Opinion
CLAIM NO. F305141
OPINION FILED FEBRUARY 27, 2006
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Joseph Grider, Attorney at Law, Pocahontas, Arkansas.
Respondents represented by the Honorable Betty Demory, Attorney at Law, Little Rock, Arkansas.
Decision of the administrative law judge: Affirmed in part, and reversed in part.
OPINION AND ORDER
The respondent appeals from an administrative law judge's opinion filed June 10, 2005. The administrative law judge found, in pertinent part, "Pursuant to Ark. Code Ann. § 11-9-514, and in accordance with Collins v. Lennox Industries, Inc. 77 Ark. App. 3030, 75 S.W.3d 204 (2002), claimant is entitled to a one time change of treating physician, relative to her October 31, 2001, compensable injury. The claimant has sustained her burden of proof by a preponderance of the evidence that further medical treatment is reasonably necessary relative to her October 31, 2001, compensable injury, pursuant to Ark. Code Ann. § 11-9-508. The respondent shall pay all reasonable hospital and medical expenses, to include counseling, arising out of the injury of October 31, 2001."
After reviewing the entire record de novo, the Full Commission affirms in part, and reverses in part the opinion of the administrative law judge. The Full Commission finds that the claimant is entitled to a one-time change of physician. However, we find that the claimant has failed to prove by a preponderance of the evidence that the additional medical treatment she has received since December 10, 2003 is reasonably necessary in connection with her compensable injury.
I. History
The claimant, age 28 (5/24/77), worked for the respondent as a certified nursing assistant. The claimant is right-hand dominant. On October 31, 2001, the claimant sustained an admittedly compensable injury to her left hand while working for the respondent.
The respondent accepted the claim as compensable and paid medical benefits through December 10, 2003. Since this time, the respondent has resisted payment of any additional benefits. Therefore, the claimant has brought this claim asserting her right to additional benefits and a one-time change of physician.
On November 29, 2001, the claimant sought treatment for her hand injury from Dr. Brian Dickson due to complaints of left hand stiffness and pain. Dr. Dickson wrote:
Shonna [claimant] presents as a 24 YO, right hand dominate, white female who put her hand in a garbage disposal when it was turned off one month ago and got her hand stuck and it swelled while in there. It was in there for at least one and a half hours before people were able free her hand from this. She went to the ER approximately one day later and had x-rays and complained of swelling and pain. She was apparently placed in a splint at that time which worked for a brief period of time. She now presents with inability to extend her left small ring and long fingers and pain when she tries to do this passively. She is able to move her index and thumb. She says the arm was caught approximately mid forearm area and the swelling extended from there distally.
Dr. Dickson assessed the claimant with "claw type deformity of the left hand," for which he prescribed physical therapy treatment and a splint. In addition, he noted that the claimant's hand did not exactly fit a claw hand type Intrinsic minus deformity. As a result, he ordered an EMG/NCV study, which was performed December 5, 2001, with the following conclusion:
Technically suboptimal study. Could not straighten out 3rd-5th digits from flexion and duc difficult to record secondary to underlying marked muscle contraction of interossei.
With slowing of median sensory across the forearm and absence of duc may be evidence of demyelination of these sensory nerves.
Otherwise I can find no other injury based on current study.
The claimant was referred to the Orthopaedic Clinic in Memphis for evaluation and treatment. On December 13, 2001, the claimant underwent evaluation at the Orthopaedic Clinic due to a protracted left hand. On exam, the claimant was found to have significant maceration in the palmer aspect of the hand indicating that it had been clenched for some time with moisture collecting there. However, the claimant had no contractures present in the long, ring and 5th fingers and could be taken to full extension. Therefore, the claimant was encouraged to hold the fingers open with her own opposite right hand. Although the claimant complained of pain, she was able to hold her fingers open. The claimant complained of pain on the back of the hand and with any touch to the dorsum of the hand, and she appeared to possibly have some swelling over the dorsum of the hand. The claimant was diagnosed with painful right hand with flexed fingers. The claimant's flexion of her fingers were found to be of a voluntary action that could be overcome simply by working on it on her own with stretching exercises of the fingers without the use of a splint.
On January 2, 2002, the physical therapist, Stephanie Teague, summarized the claimant's treatment and progress. According to Ms. Teague, the claimant had not made significant progress despite contrast baths, stretching exercises, and ultrasound treatment to the dorsal side of the left hand under water. The therapist noted that the claimant had presented on at least two occasions with edema.
On January 14, 2002, the claimant was seen at the Arkansas Hand Center for evaluation by Dr. Michael Moore at which time he reported:
It is my opinion Ms. Davis' clinical history and physical examination are consistent with a clenched fist syndrome. Unfortunately, this is an extremely difficulty problem to treat. Surgical treatment is not indicated. It is my opinion Ms. Davis should undergo psychiatric evaluation. Furthermore, I have recommended that she be evaluated by Dr. Reginald Rutherford who is a neurologist specializing in pain management syndromes. I would appreciate his opinion regarding Ms. Davis' diagnosis and any treatment options he feels are indicated. . . .
The claimant also underwent initial consultation with Dr. Rutherford on January 14, 2002 regarding clenched fist syndrome pursuant to referral from Dr. Moore. On examination, Dr. Rutherford found that the claimant's extremities appeared to be normal with no swelling or discoloration noted on the left hand or arm. Dr. Rutherford wrote: "On neurological examination collapsing pattern weakness was noted on testing all major muscle groups of the left upper extremity indicative of nonphysiologic weakness and correlating with the posturing noted on clinical examination . . ." Dr. Rutherford further reported that the claimant's clinical picture was indicative of clenched fist syndrome, which represents a psychophysiologic process. Therefore, he recommended the claimant undergo a psychological evaluation with Dr. Judy White Johnson.
On January 31, 2002, the claimant underwent initial evaluation with Dr. Judy White Johnson, a clinical psychologist. Dr. White reported that throughout the examination, the claimant was unusually cheerful, laughed a great deal at her situation, and did not seem to be upset at all. According to Dr. White, when she asked the claimant about her laughter, she stated she just thought it was "funny." Dr. White reported that the claimant's prognosis for psychological intervention was "very poor." She further noted that the claimant's overall pattern of functioning was consistent with a Somatiform Disorder with Conversion Symptoms and a Histrionic Personality Disorder.
On February 1, 2002, Dr. Rutherford reported that she had advised the claimant that testing clearly revealed that stress was playing a significant role in her problem. Therefore, he recommended that the claimant use Paxil coupled with an attempt of normal use of the hand in order to facilitate her recovery.
On March 1, 2002, Dr. Rutherford saw the claimant for follow-up care. At that time, there was no change in the claimant's clinical picture referable to her clenched fist syndrome. The small, ring, and long fingers could be manually extended, as there was no evidence of contracture formation or atrophy of the hand musculature. Manual muscle testing on this occasion was normal and there was no collapsing weakness identified. According to Dr. Rutherford, the claimant appeared to be indifferent to her situation as would be anticipated based upon her psychological profile. The claimant notified Dr. Rutherford's office that the Paxil resulted in chest pain. Therefore, he discontinued the claimant's use of Paxil and began treating her with Amitriptyline.
The claimant was seen for follow-up care with Dr. Rutherford on March 29, 2002. At that time, the claimant reported no change since her previous visit and her examination was unchanged. In addition, Dr. Rutherford wrote: "Ms. Davis was advised that I have no further treatment to recommend in her case. Clinical follow up with myself is left to a prn basis. This entity typically embodies a poor prognosis and it is definitely possible that her current clinical picture will prove longstanding."
On April 15, 2002, the claimant was seen by Dr. Charles Varela for her hand condition. His impression was, "probable conversion, disorder, left hand." Dr. Varela described this condition as psychoflexed hand wherein the ulnar three digits are severely flexion contractured often causing maceration in the palm. He also reported that this condition is almost impossible to correct. Dr. Varela wrote: "There is no anatomical or physiologic reason for contractures as this appears to be primarily a subconscious disorder. There have been some reports in literature that some correction has been seen with hypnosis or self-hypnosis." As a result, Dr. Varela recommended that the claimant be seen by a psychiatrist who is familiar with the techniques of hypnosis.
A medical report dated June 12, 2002, was authored by Thomas Zurkowski, a psychiatrist, wherein after evaluating and attempting to put the claimant under hypnosis (though unsuccessful), he stated he did not believe the claimant's condition was of a psychological etiology although he noted "it may be." As a result, he recommended the claimant undergo evaluation with an orthopedist or neurologist.
On September 5, 2002, Ms. Patrecia Goldey, a licensed counselor, reported that she had found no signs of a mental illness in the claimant. In addition, Ms. Goldey stated, "It is my professional opinion that Ms. Davis [claimant] has no symptoms of mental illness as described in the Diagnostic and Statistical Manual of Mental Disorders."
On October 2, 2002, the claimant underwent evaluation with Dr. Thomas Joseph, who ordered an MRI of the left extremity.
On January 17, 2003, the claimant was seen by Dr. Joseph for follow-up care of her left hand. He reported that the MRI scan of the left forearm did not show any muscle pathology or contracture. Therefore, he suggested the claimant be examined under anesthesia to see if the finger could be straightened or if the contracture was a fixed contracture.
The claimant underwent evaluation with Dr. Charles Goldfarb on March 7, 2003. His impression was, "psychogenic flexed posture of the long, ring and small finger," for which he performed Botox injections in the flexor digitorum superficialis and flexor digitorum profundus, as this was performed on May 12, 2003. The claimant was seen on May 19, 2003 for follow-up care with Dr. Goldfarb. At that time, the claimant was doing well and had no complaints and on physical examination, her fingers were straight.
According to physical therapy notes dated May 27, 2003, the claimant reported that her left hand and forearm had been hurting a lot since her last visit. On May 29, 2003, the physical therapy assistant reported that the claimant had edema at the 3rd and 4th digits and serous drainage. In addition, on June 9, 2003, the physical therapist assistant reported that upon inspection, the claimant's palm was very sweaty and that her fingers had a scent.
On June 13, 2003, the claimant was seen by Dr. Goldfarb for follow-up care of her hand. The claimant reported that her fingers started "drawing back up" after weeks. His impression was "clenched fist syndrome status post Botox." In addition, Dr. Goldfarb reported he was unable to explain why the patient would have two weeks of complete relief of her ability to flex her fingers and then recurrence at this short interval. Therefore, he recommended the claimant see Brad Racette in Neurology Disorders Clinic for potential reinjection or a second option would be profundus to superficialis transfer.
The claimant was discharged from physical therapy care June 20, 2003. According to the assistant therapist's notes, the claimant had reported that her doctor was at a loss as to the decrease in ROM and was going to perform another surgery. The discharge summary specifically states: "PT could accomplish full PROM and pt would shake uncontrollably when trying active ROM. . . ."
The claimant underwent evaluation with Dr. James Kelly III, a plastic and reconstructive surgery hand and microsurgery specialist, on September 22, 2003. Dr. Kelly recommended two things, wherein he wrote:
. . . . The first is that we start with having an axillary block completed on the left upper extremity and then manipulate the third, fourth, and fifth MCP, PIP, and DIP joints. At the time after the manipulation, I will cast her MCPs and IP joints in full extension. I then will be able to, after the hand has relaxed somewhat, to proceed with a proper EMG/NCV study to rule out the possibility of her having an ulnar nerve neuropathy at the wrist or distal forearm which would be giving her a quasy ulnar clenched hand syndrome picture. In all likelihood, however, this will not be the case and her ulnar nerve will be normal and that we will be left with again the diagnosis of the left clinched fist syndrome, and then I would want to proceed by releasing her third finger only to see if then she can control the third finger, otherwise she will have a totally non-functional hand and if that is the case and she is not able to use the third finger, I think there is little else to do other than possibly FDP to FDS tendon lengthenings to reduce the tension she can generate onto the fingers and prevent her from being able to flex the third, fourth, and fifth fingers fully into the palm. . . .
The claimant underwent manipulation of the left D3,4,5 MCP and PIP joints on October 7, 2003 with Dr. Kelly. The claimant tolerated the procedure well and was discharged to the recovery room in good condition. On October 13, 2003, Dr. Kelly released the claimant to return to alternative work duty effective as of October 14, 2003.
On October 20, 2003, the claimant was seen for follow-up care with Dr. Kelly. He removed the splint and directed the claimant to obtain counseling and to start range of motion therapy, which was done. He also directed that the claimant continue on one-hand work duty restrictions.
The claimant was seen on November 17, 2003 for follow-up with Dr. Kelly of her left hand. He reported that under a lot of coaxing and firm instructions the claimant was able to flex fingers and extend the muscle. Dr. Kelly wrote:
She really has a functional disorder and based on the clinical psychologist that saw her back in January 31st, 2002, she was diagnosed as an overall pattern of function consistent with somatoform disorder with conversion symptoms with a history of a personality disorder. She obviously is focusing on her hand as a means to gather attention and I really don't think that this girl going to do very well in the long term. I instructed her with her father in place that she needs to be more aggressive with the therapy and that ultimately if she gets her motion back, it will be strictly up to her. . . .
On December 10, 2003, the claimant presented to Dr. Kelly for follow-up care for her left clenched fist syndrome. At that time, Dr. Kelly noted that the claimant presented with spontaneous left shoulder contractures which looked as though they were voluntary contractures as she varied the rate and when he distracted her she slowed the rate in which she did the twitching of the shoulder. Dr. Kelly wrote:
. . . I think her issues are related to possibly some deeper psychological issues that she may be having and I don't feel that any surgical procedure is of benefit for her. I cannot relate the fact that she had her hand down in a garbage disposal and never really actually injured her hand whatsoever and that all lead to this. Especially seeing that the reason why she couldn't get her hand out is because she held it in a fisted position down inside the garbage disposal and that is the reason why she had to be extracted from the garbage disposal. I find it hard to understand how she physically could be trapped in any other way as the garbage disposal is certainly much larger around than her actual wrist and the only way she could be entrapped is by holding her hand down in a fisted position. Again, I think that at this point that there will be no rating provided for her as what she is suffering from is not related to her work injury and in fact, I do not think there was a work injury whatsoever. I have explained that I think she needs to pursue this through counseling and that there is no surgical procedure that would be amenable for her benefit and that I do not want to play what I think is a secondary gain that she is seeking. I therefore will be seeing her back on a prn basis.
The claimant underwent counseling at Better Life Counseling Center in Jonesboro with Greg Brooks, the executive director. On December 17, 2003, Mr. Brooks wrote: "Based on my sessions with Ms. Davis I have made a diagnosis of Adjustment Disorder Unspecified, Chronic, with identifiable stressors being her continued physical complaints and the failure of treatment for those complaints up to this point."
Since Dr. Kelly's visit on December 10, 2003, the respondent has refused to provide additional medical treatment for the claimant's hand injury.
A hearing was held in this matter on March 18, 2005. During the hearing, the claimant gave testimony. According to the claimant, since her compensable injury of October 31, 2001, her hand has appeared as though she is constantly pointing a gun. Specifically, the claimant testified that she injured her left hand at the home of an elderly patient as she attempted to remove a washcloth that was stuck in the garbage disposal. According to the claimant, she was unable to remove her hand from the disposal by putting oil and butter on it. The claimant testified that ultimately, she ended up calling 9-1-1, and they dispatched the fire department personnel over and they ended up removing the sink part to get her hand out. After the claimant's hand was released, she went by to see her employer. According to the claimant, her hand was bruised and swollen, but it was not hurting. Therefore, she continued working.
The claimant essentially testified that the next morning, her hand was more swollen and she could not get the swelling down by use of ice packs. According to the claimant, she contacted the respondent and received instructions to go the emergency room, where they x-rayed her hand and put a brace on it. The claimant testified that she wore the brace for two weeks and then had the brace removed. According to the claimant, after the brace was removed, her hand began to "draw." The claimant testified that her hand stays drawn all the time. She denied having engaged in any other type of activity that could have caused this problem.
Since her injury, the claimant testified she has undergone physical therapy and various other treatments. According to the claimant, during her first or second session of physical therapy treatment, her fingers contracted so badly that the physical therapist had to pull them out and this caused her to pass out on at least two occasions because it was so painful. The claimant testified that after this, the physical therapist refused to treat her any more until she could be seen by an orthopedic surgeon of some type. The claimant testified she has had eight injections of Botox into the left arm, which were performed by a doctor in St. Louis. According to the claimant, about two or three weeks after this, her hand was straight and her finger worked great, but she did not have any movement in them. During this time, the claimant's hand had been put in a half-cap brace to keep it straight. The claimant testified she experienced some pain after the medicine wore off. According to the claimant, when they removed the cap/brace after about a week-and-a-half, her hand had the appearance of "burns," and the skin had to be removed. As a result, the claimant underwent physical therapy treatment three times a week. The claimant testified her hand was extended/straight after removal of the brace, but she was unable to bend them (her fingers). The claimant essentially testified that after this, her thumb and index finger never bent again and the other three gradually began to draw back. According to the claimant although they wrapped her fingers in gauze to keep them straight, the gauze would eventually wear and her hand would start to fold back again. The claimant admitted to treating with Dr. Goldfarb, a psychiatrist, and Patrecia Goldey, a licensed counselor. She also admitted to seeing a doctor in Memphis. In addition, the claimant testified she underwent another psychiatric evaluation with Dr. Judy Johnson prior to treating with Dr. Kelly.
The claimant testified that Dr. Johnson evaluated her for a "clenched-fist syndrome." The claimant denied having any problems in her life with episodes of depression or thoughts of suicide or anything of that nature during this or any other time. According to the claimant, after her injury, she continued working for the respondent until they closed due to Medicaid and Medicare regulations. While working for the respondent, the claimant testified that she always wore a hand brace, and there were some things she could not do, such as lifting and wringing a mop. Following her employment with the respondent, the claimant went to work for the Department of Health.
According to the claimant, Dr. Kelly performed a shoulder block and straightened her three fingers out with manipulation and put a cast on her hand. The claimant testified that after the cast was removed, she began experiencing muscle spasms in her arm and shoulder. In the meanwhile, the claimant testified that she was undergoing physical therapy, which she maintains did not help and was unable to complete. According to the claimant, she also saw another counselor at Better Life Counseling Center in Jonesboro before returning to see Dr. Kelly again. The claimant admitted that the nerve conduction study test results were negative with respect to her hand being clenched.
The claimant testified she was off work after Dr. Kelly's procedure for four or five days, but she has not missed any work since this time. The claimant admitted she had not been denied any employment due to her hand injury. The claimant also denied prior psychological problems, depressive/suicidal thoughts or any traumatic experiences.
On cross-examination, the claimant testified there was no reason as to why she put her left hand in the disposal as opposed to her dominant right hand. The claimant admitted to being treated for seizures, as a result of a fall at school wherein she hit her head. The claimant testified that she has not taken any medication for her shoulder or hand since December of 2003, nor has she seen a doctor or counselor since this time.
On redirect examination, the claimant essentially testified that she sometimes get sores on her hand due to perspiration. Jeannie Weisenbach, the claimant's former roommate also gave testimony during the hearing. Ms. Weisenbach testified that she lived with the claimant along with her own three children for four years. According to Ms. Weisenbach, she and the claimant were living together at the time of her accident. She testified that prior to the claimant's accident, she had not observed anything to cause her to have concerns about the claimant's mental state. Ms. Weisenbach testified that she has been a licensed practical nurse (LPN) since 1994. According to Ms. Weisenback, on one occasion, the claimant passed out while she was clipping her fingernails. Ms. Weisenback denied having ever thought that the claimant was acting irrational, or any complaints or problems with her about caring for her kids.
On cross-examination, Ms. Weisenbach denied being a trained psychologist or having performed any psychological tests on the claimant.
On redirect examination, Ms. Weisenbach testified she works for Mid-South Mental Health as a case manager for 37 clients with mental disorders. According to Ms. Weisenbach, she goes into their homes and help them live independently to maintain stability. Ms. Weisenbach testified she has received training as a mental health paraprofessional, which entails approximately 32 hours of training per year.
Sam Manness, the Assistant Fire Chief in Pocahontas gave testimony during the hearing. He remembered being dispatched to remove the claimant's hand from the garbage disposal on October 31, 2001. According to Mr. Manness, once the claimant's hand was removed from the disposal, he did not observe any cuts, scratches or abrasions to her hand. However, he essentially admitted that the claimant's hand could have been swollen as a result of a liquid soap-type thing that they used to get her hand out.
On cross examination, Mr. Manness admitted that the claimant appeared to be scared and wanted her hand out of the disposal.
Leigh Ann Schmidt, an RN for Systemedic gave testimony during the hearing. According to Ms. Schmidt, she worked as their "workman comp case manager" and would coordinate medical treatment for the clients. On cross-examination, Ms. Schmidt testified that she worked with the claimant until her release by Dr. Kelly in December of 2003. A prehearing conference was conducted in this claim on November 30, 2004, from which a Prehearing Order was filed. The parties agreed to the following stipulations:
1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim.
2. The existence of the employment relationship on October 31, 2001.
3. The payment of three (3) weeks of temporary total disability benefits and some medical expenses on behalf of the claimant.
The parties agreed to litigate the following issues:
1. Change of physician.
2. Additional medicals.
The claimant contended that on October 31, 2001, she injured her hand in a garbage disposal while working for the respondent; that since that time the claimant has seen several different doctors about her condition. The final report was that her condition was the result of a Somatiform Disorder with Conversion Symptoms and a Histrionic Personality Disorder. Claimant disagrees with this diagnosis and asks for a change in physician.
In contrast, the respondent contended that the claimant has been provided all appropriate benefits to which she is entitled. Specifically, the respondent accepted the claim as compensable and paid claimant's medical expenses totaling over $13,000 plus three weeks of temporary total disability benefits. Thereafter the claimant was released as being at maximum medical improvement by Dr. Kelly on December 10, 2003 with a 0% impairment rating. Respondent has paid for a number of evaluations for the client. Therefore, the respondent asserts that the additional evaluation requested by the claimant after October 12, 2004 are not reasonably necessary nor are they causally related to her compensable claim.
After a hearing before the Commission, the administrative law judge found, "Pursuant to Ark. Code Ann. § 11-9-514, and in accordance with Collins v. Lennox Industries, Inc. 77 Ark. App. 3030, 75 S.W.3d 204 (2002), claimant is entitled to a one time change of treating physician, relative to her October 31, 2001, compensable injury. The claimant has sustained her burden of proof by a preponderance of the evidence that further medical treatment is reasonably necessary relative to her October 31, 2001, compensable injury, pursuant to Ark. Code Ann. § 11-9-508. The respondent shall pay all reasonable hospital and medical expenses, to include counseling, arising out of the injury of October 31, 2001."
The respondent appeals to the Full Commission.
II. Adjudication
A. Change of Physician
The facts are not in dispute. The claimant suffered an admittedly compensable injury to her left hand on October 31, 2001, for which the respondent has provided medical benefits through December 10, 2003 and three weeks of temporary total disability compensation. A review of the record demonstrates that the claimant has not exercised her one-time right to a change of physician for her compensable injury. The claimant now contends she is entitled to a change of physician. The administrative law judge found that "Pursuant to Ark. Code Ann. § 11-9-514, and in accordance with Collins v. Lennox Industries, Inc. 77 Ark. App. 3030, 75 S.W.3d 204 (2002), claimant is entitled to a one-time change of treating physician, relative to her October 31, 2001, compensable injury." We affirm this finding. Pursuant to the provisions of Act 796 of 1993, it is now well-settled that the claimant has an absolute, statutory right to a one-time change of physician. See, Ark. Code Ann. § 11-9-514(a)(3); Collins v. Lennox Industries, Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002).
B. Medical Treatment
An employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508 (a). The claimant bears the burden of proving that she is entitled to additional medical treatment. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
The administrative law judge found in the present matter, "The claimant has sustained her burden of proof by a preponderance of the evidence that further medical treatment is reasonably necessary relative to her October 31, 2001, compensable injury, pursuant to Ark. Code Ann. § 11-9-508. The respondent shall pay all reasonable hospital and medical expenses, to include counseling, arising out of the injury of October 31, 2001." The Full Commission reverses this finding. We find that the claimant failed to prove by a preponderance of the evidence that the additional medical treatment she has pursued for her compensable injury after December 10, 2003, was reasonably necessary in connection with her compensable injury, pursuant to Ark. Code § 11-9-508(a).
In the present matter, the evidence of record clearly establishes that on October 31, 2001, the claimant sustained only a minor compensable left hand injury, which primarily entailed swelling of her hand. Since this time, the respondent has provided the claimant with extensive medical treatment through December 10, 2003, from various mental and health care professionals for what has been identified as "the left clenched hand syndrome." The claimant has had extensive diagnostic testing of her clenched left hand including, an MRI scan, x-rays, and EMG/NCS studies, all of which have been normal. Dr. Kelly, other specialists, a psychiatrist, and various other health care professionals (except for Dr. Zurkowski, a psychiatrist, and Ms. Goldey, a counselor) have all essentially opined that the claimant's clenched hand is of a psychological etiology. In January of 2002, Dr. Rutherford opined that the claimant's clinical picture was indicative of "clenched fist syndrome, which represents a psychophysiologic process," for which he recommended a psychological evaluation with Dr. Judy White Johnson, which was done. On January 31, 2002, Dr. Johnson assessed the claimant with an overall functioning pattern consistent with a Somatiform Disorder with Conversion Symptoms and a Histrionic Personality Disorder. In April of 2002, Dr. Varela described the claimant's condition as psychoflexed hand wherein the ulnar three digits are severely flexion contractured often causing maceration in the palm. He also opined that this condition is almost impossible to correct. Dr. Varela wrote: "There is no anatomical or physiologic reason for contractures as this appears to be primarily a subconscious disorder." Dr. Joseph opined in January of 2003, "The MRI scan of the left forearm did not show any muscle pathology or contracture." The claimant underwent Botox injections with Dr. Goldfarb on May 12, 2003, which provided temporary relief of her clenched fingers for approximately two weeks. On December 10, 2003, Dr. Kelly formally pronounced medical improvement and assessed the claimant with a zero percent impairment rating. Dr. Kelly further opined that the claimant's condition is not related to the October 31, 2001 incident, and recommended she seek counseling because there is no surgical procedure that would be amendable for her benefit.
Based on the expert opinions of Drs. Kelly, Johnson, Varela and the various other health professional described above, who have essentially opined that the claimant's clenched hand syndrome is of a psychological etiology, and there being no objective medical findings to explain the nature of her clenched hand, the Full Commission finds it would require conjecture and speculation to causally link this alleged condition to the October 31, 2001 incident. Conjecture and speculation cannot supply the place of proof. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979). While we recognize that Dr. Zurkowski and Ms. Goldey, have essentially opined that the claimant's clenched left hand does not result from a psychological or mental illness, we attach no weight to these opinions due to the overwhelming evidence to the contrary.
As such, we are constrained to find that the claimant's need for additional treatment due to her "clenched left hand" results from a psychological etiology rather than her compensable injury of October 31, 2001. Therefore, the claimant has failed to prove that additional medical treatment after December 10, 2003 is reasonably necessary in connection with her compensable injury. The Full Commission reverses the administrative law judge's finding on this issue.
Based on our de novo review of the entire record, the Full Commission finds that the claimant is entitled to a one-time change of physician. However, we find that the claimant failed to prove that further medical treatment is reasonably necessary for her compensable injury. The claimant's attorney is entitled to maximum fees for legal services as provided by Ark. Code § 11-9-715 (Repl. 2002). For prevailing on appeal to the Full Commission, the claimant's attorney is entitled to an additional fee of five hundred dollars ($500.00), pursuant to Ark. Code Ann. § 11-9-715 (Rep. 2002).
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner concurs, in part, and dissents, in part.
CONCURRING AND DISSENTING OPINION
The Majority has found that the claimant is entitled to a Change of Physician but that the medical treatment she has been seeking is not reasonable or necessary. For the reasons set out below, I concur with the finding that she is entitled to a change of physician, but I respectfully dissent from the denial of her requested medical treatment.
In my opinion, the Majority's decision is inconsistent and exhibits a misunderstanding as to the nature of the claimant's psychological condition. There is no dispute that the claimant sustained a compensable injury to her left hand. While the actual injuries sustained in the job related accident are not particularly severe, she has now developed clenched fist syndrome, a serious and disabling condition.
As the Majority documents in their Opinion, there is no physiological reason for the claimant to be unable to fully open her hand. Most of the medical providers who have treated the claimant have opined that her problems are psychological in nature. This finding is most clearly explained by Dr. Judy Johnson, a clinical psychologist in Little Rock, Arkansas. In addition to interviewing the claimant, she administered the claimant a series of psychological tests. The results of these tests, as well as her conclusions about the claimant's psychological make up is set out in her report of January 31, 2002. In that report, Dr. Johnson diagnosed the claimant as suffering from a somatiforn disorder with conversion symptoms and a histrionic personality disorder.
I, like, the Majority, find that the claimant's clenched fist syndrome results from the psychological disorder diagnosed by Dr. Johnson. Where I disagree with the Majority is when they state, "the Full Commission finds that it would require conjecture and speculation to causally link this alleged condition to the October 31, 2001 incident." I strongly disagree with that conclusion, as I do not see any question that the claimant's clenched fist syndrome is related to the entrapment of the claimant's hand which occurred while she was carrying out her job related duties.
I reach that conclusion for several reasons. Prior to getting her hand caught, the claimant did not suffer from any psychological problems or disorders and had no history of any condition similar to that she now suffers from. Further, most of the medical personnel who have seen the claimant have clearly related her condition to her job related hand entrapment, and the onset of her clenched fist occurred shortly after that event. In my opinion, the claimant clearly needs further psychological assistance in order to cure herself of this debilitating condition.
My other point of disagreement with the Majority's finding is that in holding that the claimant is entitled to a change of physician but that treatment is not reasonable or necessary is a contradictory conclusion and does not help either party in this case. Clearly, the claimant is in need of further psychological treatment. However, to find that her condition is not job related and that treatment for it is not going to be reasonable and necessary simply makes no sense. I believe that the evidence in this case clearly establishes that the claimant has suffered a psychological injury to her left hand in the form of clenched fist syndrome. The respondent apparently agreed with this finding since they accepted the compensability of this claim, sent the claimant to multiple physicians including neurologists, orthopedists, psychiatrists, psychologists, and counselors. I find that the claimant is not only entitled to a change of physician, but further medical treatment for her psychological condition.
For the reasons set out above, I concur in part and respectfully dissent in part from the Full Commission's decision.
______________________________ SHELBY W. TURNER, Commissioner