Opinion
CLAIM NOS. E214467 and E216882
OPINION FILED MAY 15, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by the HONORABLE KEVIN STATEN, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals to the Full Workers' Compensation Commission an administrative law judge's opinion filed September 29, 1999. The administrative law judge found that the claimant has failed to prove that the respondents controverted his entitlement to medical benefits in the form of a spinal cord stimulator. The administrative law judge also found that the claimant has proven that he is entitled to an additional 10% permanent partial disability in addition to his 25% permanent partial impairment rating. The Full Commission has reviewed the entire record de novo. The Full Commission reverses the administrative law judge's finding that the claimant failed to prove that the respondents controverted his entitlement to a spinal cord stimulator, but we affirm the administrative law judge's finding that the claimant proved that he is entitled to an additional 10% permanent partial disability in addition to his 25% permanent partial impairment rating.
I. HISTORY
Rod Bridges, age 32, was educated through grade 12 at Strong High School, after which he began work in construction. He then performed manual labor at Dixie Maintenance Service before going to work at Pizza Hut. After leaving Pizza Hut, Bridges went to work for El Dorado School District and then Gamble Enterprises, performing janitorial services. Bridges stated that he became employed with Alumax, Inc. as a buffer helper in about 1990. The claimant said his work entailed unloading and placing 20-pound pieces of metal. He eventually became a machine operator, which required heavier manual labor.
The parties stipulated that Mr. Bridges suffered compensable (back) injuries on November 3, 1991 and March 9, 1992. In September, 1994 correspondence, Dr. H. Austin Grimes advised the claimant to continue light duty work, and stated that he felt that the claimant had suffered a 25% permanent partial physical impairment to the body as a whole with regard to his back condition. The respondents accepted and paid a 25% permanent partial impairment rating to the body as a whole.
Dr. Grimes wrote in August, 1995 that the claimant had been off work "because he was unable to do the light work that the company that employs him stated he could do. As a consequence, they did not feel he could return to even light duty as he was not able to accomplish this." Dr. Grimes scheduled a functional capacity evaluation, but there is no record of same before the Commission.
On July 1, 1996, the claimant returned to Dr. Grimes with continued back pain following a motor vehicle accident. Dr. Grimes diagnosed "Aggravation of post op spine fusion, L4-5, L5-S1 with pedicle screw fixation and posterolateral bone graft." Dr. Grimes recommended "reconsideration of injection therapy to control and manage his pain." Dr. Jeff K. Ketcham wrote to Dr. Grimes on August 13, 1996:
Thank you for referring Rod Bridges back to see us at the Little Rock Pain Clinic. We had seen him previously back in December of 1994 through May of 1995. A series of epidural steroid injections had given him good relief, which lasted apparently a few months. He had a slow progressive increase in his back pain once again and he came in today for re-evaluation with the thought that epidural steroid injections may be beneficial once again. As you recall, he has had posterior laminectomies at L4-5 and L5-S1 with fusion between L4 through S1. Today I did do epidural steroid injections. . . . If the epidural steroid injections do not give him adequate relief or only for a temporary basis, then I think long term options probably need to go ahead and be looked at, including maximizing of conservative therapy and if that is all done, perhaps considering him for either long term oral pain medication management or use of one of the interventional techniques such as spinal cord stimulation or intrathecal pump placement.
In a clinic note dated November 4, 1996 and copied to the carrier, Dr. Ketcham indicated that the claimant had not experienced long term relief from epidural steroid injection therapy. Dr. Ketcham stated that the claimant had never shown any "overt pain type of behaviors." He assessed failed back surgery syndrome and wrote, "If Dr. Grimes does not feel hardware removal is going to be beneficial, or if the patient does not wish to take the chance with another surgical operation, then again I think Mr. Bridges presents as an excellent candidate for spinal cord stimulation."
The next treatment of record did not occur until April, 1998, when Dr. Ketcham administered another injection. Dr. Grimes noted on May 26, 1998 that the claimant "is scheduled for an epidural stimulator trial and is awaiting insurance approval for this." Dr. Ketcham wrote on June 29, 1998:
So far, we have not had approval from CNA who is managing his case in regards to whether the spinal cord stimulator is going to be approved or not. . . . I still strongly recommend that patient undergo a trial for a spinal cord stimulator. I think this will give him the best chance of having significant relief over a long time interval without the use of strong analgesic medications and allowing him to increase his activity level. We will contact CNA to see what the current status is. I will see the patient back again after we have received word on this.
The record includes an October 5, 1998 Clinic Note from Dr. Ketcham, copied to the carrier:
I think he presents as an absolutely outstanding candidate for spinal cord stimulation. He is active, he is a young man, he has no chronic pain behaviors at all. . . . When I last talked to him about this, he and his insurance company, CNA, were apparently considering settlement but no action has been taken in that regard. Currently they are having to cover the cost for the Ultram, which at 8 per day, does get to be a very expensive proposition in and of itself. The patient is not working right now but is going to school. He asked about physical therapy to see if this would help. He has never really had physical therapy after the surgery. I do think that is a reasonable alternative to see if that can be helpful for stabilization and strengthening type exercises. Certainly, we would want to consider all conservative avenues before moving on towards interventional techniques such as spinal cord stimulation. . . . I will see him back again in about 4 weeks. I also plan on talking to his adjustor at CNA, Ms. Lena Hicks, and discuss with her the possibility of spinal cord stimulation, exactly what is involved, and the fact that I think this gentleman is an outstanding candidate for this type of therapy.
Further, Dr. Ketcham corresponded with Lena Hicks, CNA risk management, on October 5, 1998:
Ms. Hicks, I am sure that you share the same high opinion of Mr. Bridges as I do. Essentially, he is not like most of our chronic pain patients. He is a student now in school, tries to do as much as he can, and he does have a fairly high tolerance for pain with no chronic pain behaviors at all. I think spinal cord stimulation offers him a true chance for a vast improvement in his quality of life. I hope you will review this. I also tried to call you today. Unfortunately, you were out but I have left a message for you to try to contact me, and I really do look forward to talking to you.
Dr. Ketcham wrote on November 2, 1998, "After his last appointment, I talked to his case manager, Ms. Lena Hicks, at CNA Risk Management, in regards to Mr. Bridges' case. We have not heard back from her to date and I will try to give her a call also today or tomorrow to see if she has reviewed and whether we do have clearance to proceed on with a trial stimulation. The patient would very much like to do this." On January 21, 1999, Dr. Ketcham wrote:
We have currently appealed the denial for spinal cord stimulation. We have not yet heard anything back from his Work Comp. Carrier. . . . The only good option at this point is probably spinal cord stimulation.
The claimant filed a Form AR-C, Claim for Compensation, on March 8, 1999. The employee claimed initial and additional benefits, including permanent partial disability, medical expenses, controversion, and an attorney's fee. Dale Grady, Attorney at Law, signed the Form AR-C as the claimant's legal representative. After the claimant hired legal counsel and filed a claim for additional worker's compensation, Dr. Ketcham wrote on April 13, 1999: "He has finally been approved for a trial of spinal cord stim. He returns for that today." Dr. Ketcham saw the claimant on April 22, 1999 and assessed "Post-laminectomy scarring and intractable right leg pain, very good response to trial spinal cord stimulation."
A pre-hearing conference was held July 1, 1999. Bridges contended that he suffered compensable back injuries in November, 1991 and March, 1992. He contended that certain medical benefits have been controverted and an attorney's fee is owed thereon. The claimant contended that he is entitled to permanent disability benefits exceeding his impairment rating of 25%, and that his entitlement to these benefits has been controverted. The respondents contended that they accepted the claim as compensable and paid all benefits owed; that the claimant has suffered no permanent disability as a result of his compensable injuries in excess of the 25% physical rating. The respondents contended that they have not controverted any medical benefits.
Following a hearing before the Commission, the administrative law judge filed an opinion on September 29, 1999. The administrative law judge found that the claimant failed to prove that the respondents controverted his entitlement to medical benefits in the form of a spinal cord stimulator. The administrative law judge discussed that the claimant's physicians first suggested such a procedure in 1996. The claimant did not seek medical treatment of record from November, 1996 until April, 1998. The procedure was requested in May, 1998 and approved by April, 1999. The administrative law judge determined:
There is no question that the respondent did not immediately approve claimant's request for a spinal cord stimulator, but waited approximately one (1) year subsequent to a firm request prior to approving. However, there is no question that the respondent approved the spinal cord stimulator procedure without the necessity of any hearing or even a pre-hearing conference in this matter. To find that the respondent controverted claimant's entitlement to medical benefits in the form of a spinal cord stimulator would require conjecture and speculation, which may not be used as a substitute for credible evidence. . . . Having failed to prove that respondent controverted his entitlement to the spinal cord stimulator, claimant is not entitled to an attorney's fee on the cost of the spinal cord stimulator.
With regard to permanent disability, the administrative law judge found that the claimant proved entitlement to an additional 10% permanent partial disability exceeding the claimant's 25% physical impairment rating. The administrative law judge discussed that the claimant was in his 30's and had completed approximately three semesters of undergraduate studies. He formerly worked in heavy manual labor, but had not sought work since his termination from the respondents in 1995. The claimant is receiving social security disability. The administrative law judge determined that the claimant's pain is under control with the spinal stimulator, and that although the claimant had a severe injury, he is young and can still work.
The administrative law judge found that the respondents did not controvert the spinal cord stimulator, and that the claimant has suffered 10% permanent partial impairment in addition to the 25% physical rating accepted and paid by the respondents. Claimant appeals to the Full Commission.
II. ADJUDICATION
A. CONTROVERSION
Controversion is a question of fact to be determined from the circumstances of each particular case. New Hampshire Ins. Co. v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984). The mere failure to pay compensation benefits, in itself, does not amount to controversion. Revere Copper Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). However, assuming a position which requires an injured employee to retain an attorney so that the employee's rights are protected may constitute controversion.Turner v. Trade Winds Inn, 267 Ark. 861, 592 S.W.2d 454 (1980).
In the present matter, the claimant sustained compensable back injuries in 1991 and 1992. He underwent two surgeries and received a 25% anatomical impairment rating, which the respondents accepted and paid. The claimant was ultimately referred to a pain manager, Dr. Jeff Ketcham, who began a course of aggressive conservative treatment in August, 1996. In a clinic note dated November 4, 1996 and copied to the carrier, Dr. Ketcham assessed failed back surgery syndrome and opined that the claimant was "an excellent candidate for spinal cord stimulation."
In May, 1998, Dr. Ketcham scheduled a trial of this treatment and noted that the claimant was "awaiting insurance approval for this." Dr. Ketcham wrote in June, 1998, "So far, we have not had approval from CNA who is managing his case in regards to whether the spinal cord stimulator is going to be approved or not." The record indicates that Dr. Ketcham continued writing to the respondents and leaving messages with their case manager, but still was not given approval by October, 1998. In November, 1998, two years after his original recommendation and request for a spinal stimulator, Dr. Ketcham wrote that he had spoken to the case manager but had not yet been given approval to proceed.
On January 21, 1999, Dr. Ketcham wrote, "We have currently appealed the denial for spinal cord stimulation (our emphasis). Dr. Ketcham, the claimant's primary physician, continued to maintain that the stimulator was the only good option to treat the claimant's compensable injury. The record indicates that the claimant retained an attorney in March, 1999 and filed a claim for additional medical expenses. Suddenly, the respondents changed course and informed Dr. Ketcham that they now approved placement of a trial spinal cord stimulator. From the preponderance of evidence before the Full Commission, we must reverse the administrative law judge's determination that the respondents did not controvert the proposed spinal cord stimulator.
B. Wage Loss
When determining the degree of permanent disability sustained by an injured worker, the Workers' Compensation Commission must consider the degree to which the worker's future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, the Commission must also consider other factors, such as the worker's age, education, work experience, degree of pain, and any other matters which may affect the worker's future earning capacity. Ark. Code Ann. § 11-9-522 (1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). When it becomes evident that the worker's underlying condition has stabilized, and that no further treatment will improve that condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for a permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
In considering the factors which may affect an employee's future earning capacity, we may consider the claimant's motivation to return to work, since a lack of interest or negative attitude impedes our assessment of the claimant's loss of earning capacity.City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). See also, Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).
In the present matter, the claimant is relatively young, only 32 years old. He graduated from Strong High School and has attended some college. Mr. Bridges sustained compensable injuries in 1991-92 and eventually received a 25% anatomical impairment rating. The administrative law judge found that the claimant proved entitlement to an additional 10% permanent partial disability in excess of the 25% anatomical impairment rating. The Full Commission affirms this finding. We recognize that the claimant's employment history includes mainly low-skilled labor. However, we are unable to find from the claimant's educational background and obvious above-average intelligence that he is confined to a lifetime of menial heavy labor. Further, the record shows that the claimant has not worked since 1995 and is not motivated to find work. The record indicates that the claimant has been content to receive social security disability since 1995. The decision of the administrative law judge is affirmed.
C. Mileage Reimbursement
Claimant contends that the administrative law judge failed to consider his request for medical mileage. On appeal, respondents advance the argument that this issue was not raised. We disagree.See, Tr. P. 22. Claimant contended that he was entitled to medical benefits, testified that he had not been reimbursed for all medical travel, and offered documentary evidence of his visits to Dr. Ketcham. The documentary evidence was introduced without an objection by counsel for respondents. According to claimant's testimony, he has not received reimbursement from respondent carrier. In his pre-hearing order, the administrative law judge listed "controversion of medical benefits" as an issue for litigation. This certainly encompasses medical mileage. In our opinion, it is proper for us to consider the issue of medical mileage. We find that claimant is entitled to reimbursement for medical mileage.
Based on the distance claimant was required to drive, he also claimed lodging expenses. He testified that respondents have reimbursed him for lodging in the past. We further find that claimant is entitled to reimbursement for mileage and lodging. His round trip mileage for each trip totals 260 miles.
III. CONCLUSION
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission reverses the administrative law judge's finding that the claimant failed to prove that the respondents controverted his entitlement to medical benefits in the form of a spinal cord stimulator. We affirm the administrative law judge's finding that the claimant proved that he is entitled to an additional 10% permanent partial disability in addition to his 25% permanent partial impairment rating. We find that the claimant has proven entitlement to reimbursement for associated medical mileage incurred in connection with reasonable and necessary medical treatment. We find that the claimant's attorney is entitled to a fee based on the mileage and lodging awarded herein, and for the claimant's spinal cord stimulator, in addition to his 10% permanent partial disability, at the maximum permisible statutory rate under Ark. Code Ann. § 11-9-715(a)(1) (Repl. 1996).
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, 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(b)(2) (Repl. 1996).
IT IS SO ORDERED.
___________________________
CONCURRING AND DISSENTING OPINION
I concur in part and respectfully dissent in part from the majority opinion in this case. I concur in the findings that respondents controverted additional medical benefits in the form of a spinal cord stimulator, and that claimant is entitled to mileage reimbursement. However, I find that a wage-loss award of only 10% fails to adequately compensate claimant.
Claimant sustained admittedly compensable injuries on November 3, 1991, and March 9, 1992. Surgical intervention was necessary. Following the procedure, scar tissue formed, and claimant developed chronic back and lower right extremity pain.
Dr. Ketcham has characterized claimant's pain as "intractable." He described the surgical procedures performed on claimant as follows: "He has had posterior laminectomies at L4-5 and L5-S1 with fusion between L4 through S1." Conservative treatment in the form of narcotic analgesics, and epidural steroid injections were administered. However, these measures failed to provide satisfactory relief. Thus, Dr. Ketcham used spinal cord stimulation. At the hearing, claimant stated that additional "fine tuning" was required, and it was impossible to determine whether the SCS would be successful.
Claimant is a high school graduate. He is thirty-one years old. Claimant stated that he attended college for three semesters, but quit based upon the advice of Dr. Ketcham. He explained that prolonged sitting would interfere with the spinal cord stimulator. Claimant stated that he is able to sit for only 15-20 minutes without rising. His ability to stand is similarly limited. Claimant is unable to lift in excess of 25 lbs. His employment history consists of manual labor jobs, including construction, janitorial, and maintenance work.
The evidence showed that initially, claimant was furnished light-duty employment. Ultimately, respondents terminated his employment since he was unable to return to his pre-injury duties. Claimant last worked in June 1995. He currently receives Social Security Disability benefits.
Although claimant is relatively young, he has been diagnosed with failed back syndrome, and suffers from chronic pain. It is important to note that claimant's anatomical impairment rating totaled 25% to the whole body. Based on all appropriate factors, I find that claimant's wage-loss award is inadequate.
Based on the foregoing, I concur in part and respectfully dissent in part.
_________________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson concurs in part and dissents in part.
CONCURRING DISSENTING OPINION
I respectfully concur in part and dissent from the majority's opinion finding that the respondents controverted the claimant's entitlement to a spinal cord stimulator, awarding the claimant wage loss disability benefits in the amount of 10% and awarding the claimant reimbursement of mileage. I agree that the claimant is entitled to a 10% loss in wage earning capacity and that the claimant is entitled to reimbursement for medical mileage. However, in my opinion the respondents did not controvert the claimant's entitlement to a spinal cord stimulator. Based upon myde novo review of the record I would affirm the decision of the Administrative Law Judge.
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1996). However, injured employees have the burden of proving by a preponderance of the evidence that the medical treatment is reasonably necessary for the treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Compensation Commission Opinion filed February 17, 1989 ( D612291). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy.Deborah Jones v. Seba, Inc., Full Commission Opinion Dec. 13, 1989 ( D512553). Also, the respondent is only responsible for medical services which are causally related to the compensable injury.
The medical records indicate that on or about August 13, 1996, the claimant's treating physicians recognized thepossibility that the claimant could need implementation of a spinal cord stimulator for controlling pain. A November 4, 1996, medical report indicates that it would be a good idea for the claimant to have a spinal cord stimulator due to his age, physical condition, and lack of chronic pain factors. The claimant did not return for medical treatment until April 17, 1998. A medical report dated May 26, 1998, indicates that the treating physician was awaiting approval for the request of the spinal cord stimulator. The medical reports indicate that the requests for the stimulator were presented to the respondents insurance company. In April of 1999, the claimant underwent the procedure for implementation of the spinal cord stimulator.
The claimant contended at the hearing that the spinal cord stimulator was approved only after a claim was filed with the Workers' Compensation Commission and therefore his claim was controverted. Whether benefits have been controverted is a question of fact for the Commission. Mere failure of the respondent to make timely payments of benefits does not automatically amount to controversion. See, Hammerick v. The Colson Co., 271 Ark. 740, 610 S.W.2d 281 (Ark.App. 1981). Further, the mere fact that the claimant has retained an attorney prior to the payment of the benefits does not automatically constitute controversion. Id. The determination of whether a claim is controverted is a fact question to be resolved from the circumstances of each particular case. Walter v. Southwestern Bell Telephone Co., 17 Ark. App. 43, 702 S.W.2d 822 (1986). It is not to be determined mechanically upon ascertaining whether the employee has filed his claim and the employer promptly responds by accepting or controverting the claim. There are other factors which the Commission may consider in determining whether the services of the attorney were necessitated by the employer's action. Aluminum Co. Of America v. Henning , 260 Ark. 699, 543 S.W.2d 480 (1976); Hamrick v. Colson Company , 271 Ark. 740, 610 S.W.2d 281 (Ark.App. 1981). I find that the circumstances surrounding this case are insufficient to support an award of attorney's fees to the claimant's attorney for controversion.
In my opinion, the delay in payment by the respondents for payment of the spinal cord stimulator does not amount to controversion. There is no question that the respondents approved the spinal cord stimulator procedure without the necessity of the intervention of the claimant's attorney. The evidence shows that the claimant did not seek treatment in the time period of November 4, 1996 through April 17, 1998, from the physician that recommended this spinal cord stimulator. Therefore, I must dissent from the majority's opinion on this issue.
Therefore, based upon my de novo review of the record, I would affirm the decision of the Administrative Law Judge in its entirety. Therefore, I respectfully dissent in part and concur in part from the majority opinion.
______________________________ MIKE WILSON, Commissioner