CLAIM NO. E318113
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 24, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Respondents appeal an administrative law judge’s opinion filed February 12, 1997. The administrative law judge directed respondents to furnish reasonable and necessary additional medical expenses to treat claimant’s compensable right foot injury. The administrative law judge found that the problems associated with claimant’s left foot injury are the natural and probable result of her right foot injury. The administrative law judge thus directed respondents to furnish reasonable and necessary medical treatment for claimant’s left foot injury, including diagnostic testing recommended by Dr. Dane Myers. The administrative law judge also found that claimant is not entitled to additional temporary disability benefits. After reviewing the entire record de novo, we affirm the administrative law judge’s opinion in part and reverse in part.
[5] The claimant eventually came under the treatment of Dr. Dane Myers, a podiatrist. In October, 1994, Dr. Myers opined that the claimant was not malingering and had real, under-treated problems. He stated that the claimant should not be working on her feet at all. [6] In April, 1995, Dr. Donald Bailey ordered a bone scan of both the claimant’s feet and ankles. The bone scan revealed the following impression:We bone scanned Joy and she is hot in both heels in the region of the plantar fascia and of course she only injured one at work and so this puts us in a bit of a quandary as what to do. Only one of them is that we can consider actually caused at work, but the other one is certainly related to the amount of time she spends on her feet. She has made good efforts at losing weight which is helpful and while she was working at a sit down job in the insurance office she had some discomfort, but otherwise managed pretty well.
I think it would be possible to get her back to work if she could have a job like that, but I don’t think there is going to be anything in the warehouse she is going to be able to do without having a lot of problems, missed work and continued complaints of pain. Even though we can only say with any conviction that only one these heels was a direct result of a work related injury, both give her trouble and both effect her ability to work. As far as the ability to tolerate work I don’t know how you separate the two heels from each other.
[7] On September 22, 1995, Dr. Myers performed a Minimal Incision Reduction of Heel spur Plantar Aspect, Right Foot and Release of the Plantar Fascia. The claimant testified that this surgery helped somewhat. [8] Dr. Earl Peeples performed an independent medical evaluation on January 30, 1996:Stable exam since 06-29-94. There are findings compatible with calcaneal spurs bilaterally with increased activity in the left foot as compared with the right, and a small focus of increased activity at the lateral aspect of the first metatarsal/phalangeal joint in the right foot is most likely on the basis of some arthritic change.
[9] The claimant was off work and respondents paid TTD benefits for 94 weeks for various periods until March 24, 1996. Respondents also paid medical benefits through June 27, 1996. The claimant returned to her previous job in March, 1996, and the respondents allowed her to sit according to her restrictions. The claimant testified that she still was required to stand approximately thirty percent of the time. Claimant contended that she “immediately” began having left foot problems prior to leaving on August 16, 1996. [10] In October, 1996, Dr. Myers opined that claimant’s left foot difficulties “tie in” to her right foot problems. Dr. Myers suggested nerve conduction studies, with a view to possible additional operative intervention. [11] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1996). 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). [12] We find that the claimant has failed to prove, by a preponderance of the evidence, that additional medical treatment for her right foot injury is reasonably necessary at this time. The claimant’s proposed right foot medical treatment is additional conservative care to remedy her complaints of pain. However, the claimant is 5’6″ tall and weighs approximately 235 pounds. The record indicates that the claimant has been significantly overweight since at least September of 1993. In February of 1996, Dr. Peeples opined that the claimant’s obesity aggravates her condition and places unnecessary stress on the injured plantar fascia. In January of 1996, Dr. Peeples recommended that the claimant work in seated employment and pursue weight reduction through following a diet and losing one pound per week for at least one year. Dr. Peeples has opined that no other treatment recommendations should be made until the claimant’s right foot abnormality is relieved of stress through weight reduction. Consequently, we find that the claimant has failed to show that additional medical treatment for her right foot injury is reasonably necessary until she complies with her doctors’ recommendations to lose weight. [13] In reaching our decision, we note that the respondent does not assert that the claimant’s current right foot symptoms are the result of an “independent intervening cause following” her admittedly compensable right injury. See. Ark. Code Ann. §11-9-102 (5)(F)(iii) (Repl. 1996). Instead, the evidence indicates that the claimant’s weight problem (which apparently pre-existedThis patient has been appropriately treated for plantar fascitis and has had a release performed, which was of some benefit. Her obesity adversely effects her abnormality. Seated employment has been correctly recommended and would be of benefit to her. The patient would also need to reduce her weight substantially over the next year or so. She does show some signs of possible tarsal tunnel syndrome, but I recommend surgery for this only if the symptoms are quite severe and progressive. I would recommend that the patient pursue weight reduction following a diet diligently in an attempt to lose one pound per week, at least for one year. The patient should be placed at seated employment and should not be standing or walking for long periods of time. The patient should use shoes which are supportive and soft and help reduce the impact on her feet.
The patient’s appropriate diagnosis is right plantar fascitis, partially resolved, possible early tarsal tunnel syndrome.
her admittedly compensable injury) simply hampers a determination of what additional treatment, if any, will be reasonably necessary for the claimant’s compensable injury once the additional weight related stress is relieved. Consequently, for the reasons discussed herein, we find that the claimant failed to establish that additional medical treatment for her right foot injury is reasonably necessary at this time. [14] Additionally, we find that the claimant failed to prove that her left foot difficulties are a compensable consequence of her right foot injury. Although the claimant testified that she never experienced problems with her left foot prior to her return to work in March of 1996, Dr. Rodgers noted left foot problems in May of 1994, as did Dr. Myers in October, 1994. Notably, the claimant’s left foot symptoms were first noted after the claimant was prescribed a pair of Nike Air shoes to relieve stress on her feet, and the October, 1994, symptoms appear to have occurred while the claimant was off work recuperating (supposedly off her feet). In reaching our decision, we note that the claimant’s left heel problem is apparently a bony abnormality, and that the claimant’s excessive weight appears to be a major factor in prolonging her right foot symptoms as well as in precipitating her left foot symptoms associated with the bony abnormality. With regard to the claimant’s assertion that her left foot symptoms are somehow related to her return to work in March of 1996, we note that, when the claimant returned to work, respondents informed her that she did not have to walk — they would bring her work to her. Of course, respondents allowed the claimant to walk if she chose. Although claimant testified that she occasionally had to stand, the record indicates that she never complained of having to do so. In addition, although the claimant testified that she walked “gingerly” to the breakroom for her two 15 minute breaks each shift, the claimant’s supervisor testified that the claimant often appeared to be in a hurry getting to the breakroom and spent the majority of her breaks standing to talk on the telephone during breaks. The claimant was also observed running on at least three occasions. On this evidence, we find that the claimant failed to prove by a preponderance of the credible evidence that her left foot problem are a natural and probable result of her admittedly compensable right foot injury, or that her left foot injury is causally related in any way to her work for the respondents. [15] Finally, the administrative law judge found that the claimant is not entitled to additional temporary total disability benefits. The Commission determines temporary disability 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). 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(13) (Repl. 1996). 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. Persistent pain does not suffice, in itself, to extend the healing period or to find total incapacity to earn wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [16] As mentioned supra, claimant was off work and respondents paid TTD benefits for a total of 94 weeks between September of 1993 and March 24, 1996. The claimant returned to her previous job in March, 1996, and the greater weight of the evidence in the record indicates that respondent-employer accommodated her medical restrictions until the claimant worked until August 16, 1996. At the December, 1996 hearing, the respondents indicated that work would again be available to the claimant, if she presented a medical release detailing her restrictions. The claimant’s area coach testified that claimant’s productivity record was “120 percent” from March 24 through August 16, 1996. We find that the respondent did provide modified work for the claimant and that the claimant voluntarily left her employment in August, 1996. We therefore find that the claimant failed to prove by a preponderance of the evidence that she is currently incapacitated to earn wages, and we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability benefits at this time. [17] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we affirm the administrative law judge’s finding that the claimant is not entitled to additional temporary disability benefits. We further find that the claimant failed to prove that her left foot problems are a compensable consequence of her right foot injury. At this time, we deny additional medical treatment until the claimant reduces her weight pursuant to the medical recommendations in the record, specifically Dr. Peeples’ January, 1996 recommendations. Therefore, we find that the administrative law judge’s decision in these regards must be reversed. [18] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[19] Commissioner Humphrey dissents.