CLAIM NO. E512351
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 9, 2000
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GREGORY GILES, Attorney at Law, Texarkana, Arkansas.
Respondent represented by BUD ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
Respondent has appealed the decision of the Administrative Law Judge that claimant is entitled to temporary total disability benefits for the period from August 11, 1995 through January 28, 1996 and continuing to a date yet to be determined.
This case has a long history. Claimant suffered injury to his neck, right shoulder, right leg, and lower back, when he was involved in an accident in which the truck he was driving was forced off a bridge and down an embankment on August 10, 1995. As a result of that injury, respondent paid claimant’s workers’ compensation benefits. On February 7, 1996, his physician stated that he had reached maximum medical improvement on January 19, 1996, and gave him an impairment rating of 4%. However, on January 4, 1996, claimant’s need for a psychological evaluation was noted by Joyce Hamilton, the psychotherapist participating in his work hardening program, and recommended by both Hamilton and Dr. Metzger on or about January 23, 1996 as medically reasonable and necessary. On March 15, 1996, Dr. Metzger stated that he had not reached maximum medical improvement and that he required further psychiatric or psychological treatment. Respondent denied claimant further benefits. The Commission denied any benefits for the alleged psychological injury as well as approval for the recommended psychological evaluation. The Court of Appeals remanded the case to the Commission “to order appellee [Respondent] to provide appellant [Claimant] with a psychological evaluation by a licensed psychiatrist or psychologist, and based upon those results, determine if the psychological injury is compensable. The Commission remanded to the Administrative Law Judge, stating:
In accordance with the decision of the Arkansas Court of Appeals, we find that claimant is entitled to a psychological or psychiatric evaluation at respondent’s expense. Further, we remand this matter to the Administrative Law Judge for further proceedings to determine the extent of benefits, if any, to which claimant may be entitled.
Terrell v. Arkansas Trucking Service, Inc., Full Commission Opinion Filed April 21, 1998 (WCC No. E512351). The Administrative Law Judge held that claimant did suffer a compensable psychological injury and that he was entitled to temporary total benefits from August 11, 1995 through January 28, 1996 and continuing to a date yet to be determined.
Respondent does not appear to dispute the fact that claimant suffered a compensable psychological injury, but only appeals the award of temporary total disability benefits.
Respondent first argues that the Administrative Law Judge erred in finding that claimant remained in a healing period from August 11, 1995 through January 19, 1996 and continuing to a date yet to be determined. Respondent points out that, on February 7, 1996, Dr. Metzger stated that claimant reached maximum medical improvement on January 19, 1996. Respondent then asserts that there is no evidence that claimant was removed from any and all work subsequent to January 19, 1996. Because claimant cannot meet the requirements of temporary total disability benefits, respondent argues that he is not entitled to any such benefits.
On February 7, 1996, Dr. Metzger, assessed claimant a 4% impairment rating and stated that he reached maximum medical improvement on January 19, 1996, which respondent relies upon to challenge the award of any temporary total disability. However, on January 4, 1996, in her work hardening notes, Hamilton noted that “This patient states that he continues to experience sleep depravation from both `weird dreams’ and chronic pain. He may benefit from further evaluation and psychotherapy for his anxiety.” On January 23, 1996 Dr. Metzger signed a statement indicating his agreement with Hamilton’s assessment that claimant needed a psychological evaluation.
On January 26, 1996, Dr. Metzger prepared a report stating that claimant suffered from cervical strain, lumbar strain and depression and anxiety. He noted that claimant improved with his rehabilitation program but continued to have lumbar discomfort. He also noted claimant’s increased anxiety and depression since the accident and that he was unable to rest at night. His treatment plan was to have a functional capacity evaluation and impairment rating performed for his musculoskeletal injuries and a psychological consultation for his anxiety and depression.
On March 15, 1996, Dr. Metzger stated that claimant’s depression was caused by the physical complaints resulting form the accident, that his diagnosis was depression/ anxiety, that the condition is the result of the accident, that the accident was the major cause for claimant’s need for treatment, that claimant had been unable to return to work since August 10, 1995, that he had not reached maximum medical improvement, that he needed additional treatment in the form of a psychiatric evaluation of his severe anxiety and depression. He clarified matters by stating that the permanent impairment rating of 4% was for his lumbar problems only.
In the record are slips stating that claimant is “medically unable to work” and signed by Dr. Metzger, dated February 15, March 27, May 9, June 6, and July 2, 1996. The July 2, 1996 off work slip stated that claimant was unable to work through August 15, 1996. We do not understand respondent’s assertion that there is no evidence that claimant was off work after January 19, 1996.
Based on the above facts, it appears clear that Dr. Metzger’s medical reports do not require a finding that claimant’s healing period for all injuries resulting from the August 10, 1995 auto accident ended on January 19, 1996. In fact, it appears that Dr. Metzger and the other medical professionals treating claimant unwaveringly attributed claimant’s depression and anxiety to his physical difficulties. In fact, the record seems to support a finding that claimant is still within his healing period at least in regard to the psychological component of his compensable injury, especially in light of the psychological evaluations performed in February 18, 1997 and September 23, 1998 by Louis Deere, D.O., Psychiatrist, and February 2, 1999 by Robert Freedenfeld, Ph.D., clinical psychologist, and Dr. Kiser, pain management specialist and psychiatrist. Reports from those evaluations indicate that claimant suffers Major Depressive Disorder with Psychotic Features. Dr. Deere stated that the disorder was caused by the physical injury to him on August 10, 1995, and Dr. Freedenfeld stated that the depression was “due to ongoing pain, an inability to work and functional problems to the work injury of August 10, 1995.”
Respondent’s second argument is that the Court of Appeals remanded this case on the specific issues of whether claimant suffered a compensable mental injury and if he is entitled to benefits arising out of that injury. Because the Administrative Law Judge awarded more than 26 weeks of temporary total benefits, which is the maximum amount allowed for mental injury, the surplus must have been for the physical injury, which is beyond the scope of the issues placed before the Commission by the Court of Appeals. Lastly, respondent argues that it is entitled to a credit for the week of temporary total benefits it paid after the date of maximum medical improvement on January 19, 1996. We agree that the Court of Appeals and the Commission limited the scope of review of the Administrative Law Judge to whether claimant suffered a compensable mental injury and what benefits are due him for that injury, if any.
In light of the mandate sent down by the Court of Appeals to the Commission and by the Commission to the Administrative Law Judge, we agree that any award beyond the statutory 26 weeks is either outside the scope of the issues before the Administrative Law Judge and the Commission as an award for his physical injuries, or outside the statutory limitations of Ark. Code Ann. Section 11-9-113(b)(1) as an award for his mental injury.
Based upon our de novo review of the entire record, we modify the Administrative Law Judge’s award of temporary total disability benefits, to 26 weeks of benefits, pursuant to Ark. Code Ann. Section 11-9-113(b)(1). We also affirm the award of medical benefits.
IT IS SO ORDERED.
_______________________________
ELDON F. COFFMAN, Chairman
_______________________________
MIKE WILSON, Commissioner
Commissioner Humphrey concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I concur with the findings of the majority that claimant’s psychological condition is compensable and that he is entitled to benefits for temporary total disability as a result of that condition. However, I do not necessarily believe the Administrative Law Judge was precluded from finding that claimant is entitled to benefits for TTD on a continuing basis for his physical injuries.
The claimant was originally seeking additional temporary total disability benefits, additional medical care, and a psychological evaluation. Admittedly, the Administrative Law Judge originally denied TTD benefits beyond those already paid by respondent. Claimant appealed this finding to the Commission, which affirmed and adopted the opinion of the Administrative Law Judge. Claimant filed a timely appeal to the Court of Appeals. When the Full Commission remanded following the Court of Appeal’s decision, we ordered the ALJ to conduct any “further proceedings to determine the extent of benefits, if any, to which claimant may be entitled.”
Respondents suspended the payment of benefits on January 28, 1996 on the strength of Dr. Metzger’s report of February 7, 1996 indicating that claimant had reached maximum medical improvement on January 19, 1996. However, in March 1996, Dr. Metzger changed his mind and reported that claimant had not, in fact, reached maximum medical improvement and subsequent reports repeatedly state that claimant is “medically unable to work.” Incidentally, Dr. Freedenfeld performed a psychological evaluation and noted the possibility of an organic brain (physical) injury component to this compensable injury. Since claimant is temporarily and totally disabled as a result of the physical, as well as the psychological injuries, claimant’s benefits should not be limited to the statutory 26 weeks.
For the foregoing reasons, I concur in part and respectfully dissent in part.
_____________________________ PAT WEST HUMPHREY, Commissioner