Opinion
CLAIM NO. E713795
OPINION FILED MAY 11, 2000
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by KEITH WREN, Attorney at Law, Little Rock, Arkansas.
Respondent represented by GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
The claimant appeals a decision of the Administrative Law Judge filed on June 10, 1999, finding that the claimant has failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability benefits after March 4, 1999. Further, the Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that any additional medical treatment was reasonable and necessary for treatment of his compensable injury. Based upon our de novo review of the record, we agree with the respondents. Accordingly, we hereby affirm the decision of the Administrative Law Judge.
The first issue that must be addressed is the admittance of a medical document that was produced by the respondents less than 7 days before the hearing. The Administrative Law Judge allowed the introduction of this document even though it was not produced prior to the 7 day evidence deadline. The respondents offered an exhibit, which was the medical report of Dr. Ron Williams dated May 3, 1999. We would note that Dr. Williams had been designated the claimant's treating physician by an opinion dated December 1, 1998. Dr. Williams' report was dated May 3, 1999, and was not forwarded to the claimant's attorney or the Commission seven (7) days prior to the hearing, as required by the prehearing order. The claimant objected to the introduction of Dr. Williams' report prior to the hearing. The respondent requested a continuance which was denied by the Administrative Law Judge. At the hearing, the claimant asserted that the introduction of the medical report should not be allowed since the respondents failed to comply with the seven (7) day rule. The Administrative Law Judge admitted the report of Dr. Williams.
It is within the Administrative Law Judge's discretion to allow the evidence to be admitted or not and the Administrative Law Judge was correct in allowing the document to be introduced into evidence. Upon receipt of the report, the respondents immediately faxed a copy to both the Administrative Law Judge and the claimant's counsel. This was done five (5) days prior to the hearing. The report clearly outlines the opinion that Dr. Williams believes that the claimant's conditions has plateaued and there are no objective basis for any abnormality. This letter addresses, specifically, the very issues that were to be determined at the hearing.
The claimant was clearly not prejudiced by the admission of this document. The claimant's counsel was given ample opportunity to set forth his arguments supporting the exclusion of the report. At no time during this process did the claimant's counsel ever indicate a need to cross-examine Dr. Williams. The respondent's counsel requested the one week continuance of the proceeding which would further allow claimant's counsel an opportunity to pursue the deposition of Dr. Williams. The claimant objected to the continuance and the hearing was held.
The claimant is not prejudiced by the admission of this report two days later when the claimant himself failed to avail himself of the opportunity to discuss the report with the treating physician. No effort or request was made for the opportunity to cross-examine Dr. Williams on this report before or after the hearing. The claimant had the opportunity to request that the record remain open after the hearing to allow him to depose Dr. Williams. The claimant failed to make a request. It appears that the claimant is merely unhappy with the conclusion reached by Dr. Williams and wishes that they not be expressed. If this report were withheld, it would necessitate a subsequent hearing when benefits were suspended once again on the basis of Dr. Williams report. Accordingly, we find that the Administrative Law Judge did not abuse his discretion by allowing the letter into evidence.
In addition, even without the report, there is ample evidence within the record that the claimant was not entitled to further benefits. Three MRI's of the claimant's back, a bone scan, and numerous x-rays showed that the claimant's underlying condition is stable and has plateaued. No report was submitted by the claimant indicating treatment of his underlying condition. The claimant is only now receiving treatment for his complaints of pain. Accordingly, the Administrative Law Judge properly admitted the May 3rd letter of Dr. Williams.
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 claimant contends that since Dr. Williams referred him to Dr. Bandy, a rheumatologist, that any treatment recommendation of the rheumatologist is reasonable and necessary medical treatment. What constitutes reasonable and necessary medical treatment in Ark. Code Ann. § 11-9-508 is a question of fact for the Commission. Arkansas Department of Corrections v. Holy Bee, 46 Ark. App. 232, 878 S.W.2d 420 (1994). In addition, the claimant has the burden of proving that additional medical treatment is both reasonable and necessary. Norma Beatty v. Ben Pearson, Inc., F.C. Opinion February 17, 1989 ( D612291).
The physical therapy recommended by Dr. Bandy, the rheumatologist, is not reasonable and necessary medical treatment. The claimant has previously undergone six (6) weeks of physical therapy that did not make him better. In fact, this physical therapy made him worse. Numerous tests and studies have been conducted in an attempt to determine the cause of the claimant's complaints. All of these tests have come back with negative or normal results.
The claimant argues that since Dr. Williams, who is his designated treating physician, referred him to Dr. Bandy that the medical treatment of physical therapy is reasonable and necessary. However, a referral is not an endorsement of any potential treatment recommended. The record is clear that there is no basis for the claimant's claim of additional treatment other than his continuing subjective complaints of pain. We would note that the dissent cites a number of cases in disagreement with this statement. However, the cases cited by the dissent are distinguishable because the Commission awarded benefits in the form of pain management programs in each of those cases. The issues presently before us do not include the claimant's entitlement to a pain management program in this case. Accordingly, the Administrative Law Judge's finding that the claimant is not entitled to any additional medical treatment should be affirmed.
Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
The evidence shows that the claimant has reached the end of his healing period. Three MRI's, a bone scan, x-rays, and additional tests have all returned negative or normal results. The only objective signs ever shown were spasms and they were never noted by Dr. Williams or Dr. Bandy. The dissent asserts that our opinion finds that the claimant has failed to prove any objective findings for continued treatment. This is clearly not our holding. The claimant does not have to support a continuing need for medical treatment with objective findings. Chamber Door Industries, Inc. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). However, the Full Commission has previously stated that while the presence of objective findings, or lack thereof, may be a factor in an analysis of this question, it is not determinative. See Larry Graham v. Chamber Door Industries, Inc., Full Workers' Compensation Commission Opinion filed January 9, 1997 ( E400258). The lack of objective findings can certainly be considered in making a determination as to whether or not the claimant's healing period has ended. Further, Dr. Williams, the claimant's treating physician has opined that the claimant's condition has plateaued. Because the claimant has reached the end of his healing period by March 4, 1999, which is the date after the last MRI, the claimant is not entitled to any additional temporary total disability benefits.
For all the reasons set forth herein, we find that the decision of the Administrative Law Judge should be and hereby is affirmed in all aspects. Accordingly, we deny and dismiss the claimant's claim for additional benefits.
IT IS SO ORDERED.
_______________________________
MIKE WILSON, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant failed to prove that he was entitled to additional temporary total disability benefits (hereinafter TTD) and medical benefits. Based upon my de novo review of the record I would reverse the opinion of the Administrative Law Judge.
Claimant suffered a compensable injury to his back in a backhoe accident on October 24, 1997. Claimant's right to medical treatment was controverted by respondent. In an opinion filed on December 1, 1998, claimant was awarded continuing TTD benefits and additional medical treatment was awarded. Included in the award of medical benefits was an order that "Dr. Ron Williams is hereby designed (sic) as claimant's treating physician and respondents are responsible for all reasonable and necessary medical treatment rendered by Dr. Williams and/or his referrals."
Respondent again suspended all benefits when on March 5, 1999, they filed a Form AR-4 to report the suspension of payments for the stated reason of "Lack of objective findings." Claimant quickly sought a hearing which was set for May 10th. That pre-hearing order stated as follows; "No documents will be allowed into evidence unless exchanged by the parties seven (7) days prior to the hearing of this case on the merits, without leave of the Commission and upon a showing of good cause." On May 3, 1999, Dr. Williams wrote to counsel for respondent in regard to claimant. On May 5th counsel for respondent faxed a copy of Dr. Williams' letter to the Administrative Law Judge and counsel for claimant. At the hearing, respondent requested a continuance for the stated purpose of delaying the hearing until the contested evidence would be timely. Respondent's request for a continuance was denied by the Administrative Law Judge. This document was then admitted into the record over claimant's objection.
I would reverse the judge's decision to admit Dr. Williams' letter of May 3, 1999. The Administrative Law Judge's admonition that no documents will be allowed into evidence unless exchanged by the parties seven (7) days prior to the hearing has a statutory basis in A.C.A. § 11-9-705(c)(2)(A) which provides in relevant part that any party proposing to introduce medical reports or testimony of physicians at the hearing of a controverted claim shall, as a condition precedent to the right to do so, furnish to the opposing party and to the commission copies of the written reports of the physicians of their findings and opinions at least seven (7) days prior to the date of the hearing. Respondent knew of the cutoff date for production of evidence well in advance and could easily have sought this evidence in a more timely fashion.
The pre-hearing order allows untimely evidence to be admitted only upon a showing of good cause. In this matter respondent failed to make any reasonable claim that good cause existed for them to be excused from this strict statutory requirement. The majority opinion improperly shifts the burden to claimant to prove that he has been prejudiced by the admission of the evidence. The only proper inquiry is whether respondent has demonstrated that good cause exists to allow the tardy evidence to be admitted into the record. The majority has however chosen to admit this letter simply to avoid the inconvenience of another hearing on the right of this injured worker to recover benefits. In my opinion considerations regarding the convenience of the attorneys and the Administrative Law Judge do not rise to the level of "good cause".
It is also troubling that respondent relied upon the May 3, 1999 letter from Dr. Williams to justify the unilateral decision to terminate claimant's medical benefits two months earlier. In light of the earlier award of medical benefits it would be interesting to know what information respondent relied on in March of 1999 to decide that claimant was no longer entitled to medical benefits. In any event, because Dr. Williams had not seen claimant for five months, and differed only slightly from his more contemporaneous opinion, this letter has little probative value. I also conclude that Dr. Williams qualified conclusion that claimant's condition "probably" has plateaued and his admission that he does not "generally have any way to answer how long it takes for a musculoligamentous injury to heal as they all seem to be so different" means that this medical opinion has not been stated within a reasonable degree of medical certainty.
Claimant requested additional TTD benefits dating back to respondent's March 5th suspension of those benefits. The majority has affirmed the decision below to deny those benefits by finding that claimant reached the end of his healing period by March 4, 1999. The Administrative Law Judge concluded that claimant had reached the end of his healing period because the medical evidence "has failed to indicate any objective findings in support of claimant's continued complaint's of pain." The majority opinion has affirmed this decision. I believe that it was an error of law to require claimant to provide objective findings to prove that he was still in his healing period. As we recently affirmed in Howard v. Wal-Mart, Full Commission Opinion filed November 3, 1999, AWCC #E814194, the "requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997)."
When we apply the appropriate standard for determining the end of claimant's healing period it becomes obvious that the medical evidence supports a reversal of this opinion. The healing period continues until the injured worker is as far restored as the permanent character of his injury will permit. If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
On December 1, 1998, the opinion awarding claimant continuing TTD, additional medical benefits and designating Dr. Williams claimant's physician was filed. The record contains just four exhibits relating to medical care after that award. First is a letter from Dr. Williams to Dr. Cheryl Vogan on December 29, 1998, recording claimant's symptom's and ordering a second MRI. That MRI was done on January 7, 1999, and was reported to be "unremarkable". That day Dr. Williams once again wrote to Dr. Vogan and concluded that:
"I suppose this is likely to be a musculoligamentous injury. I would like to get Dr. Ross Bandy a rheumatologist in Hot Springs to see if he can treat that. I do not anticipate any surgery."
The final record is the report produced by Dr. Bandy at claimant's initial visit on March 3, 1999.
After Dr. Williams, a neurosurgeon, determined that claimant did not need surgery he referred him to Dr. Bandy, for continued treatment of his injury. Dr. Bandy diagnosed claimant with a treatable condition, prescribed powerful medications and ordered a course of physical therapy. Respondent suspended claimant's benefits on March 5, 1999, two days after his initial visit to Dr. Bandy, due to "lack of objective findings." There is no evidence that claimant's ability to work had changed since the earlier award of benefits. Based upon this evidence I do not believe that there is a basis to conclude that claimant had reached the end of his healing period.
Claimant also appeals from the denial of reasonable and necessary medical care. In the opinion below claimant is denied medical benefits because all "of the extensive testing performed on claimant failed to indicate any objective determinations for his continued complaints of pain". The majority opinion affirms this ruling. Reliance upon objective findings is misplaced when determining what is reasonable and necessary medical treatment. The appropriate standard requires claimant to prove that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers' Compensation Commission, Feb. 17, 1989 ( D612391). In this case the only medical opinions in the record conclude that claimant has a injury that will respond to treatment.
We have frequently awarded medical benefits which permit claimants to receive treatment for complaints of pain. See;Barker v. Red Lobster, Full Commission opinion January 26, 2000, AWCC# E806893; Tadlock v. St. Joseph's Regional Health Center, Full Commission opinion December 9, 1999, AWCC# E802168; andLummus v. Cooper Tire and Rubber, October 27, 1999, AWCC# E707745. In the recent ruling of the Arkansas Court of Appeals inGreen Bay Packaging v. Bartlett, 67 Ark. App. ___ [ 67 Ark. App. 332], ___ S.W.2d __ [ 999 S.W.2d 695] (September 29, 1999), benefits for claimant's subjective complaints of headache pain were found to be reasonable and necessary. The Court further observed that objective findings are not required to establish a claim for reasonable and necessary medical treatment of a compensable injury.
Based upon the medical evidence in the record and claimant's continued consistent complaints I conclude that the proposed treatment is both reasonable and necessary.
Upon review of the record I would reverse the opinion of the Administrative Law Judge and award the requested TTD and medical benefits.
______________________________ PAT WEST HUMPHREY, Commissioner