Opinion
CLAIM NO. E811905
OPINION FILED JUNE 5, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE SHEILA F. CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by HONORABLE ERIC NEWKIRK, Attorney at Law, West Memphis, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and vacated in part.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on May 18, 2001. In that opinion and order, the Administrative Law Judge found that the claimant was temporarily totally disabled for the period beginning December 14, 1999 and continuing through the end of her healing period, a date yet to be determined, exclusive of a 12-week period during the summer of 2000 in which she earned wages during an internship. In addition, the Administrative Law Judge found that the claimant was temporarily partially disabled for the 12-week period during the summer of 2000 while participating in an internship program at the state hospital adolescent unit. The Administrative Law Judge found that the respondents controverted the payment of all medical and indemnity benefits in this claim as of September 7, 1999, and that the respondents are liable for the treatment which the claimant has received for her low back, her left foot, and her right foot after September 7, 1999. The Administrative Law Judge also found that the preponderance of the evidence fails to establish that the claimant's motor vehicle accident on May 17, 1999 was an independent intervening cause of the claimant's need for medical treatment thereafter.
After conducting a de novo review of the entire record, we find that the preponderance of the evidence fails to establish that the claimant's motor vehicle accident on May 17, 1999 is an independent intervening cause of her medical condition thereafter. In addition, we find that the respondents are liable for the claimant's continuing low back treatment and for the treatment at issue for her left foot after the respondents terminated the claimant's benefits on September 7, 1999. We also find that the claimant has established by a preponderance of the credible evidence that she is entitled to benefits for the periods of temporary total and temporary partial disability awarded by the Administrative Law Judge beginning December 14, 1999. Therefore, we find that the Administrative Law Judge's decision in these regards must be affirmed. However, we vacate the Administrative Law Judge's award of benefits for the claimant's right foot problems since the compensability of the claimant's right foot problems was never raised as a hearing issue and since the respondents therefore never were aware of the need to offer evidence on that issue.
Background
The claimant worked for the respondent employer as a residential treatment counselor from August 1997 through August 1999. She was 25 years old in 1999, stood 5' 3" and weighed 220 pounds. The claimant has nonwork-related medical problems, including asthma, leg cramps, TMJ, and acid reflux, for which she takes various prescription drugs.
On September 7, 1998, the claimant sustained an injury at work when a patient physically attacked her. The claimant stated that the 300-pound patient hit her, kicked her, stomped on her left foot, and backed her into a corner. She stated that her injuries included bruises over her entire body, and injury to her lower back and to the top and arch of her left foot. The claimant testified that since she was attacked, she has had:
problems with my left foot, pain on top of the foot, . . . pain in the left arch, pain in the left heel that's been constant. After walking — after the injury I could only walk on my right foot which then caused me to have the same problems in the right foot after that. I've had constant pain in the lower back, in the buttock region, L-4 but within the joints, the L4-L5, and then the piriformis muscles in the buttocks.
Medical reports offered into evidence indicate that on August 27, 1998, ten days prior to being assaulted by a patient at work on September 7, 1998, the claimant was purportedly treated for "lumbo sacral strain" by Dr. Hicks. In his report of this visit, Dr. Hicks noted that the claimant "failed to mention in history that she also had minor back strain and is having some left lower back pain and tightness." Dr. Hicks had prescribed Soma to the claimant during this visit for leg cramps and instructed her that she could also use this to treat her back pain.
However, the claimant testified that she never had problems with her back at all before September 7, 1998. Her testimony in this regard was as follows:
Q. Have you ever had problems with your back at all before the incident on September 7, 1998?
No, sir.
Q. You never had one ounce of pain or problem with it?
No, sir.
Q. Never had any medical treatment for your back?
A. No, sir.
When asked about Dr. Hicks' medical report discussed above, the claimant responded that she had not seen the report. She suggested that it was dated wrong, and stated that she took Soma solely for leg cramps.
The claimant was first seen for medical care following the September 7th attack by Dr. Colwell on September 16, 1998. The record from this examination notes that:
Pt. complains of left foot pain and lower back discomfort. The foot pain began a week ago Monday after an incident at work. . . . She had marked bruising and has had discomfort in the arch of the foot since then. The pain seems to be worsening. She has had problems with back spasm intermittently. . . . The back problem persists. (The pain is in the left thoracic region.)
A handwritten note to the side of this entry remarks, "Has worsened since the incident." An addendum to the record notes:
This injury will be filed as a workers' comp. As previously stated in the subjective, the injury to the foot occurred at work. She has had problems with her back and was doing okay until the time of the confrontation at work. The episode seemed to exacerbate or flair her back pain and muscle spasm.
The claimant testified that when she saw Dr. Colwell she did not mention anything about prior back problems. She explained Dr. Colwell's remarks regarding a history of back pain as referring to the period between the injury on September 7th and September 16th.
The claimant began a program of physical therapy on January 5, 1999. Her therapy progress note for February 11, 1999 states that she was being discharged and that her pain self-rating on that day had dropped down to 1.5/10. She returned to therapy 11 days later, following an incident at work in which a patient tilted her out of a chair. The therapist noted on this date that they would be starting back at square one. In the following months, the claimant's level of pain increased and decreased based upon her level of work activity. By the end of April 1999, she had improved to the point where her therapist remarked, "Pt. is doing very well today. She has a reduction in her pain rating and decrease in her muscle tightness."
Dr. Hicks saw the claimant on May 5, 1999 and noted that she was slowly improving with regards to her lumbar strain. He released her to return to regular work effective that date. The claimant testified that he verbally gave her restrictions in her work, specifically prohibiting her from doing "containments" of patients.
On May 17, 1999, the claimant's physical therapist recorded that, "she had some increase in pain but not nearly as severe as previously with her long weekends." After her physical therapy that day, the claimant was involved in a motor vehicle accident she described as occurring when the driver of another automobile traveling pretty fast rammed into her from behind. She testified that the accident caused her lower back problem to worsen for three to four days afterwards and then it went back to the level that it was prior to the accident. She stated that the injuries she sustained in the automobile accident were primarily to her neck and shoulders, and clinic notes from May through November 1999 support that the claimant did have some injury to her cervical, neck, and shoulder area.
The claimant's physical therapy note for May 18, 1999 states, "Pt. enters the clinic with complaints of severe pain, rating her pain as 9/10. Pt. tells me she is having increased lumbar pain." Interestingly, the therapist makes no reference to the fact that the claimant was in a car accident the day before. The claimant's subsequent therapy notes continue to reflect a setback. On May 20, 1999, the claimant rated her pain as 8/10, and the therapist noted that "Pt. has definitely taken a turn for the worst."
The claimant was seen by Dr. Hicks on May 26, 1999 and his note stated that, "She had been doing well but then was involved in a moderate MVA which has aggravated her pain. . . . She continues to work without restrictions." He assessed her as having lumbar strain, "with some setback secondary to MVA."
After an extended course of physical therapy, the claimant had brought her level of pain back down to a self-rating of 3/10 by August 18, 1999. However, her pain level increased again after that date when she began attending graduate school and was required to sit for long hours during classes.
The claimant testified that she worked for the respondents on Saturdays and Sundays from 7:00 a.m. to 10:00 p.m. and on Mondays from 3:00 p.m. to 11:00 p.m.
The claimant's employment with the respondent ended in August 1999 when she became a full-time graduate student. On a document entitledResignation Form, dated August 2, 1999, the claimant wrote that her reason for leaving was "attending graduate school in social work." She also wrote on this form that she "would like to . . . try to work out some alternate hours if at all possible." On a termination checklist signed by the claimant on August 18, 1999, there is a section titledReason for Leaving with options to be checked including: Obtained Better Position, Relocation, Health, Personal, and Other. The space for "Other" was checked and "Graduate School" was written on the line following. The respondents subsequently terminated the claimant's workers' compensation benefits on September 7, 1999.
When asked whether she "resigned" her employment with the respondent, the claimant testified that she switched from full time down to the substitution pool. Her testimony in this regard was as follows:
A. I switched from full-time down to the substitution pool because I was in such chronic pain when I went for the weekend shift, I could get through that, and I had the week off where I could rest to go back until the next day. When I went to school I would not have that time so that's why I went down to the substitution pool.
Q. You're saying it's because of your injury?
Yes.
Not because of your school?
It's because of both.
Caroline Riggs, a former personnel director at the respondent's facility, discussed the claimant's resignation at the hearing:
Q. And what was her reason given to you for resigning?
A. She was going to graduate school.
Q. Did she say anything about her foot problems, or back problems, anything like that?
A. Not that I recall at that time.
Q. Were you all accommodating her all the way up until that time with her restrictions?
A. Well, we tried.
Q. And would you have continued to be able to accommodate her restrictions if she had not resigned?
A. We would have continued to try.
Ms. Riggs testified regarding the substitution pool list. She said that there is no guaranteed employment for people on the substitution list. She also stated that people on the substitution pool most often are asked to work nights, and that she was aware that the claimant could not work nights because of her asthma.
In further testimony regarding this issue, the claimant stated that being a full-time student required 35 to 40 hours a week of work. She agreed that most of her school work hours were during the daytime and that her doctors had recommended that she not work nights because of her asthma. She testified that as a student she worked in an internship for 12 weeks during the summer of 2000 for which she was paid a stipend of $10.58 per hour, as compared to the $8.50 per hour the claimant earned working for the respondent. When asked whether she had looked for employment elsewhere, the claimant stated that she had looked casually, but not formally. She stated that this was because she is in pain and cannot find anything that will allow her to work within her limitations. She was then asked about her deposition testimony. In deposition, the claimant was asked, "Do you ever look at classified ads for job openings, or anything like that at all?" She responded, "Not right now. I'm concentrating on school." She testified at the hearing, in clarification, that she did not call any places and did not actively seek any employment.
Subsequent to the claimant ending her employment with the respondent, Dr. Hicks wrote to the respondent's carrier on September 15, 1999:
[R]egarding Rebecca Bolen's recovery from what appears to have been a simple lumbosacral strain. I would certainly agree that further physical therapy may or may not be of any further benefit. We have had difficulty with periods of improvement followed by periods of exacerbation. I have tried muscle relaxants, anti-inflammatories on an on-going basis, physical therapy and rehab, trigger point injections, all with minimal long-term benefit. I would also agree that her weight is (sic) substantial co-factor in her prolonged recovery. She did however weigh approximately the same at the time of her injury and has not gained weight. Addressing her weight is a very difficult problem due to her history of severe steroid dependent asthma. The chronic steroid use has caused her current weight problem.
Basically, I have run out of treatment options for Ms. Bolen. I had requested referral to Dr. Ketchum who specializes in chronic back pain and difficult back cases. At this point in time, I have no specific treatment plan and that in essence is the crux of the problem. I have asked for consultation with Dr. Ketchum in order to devise such a plan. Without such evaluation, I think that it would be time to consider assessing Ms. Bolen for permanent partial disability in regards to her back injury.
An MRI of the claimant's lumbar spine performed on September 5, 1999, almost one year after her attack at work, revealed a small central disc herniation at L4-5 and a central disc herniation at L5-S1. The claimant was seen by Dr. Safman on September 14, 1999, and he addressed these findings after reviewing her past medical history of TMJ, headaches, and asthma. He wrote that:
This patient is quite overweight. It was not possible to assess her for muscle spasm. At this point, this patient has a chronic pain syndrome. I do not think that the two small central disc herniations are the etiology for her pain. . . . This patient seems to want to have on-going physical therapy although several courses of physical therapy have resulted in only temporary improvement in her symptoms.
Dr. Safman's plan was to try seratonin inhibitors on the claimant, as well as Neurontin, and if these were not successful, to then try epidural steroids. He remarked that:
Beyond that, there is little else to offer her. This patient appears to be quite angry. She appears to be quite depressed, which may be influencing her perception and response to pain as well. . . . I believe this patient has been treated thoroughly. I do not see the need for additional diagnostic studies to be done. Physical therapy would be of temporary symptomatic benefit only.
Dr. Hicks took the claimant off work a second time on December 14, 1999. He kept her off work until June 8, 2000, when he permitted her to return to light-duty work. Also on December 14, 1999, the claimant was seen by Dr. Cathey, whose report commented that the claimant takes Valium on a daily basis for her TMJ disorder. He further remarked that:
On examination, the patient has a very blunted and somewhat depressed effect. She is morbidly obese weighing in at 245 pounds. . . .
An MRI scan of the lumbar spine shows degenerative disc disease at L4-L5 and L5-S1. There are left paracentral disc protrusions at both levels, but I do not see any sign of significant nerve root compression, spinal stenosis, etc.
. . . I indicated to the patient, . . . that I believe her low back pain is well explained on the basis of degenerative lumbar disc disease. I do not, however, believe that the injury of September 7, 1998, is the major cause of her continued low back discomfort. The changes on her MRI scan are not at all unusual considering her body habitus despite her young age. . . . I really did not advise epidural steroids. . . . I believe a lumbar myelogram has also been suggested as yet another diagnostic tool. In my opinion, the test is not necessary since I believe the diagnosis is well explained on the basis of the MRI scan, and there is certainly nothing to suggest that the patient would be a candidate for lumbar disc surgery or other neurosurgical intervention. . . . When I asked what they are seeking, her mother said, "Someone to take responsibility for my daughter's continued problems."
. . . I believe this poor girl has no self-esteem and a profound co-morbid depression that is having a negative impact on her progress. I wonder if the chronic uses of steroids, Valium, narcotic analgesics, etc., might be compounding the problem. . . . She is probably going to have chronic low back pain the rest of her life and that nothing the physicians are going to do is likely to have much of an impact. . . . I truly believe that Rebecca, and certainly her mother, are more interested in assigning blame than in `seeking' reasonable answers to this poor girl's problems.
In response to questionnaires sent to the claimant's physicians by the claimant's attorney on December 22, 1999, Dr. Cathey wrote that it was his opinion that the claimant's healing period had ended; Dr. Adametz responded that it was his opinion that the claimant's healing period had ended; and Dr. Barnett wrote that he had seen the claimant initially on November 10, 1998, saw her again on February 3, 1999, and that she did not return for a final follow-up visit. He remarked that at the February 3, 1999 visit:
She was improving but did not have complete resolution of her symptoms. I, therefore, cannot comment as to when the total ending of her healing period occurred, as I did not see her at that time.
Dr. Hicks referred the claimant to Dr. Thomas Hart, a pain management specialist at the St. Vincent Rehabilitation Hospital Pain Management Center. Dr. Hart performed a discogram of the claimant's lower back in November 2000. In his report following this procedure, Dr. Hart described the claimant as sustaining an on-the-job injury over two years ago which caused two herniations and resulted in continuing back and buttock pain. He described the claimant as having had failed conservative care, and stated that she would probably be a poor candidate for spinal fusion. He wrote:
In summary, it is very obvious at this time that Ms. Bolen does have very legitimate back pain complaints; this has been proved both subjectively and objectively today per diskography, . . . She has continuing disruption of the discs at the 4-5 and 5-S1 levels. We will await post CT imaging to see whether or not she would be an appropriate candidate for IDET, . . . Also I do not feel that this is "in Ms. Bolen's head", in that she has back pain complaints and these are very real, and are related to her on-the-job injury!
In a letter dated January 2, 2001 to the claimant's attorney, Dr. Hart wrote that after the discography, the claimant underwent a CT scan which revealed a large posterior central tear of the L4-5 annulus, with small central disc herniation and combined anterior and posterior tears of the L5-S1 annulus, also with moderate central disc herniation. He stated that his plan was to seek approval for an IDET procedure. He stated that if this procedure does not succeed, the last resort would be spinal fusion. He remarked in particular that:
Of concern, apparently in the past, according to Ms. Bolen and her mother present today, it was mentioned that if she lost weight, because of her obesity, this would take care of her back complaints. In my medical opinion, I doubt this very seriously, since I see extremely thin patients who have annular disc disruption and also have significant back pain complaints. No doubt, by reducing her weight, it may reduce some of the mechanical stress on her back. This is hampered at the time, because any effort to exercise obviously increases her back pain complaints.
Dr. Hart's letter further stated that the claimant's continuing back complaints were from her on-the-job injury, and that the majority of her pain is related to the on-the-job injury. He further opined that the claimant remained within her healing period at that time. The claimant testified that she intends to have surgery on her back as recommended by Dr. Hart.
In addition to her back problems, the claimant also suffered from contusion of her left foot as a result of the attack at work. The claimant was seen by Dr. Barnett on November 10, 1998 for treatment of continuing pain in her foot. X-rays taken of the claimant's foot on this date were "unremarkable." Dr. Barnett assessed her as having a contusion of the foot and fit her with an air cast walker. The note from a follow-up visit on December 8, 1998 remarks that the claimant was making "some improvement," and the claimant related that she felt the air cast walker helped significantly. Dr. Barnett again assessed her as having only a contusion of the foot. In his plan, he noted that the claimant should return to work in three weeks. The claimant underwent a whole body bone scan on December 31, 1998. This test revealed several areas of osteoarthritic change, including "diffuse osteoarthritic changes in the feet." Dr. Barnett affirmed this finding in a clinic report dated January 5, 1999. After his visit with the claimant on that date he remarked that "At this time I cannot differentiate a reason for her continued pain."
Dr. Bronfman examined the claimant at the Arkansas Foot Clinic on March 17, 1999 regarding her complaints of pain in the left foot. His findings included "Pain overlying the shaft of the second metatarsal, as well as along the medial band of the plantar fascia in the lower portion of the posterior tibial tendon." A letter from Dr. Bronfman dated April 20, 1999 remarks that the claimant was significantly improved following treatment by corticosteroid injection. The exhibits include nine additional pages of primarily illegible records from the Arkansas Foot Clinic regarding the claimant's treatment there. Interestingly, one record reveals that she was in a (second) car accident in December 2000.
On March 29, 2000, the claimant underwent surgical treatment of heel spur syndrome of her right foot by Dr. Bronfman. A Pre-Operative Review for that surgery stated that the scheduled procedure was for heel spur with fasciotomy right. The claimant testified regarding her right foot injury that:
Dr. Bronfman told me I developed that because I could only walk on my — after the injury my left foot was so damaged I could only put my weight on my right foot, and because I could do that because I'm heavier than would be standard for my size, he told me that that's what caused that.
On January 3, 2001, the claimant had surgery performed on her left foot, also by Dr. Bronfman. A Pre-Operative Review notes that the scheduled procedure was resection heel spur left. Regarding the surgery on her left foot, when asked what that surgery was for, the claimant explained that, "What they did is they went in and they cut the tendon under the arch to relieve some of the pressure, and I had — since the accident I had developed a bone spur in there, and they sawed off the bone spur while he was in there." When questioned why the operative report only indicated a diagnosis of heel spur syndrome, the claimant testified that:
There was also a fasciotomy. That was the part where they went in and they cut the tendon. And he told me — we had that problem when we went into the Surgical Pavilion. I had to question them about that, why it just said `heel spur", and the doctor came in a spoke to us about that. That's how he had to list it on the reports. That's how they get their filing, and the main part of the operation was going in and cutting the tendon, and they did all of it together.
When asked if it was her contention that both the left foot and the right foot surgeries were as a result of the work incident, the claimant testified that, "[Dr. Bronfman] told me he could not rule it out. I said the right foot was due — was not caused directly by the work injury, but it occurred because I could only walk on the left foot."
In a letter dated October 18, 2000, Dr. Bronfman wrote that the claimant's symptoms were consistent with plantar fasciitis and posterior tibial tendinitis, and that these symptoms were the direct result of the injury that took place in September 1998. He further opined that this incident contributed more than 50% to the development of this injury.
1. Compensability of Foot Surgeries Left Foot
On this issue, the respondents assert that the claimant has failed to establish that her heel spurs at issue are causally connected to the left foot contusion she suffered in her September 7, 1998 injury. However, the Administrative Law Judge, who heard the live testimony and observed the demeanor of the witnesses, found credible the claimant's explanation that her heel spurs were related to the compensable injury. Notably, Dr. Bronfman, who performed the surgeries at issue, opined that his treatmentwas related to the claimant's original injury. In a letter to Dr. David Hicks dated March 18, 1999, Dr. Bronfman stated that he was treating the claimant for complaints "secondary to a traumatic injury that occurred in September of 1998." In another letter dated October 16, 2000, Dr. Bronfman reaffirmed his earlier opinion, stating "The above diagnosis was the direct result of the injury that took place in September of 1998. This causation is within a reasonable degree of medical certainty."
There are no other medical opinions that address the cause of the claimant's foot problems. In light of Dr. Bronfman's essentially unrebutted medical opinion, and the claimant's credible testimony on the surrounding circumstances, we find that the claimant has established by a preponderance of the credible evidence that her left foot surgery at issue is causally related to the injuries she sustained on September 7, 1998.
Right Foot
However, our de novo review of the entire record indicates that the compensability of the claimant's right foot difficulties was never raised as an issue at or before the hearing. Consequently, we agree with the respondents that the Administrative Law Judge's award of benefits in this regard must be vacated. In reaching this conclusion, we note that the claimant concedes in her brief on appeal that this issue was never raised before the Administrative Law Judge. Nevertheless, the claimant asserts that this issue was fully developed at the hearing. We see no basis from this record to conclude, as the claimant suggests, that the respondents somehow fully developed an issue that they did not even know existed while the evidentiary hearing was in progress.
2. May 17, 1999 Motor Vehicle Accident as Independent Intervening Cause of Claimant's Ongoing Back Problems
The determination of the existence of an independent intervening cause is a question of fact for the Commission. Oak Grove Lumber Co. V. Highfill, 62 Ark. App. 42, 45, 968 S.W.2d 637 (1998); Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993); Lunsford v. Rich Mountain Elec. Coop., 38 Ark. App. 188, 832 S.W.2d 291 (1992). Ark. Code Ann. § 11-9-102(5)(A)(4)(c) states that no benefits are payable for a condition resulting from a subsequent, non-work-related, independent intervening cause, and that a finding of such a cause does not require proof of negligence or recklessness on the part of an employee. However, if there is a causal connection between the primary compensable injury and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity of the claimant that is unreasonable under the circumstances. See Davis v. Old Dominion Freight Line, 341 Ark. 751, 20 S.W.3d 326 (2000).
In the present case, Commissioner Yates asserts that the motor vehicle accident was an "aggravation," which caused the claimant a new injury to her back. One problem with this argument is, however, the fact that the claimant had gone to a physical therapist to receive treatment for her compensable back injury on the very morning that the motor vehicle accident occurred. Clearly, the fact that the claimant received medical treatment for her admittedly compensable back injury on the morning of the very same day that the motor vehicle accident occurred indicates that the claimant's work-related injury did not resolve, as Commissioner Yates suggests, prior to the motor vehicle accident on May 17, 1999. Quite to the contrary, the claimant's receipt of medical treatment earlier that same day indicates that the claimant's injury had not resolved and that there is, in fact, a causal connection between the claimant's ongoing low back symptomology after May 17, 1999 and her admittedly compensable low back injury. While Dr. Hicks did describe the motor vehicle accident as having "aggravated" the claimant's pain, Dr. Hicks did not indicate that the motor vehicle accident caused a new injury, as Commissioner Yates suggests happened. In fact, no physician has opined that there is no causal connection between the claimant's continuing low back problems after the May 17, 1999 motor vehicle accident and her continuing low back problems before the May 17, 1999 motor vehicle accident. Furthermore, although the physical therapist noted an increase in the claimant's pain and stiffness following the accident, by early June of 1999, her complaints were in accordance with her status prior to the motor vehicle accident.
Finally, we note that there is no evidence indicating that the claimant was engaged in reckless or negligent conduct in driving an automobile at the time the accident occurred. For all the foregoing reasons, we therefore find that the preponderance of the evidence fails to establish that the May 17, 1999 motor vehicle accident was an independent intervening cause of the claimant's ongoing need for treatment to her low back after the respondents stopped providing medical treatment in September of 1999.
3. Reasonable Necessity of the Additional Medical Treatment for the Claimant's Admittedly Compensable Back Injury After September 1999
In the present case, we also affirm the Administrative Law Judge's finding that the claimant is entitled to the additional medical treatment at issue after the respondents controverted the claimant's entitlement to the additional medical treatment at issue after September of 1999. In reaching this conclusion, we note that there is some dispute over the weight to be accorded Dr. Hart's opinion rendered in November of 2000 and on January 2, 2001 that the claimant's low back problems at issue are causally related to the on-the-job injury, and the weight to his opinion that the claimant is a candidate for the IDET procedure. Commissioner Yates points us to the earlier opinions of Dr. Safman, Dr. Cathey, and Dr. Adametz, rendered in late 1999 and in January 2000, to the effect that the claimant had reached maximum medical improvement for her injury. However, in assessing the weight to be accorded these earlier opinions, we note that these opinions were rendered approximately one yearbefore the claimant underwent additional diagnostic discogram and post-discogram CT studies, and we note that the discogram and post-discogram CT provide objective medical findings of discogenic injury which support Dr. Hart's opinions and proposed treatment. Accordingly, we accord Dr. Hart's opinion on causation and proposed medical treatment significantly greater weight than the weight to be accorded the earlier opinions in the record, which were all rendered significantly before the additional diagnostic testing performed by Dr. Hart.
4. Additional Temporary Disability Benefits After September 7, 1999.
Temporary total disability for unscheduled injuries is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark. State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). A claimant "who has suffered a scheduled injury is entitled to benefits for temporary total disability during his healing period or until he returns to work." Ark. Code Ann. § 11-9-521(a) (Repl. 2002); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present case, the respondents state a number of arguments as grounds for reversing the Administrative Law Judge's award of temporary disability benefits after December 14, 1999. The respondents assert that the claimant's May 17, 1999 motor vehicle accident was an independent intervening cause of the claimant's low back problems after that date, so that the claimant was no longer in the healing period for her compensable injury by December 14, 1999. The respondents assert that the claimant failed to establish that she was disabled from working. The respondents note that the claimant voluntarily terminated her employment on August 5, 1999 to become a full-time student and pursue a Master's Degree. In addition, the respondents assert that Ark. Code Ann. § 11-9-526 specifically bars the claimant from receiving any temporary disability benefits because the claimant essentially stopped working for the respondents on August 15, 1999 to pursue her Master's Degree.
Clearly, had the Administrative Law Judge awarded the claimant temporary disability benefits starting on August 15, 1999, the Administrative Law Judge would have been in error since the claimant wasnot disabled on that date as the respondents had work available within the claimant's restrictions in August of 1999. However, this appeal concerns a period of disability some four months later which was after the claimant's physician had placed the claimant in off work status. We respectfully point out that the respondents have failed to present any credible evidence that the respondents had any "suitable employment" which could have been made available to the claimant after her doctor placed her in off work status. Consequently, we fail to see any merit to the respondents' suggestion on appeal that application of Ark. Code Ann. § 11-9-526 somehow bars a claim for disability benefits after the claimant clearly was disabled from working by her physician placing her in off work status.
To the extent that the respondents likewise assert that the claimant's resignation to further her education should somehow be an automatic bar to future temporary disability benefits, we note that the Arkansas Supreme Court found otherwise in International Paper Co. v. McGoogan, 255 Ark. 1025, 504 S.W.2d 739 (1974). In that case, the Arkansas Supreme Court quoted with approval the following reasoning from Underwood v. Terminal-Frouge Builders, 128 So.2d 605 (Fla. 1961):
Neither do we think it should be held that because a claimant, during a period of disability, becomes a full-time student he should be precluded from receiving compensation, if he is in fact disabled. Such a rule would not only be unsupported by an provision of Workmen's Compensation Law, it would, we believe, also violate the spirit and intent of the Workmen's Compensation Law by penalizing a claimant for attempting through the furtherance of his education to limit the effect of his disability.
With regard to the claimant's healing period, for reasons discussed previously herein, we are not persuaded by the respondents' argument that the claimant's 1999 automobile accident was an independent intervening cause of her need for treatment after that date. Therefore, we are not persuaded by the respondents' argument that the healing period for her admittedly compensable back injury ended on that date or on any other date prior to the hearing. The healing period continues until the injury is as far restored as the permanent nature of the injury will permit. In the present case, the preponderance of the evidence establishes that the claimant's doctor proposes the IDET procedure to improve the permanent nature of the claimant's back injury, but the claimant has been unable to undergo the treatment because the respondents have so far refused to authorize the treatment. The claimant therefore remains within her healing period.
We also find that the claimant proved by a preponderance of the credible evidence that she was totally incapacitated from earning wages (except internship income) beginning at least by December 14, 1999, and continuing through the date of the hearing. As the Administrative Law Judge notes, the claimant credibly testified that problems from her compensable injury were becoming increasingly debilitating before she resigned on August 15, 1999. The claimant was placed off work by Dr. Hicks on December 14, 1999, and the claimant had not undergone the proposed IDET or been released to regular work between December 14, 1999 and the date of the hearing. On these points, the respondents note that the claimant earned significant income as an intern in the summer of 2000, and argue that this income indicates that the claimant was not incapacitated from earning during the period in question. We would certainly agree with the respondents if the claimant had simply found a summer job paying $10.58 per hour. However, we point out that the income at issue was paid for an internship, not a summer job, and we point out that the internship, according to the claimant's essentially unrebutted testimony, was also conditioned on her receiving accommodations for her restrictions. As the Administrative Law Judge noted, the respondents are entitled to an offset against temporary disability compensation for the income the claimant received from her internship in the summer of 2000. However, the fact that the claimant was capable of participating in a school-related internship with accommodations in the summer of 2000 does not mean that the claimant could have quit school and found equivalent employment outside the internship program. To the contrary, as we understand the record, the claimant has had an opportunity to participate in internships with accommodations because of her status as a student.
Finally, the respondents intimate repeatedly in their brief on appeal that the claimant was not disabled after December of 1999 because the respondents had work available for the claimant within her restrictions. However, we again point out that none of the testimony or documentary evidence in the record persuades us (1) that the respondents ever approached the claimant about going back to work after the respondents terminated all of her benefits beginning in September of 1999, (2) that the respondents would have or could have put the claimant back to work after her doctor placed her "off work" in December of 1999, or (3) that any other employer would employ the claimant (outside the internship context) in her injured state at any point after her physician placed her off work in December of 1999 (except as an intern).
For the foregoing reasons, the greater weight of the evidence establishes that the claimant was within the healing period for her compensable back injury during the period at issue; that the claimant was disabled from working due to her back injury during the period at issue, and that the respondents have failed to provide us any persuasive rationale why we should deny the claimant's benefits for her period of disability after December of 1999 just because she resigned her job to return to school in August of 1999.
Therefore, after conducting a de novo review, and for the reasons discussed herein, we find that the preponderance of the evidence fails to establish that the claimant's motor vehicle accident on May 17, 1999 is an independent intervening cause of her medical condition thereafter. In addition, we find that the respondents are liable for the claimant's continuing low back treatment and for the treatment at issue for her left foot after respondents terminated the claimant's benefits on September 7, 1999. We also find that the claimant has established by a preponderance of the credible evidence that she is entitled to benefits for the periods of temporary total and temporary partial disability awarded by the Administrative Law Judge beginning December 14, 1999 and continuing to a date yet to be determined. Therefore, we find that the Administrative Law Judge's decision in these regards must be affirmed. However, for the reasons discussed herein, we vacate the Administrative Law Judge's award of benefits for the claimant's right foot.
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
Commission Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I concur with the findings in the principal opinion that the May 17, 1999 motor vehicle accident did not constitute an independent intervening cause of claimant's medical condition, and that respondents are liable for medical expenses incurred subsequent to September 7, 1999 for treatment of claimant's lower back and left foot. Since claimant did not file a cross-appeal of the Administrative Law Judge's opinion, I do not agree or disagree with the comment in the principal opinion that claimant could not have proven entitlement to temporary disability benefits beginning on August 15, 1999. I only concur with the ultimate conclusion that claimant is entitled to benefits for the periods of temporary disability awarded by the Administrative Law Judge beginning on December 14, 1999. However, I must respectfully dissent from the decision to vacate the award of benefits for the difficulties claimant experienced with her right foot.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority opinion. I concur in the determination that the award of medical benefits for the treatment of the claimant's right foot must be vacated. I dissent from the affirmation of the finding that the claimant is entitled to medical benefits associated with the treatment of her left foot.
I respectfully dissent as well from the affirmation of all other awards, including additional temporary total disability, temporary partial disability, and medical benefits related to the treatment of the claimant's back. I find that the respondents' liability was severed by an independent intervening cause on May 17, 1999. Alternatively, I find that the claimant was no longer totally incapacitated to earn wages after May 5, 1999, and was no longer in a healing period as a result of work-related injuries when Dr. Hicks took her off work for a second time on December 14, 1999.
Initially, I must note that I do not find the claimant to be a credible witness. Her lack of candor is shown in several instances in the testimony and evidence. The claimant was treated by Dr. Hicks ten days prior to her being attacked at work. Dr. Hicks wrote in his report of that August 27, 1998, visit that he treated the claimant for "lumbo sacral strain" and noted that she, "had minor back strain and is having some left lower back pain and tightness." During her testimony at hearing, the claimant denied having problems with her back at all before September 7, 1998, and stated that Dr. Hicks's note was in error. The principal opinion indicates it's acceptance of this explanation by the claimant, as it states that the claimant was only "purportedly" treated for back strain by Dr. Hicks before she was injured at work. However, this overlooks the evidence to the contrary found in Dr. Colwell's note from September 16, 1998, which states that: "She has had problems with her back and . . . the confrontation at work . . . seemed to exacerbate or flair her back pain and muscle spasm." Not surprisingly, the claimant testified that this report was in error as well.
I am also concerned by the claimant's failure to tell her physical therapist about being in a motor vehicle accident, during her therapy session the day after the accident. The principal opinion characterizes this omission as, "the therapist makes no reference to the fact that the claimant was in car accident," as if the therapist had neglected to note it. It seems unlikely that a therapist would be aware that a back-pain patient was in a car accident and yet not include it in a report. Lastly, the claimant's initial testimony at hearing regarding seeking new employment was not consistent with her deposition testimony, and she was forced to correct herself when confronted with her deposition testimony in this regard.
My reservations concerning the claimant's veracity aside, I find that the respondents' liability for any additional benefits was severed by the claimant's motor vehicle accident on May 17, 1999. Dr. Hicks had released the claimant to return to work unrestricted on May 5, 1999. While she did attend physical therapy sessions subsequent to that release, the claimant's therapy records show that on the morning before the accident she was doing very well. Certainly she was no worse than before her attack at work, given Dr. Hick's report of August 27, 1998. However, in the days after the motor vehicle accident the claimant experienced severe pain and had unexpectedly "taken a turn for the worst." Dr. Hicks described the motor vehicle accident as having "aggravated" the claimant's pain. An aggravation is defined as "a new injury resulting from an independent incident." Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). Because the aggravation of the claimant's pain after the motor vehicle accident was an injury with an independent case, the respondents' should not be liable for any benefits after that time, as Ark. Code Ann. § 11-9-102(5)(A)(4)(c) states that no benefits are payable for a condition resulting from a subsequent, non-work-related, independent intervening cause.
Alternatively, I find that the claimant is not entitled to additional benefits as she was no longer totally incapacitated to earn wages after May 5, 1999, and was no longer in a healing period as a result of work-related injuries when Dr. Hicks took her off work for a second time on December 14, 1999.
Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Arkansas State Highway Transportation Dept. V. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Id. Further, an injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id.
Dr. Hicks released the claimant to work unrestricted on May 5, 1999. She returned to her former work schedule after that date, earning the same wages she had earned previously, and worked until she voluntarily resigned in August 1999. Since her resignation, the claimant has continuously attended school full time and has not actively looked for other employment. She testified that she could not work and go to school full time because of her asthma, which restricted her to working only during daytime hours, and that school work took up her daytime hours. For a twelve week period the summer of 2000 the claimant participated in an internship program during which she earned $10.58 per hour. While working for the respondent, the claimant had earned only $8.50 per hour. I find that the claimant was no longer totally incapacitated to earn wages after May 5, 1999, and the respondent's should not bear the cost of her voluntary decision to quit work and attend school full time.
The principal opinion cites International Paper Company v. McGoogan, 255 Ark. 1025, 504 S.W.2d 739 (1974), for the proposition that the claimant's enrollment in school is not an automatic bar to her entitlement to benefits. I do not agree that McGoogan applies to the case at hand. Claimant McGoogan was a full time student who had gone to work during the summer break from school. He was injured while working and began to receive benefits. When he return to school that fall, as he had always intended to do, his employer suspended payments. The Court began it's analysis by stating that, "In construing our Workmen's Compensation Act, . . . we construe the statutory provisions liberally in favor of the claimant." Concluding that temporary total disability benefits were not solely intended to compensate for actual wage loss, the Court found the termination of benefits improper, reasoning that because McGoogan was still in his healing period, he should continue to receive temporary total disability, even while in school.
This case may be factually similar to McGoogan, in that the present claimant voluntarily left work to begin attending school full time, with no real intention of seeking new employment. However, a crucial difference is that the present claimant's injury occurred after July 1, 1993, and this claim is therefore governed by the provisions of Act 796 of 1993. As opposed to the previous practice of liberally construing the provisions of the Workmens' Compensation Act in favor of the claimant, Ark. Code Ann. § 11-9-704(c)(3)(4) (Repl. 2002) now requires the Commission to strictly construe the provisions of the Act, without giving the benefit of the doubt to either party. Therefore, the McGoogan interpretation of the effect of school enrollment on disability benefits does not apply to the present case.
The claimant's ability to continuously attend school full-time is also a factor in my determination that her healing period for her work-related injury had ended by the time Dr. Hicks took her off work for the second time on December 14, 1999. Additional evidence in support of the fact that the claimant's work-related injury was as far restored as the nature of her injury would permit is found in Dr. Hick's note from September 15, 1999, which states:
[R]egarding Rebecca Bolen's recovery from what appears to have been a simple lumbosacral strain. . . . Basically, I have run out of treatment options for Ms. Bolen.
Dr. Safman's had noted the day prior, September 14, 1999, that:
. . . this patient has a chronic pain syndrome. I do not think that the two small central disc herniations are the etiology for her pain. . . . Beyond that, there is little else to offer her. This patient appears to be quite angry. She appears to be quite depressed, which may be influencing her perception and response to pain as well. . . . I believe this patient has been treated thoroughly.
Further, Dr. Cathey's remarked on December 14, 1999, that degenerative disc disease was the cause of the claimant's low back pain, and he stated specifically that:
I do not, however, believe that the injury of September 7, 1998, is the major cause of her continued low back discomfort. The changes on her MRI scan are not at all unusual considering her body habitus despite her young age. . .
I believe this poor girl has no self-esteem and a profound co-morbid depression that is having a negative impact on her progress. I wonder if the chronic uses of steroids, Valium, narcotic analgesics, etc., might be compounding the problem. . . . She is probably going to have chronic low back pain the rest of her life and that nothing the physicians are going to do is likely to have much of an impact. . . . I truly believe that Rebecca, and certainly her mother, are more interested in assigning blame than in `seeking' reasonable answers to this poor girl's problems. (Emphasis added.)
Dr. Cathey wrote on January 6, 2000, that it was his opinion that the claimant's healing period had ended. It was also the opinion of Dr. Adametz on December 28, 1999, that the claimant's healing period had ended.
Dr. Hart's contrary opinion is based on an evaluation performed more than two years after the date of the claimant's attack at work. His reports do not include any indication that he was informed of the claimant's pre-incident back problems, or her motor vehicle accidents on May 17, 1999, and December 8, 2000. Dr. Hart's use of an exclamation point in his statement that the claimant's back pain was related to her job injury suggests to me that he was influenced by her emotional state regarding this issue. Further the overly-emotional tone employed throughout his writing seems self-serving and fails to instill my confidence in his opinion.
Based on the opinions of Drs. Hicks, Safman, Cathey and Adametz, discussed above, I find that the claimant was no longer in her healing period from the work-related injury when Dr. Hicks took her off work for the second time in December 1999. I reject Dr. Hart's conclusion that the claimant's continuing back problems are related to the attack at work. The claimant has numerous factors contributing to her over-all lack of well-being which could be the cause of her present back problems, including her weight and build, the two motor vehicle accidents, and her chronic pain syndrome and degenerative disc disease.
Alternatively, even if the claimant were entitled to additional temporary total disability after Dr. Hicks took her off work on December 14, 1999, I would find that her entitlement to benefits ended when he returned her to work on June 8, 2000. She should certainly not be awarded temporary partial disability for the period in which she was in an internship after this date, and during which she was earning more than she had earned while working for the respondent.
For the foregoing reasons, I respectfully concur in part and dissent in part from the majority opinion.
__________________________ JOE E. YATES, Commissioner