CLAIM NO. F104990
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 3, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE LAURA ANDRESS, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals an opinion and order filed by the Administrative Law Judge on September 17, 2002. In that opinion and order, the Administrative Law Judge found that the claimant has proven by a preponderance of the evidence that she is entitled to additional medical treatment after August 31, 2001 for her admittedly compensable neck injury sustained on April 30, 2001. The Administrative Law Judge indicated that Dr. Vincent Runnels should be the claimant’s authorized treating physician. In addition, the Administrative Law Judge found that the claimant has proven by a preponderance of the evidence that she is entitled to additional temporary total disability benefits from August 31, 2001 through a date yet to be determined (i.e., at least through the date of the hearing held on September 4, 2002). After conducting a de novo review of the entire record, we find that the claimant has failed to establish by a preponderance of the evidence that any additional medical treatment would be reasonably necessary for treatment of her compensable injury. In addition, we find that the claimant has failed to establish by a preponderance of the credible evidence that she has experienced additional temporary disability after her compensation ceased on August 31, 2001. Therefore, we find that the Administrative Law Judge’s decision must be reversed.
On April 30, 2001, the claimant was employed by the respondent as a manager in training. While sitting in an office, the claimant sustained an admittedly compensable neck injury when a piece of the ceiling under repair broke loose and fell on her head. The claimant was apparently taken to the emergency room (the emergency room report is not in the record) and later followed up with her family physician, Dr. Simpson. The medical record indicates that the claimant was under Dr. Simpson’s treatment from approximately May 2, 2001 until approximately May 22, 2001. The claimant was evaluated by Dr. Vincent Runnels, a neurosurgeon, for the first time on May 24, 2001. In his clinical reports and letters describing treatment provided between May 24, 2001 and August 30, 2001, Dr. Runnels noted on various occasions that the claimant appeared depressed, and on August 20, 2001 indicated that a psychiatrist consultation might be helpful. In his August 20, 2001 report related to an August 9, 2001 follow-up visit, Dr. Runnels indicated that a cervical myelogram showed cervical spondylosis at C3-4 with a significant anterior osteophyte, with no nerve root cutoff. Dr. Runnels indicated that the claimant may have temporarily aggravated preexisting bone spurs through a hyperextension mechanism, but that he also believed the claimant had a significant depressive illness. Dr. Runnels opined that he did not believe the claimant was a good surgical candidate, but that a second opinion regarding surgery would be appropriate. Dr. Runnels indicated that if the claimant were not to have surgery, he thought the claimant should go back to work at a trial of four hours per day with no overhead work, and then gradually get back to regular work.
The claimant’s past history and records were provided to Dr. David Davis, apparently a neurology specialist, for a second opinion. In a report dated August 21, 2001, Dr. Davis opined that the claimant was not a surgical candidate for spinal pain, since the source of her pain remained undetermined. Dr. Davis noted that the claimant had received appropriate medications, including muscle relaxants and anti-inflammatory medications, and that she had also undergone physical therapy. Dr. Davis indicated that referral to a pain clinic could be considered, but that otherwise the claimant appeared to have reached maximum medical improvement, and that there would be little else to offer her in the way of further evaluation for treatment for her problems. In the absence of any objective abnormality, Dr. Davis indicated that he could not identify a permanent impairment.
Dr. Runnels saw the claimant in follow-up, apparently for the last time, on August 30, 2001. In a September 13, 2001 letter discussing that follow-up on August 30, Dr. Runnels indicated that he agreed with Dr. Davis that there was no need for surgery and that the source of the claimant’s pain was undetermined. Dr. Runnels indicated that the claimant has some hysterical overlay with give-away weakness, as indicated from Dr. Davis’ examination. Dr. Runnels opined that the claimant may have sustained a temporary aggravation of preexisting cervical spondylosis at C3-4, but that due to her depression and underlying psyche, she has a very low pain threshold. Dr. Runnels indicated that he agreed with the recommendation of Dr. Davis that the claimant undergo one month of pain management with Dr. Money.
After the respondents terminated the claimant’s access to medical treatment and her disability payments on or about August 30, 2001, the claimant used group health insurance available to her through December 2001 in order to see Dr. Cyril Raben, an orthopedic specialist, on October 8, 2001. Dr. Raben diagnosed a possible rotator cuff injury on the left, questionable carpal tunnel syndrome, cervical spondylosis, and a possible radiculopathy at C3-4 and possibly at C5-6 and C6-7. Dr. Raben proposed a CT-myelogram (apparently he was not at that time aware of the prior CT-Myelogram performed several months earlier) and EMG nerve conduction studies. In an October 16, 2001 report, Dr. Raben appears to conclude after reviewing a CT-myelogram of the claimant’s cervical spine that the claimant had only minimal osteophytes and bone spurring and otherwise had an essentially normal study. In that October 16, 2001 follow-up report, Dr. Raben indicated his concern about the possibility of a fibrositis/fibromyalgia complex associated with the claimant’s injury. Dr. Raben proposed a referral to address possible post-traumatic stress disorder, another referral to address possible fibrositis/fibromyalgia, and then massage therapy. The claimant apparently did not proceed with any of the referrals suggested by Dr. Raben, except for an evaluation by Dr. Thomas Dykman.
The claimant was next evaluated by, Dr. Dykman, a rheumatologist. In a report dated December 3, 2001, Dr. Dykman indicated an impression of “Myalgias likely due to fibromyalgia” and “Low back pain rule out spondyloarthropathy.” Dr. Dykman proposed a change in medication and indicated that he would re-assess the claimant in six weeks.
The final medical reports in the record involve a consultation with Dr. Pang, a psychiatrist and a neurologist, beginning on June 27, 2002. The claimant testified at the hearing that she presented to Dr. Pang for pain management, and that she did so on the advice of Dr. Runnels.[1]
Dr. Pang’s reports on June 27, July 30, and August 7, 2002 indicated that Dr. Pang was treating the claimant with medication, specifically the drug Neurontin.
When asked at the hearing whether her pain ever improved with the treatment she has received, the claimant first testified on page 28:
Q. My question to you is, from then on May 24, ’01 until you saw him in June of ’02, was it more significant did you get better, or did you just stay the same?
A. Stayed the same.
Q. Has there been any improvement in the last few months since you’ve been seeing Russell Pang — or Robert Pang?
A. Not much.
In her testimony on page 33, however, the claimant indicates that she never got better at all through any of her course of treatment. In this regard, the claimant testified:
Q. If I’m understanding you correctly, Ms. Tiner, you’re telling this Judge that your circumstances have really not changed from April of last year until today?
A. No.
Q. That no treatment given to you by Dr. Simpson, Dr. Runnels, Dr. Davis, the physical therapist, Dr. Raben, Dr. Dykman, Dr. Pang, none of that has really helped you at all?
A. No.
ISSUE 1: Has the claimant established that any additional treatment fromDr. Runnels, including the referral for pain management treatment to Dr.Money made in August of 2001, or any of the treatment that she hasreceived to date is reasonably necessary for treatment of the claimant’swork-related injury?
The Commission has long interpreted 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. See generally Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997) and Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
In the present case, we reverse the Administrative Law Judge’s finding that a preponderance of the evidence establishes that Dr. Runnels’ September 2001 proposal for a course of pain management treatment with Dr. Money, which the respondents have refused to pay for, would be reasonably necessary for treatment of the claimant’s work-related neck injury.
In concluding that pain management proposed by Dr. Runnels in 2001 is not reasonably necessary for the claimant’s work-related neck injury, we point out that, after the respondents terminated the claimant’s access to medical treatment after August 30, 2001, and when the claimant did seek additional medical treatment using her group insurance, the claimant di not seek any pain management treatment as previously proposed by Dr. Runnels to be performed by Dr. Money. Instead, the claimant sought out and obtained yet more specialist evaluations, from Dr. Raben, an orthopedic specialist, and from Dr. Dykman, a rheumatologist. When the claimant again sought treatment beginning in June of 2002, she once again did not seek the pain management type treatment suggested by Dr. Runnels in 2001, her relevant testimony notwithstanding, but instead sought treatment from a psychiatrist for her mental state. In addition, we note with interest that, at the hearing held in this case, the claimant di not request that the respondents be liable for and provide her pain management treatment as proposed by Dr. Runnels. Instead, the claimant requested further treatment from Dr. Raben, which the Administrative Law Judge declined to authorize, and which the claimant has apparently not appealed.
We also note that the claimant has undergone numerous diagnostic tests. No physician and no diagnostic test has ever been able to provide any objective verification of the claimant’s purportedly persistent injury or her pain complaints for the period between the April of 2001 incident and the date of the hearing held on September 4, 2002. We also note what appear to be at best significant inconsistencies, or at worst outright lies, with regard to the claimant’s hearing testimony between what she said on direct examination and what she said on cross-examination regarding the nature and extent of her prior 1991 neck injury, the degree of treatment and time off of work she had following that injury, and whether or not she had any litigation for her 1991 injury. We further note that by the time the claimant saw Dr. Dykman in December of 2001, his diagnoses appear to have related to some type o low back complaints and a “fibromyalgia” diagnosis. We note that there seems to be no doubt that the source of the claimant’s neck complaints are “undetermined,” and Dr. Runnels conceded that he did not know what part motivation may or may not play in this case. Finally, in light of the inconsistencies in the claimant’s testimony regarding the 1991 injury, the clinical notations bearing on the questionable legitimacy of the claimant’s continuing complaints, and the lack of any objective medical findings to verify these complaints, we do not find credible the claimant’s testimony that she has experienced a persistent neck injury so severe that she has experienced no benefit whatsoever, as she asserts, from her 1 1/2 year period of rest, her medication, or the physical therapy she has undergone. We also do not find credible the claimant’s testimony she has sustained an injury so severe that she could not lift her arms over her head to work some 1 1/2 years after the incident.
Accordingly, we find that the claimant has failed to establish that any additional treatment that she received after August 30, 2001, or that any additional treatment she sought at the September 4, 2002 hearing would be reasonably necessary for treatment of her April 30, 2001 neck injury.
Issue 2: Is the claimant entitled to additional temporary totaldisability benefits after August 30, 2002?
A claimant with an unscheduled injury is entitled to receive temporary total disability benefits during the time within her healing period that the claimant experiences a total incapacity to earn wages. Arkansas State Highway Transportation Dep’t v. Beshears, 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(12) (Repl. 2002). The healing period continues until the injured employee is as far restored as the permanent character of the injury will permit. The healing period ends once the underlying condition has become stable, and when nothing further in the way of medical treatment will improve the permanent character of the injury Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain is not sufficient, by itself, to extend the healing period provided that the underlying condition has stabilized. Id.
In the present case, as discussed above, we find that the claimant has failed to establish by a preponderance of the credible evidence that any additional treatment after August 30, 2001 would be reasonably necessary for treatment of her work-related neck injury. Consequently, the claimant has failed to establish that any additional medical treatment after that date would improve the work-related neck injury that she sustained. Therefore, the claimant has failed to establish that she remained in her healing period after August 30, 2001.
In addition, we note that no physician specifically placed the claimant in off-work status for any period after August 30, 2001, and for reasons discussed above, we do not find credible the claimant’s testimony regarding her allegedly disabling symptoms and her purported lack of improvement after the April 2001 incident. Consequently, because we do not find the claimant’s testimony credible, we find that the claimant has failed to establish by a preponderance of the credible evidence that she experienced any incapacity to work for any period after August 30, 2001.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the Administrative Law Judge’s award of additional medical treatment and additional temporary disability compensation must be, and hereby is, reversed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION SHELBY W. TURNER, Commissioner.
I must respectfully dissent from the majority opinion reversing the Administrative Law Judge’s September 17, 2002 award of benefits. Upon m de novo review of the record, I find that claimant proved additional medical treatment to be reasonable and necessary in relation to her admittedly compensable injury. Additionally, I find that claimant is entitled to temporary total disability benefits for the periods in question.
Characterizing claimant’s testimony as potentially “outright lies,” the majority opinion dismisses the Administrative Law Judge’s assessment of claimant’s character and the credibility of her testimony.
Furthermore, the majority opinion finds pain complaints to be unwarranted partially because claimant used private health insurance to obtain specific medical when respondents severed her access to medical services and monetary benefits. The majority opinion reasons that when claimant had the chance she treated with an orthopedic physician and a rheumotologist instead of a pain management specialist, “claimant’s testimony notwithstanding.”
Because I do not find this reasoning compelling nor the reversal of benefits well-grounded, I respectfully dissent from the majority opinion.
_______________________________ SHELBY W. TURNER, Commissioner