WILSON v. AMFUEL, 1998 AWCC 50

CLAIM NO. E216994

DEBRA WILSON, EMPLOYEE, CLAIMANT v. AMFUEL, EMPLOYER, RESPONDENT and LIBERTY MUTUAL INS. CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 9, 1998

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

Claimant represented by DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.

Respondent represented by BRIAN H. RATCLIFF, Attorney at Law, El Dorado, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed April 14, 1997 finding that claimant remains temporarily totally disabled as a result of her psychiatric condition and that she is entitled to further psychiatric treatment. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. [3] Claimant sustained a compensable injury on August 6, 1992, in the form of carpal tunnel syndrome on her right wrist. On October 14, 1992, claimant underwent right carpal tunnel release surgery performed by Dr. Robert Dickens, a neurosurgeon. After undergoing the carpal tunnel release surgery claimant continues to have problems with her right arm and has received extensive medical treatment including but not limited to pain management and psychiatric treatment for her injury. [4] This claim was the subject of a previous hearing in August of 1995 on claimant’s request for a change of physician. In an opinion filed September 12, 1995, claimant’s request to change physicians was denied. [5] At the hearing held on September 17, 1996, claimant contended that she is entitled to additional temporary total disability benefits while she undergoes psychiatric treatment as well as entitled to additional psychiatric treatment. Respondent contends that claimant’s condition has stabilized and nothing further in the way of medical treatment will improve her condition thus she is no longer entitled to temporary total disability benefits. In addition, respondent contended that the current psychological treatment is not related to claimant’s compensable injury. Respondents do not dispute that claimant initially required psychiatric treatment as a result of her compensable injury. [6] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [7] Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period continues until the employee is a far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. [8] After weighing the evidence impartially, and without giving the benefit of the doubt to either party, we find that claimant has failed to prove entitlement to additional benefits. Therefore, we reverse the decision of the Administrative Law Judge. [9] As noted above, claimant underwent carpal tunnel release surgery on her right wrist. However, she continued to remain symptomatic. Testing performed after the surgery revealed that claimant had a partial nerve root compression in her cervical spine at C5 which could potentially be the source of some of her current difficulties. Claimant was eventually referred to Dr. Robert Dickens who concluded after reviewing claimant’s MRI results, myelogram and post-myelogram CT:

She clearly has a disc abnormality at C5-6, and also a small defect at C4-5, both on the right side. These findings are certainly in a position to produce nerve root compression. However, I am uncertain what component of her upper extremity pain, if any, is related to this. For this reason I am hesitant to recommend surgical treatment at the present time. I think it would be wise to have her evaluated for pain management as we have discussed. I will certainly be glad to re-evaluate her at any point if you would like me to do so.

[10] Based upon Dr. Dickens’ recommendation, claimant was referred to the Texas Pain and Stress Center in Houston, Texas for pain management. Claimant was suppose to remain at this center for approximately three weeks, however, she voluntarily checked out of the center one week prior to completion of the program due to personal family problems. Upon discharge, claimant was diagnosed with reflex sympathetic dystrophy with persistent and severe pain in her right upper extremity. In light of the treatment received at the Texas Pain and Stress Center and her diagnosis, claimant began treatment with Dr. Chester W. Jenkins, M.D., Bradley S. Mazick, Ph.D. and Susan Deere, Ph.D. all of Neuropsychiatry Associates of South Arkansas. Claimant began treatment at the Neuropsychiatry Center on February 6, 1994, and has continued with her treatment there on a once a week basis ever since. [11] On November 14, 1994, claimant was referred to Dr. Earl Peeples for evaluation. In his report dated November 15, 1994, Dr. Peeples opined that claimant had reached maximum medical improvement for her compensable injury and later assigned a physical impairment rating of 3 to 5 percent to claimant’s right upper extremity. It is noted that Dr. Peeples did not recommend any further treatment of claimant’s compensable injury. Claimant’s only treatment consists of visiting a psychologist once a week. By all accounts from reviewing the medical records including those of the psychologists it is evident that claimant’s condition has stabilized. There is nothing in the way of further medical treatment which will improve her condition. All current treatment is merely a way to maintain claimant at her current healing level. It has long been recognized that although the healing level has been reached, i.e., the healing period has ended, reasonably necessary medical treatment to maintain a claimant at his healing level must be born at the expense of respondent. Artex Hydrophonic Inc. v. Pippen, 8 Ark. App. 200, 649 S.W.2d 845 (1983). Thus, merely because a claimant continues to receive treatment to maintain one at one’s healing level does not mean that the healing period actually continues. Clearly, in the present case, claimant’s conditions had reached a point of maximum medical improvement as of November 11, 1994, when she was examined by Dr. Earl Peeples and there has been nothing in the way of additional treatment since that date to improve claimant’s condition. All treatment, i.e. psychiatric treatment, has simply been a method of maintaining the level of healing reached. [12] Although claimant may like for her healing period to continue until she has returned to her pre-injury status, this is not the test with regard to entitlement to temporary total disability benefits. As noted above, such benefits are only allowable when a claimant is in his healing period and totally incapacitated from earning wages. The healing period, as defined above, continues until the claimant is as far restored as the permanent character of his injury will permit. In this case, the permanent character of claimant’s injury has not improved and in effect stabilized in the fall in 1994. Therefore, we cannot find that claimant has proven entitlement to additional temporary total disability benefits. [13] With regard to claimant’s entitlement to continued psychiatric treatment, we cannot find that the once a week visits to the psychiatrist or psychologist are related to the treatment of claimant’s compensable injury. Although we do recognize that continued psychiatric treatment to assist claimant with maintaining her healing level is compensable, we cannot find that the weekly visits to the psychologist as reflected in the record are all reasonable and necessary for the treatment of claimant’s compensable injury. As noted in respondent’s brief on pages 9 through 12 the majority of claimant’s visits to the psychologist have dealt with claimant’s myriad personal problems. Claimant has suffered stress from death of friends and family members, rental property, daughter’s illness and surgery, and theft of property. Claimant even agreed during the hearing that she has had numerous personal problems which she discusses with her psychologist. In our opinion, this treatment of claimant’s personal problems is not related to the treatment of claimant’s compensable injury. As long as claimant can continue to use this psychological treatment as a crutch to handle and deal with her personal problems, we cannot find that all of this treatment is necessary for the treatment of her actual compensable injury. Particularly, claimant’s sessions with the psychologist on June 22, 1994, June 24, 1994, July 7, 1994, July 20, 1994, August 17, 1994, September 19, 1994, September 26, 1994, October 3, 1994, October 4, 1994, October 10, 1994, October 24, 1994, December 12, 1994, January 5, 1995, January 16, 1995, January 30, 1995, February 20, 1995, December 4, 1995, December 11, 1995, January 22, 1996, February 20, 1996, March 3, 1996, April 8, 1996, April 15, 1996, April 29, 1996, May 14, 1996, May 21, 1996, June 4, 1996, and July 1, 1996 focus on claimant’s personal problems and not on her compensable injury or ability to deal with the pain associated with that injury. Accordingly, we cannot find that these visits are reasonable and necessary for the treatment of claimant’s compensable injury. Respondent should not be and is not liable for claimant’s psychological treatment for her personal family problems. [14] Accordingly, for those reasons stated herein, we find that the decision of the Administrative Law Judge should be and hereby is reversed. [15] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[16] Commissioner Humphrey dissents. [17] DISSENTING OPINION
[18] I must respectfully dissent from the majority opinion finding that claimant is not entitled to additional temporary total disability benefits or further psychiatric treatment. [19] Claimant, who is right-hand dominant, sustained a compensable injury in the form of right-side carpal tunnel syndrome for which she underwent surgery on October 14, 1992, performed by Dr. Walter J. Giller. Claimant received little benefit from this surgery and developed a chronic pain situation within a short time afterward. Ultimately, claimant received a diagnosis of reflex sympathetic dystrophy and spent several days in an in-patient pain management facility in Texas. Claimant has also undergone extensive psychological counseling from Drs. Mazick and Deere, in conjunction with anti-depressant medication therapy directed by Dr. Chester Jenkins. On May 25, 1996, Dr. Jenkins commented as follows in a letter to claimant’s attorney:

1. I believe that Mrs. Wilson’s current psychological/depression problems are largely the result of difficulties stemming from her carpal tunnel syndrome and reflex sympathetic dystrophy. She has, of course, encountered other stressful situations since the onset of her physical difficulties. I believe, however, that her physical infirmity and it’s (sic) direct complications are the major precipitant for her psychological distress. (Emphasis added.)

2. I am not treating her physical injury.

3. I have no opinion about it’s (sic) present status. I believe that she will require ongoing psychological and psychiatric intervention in addition to whatever medical and surgical management is necessary.

[20] On August 21, 1995, Dr. Winston Wilson performed an independent psychological evaluation (apparently at respondents’ request) and arrived at the following recommendations:

I recommend that this patient continue her relationship with her present psychologist and psychiatrist. While I do see symptom exaggeration, in her test results and by clinical observation, I do believe this woman needs treatment for her depression.

[21] Dr. Wilson commented further in a letter of July 13, 1996, to respondents’ attorney:

In preparing my answer for you, I re-read my file on this case, including Dr. Peeples’ notes, my test results, and medical notes from the Neuropsychiatry Associates of South Arkansas, Inc.
I believe that the psychological problems that I saw and diagnosed as Major depression, when I was with her last year were caused by her accident August 6, 1992.

[22] Drs. Jenkins and Wilson have each opined that claimant’s psychological difficulties are related to her compensable injury, and Dr. Jenkins has even gone so far as to describe the injury as the “major precipitant” of claimant’s psychological distress. Given Dr. Jenkins’ status as a managing physician, and considering Dr. Wilson’s expertise in psychological matters, I am inclined to afford great weight to their opinions. Accordingly, I would find that claimant’s ongoing psychological problems are related to her compensable injury of August, 1992. I am not moved from this finding by the mere fact that claimant’s counseling sessions have often involved discussions of her personal matters and problems. It is these very situations, e.g., the vicissitudes of life, which act upon or in conjunction with her chronic pain to produce an unstable psychological affect. I am thus hard-pressed to imagine how claimant’s counseling sessions can avoid addressing her personal concerns and, at the same time, have any beneficial influence on her chronic pain. [23] Also, given Dr. Wilson’s comments of August 21, 1995, I would find that claimant remained in need of continued psychiatric care at least as of that time. The mere fact that claimant may
(though this is certainly arguable) have been at MMI physically does not mean that she had reached MMI in the mental or emotional sense. [24] I would also find that claimant remained temporarily totally disabled from January 5, 1995 (the date on which respondents assert that claimant’s healing period ended). In light of Dr. Wilson’s comments above, I am convinced that claimant remained in her healing period well into 1995. Also, I am persuaded by claimant’s credible description of her limitations that she is simply not capable of returning to gainful employment. For instance, claimant testified that she is in constant pain and that her right hand is often swollen, and that she can lift essentially nothing (to the extent that she has replaced glassware with plastics). Claimant also described an unusual phenomenon involving “water” that “pours” from her hand. Her medical records do indeed document “considerable” and “diffuse” sweating of the hands in 1992 and 1993. I would thus find that claimant’s remains temporarily totally disabled. [25] As set out above, I must respectfully dissent from the majority opinion. [26] PAT WEST HUMPHREY, Commissioner