CLAIM NO. E609024
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 18, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by JAMES M. LLEWELLYN, JR., Attorney at Law, Fort Smith, Arkansas.
[1] SUPPLEMENTAL OPINION AND ORDER[2] This case comes on for review before the Commission on claimant’s motion to amend the Commission’s opinion filed on June 30, 1998. [3] After our consideration of claimant’s motion, respondent’s objection thereto and all other matters properly before the Commission, we find that a supplemental opinion is necessary in this case. [4] The opinion filed June 30, 1998, reversed the opinion of the Administrative Law Judge finding that claimant was entitled to additional temporary total disability benefits from May 7, 1997 to a date yet to be determined. The Commission did not address claimant’s entitlement to additional medical treatment or whether respondent owed an attorney’s fee to claimant’s attorney for controversion. Claimant’s motion requests that the Commission render a finding on the issues concerning additional medical treatment and controversion. [5] Respondent initially accepted the compensability of the injury sustained by claimant on July 1, 1996. In fact, respondent apparently paid for the surgery performed in September 1996. In February 1997, claimant was assigned a permanent anatomical impairment rating of 10% to the body as a whole and returned to work. At this point, respondent decided to controvert the claim in its entirety. [6] Claimant continued to work for the employer until May 7, 1997, when he presented to Dr. Richard A. Dotson and was taken off work due to progressively worsening back and lower extremity pain. Claimant testified that he had not sustained any nonwork-related injury to his back which would explain his symptomatology. Dr. Dotson documented tenderness in the lumbar paraspinals, as well as muscle spasms. Medication and caudal injections were prescribed in an effort to treat claimant’s condition. Claimant testified that this treatment appeared to provide some relief. [7] Respondent argues that since claimant was not in his healing period in May 1997, additional medical treatment cannot be reasonably necessary. However, treatment intended to reduce or enable a claimant to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment within the meaning of Ark. Code Ann. § 11-9-508 (Repl. 1996). Billy Cronister v. Lavaca Vault, Full Commission Opinion filed June 20, 1991 (D704562); Artex Hydrophonics, Inc. v.Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1993). [8] In the present case, claimant continued to have problems with his back, even after surgery was performed. Claimant returned to work but developed progressively worsening back and lower extremity pain. There is insufficient evidence of a nonwork-related explanation for claimant’s back problems. The prescription medication and caudal injections prescribed by Drs. Dotson and Westermann were appropriate and offered a reasonable expectation of easing claimant’s symptoms. In fact, claimant presented credible testimony that this treatment helped his condition. Based on this evidence, we find that claimant has proven by a preponderance of the evidence that additional medical treatment is reasonably necessary for the treatment of his compensable injury. Accordingly, the opinion of the Administrative Law Judge in this regard is affirmed. [9] Concerning controversion, after initially accepting this claim as compensable and paying significant benefits, respondent decided in February 1997 to controvert the claim in its entirety. Respondent did not offer to stipulate to the compensability of the claim and to claimant’s entitlement to benefits for permanent anatomical impairment until the hearing. Respondent insisted that it controverted only claimant’s entitlement to additional temporary total disability benefits. The Administrative Law Judge found that respondent had controverted claimant’s entitlement to additional benefits for temporary total disability, permanent anatomical impairment and medical treatment. [10] The reason the Commission did not discuss controversion in the June 30, 1998 opinion is that respondent did not appeal this finding of the Administrative Law Judge. Respondent did not mention or argue controversion as an issue in its notice of appeal or briefs filed with the Commission. Thus, there was no need to discuss this issue and the Administrative Law Judge’s decision in this regard became final. [11] We would point out, however, that respondent obviously does not owe a controverted attorney’s fee on temporary total disability because claimant was not awarded such benefits. However, a controverted attorney’s fee is appropriate on the 10% permanent anatomical impairment and the additional medical treatment. [12] For the foregoing reasons, we find that claimant has proven by a preponderance of the evidence that additional medical treatment is reasonable and necessary. [13] Additionally, we find that respondent failed to appeal the Administrative Law Judge’s opinion concerning controversion and thus, abandoned that issue. However, even if the issue had been properly appealed, we would have affirmed the finding of controversion. [14] 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 opinion of the Administrative Law Judge. For prevailing on the appeal concerning claimant’s entitlement to additional medical treatment, we hereby award claimant’s attorney an additional attorney’s fee in the amount of $250.00. [15] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[16] Commissioner Wilson concurs. [17] CONCURRING OPINION[18] I concur with the ultimate outcome of this opinion, however, I write separately to express my opinion that claimant’s motion should be denied. In our opinion filed June 30, 1998, the Full Commission reversed the opinion of the Administrative Law Judge finding that claimant was entitled to additional temporary total disability benefits. Our June 30, 1998, opinion did not address the Administrative Law Judge’s award of reasonable and necessary medical treatment or attorney’s fees. It is my opinion that since we did not address these findings and since they are separate and independent issues from the issue of temporary total disability benefits which we did address and reverse that the Administrative Law Judge’s findings with regard to these issues became final. In my opinion a supplemental opinion is redundant. [19] MIKE WILSON, Commissioner