CLAIM NO. E316752
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 16, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ROBERT S. TSCHIEMER, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals an opinion and order filed by the administrative law judge on July 24, 1995. In that opinion and order, the administrative law judge found that chiropractic treatment provided by Dr. Michael Glover was reasonably necessary treatment of claimant’s compensable injury and ordered respondent to pay for the medical treatment provided by Dr. Glover. In addition, the administrative law judge found that claimant is entitled to additional temporary disability compensation. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that the chiropractic treatment provided by Dr. Glover was reasonably necessary for treatment of the compensable injury. In addition, we find that claimant failed to prove by a preponderance of the evidence that he was entitled to temporary disability benefits subsequent to November 29, 1993. Therefore, we find that the administrative law judge’s decision must be reversed.
[7] Dr. Frigon re-examined claimant on December 10, 1993. Based on the results of her examination, the functional capacity evaluation, and the MRI scan of claimant’s back, Dr. Frigon released claimant to return to work with no limitations. Her report states in relevant part:There is a minimal loss of signal intensity in the L5 disc. There is still, however, satisfactory hydration with only minimal decrease in height posteriorly. There is mild central disc bulge at L5 but there is no apposition or displacement of the thecal sac, nor is there lateralizing entrapment involving S1 nerve root. No other indication of an HNP. No other pathology.
We have received the reports from Southeast Arkansas Rehab and just as was indicated in my examination in the office, he has abnormalities suggesting that it was not a valid test that he was not giving any real improvements or putting forth maximum effort.
He has had MRI scan which revealed a minimum loss of intensity at L5 meaning a slight decrease in the disk. There is a very minimal bulge but no rupture and certainly nothing that needs to progress to surgery.
Today, I have told him that I think that he simply needs to get busy doing activities. I have no reason to think that he cannot return to normal activities. I gave him 60 Darvocet with no refills to use for pain. However, I do not see a reason for him to return to see me. He wanted to know if he could return to PT for them to work him out. Basically I think that he needs to stop avoiding activities and become more active. I can find absolutely nothing that needs to be surgically treated.
His examination is essentially normal.
[8] Upon his release claimant approached respondent about a return to work but was told that his job was seasonal and that there was no work remaining. Notably, on January 5, 1994, claimant applied for unemployment compensation with the Employment Security Division and filed a claim with the Workers’ Compensation Commission seeking additional medical and temporary disability compensation. [9] With regard to his subsequent medical condition, claimant testified that he remained in great pain after his December 11, 1993, visit to Dr. Frigon. According to claimant’s testimony, he returned to Dr. Frigon’s office at least twice seeking more pain medication. Upon being refused additional pain medication by Dr. Frigon, claimant testified that he began taking pain medication prescribed for his relatives. Contrary to claimant’s testimony, however, Dr. Frigon stated in correspondence dated September 15, 1994, that she in no way abandoned claimant, that she informed claimant to call if he had further problems, and that she did not receive any communication of additional problems from claimant. [10] Claimant’s medical records submitted at the hearing indicate that claimant did not obtain further medical treatment until March 23, 1994, when, upon the advice of his attorney, claimant underwent an evaluation for chiropractic treatment by Dr. Michael Glover. Although claimant did not submit any medical records indicating the nature or duration of chiropractic treatment subsequently performed, claimant testified that he was treated from March 23, 1994, until sometime in May of 1994, at a cost of approximately $1,640.00. In addition, claimant submitted the report of a cervical spine MRI performed on May 2, 1994. The MRI report, very similar to the MRI of November 15, 1993, was essentially normal. [11] At the hearing in this matter claimant requested additional temporary disability benefits from the date of his last benefits on November 29, 1993, until he returned to gainful employment on September 23, 1994. In addition, claimant requested that respondent pay additional medical benefits related to claimant’s compensable injury, specifically the chiropractic treatment provided by Dr. Glover during March to May of 1994, and the May MRI requested by Dr. Glover. [12] This Commission has a statutory duty to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704 (c)(2) (1987); see, GencorpPolymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475WORK STATUS: He is being released to return to work with no limitations.
(1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704
(c)(4) (1987); Wade v. Mr. C. Cavenaugh’s, 198 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). In this regard, the claimant has the burden of establishing his entitlement to the compensation sought by a preponderance of the evidence. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992); Lybrand v. Arkansas OakFlooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates,supra. Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (1987). 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. Normal Beatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291). [13] After conducting a de novo review of the entire record, we find that the claimant failed to prove that the chiropractic treatment provided by Dr. Glover and the MRI ordered by Dr. Glover were reasonably necessary for treatment of the compensable injury. In that regard, the medical evidence indicates that claimant sustained a relatively minor injury on October 13, 1993. Neither the initial x-rays ordered by Dr. Hicks, or the subsequent MRIs ordered by Dr. Frigon or Dr. Glover indicate any significant abnormality in claimant’s back despite claimant’s complaints of pain. Dr. Hicks opined in his office notes that claimant was over reacting, and Dr. Frigon’s final examination of claimant on December 10, 1993, was essentially normal, releasing claimant to work with no limitations. In short, none of these doctors have been able to determine an organic basis for claimant’s complaints of pain, and claimant’s complaints are not consistent with the medical evidence. [14] We also find it significant that claimant did not seek independent medical treatment for over three months after his last examination by Dr. Frigon on December 10, 1993. In that regard, Claimant’s brief attempts to characterize Dr. Glover’s chiropractic treatment of claimant as “emergency” treatment. However, Dr. Glover’s initial examination of claimant indicated that claimant was in no acute distress at that time, and the record does not indicate that claimant was otherwise in need of emergency chiropractic treatment. [15] Finally, we note that Dr. Glover’s narrative report of March 23, 1994, indicates that Dr. Glover intended to place claimant on a chiropractic treatment program with updates as his treatment progressed. Although claimant testified that his treatment under Dr. Glover continued into May of 1994, at a cost of approximately $1,640.00, claimant has not offered into evidence any subsequent documentation of the treatment actually provided or the results obtained. The lack of any subsequent documentation greatly impedes our ability to assess whether the medical treatment at issue was reasonably necessary for treatment of the compensable injury. Thus, we are unable to determine the nature of treatment provided, its relationship to the compensable injury, or its medical benefit, if any, to claimant’s condition. [16] Accordingly, after a de novo review of the entire record, we find that claimant failed to prove by a preponderance of the evidence that chiropractic treatment provided by Dr. Glover, or the diagnostic treatment ordered by Dr. Glover, were reasonably necessary for treatment of the compensable injury. [17] Claimant also seeks additional temporary disability compensation subsequent to the termination of his temporary total disability benefits on November 29, 1993. 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 Highwayand Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. 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 (6) (1987). 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 or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [18] In the present claim, we find that claimant failed to prove by a preponderance of the evidence that he remained within his healing period after November 29, 1993. In that regard, we note that Dr. Tom Tvedten, claimant’s chosen physician, examined claimant in early November and opined that claimant required a two to three week recovery period. Similarly, Dr. Frigon found claimant’s examination of December 10, 1993 essentially normal, and released claimant to return to work without limitation. [19] Claimant’s brief argues that respondent improperly terminated disability compensation on November 29, 1993, prior to Dr. Frigon’s release to work on December 10, 1993. However, the medical record indicates that Dr. Frigon was not able to examine claimant until December 10, 1993, precisely because claimant failed to attend prior scheduled appointments on November 23, 1993 and December 6, 1993. In addition, claimant’s functional capacity evaluation report of December 6, 1993, indicates that claimant failed to put forth maximal effort on a consistent basis during testing and also tested positive for non-organic back pain under Waddell’s testing. Both of these results impede our ability to accurately determine claimant’s medical condition in November and December of 1993. However, based on the medical evidence presented at the hearing, we find that claimant reached maximum improvement of his medical condition prior to November 29, 1993, and was, therefore, no longer within his healing period after that date. The only additional medical evidence presented subsequent to December 10, 1993, is Dr. Glover’s initial examination of March 23, 1994, and the report of an MRI performed on May 5, 1994. The MRI report indicates a normal spine, essentially identical to the previous MRI report of November 15, 1993, and Dr. Glover’s narrative report does not indicate any significant change in claimant’s reported symptomology. Although claimant still complained of pain, the medical evidence indicates that claimant’s complaints of pain resulting from the compensable injury have been exaggerated. Furthermore, the mere persistence of pain in this case is insufficient to extend the healing period. [20] Therefore, we find that claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary disability compensation. Accordingly, the administrative law judge’s decision in this regard must be reversed. [21] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that the respondent is liable for any medical care provided after December 10, 1993. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any additional temporary disability compensation. Therefore, we find that the administrative law judge’s decision must be reversed. This claim is hereby denied and dismissed. [22] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[23] Commissioner Humphrey dissents.