.”
[6] On the following day, May 3, 1994, the claimant entered the Johnston County Regional Hospital reporting severe back pain, as well as side effect symptoms associated with the myelogram procedure. She remained hospitalized from May 3-7, 1994 receiving bed rest and pain control medication under the care of Dr. Jacobs.
[7] According to Dr. Jacobs’ office notes, Dr. Green also ordered a series of steroid injections in the latter half of May. However, by June 3, 1994, Dr. Green apparently considered the claimant’s “pain complaints way out of proportion to the structural pathology”, and in that regard, the claimant had apparently “expressed a desire for a second opinion”.
[8] On June 10, 1994, the claimant presented herself to Dr. David Barnett, an orthopedic specialist in Little Rock, but forgot to bring the prior CAT/myelogram studies. Dr. Barnett’s report of that date indicates that the claimant presented complaints of pain of such intensity so as to affect her memory, with her greatest discomfort in the lumbar region, but with numbness from the buttock to the mid-lumbar region, and lesser pain from the left buttock down the back of the thigh to the distal femur. Dr. Barnett noted that the claimant exhibited great difficulty mounting the examination table, and that it required approximately two additional minutes for the claimant to ease herself into a prone position upon request.
[9] Dr. Bennett’s examination indicated normal reflexes and motor strength, with essentially normal straight leg raising test results. However, he observed a range of back motion only 30% of normal, with tenderness to palpation on the left side of the back and on the sciatic notch, and with no radiation into the leg. Based on his examination and the claimant’s reported symptomatology, Dr. Bennett reported that he considered the claimant’s “actions and complaints are somewhat more than I would anticipate from her physical findings,” and that he opined that a psychological factor might be involved with the claimant’s symptomology. In that regard, Dr. Bennett recommended MMPI testing to search for a possible psychological component, as well as a lumbar MRI, an EMG and nerve conduction studies to search for possible physical components.
[10] The claimant presented herself to the Johnson County Regional Hospital emergency room the following day reporting numbness to her knees and extreme pain associated with the drive to and from Little Rock the day before. Her request for additional pain medication was denied, and she was released for home-bound bed rest.
[11] On June 16, 1994, the claimant also began evaluation by Dr. Ronald Williams, a neurosurgeon. Dr. Williams ordered a lumbar MRI which indicated moderate disc bulging at L4-5, and he ordered EMG and nerve conduction studies of the left leg which were both essentially normal. Based on his own clinical examinations as well as the additional diagnostic test results, Dr. Williams reported on July 6, 1994, that he agreed with Dr. Bennett that the claimant was not a candidate for surgery. Dr. Williams instead recommended a course of pain management through epidural steroid injections which the claimant received from Dr. Michael Stone on July 6, 1994, July 20, 1994, and August 5, 1994.
[12] The claimant was also administered the Minnesota Multiphasic Personality Inventory — Form 2 (MMPI-2), by Dr. Dan Johnson, a clinical neuropsychologist, on August 19, 1994. Dr. Johnson reported that the MMPI-2 testing indicated that the claimant was “experiencing a great deal of emotional stress at this time”, and he opined that the claimant “would benefit from psychological assistance for her pain issues.”
[13] The claimant testified that she also presented to Dr. Linda Bell, a Russellville psychiatrist, and the medical evidence indicates that Dr. Bell followed the claimant’s psychological condition with five office visits from July 29, 1994, through September 22, 1994. The claimant testified that she terminated her psychiatric treatment when the respondents refused to authorize the care.
[14] The record indicates that the respondents paid the claimant temporary total disability compensation from March 29, 1994, to August 10, 1994. The claimant seeks additional temporary total disability compensation from August 11, 1994, to a date yet to be determined. In addition, the claimant seeks additional medical treatment from a psychiatrist or from a pain clinic, and contends that her disability compensation rate was miscalculated.
[15] Since the claimant’s injury occurred after July 1, 1993, the provisions of
Act 796 of 1993 are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, 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. ArkansasState Highway and 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 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 (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 her physical capabilities.
[16] In the present claim, the preponderance of the evidence establishes that the claimant sustained a relatively minor back injury on March 25, 1994, and that the condition of her injury had stabilized prior to August 10, 1994. As discussed, prior to August 10, 1994, the claimant underwent extensive diagnostic testing of the lumbar back region and the left leg, and she was evaluated by two orthopedic surgeons and a neurosurgeon. All surgeons concurred that the claimant was not a candidate for surgery. While the claimant continued to complain of extensive back pain, both Dr. Green and Dr. Barnett opined that the claimant’s complaints were over-stated as compared to the nature of the injury indicated by clinical and diagnostic testing. Moreover, we note that 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. MadButcher. Inc. v. Parker,
4 Ark. App. 124,
628 S.W.2d 582 (1982).
[17] In addition to her extensive diagnostic testing and clinical evaluations conducted prior to August 10, 1994, the claimant also underwent an additional evaluation by Dr. David Davis, a neurologist, on December 7, 1994. At that time, Dr. Davis found the claimant’s reported symptom of leg weakness when flexing her hip inconsistent with her previously diagnosed disc protrusion at L4-5. Therefore, Dr. Davis ordered a bone scan and a connective tissue disease laboratory evaluation to rule out possible causes for the reported symptoms. Based on negative test results from these two studies, as well as the results of prior diagnostic testing ordered by other physicians, Dr. Davis opined by letter dated January 3, 1993, that he could find no basis for any further evaluation of the claimant’s low back pain complaints.
[18] Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the greater weight of the evidence establishes that the claimant’s compensable injury was as far restored as the permanent nature of her injury would permit prior to August 10, 1994. Thus, we find the claimant failed to prove by a preponderance of the evidence that she remained within her healing period beyond that date. Accordingly, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation.
[19] With regard to the claimant’s proposal for additional treatment at a pain clinic, the Commission has previously held that medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment.Tina Haskins v. TEC, Full Workers’ Compensation Commission, opinion filed Jul. 14, 1993 (Claim NO.
E107391); Billy Chronisterv. Lavaca Vault, Full Workers’ Compensation Commission, opinion filed Jun. 20, 1991 (Claim No.
D704562). In addition, the Court of Appeals has held that respondents remain liable for medical treatment reasonably necessary to maintain a claimant’s condition after the healing period ends. Artex Hydrophonics. Inc v. Pippin,
8 Ark. App. 200,
649 S.W.2d 845 (1983).
[20] In the present case, however, we find that the greater weight of the evidence establishes that the proposed treatment at a pain clinic is not reasonably necessary for treatment of the claimant’s compensable injury. In reaching our decision, we note that Dr. Jacobs opined in a letter to the claimant’s attorney dated January 13, 1995, that, he felt treatment at a pain clinic would benefit the claimant. However, we find that opinion unpersuasive for several reasons. First, the medical evidence clearly indicates that the claimant has already undergone an extensive array of pain control techniques from which she has reported little or no benefit. In addition, contrary to the opinion of the Dr. Jacobs, who is the claimant’s family physician, Dr. Green, Dr. Barnett and Dr. Davis, each a specialist in orthopedic surgery or neurosurgery, were unable to find an organic basis for the claimant’s complaints and symptoms after extensive diagnostic testing. Moreover, these specialists have indicated that the claimant’s complaints of continued pain are overstated, and the medical evidence supports their evaluations and opinions. Accordingly, after weighing the claimant’s reported lack of response to prior extensive pain treatment, her extensive diagnostic and clinical evaluations, the medical opinions of Dr. Jacobs, Dr. Green, Barnett, and Dr. Davis, as well as all other matters properly before us, we find that the claimant failed to prove by a preponderance of the evidence that additional treatment at a pain clinic is reasonably necessary medical treatment for the claimant’s compensable injury.
[21] We also find that the claimant failed to prove by a preponderance of the evidence that she has sustained a compensable mental injury or illness arising out of her physical injury for which proposed psychiatric treatment is reasonably necessary, as she contends. Under the provisions of
Act 796 of 1993, which apply to the present claim, employees are entitled to receive benefits only for injuries falling within the criteria for “compensable injuries,” which are set forth in the law. With regard to claims for mental injuries and conditions arising after July 1, 1993, Ark. Code Ann. §
11-9-113 (a) provides the following:
(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.
(a)(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
[22] Thus, among the other elements necessary to prove a compensable mental injury, Section 113 (a)(2) requires (1) that every claim for a mental injury or illness be supported by a diagnosis by a licensed psychiatrist or psychologist, and also requires (2) that the diagnosis met specific published criteria.
[23] In the present claim, the evidence submitted into the record and the claimant’s brief provide little indication of which of the conditions listed in the Diagnostic and Standard Manual ofMental Disorders, if any, that the claimant contends she is experiencing. We note that the record before us contains a copy of Section 300.11 of the Diagnostic and Statistical Manual ofMental Disorders, and we note that Section 300.11 contains the diagnostic criteria for conversion disorder. However, the record contains no evidence that a licensed psychiatrist or psychologist has ever diagnosed the claimant with a conversion disorder.
[24] We note that the record does contains the office notes of Dr. Linda Bell, a licensed psychiatrist. Her notes from August 18, 1994, apparently state that on that date the claimant “feels better but looks depressed.” However, the claimant has failed to show by a preponderance of the evidence that Dr. Bell’s observation or any other evidence in the record satisfies the requirement of a diagnosis that meets the criteria of any condition set forth in the Diagnostic Statistical Manual ofMental Disorders. Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to satisfy the requirements necessary to show that she has sustained a mental injury or illness arising out of her physical injury, as she apparently contends. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that proposed psychiatric care is reasonably necessary treatment for her compensable injury.
[25] In reaching our decision, we note that the claimant’s brief on appeal contends on appeal that she is actually seeking psychiatric care for the purpose of determining whether she has sustained a mental illness, and not because she has necessarily sustained a mental injury. However, we find that argument without merit for the following reasons. We note that the claimant couldhave requested a hearing seeking an independent medical examination to permit the Commission to assess her claim for an alleged mental illness. However, the claimant did not request a hearing to consider an independent medical examination. She instead filed a claim for temporary total disability compensation from August 11, 1994, to a date yet to be determined, contending total disability from an alleged physical or mental injury. In that regard, we note that the Claimant’s Brief contends on page 7:
Again, it is unclear how the respondents accepted August 10, 1994, as the date to terminate the claimant’s benefits, but clearly, the claimant continued to be temporarily totally disabled after that date due to both medical and psychological problems, and she is entitled to temporary total disability benefits from August 10, 1994, to a date yet to be determined. (Emphasis in the original)
[26] Thus, based on the claimant’s own contentions and admissions, we find no merit in the claimant’s argument that she actually requested psychiatric care for the purpose of diagnosing a possible mental injury. To the contrary, the claimant requested a hearing in order to present her evidence of a mental injury in support of a claim for additional benefits from the respondents. The claimant clearly failed to meet her burden of proving a mental injury under the requirements of
Act 796 of 1993, and now apparently seeks an opportunity to collect additional medical evidence, and raise the issue of her mental state at a later date. However, for the reasons discussed, we find that she has failed to prove that she is entitled to additional psychiatric care or evaluation.
[27] We also find unpersuasive the claimant’s argument that she has been denied access to a licensed psychiatrist or psychologist in order to obtain an appropriate diagnosis. In that regard, we note that the respondents referred the claimant to Dr. Johnson on August 19, 1994, for MMPI-2 testing. We also note that Dr. Johnson opined that he felt the claimant would benefit from psychological assistance. However, when the respondents controverted further psychological evaluation, the claimant did not petition the Commission for an independent medical evaluation. Moreover, we also note that the claimant was under the care of Dr. Linda Bell in July, August and September of 1994, and Dr. Bell did not render a diagnosis of any known psychological disorder. Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that additional psychological evaluation is reasonably necessary.
[28] Accordingly, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that the she has sustained a compensable mental injury. We therefore find that claimant failed to prove by a preponderance of the evidence that proposed treatment by a psychiatrist is reasonably necessary treatment for her compensable injury.
[29] With regard to computing the claimant’s average weekly wage, Ark. Code Ann. §
11-9-518 states in relevant part:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident and in no case shall be computed on less than a full-time workweek in the employment.
(2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in a full-time workweek in the employment.
(b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two (52) weeks preceding the accident.
(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
[30] The claimant contends that she worked under a contract of hire of 38 1/2 hours per week at $4.85 per hour. In that regard, we note that Ronnie Johnson, an administrator for the respondent, testified that the standard work schedule for a nurse’s assistant during the relevant period was 37 1/2 hours per week, not quite 38 1/2. As to the claimant’s particular work schedule, however, she testified that a nurse’s assistant typically worked a 4 day week. However, she admitted that her actual work schedule before the accident depended, in part, on whether she was too tired to go to work.
[31] The respondents submitted into evidence a completed Form AR-W which provides wage and hourly data for the claimant during the 52 week period immediately preceding her injury. The data indicates that the claimant worked a total of 1529 1/2 hours of straight time and 20 hours of overtime during the 52 week period. However, we are unable to find any pattern in the claimant’s work schedule. It appears the claimant worked from 0 to 6 days per week during the period, and averaged approximately 4 days per week, although she worked less than 4 days per week during 10 of the 26 weeks immediately preceding her injury. In addition, she worked from a low of 0 hours per week to a high of 46 hours per week during the 52 week period, and she worked an average of approximately 30 hours of work per week.
[32] After weighing the testimony of the claimant and Mr. Johnson, as well as the data on the claimant’s AR-W, and all other matters properly before us, we find that the greater weight of the evidence indicates that the claimant did not work under a standard contract of hire of 38 1/2 hours per week as she contends. In addition, under the unique circumstances of the claimant’s employment, we find that an average weekly wage rate representing the average of the claimant’s weekly wage during the 51 weekly periods preceding the week of the accident represents the fairest and most just method to all parties of determining the claimant’s average weekly wage. After reviewing the calculations explained in a letter from the respondents’ attorney to the claimant’s attorney dated March 16, 1995, and submitted into the record, we find that the respondents correctly calculated an average weekly wage rate of $146.00 per week, and we therefore find that the respondents have correctly paid a temporary total disability compensation rate of $97.00 per week, in accordance with the provisions of Ark. Code Ann. §
11-9-512
(a).
[33] In summary, after conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation in excess of the temporary disability compensation already paid by the respondents. We also find that the claimant failed to prove by a preponderance of the evidence that her proposed treatment at a pain clinic is reasonably necessary to the treatment of her compensable injury, and we find that she failed to prove by a preponderance of the evidence that she sustained a compensable mental injury arising out of her compensable physical injury. In addition, we find that the claimant’s correct compensation rate is $97.00 per week. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed.
[34] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[35] Commissioner Humphrey dissents.
