TODD v. AMFUEL, 2002 AWCC 85

CLAIM NO. F006525

CARL TODD, EMPLOYEE, CLAIMANT v. AMFUEL, EMPLOYER, RESPONDENT, WAUSAU BUSINESS INSURANCE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 17, 2002

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

Claimant represented by the HONORABLE GREGORY GILES, Attorney at Law, Texarkana, Arkansas.

Respondents represented by the HONORABLE BRIAN RATCLIFF, Attorney at Law, El Dorado, Arkansas.

Decision of the Administrative Law Judge: Affirmed in part and vacated in part.

OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an Administrative Law Judge’s opinion filed September 18, 2001. The Administrative Law Judge found that the claimant was temporarily totally disabled from April 10, 2000 until a date to be determined, and that a work-hardening program recommended by Dr. Antoon was reasonable, necessary, and related to the claimant’s compensable injury. The Administrative Law Judge also found that the claimant proved “that an additional evaluation or diagnostic test, as recommended by Dr. Wilbur M. Giles to be performed by Dr. Gordon Gibson, is reasonable, necessary, and related to claimant’s compensable injury.” The Administrative Law Judge further found, “Respondents’ failure to pay submitted documented reimbursement to the claimant for medical mileage totaling $757.96, is willful and intentional, and for which a thirty-six percent (36%) penalty would be in order payable to the claimant.”

After reviewing the entire record de novo, the Full Commission affirms the Administrative Law Judge’s award of temporary total disability and work hardening. We vacate the Administrative Law Judge’s finding that the claimant proved that he was entitled to an additional diagnostic evaluation by Dr. Gibson. The Full Commission affirms the Administrative Law Judge’s finding that the respondents are liable for a 36% penalty for the claimant’s medical mileage. I. HISTORY

The parties stipulated that Carl Edward Todd, age 46, sustained a compensable injury on March 21, 2000. Mr. Todd testified that a specific incident occurred while he was driving a forklift down a ramp:

A. . . . When we started down, I hit my brakes and the brake pedal went to the floor. I pumped them and they went to the floor again. By that time I am going down the ramp, wide open then, and so I’m trying to shift it back up in forward gear to try to stop it. I remember hitting the rail going down the ramp and from then on it was just bouncing and throwing me all around, down the driveway. . . .

Q. Did it ultimately just come to a stop on its own?

A. It came to a stop on its own. I couldn’t stop it. It didn’t have any brakes on it.
Q. And after you got it stopped and got out, were you having any immediate problems at that time that needed medical attention?
A. No immediate problems at that particular time. I went on and told the lead person what had happened. . . . And we went back to work. So I guess an hour or so later my neck started hurting. At that particular time, I filled out an accident — had him to fill out an accident report.

The claimant signed a WCC Form N on March 21, 2000, indicating that he had hurt his neck in the forklift accident. An x-ray report on Dr. Patrick D. Antoon’s letterhead dated March 21, 2000 indicated “mild degenerative changes,” “normal alignment” of the claimant’s cervical spine. The claimant was treated conservatively, and Dr. Antoon returned the claimant to full work duty on March 21, 2000. The claimant began regular treatment with Dr. J. Rob Butler, a chiropractor, on April 7, 2000.

The claimant testified that he did not work after April 9, 2000. The record indicates that Dr. Antoon took the claimant off work on April 10, 2000. The following impression resulted from an MRI of the cervical spine taken May 5, 2000:

Mild generalized degenerative changes of the middle and lower part of the cervical spine.
Very small posterior herniations of the intervertebral discs between C4 and C7 with only minimal extrinsic pressure on the thecal sac as described in the body of the report.

Dr. Antoon referred the claimant to a neurological surgeon, Dr. Wilbur M. Giles, who examined the claimant on May 10, 2000 and diagnosed “Cervical radicular syndrome, multi-level.” The impression from a cervical spine myelogram taken May 22, 2000 was “Negative Cervical Myelogram.” Dr. Giles reported on May 24, 2000:

CURRENT DIAGNOSIS: Cervicalgia, etiology unknown, probable ligamentous in origin.
MDM/RECOMMENDATIONS: We have contacted him by phone and informed him today that he does not have any disc problem, nor does he show any evidence of nerve compression of any type, and that I do not feel that he has a significant neurosurgical problem that will require any type of further treatment from my standpoint, and that we have returned him to the care of his family physician. Based on his myelographic studies that were obtained today, I do not see that there is any reason that he could not return to a full working capacity. Unless he had some problems from the shoulder girdle itself, it would seem based on his diagnostic tests that we obtained today that he should be employable.

It appears that the respondents controverted additional temporary total disability, based on Dr. Giles’ report, after May 24, 2000.

However, the claimant returned to Dr. Antoon on June 1, 2000 and Dr. Antoon kept the claimant off work. Dr. Giles wrote to the claimant’s attorney on September 11, 2000:

I think it would be appropriate that Mr. Todd had another EMG and nerve conduction study performed by Dr. Gordon Gibson of Neurology Associates at the Medical Towers Building in Little Rock, Arkansas, to see if in fact this man has any evidence of nerve compression. If indeed the EMG and nerve conduction study by Dr. Gibson were normal, I think it would more than likely suggest that the majority of his complaints are inflammatory in nature and not evidence of true nerve compression of any type. I think Dr. Antoon, who sees the patient on a regular basis, would be more appropriate to decide if Mr. Todd should remain off work during this period of time.

Dr. Antoon continued to keep the claimant off work.

The claimant’s attorney wrote to the respondent carrier on October 19, 2000:

Please find enclosed mileage reimbursement request for Mr. Carl Todd totaling $757.96 from March 21st through July 11, 2000. I would appreciate you reimbursing him for these expenses as soon as possible.

Dr. Antoon referred the claimant to a pain clinician, Dr. David R. Weber. Dr. Weber began treating the claimant on November 7, 2000, administering a series of cervical epidural steroid injections. The claimant underwent a functional capacity evaluation on December 19, 2000:

The results of this evaluation indicate that Carl Todd is currently functioning in the heavy category of work, however this does not meet his current job requirements. He was deficient in some aspects of positional tolerances especially tasks with sustained cervical flexion. I feel that he should be able to return to some duties, even if on a modified basis (please refer to page 5 for limitations). He would probably benefit from a work conditioning approach which could address work deficits and musculoskeletal anomalies.

On January 25, 2001, the claimant’s attorney provided the respondents a copy of the functional capacity evaluation and wrote, “Please let me know if AmFuel is prepared to return Mr. Todd to work with modified work restrictions. Although the report is unclear, it looks like to me that his primary limitation would be with regard to overhead lifting and carrying more than 50 pounds.” The respondents’ attorney responded on January 25, 2001, stating, “It remains the position of respondents that Mr. Todd was released to full duties by Dr. Wilbur Giles as evidenced by his report dated May 24, 2000.”

Mr. Todd claimed entitlement to additional workers’ compensation. The claimant contended that he was entitled to temporary total disability compensation from April 10, 2000 “until he is released from doctor’s care or until he has reached maximum medical improvement.” The claimant contended that he was entitled to a work-hardening program as recommended by Dr. Antoon. The claimant contended that he had submitted and requested reimbursement for some mileage expense since October 19, 2000, which had not been paid.

The respondents contended that the claimant’s healing period ended on May 24, 2000, “when he was released to full duty work by Dr. Wilbur M. Giles.” The respondents contended that the work-hardening program was not reasonable or necessary. The respondents agreed that they had not paid mileage; the respondents asserted, “It is our position that it was for a treating physician.”

After a hearing before the Commission, the Administrative Law Judge found that the claimant proved that he was entitled to temporary total disability compensation from April 10, 2000 until a date to be determined. The Administrative Law Judge awarded a work-hardening program and additional diagnostic testing from Dr. Gibson. The Administrative Law Judge assessed the statutory 36% penalty on the unpaid mileage submitted by the claimant to the respondents. The respondents appeal to the Full Commission. II. ADJUDICATION

A. Temporary disability
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 he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). Ark. Code Ann. § 11-9-102(12) defines “healing period” as “that period for healing of an injury resulting from an accident.” 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. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities.

In the present matter, we affirm the Administrative Law Judge’s finding that the claimant “was temporarily totally disabled for the period beginning April 10, 2000 and continuing through the end of his healing period, a date to be determined.” The claimant, with no prior history of neck problems, credibly testified that his neck began hurting after the forklift incident occurring March 21, 2000. The claimant was treated conservatively for his compensable injury, and Dr. Antoon took the claimant off work on April 10, 2000. The claimant credibly testified that following his compensable injury, “my neck locks up and my right arm.” Commissioner Yates’ Concurring And Dissenting Opinion would find that the claimant failed to prove that he was entitled to temporary total disability compensation. The Concurring And Dissenting Opinion cites Dr. Giles’ May 24, 2000 opinion, based on a “negative cervical myelogram,” that the claimant “should be employable.” However, we note that an earlier MRI of the cervical spine was not negative, but showed herniations between C4 and C7. Dr. Giles did not state that the claimant had reached the end of his healing period; rather, Dr. Giles simply opined that the claimant was not a surgical candidate. In addition, Dr. Giles wrote in September 2000, “I think Dr. Antoon, who sees the patient on a regular basis, would be more appropriate to decide if Mr. Todd should remain off work during this period of time.” Dr. Antoon subsequently referred the claimant to a pain clinician for additional medical treatment for his compensable injury, and the record shows that Dr. Antoon has not released the claimant to return to work.

Commissioner Yates’ Concurring And Dissenting Opinion also asserts that the claimant is able to perform heavy manual labor based on the results of a functional capacity evaluation. According to the December 2000 functional capacity evaluation, however, the claimant was not able to perform his work for the respondent employer. The examiner specifically found that the claimant “was deficient in some aspects of positional tolerances especially tasks with sustained cervical flexion. I feel that he should be able to return to some duties, even if on a modified basis. . . .” In January 2001, the claimant attempted to return to modified work for the respondents in accordance with the restrictions delineated in the functional capacity evaluation. However, the record shows that the respondents refused to provide restricted work for the claimant.

Finally, with regard to whether the claimant remained within his healing period and totally incapacitated to earn wages as a result of his compensable injury, we are unable to assign any relevance to theConcurring And Dissenting Opinion’s discussion of whether or not the claimant was physically able to greet customers at Wal-Mart. The preponderance of evidence supports the Administrative Law Judge’s decision that the claimant proved entitlement to temporary total disability compensation from April 10, 2000 until a date to be determined.

B. Work hardening
The Administrative Law Judge found that the claimant proved that the work-hardening program recommended by Dr. Antoon was reasonable, necessary, and related to the claimant’s compensable injury. The Full Commission affirms the Administrative Law Judge’s finding. In denying that the claimant proved that he was entitled to a work-hardening program, Commissioner Yates’ Concurring And Dissenting Opinion returns to its discussion regarding whether the claimant was employable at Wal-Mart. The functional capacity evaluation done in December 2000, however, indicated that the claimant “would probably benefit from a work conditioning approach which could address work deficits and musculoskeletal anomalies.” The preponderance of evidence indicates that the claimant would benefit from work hardening in order to facilitate his re-entry into the work place. We note that the claimant occasionally performed heavy manual labor for the respondent employer, and that the respondents would not allow the claimant to return to work with a 50-pound lifting restriction. The Administrative Law Judge’s decision is affirmed.

C. Additional medical treatment
The Administrative Law Judge found, “The claimant has proven by a preponderance of the evidence that an additional evaluation or diagnostic test, as recommended by Dr. Wilbur M. Giles to be performed by Dr. Gordon Gibson, is reasonable, necessary, and related to claimant’s compensable injury.”

On appeal, the respondents correctly state that the claimant did not contend that he was entitled to testing from Dr. Gibson, and that the claimant’s entitlement to this testing was never included as an issue for adjudication. The record shows that the claimant did not contend that he was entitled to additional diagnostic testing or treatment from Dr. Gibson. Arkansas Workers’ Compensation Commission Rule 25(b) provides that all legal and factual issues should be developed at the hearing before the Administrative Law Judge. The claimant’s entitlement to electrodiagnostic testing by Dr. Gibson was not presented or developed at the hearing. Commissioner Turner’s Concurring And Dissenting Opinion
contends that AWCC Rule 25 is not “hard and fast,” and essentially argues that the respondents can cure the Administrative Law Judge’s unilateral inclusion of an un-litigated issue by simply briefing the Full Commission.

Nevertheless, since the claimant did not contend that he was entitled to diagnostic testing from Dr. Gibson, the respondents were not afforded an opportunity to prepare for that issue. The Administrative Law Judge erred in entering a finding of fact on a matter that was neither submitted as an issue before the Commission nor developed by the evidence. The Full Commission therefore vacates the Administrative Law Judge’s finding that the claimant proved that he was entitled to an additional diagnostic test from Dr. Gibson. See, Ester v. National HomeCenters, Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998); Lawrence v.Sunbeam Outdoor Products, Workers’ Compensation Commission, Opinion filed June 3, 1989 (W.C.C. No. E704127); Ponder v. Patterson Cleaners, Inc., Workers’ Compensation Commission, Opinion filed March 10, 1997 (W.C.C. No. E514528); Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983).

D. Mileage
Ark. Code Ann. § 11-9-802 provides:

(d) Medical bills are payable within thirty (30) days after receipt by the respondent unless disputed as to compensability or amount.
(e) In the event the commission finds the failure to pay any benefit is willful and intentional, the penalty shall be up to thirty-six percent (36%) payable to the claimant.

The Administrative Law Judge found in the present matter, “Respondents’ failure to pay submitted documented reimbursement to the claimant for medical mileage totaling $757.96, is willful and intentional, and for which a thirty-six percent (36%) penalty would be in order payable to the claimant.” The Full Commission affirms this finding. The respondents contend that there is not proof that their admitted failure to pay this benefit was willful, because, “There is no evidence that respondent knew of claimant’s request for payment of medical mileage.” Yet, Joint Exhibit One, p. 80, contains the October 19, 2000 letter from the claimant’s attorney to the respondent carrier, requesting mileage reimbursement totaling $757.96. There is no credible evidence before the Commission that the claimant’s request for medical mileage reimbursement, introduced as a joint exhibit, was not received by the respondent carrier. Hearing before the Commission was held on June 21, 2001. At that time, the claimant contended that he had submitted and requested reimbursement for mileage expenses as reflected in the October 19, 2000 correspondence, but that the respondents had not paid this benefit. The respondents did not assert that they had not received the October 2000 request for mileage reimbursement. Rather, the respondents stated on the record, “The mileage? We have not paid it, your Honor. It is our position that it was for a treating physician.”

The claimant testified at hearing:

Q. In October of this past year you presented to me some mileage that you wanted to be reimbursed for, is that right?

A. Yes.

Q. Page 80 of the Joint Exhibit documents. We submitted those to Wausau Insurance for your reimbursement. Have you been reimbursed for those expenses since that time?

A. No. . . .

Q. Have you received any written correspondence from Wausau indicating why they have not reimbursed you? Any correspondence of any kind concerning the mileage reimbursement request?

A. No.

The respondents did not cross-examine the claimant regarding his testimony that he submitted a request for mileage reimbursement in October 2000, which the respondents admitted on the record they had not paid as of June 2001. The preponderance of evidence before the Commission indicates that the claimant in fact submitted a medical mileage reimbursement request, which was received by the respondents, but that the respondents simply did not pay. The Full Commission therefore affirms the Administrative Law Judge finding that the respondents’ failure to pay the claimant’s submitted mileage was willful and intentional, so that the respondents owe a 36% penalty pursuant to Ark. Code Ann. § 11-9-802(e).

Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant proved entitlement to temporary total disability compensation from April 10, 2000 until a date to be determined. We also affirm the Administrative Law Judge’s finding that the claimant was entitled to the work-hardening program recommended by Dr. Antoon. The Full Commission vacates the Administrative Law Judge’s finding that the claimant was entitled to diagnostic testing from Dr. Gibson. Finally, the Full Commission affirms the Administrative Law Judge’s award of a 36% penalty for non-payment of the claimant’s mileage request.

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).

For prevailing in part on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman

Commissioner Turner concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION

W. TURNER, Commissioner

I respectfully concur in part and dissent in part from the majority opinion. I concur with the findings that claimant is entitled to temporary total disability benefits from April 10, 2000 to a date to be determined; that claimant is entitled to benefits for a work hardening program; and that respondents are liable for a 36% penalty for claimant’s medical mileage. However, I respectfully dissent from the finding that the issue of additional medical testing is moot since it was not properly raised on appeal.

Arkansas Workers’ Compensation Commission Rule 25 (b) states, “all legal and factual issues should be developed at the hearing before the Administrative Law Judge. The Commission may refuse to consider issues not raised below.” (Emphasis added).

However, this is not a hard and fast rule. Here, the Administrative Law Judge noted a physician’s recommendation for medical testing that was contained within the record and acted upon that. Respondents appealed this decision and had opportunity to be heard by way of a brief and a reply brief. Accordingly, I would affirm the Administrative Law Judge’s decision to award claimant benefits for additional medical testing.

Based on the foregoing, I must respectfully concur in part and dissent in part from the majority opinion.

______________________________ SHELBY W. TURNER, Commissioner

Commissioner Yates concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION

JOE E. YATES, Commissioner

I respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I concur in the majority’s finding vacating the Administrative Law Judge’s finding that the claimant was entitled to diagnostic testing from Dr. Gibson. However, I must respectfully dissent from the majority’s opinion finding that the claimant proved by a preponderance of the evidence that he was entitled to temporary total disability benefits from April 10, 2000, until a date yet to be determined, the finding that the claimant was entitled to a work-hardening program recommended by Dr. Antoon, and a finding affirming the award of a 36% penalty for non-payment of the claimant’s mileage request. In my opinion, the claimant has failed to meet his burden of proof.

My review of the medical evidence indicates that the claimant was released to return to work by Dr. Giles on May 24, 2000. In his May 24, 2000, report, Dr. Giles noted that the claimant’s myelogram CT was entirely normal. Dr. Giles also stated that he did “not see that there is any reason that he could not return to a full working capacity.” A functional capacity evaluation was performed almost seven months later and indicates that the claimant could return to heavy work. The only work which the claimant could not perform pursuant to the functional capacity evaluation was floor knuckle lifting, occasional 100 pounds.

The evidence also reflects that the claimant was not totally incapacitated from earning wages. The claimant admitted that he had not looked for work within the limits of the functional capacity evaluation. According to the claimant, his subjective complaints were so great that he could not even perform the job as a greeter at Wal-Mart. In my opinion, it appears that the claimant is not motivated to find another job. When the claimant was asked about his job at the respondent-employer being too heavy, he testified that the job was not too heavy for his physical limitations. Therefore, in my opinion, the claimant failed to prove by a preponderance of the evidence that he was incapacitated from earning wages after being released by Dr. Giles on May 24, 2000. Accordingly, I would reverse the decision of the Administrative Law Judge awarding temporary total disability benefits from April 10, 2000, to a date yet to be determined.

I also dissent from the majority’s finding that the claimant was entitled to work-hardening. The respondents also should not be held liable for the payment of expenses for a work-hardening program for the claimant. The claimant testified that he could not even perform the job as a greeter at Wal-Mart. The respondents should not be responsible to pay for a program to re-condition the claimant to do very heavy manual labor work when he testified under oath that he cannot even perform a light-duty job.

Therefore, for all the reasons set forth herein, I must respectfully concur in part and dissent in part from the majority’s opinion.

_______________________________ JOE E. YATES, Commissioner