Opinion
CLAIM NO. E119132
OPINION FILED OCTOBER 3, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JEFF H. WATSON, Attorney at Law, Springdale, Arkansas.
Respondents represented by ANGELA M. DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed and remanded.
OPINION AND ORDER
Both parties appeal an opinion of the Administrative Law Judge filed on October 27, 1993.
The Administrative Law Judge found, among other things, that claimant is entitled to temporary total disability benefits from March 5 through May 19, 1993; that claimant is entitled to benefits for a permanent anatomical impairment of 5% to the body as a whole; and that the treatment provided by, and at the direction of, Dr. Raben is authorized, as well as reasonable and necessary.
Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patal, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark. Code Ann. § 11-9-705 (a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). After our de novo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
On October 23, 1991, claimant sustained an admittedly compensable injury while handling a cylinder weighing approximately 225 pounds. Claimant experienced lower and mid-back pain, which subsequently radiated into his left lower extremity. Claimant's primary treating physician has been Dr. Bryan Abernathy, who has treated claimant conservatively. According to Dr. Abernathy, claimant needed physical therapy to maintain his condition, which continued "to wax and wane."
Temporary total disability is that period within the healing period in which claimant suffers a total incapacity to earn wages. Arkansas State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The hearing 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).
The parties stipulated that temporary total disability benefits were paid from October 29, 1991 through March 5, 1993. Respondents primary argument on appeal appears to be that claimant's healing period ended earlier than May 19, 1993. However, the parties also stipulated that claimant's healing period ended on May 19, 1993. Since the parties are bound by their stipulations, Ozark Rustic Homes v. Albright, 269 Ark. 696, 600 S.W.2d 420 (Ark.App. 1980), we find that claimant's healing period did not end prior to May 19, 1993. Thus, the remaining question is whether claimant suffered a total incapacity to earn wages between March 5 and May 19, 1993.
There is no evidence that Dr. Abernathy released claimant to return to work during the period of time in question. In April 1993, Dr. Abernathy referred claimant to Dr. Runnels for an evaluation concerning the need for additional treatment. Claimant returned to Dr. Abernathy on April 16, 1993. Dr. Abernathy noted that Dr. Runnels changed claimant's exercise program and a prescription medication, as well as suggested that he lose weight and stop smoking cigarettes. Dr. Abernathy added that he would re-evaluate claimant in one month "after he has made the above changes to ascertain the effect in his particular situation." On May 15, 1993, Dr. Abernathy again referred claimant to Dr. Runnels "to impose either permanent work restrictions or estimate a disability." In a report dated May 19, 1993, Dr. Runnels imposed permanent restrictions and estimated claimant's permanent anatomical impairment at 5% to the body as a whole. Claimant testified that once he received these permanent physical restrictions, he returned to work in June 1993.
Claimant acknowledged that he had occasionally tried to perform various job duties for the employer prior to actually returning to work on a permanent basis. However, these sporadic efforts were attempted by claimant at the request of his physical therapist in order to determine how various activities affected his condition. Claimant did not receive any compensation for these efforts. Claimant's credible testimony indicates that he was unable to perform remunerative labor with reasonable consistency and without pain and discomfort. See, Pyles v. Triple F. Feeds of Texas, 270 Ark. 729, 606 S.W.2d 146 (Ark.App. 1980).
Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for temporary total disability from March 5 through May 19, 1993. There is insufficient evidence that during the period of time in question, claimant had the ability to earn the same or any part of the wages he was receiving at the time of the injury.Breshears, supra.
In a report dated May 19, 1993, Dr. Runnels restricted claimant's bending, lifting greater than 25 pounds and overhead work. Dr. Runnels estimated claimant's permanent anatomical impairment at 5% to the body as a whole. Dr. Runnels explained the rating in the following manner:
He has the back of a [sic] ordinary 48-year-old with degenerative disc disease that has flaired (sic) up with strenuous activity. The MRI report of 11-05-91, as you recall, shows only mild underlying concentric disc bulging at L5-S1 with mild to moderate changes at 3-4 and 4-5 but no herniated disc, bony canal stenosis or neural exit stenosis. There is mild degenerative facet atrophy at each level but no lateral recess stenosis. Therefore it is my opinion that he does not have any permanent disability on the basis of an acute work injury, but more or less the acquired problem of age and a relatively hard job, which causes occasional facet strains and which now I think would prohibit him from returning to such heavy jobs without more flair [sic] up of his back pain. If one had to assess the disability that encompasses all the above factors, I would say he has 5% permanent disability at this time. Part of his disability is due to normal aging of his back as is seen in most men 48 years of age, doing the sort of work he does.
The results of the MRI scan noted by Dr. Runnels certainly revealed objective and measurable findings to support an award for permanent anatomical impairment. While these findings may very well represent a preexisting condition, claimant was asymptomatic and the condition was latent prior to the compensable injury. "When an industrial injury precipitates a disability from a latent prior condition, such as heart disease, cancer, back disease and the like, the entire disability is compensable." Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (1979).
Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a permanent anatomical impairment of 5% to the body as a whole.
In July 1993, claimant was evaluated by Dr. Cyril Raben, who recommended that claimant enroll in the Center For Exercise at the Washington Regional Hospital and that claimant follow up with Dr. Abernathy for any future medical needs. It appears that claimant saw Dr. Raben on this one occasion. Claimant has enrolled in the exercise program as suggested by Dr. Raben.
Respondent first argues that any evaluation or treatment provided by, or at the direction of, Dr. Raben is unauthorized for failure to comply with the change of physician rules. As noted above, Dr. Abernathy had previously referred claimant to Dr. Runnels, a neurosurgeon. The greater weight of the evidence indicates that Dr. Abernathy referred claimant to Dr. Raben, an orthopedic surgeon, for his insights as to claimant's condition. Therefore, since there was a valid referral to Dr. Raben from claimant's treating physician, Dr. Raben's treatment cannot be unauthorized for failure to follow the change of physician rules.
Respondent also argues that any treatment provided by, or at the direction of, Dr. Raben is not reasonable and necessary. However, it appears that the only treatment provided at the direction of Dr. Raben is the exercise program at Washington Regional Hospital. Claimant presented credible testimony that this exercise program has helped his pain and muscle spasms. Therefore, we find that this treatment is both reasonable and necessary.
An issue at the hearing was the extent of claimant's permanent partial disability. The Administrative Law Judge made findings concerning claimant's permanent anatomical impairment but failed to decide whether claimant is entitled to benefits for wage loss disability. Therefore, we remand this matter and direct the Administrative Law Judge to conduct any proceedings necessary in order to determine the extent of claimant's wage loss disability.
At the hearing, the Administrative Law Judge allowed the addition of issues concerning whether claimant is entitled to benefits for medical treatment provided by, and at the direction of, Dr. Raben; whether respondent is liable for medication prescribed by Dr. Abernathy; and whether claimant is entitled to benefits for medical treatment provided by, and at the direction of, Dr. Runnels subsequent to May 19, 1993. These issues were not raised at the prehearing conference or included in the prehearing order. However, we decline to remand these matters to the Administrative Law Judge for two very important reasons.
First, respondent did not object at the hearing, and has not objected now, to the addition of these issues. Second, and just as important, respondent does not argue on appeal that it did not have sufficient time to prepare its case on these issues or that it was improper for the Administrative Law Judge to consider them. Respondent's sole argument on appeal is that Dr. Raben's treatment was unauthorized, or alternatively, unreasonable and unnecessary.
We realize that when an Administrative Law Judge improperly allows issues to be presented at the hearing, unnecessary appeals generally follow. However, that situation is not present here. While the prehearing conferences and prehearing orders are necessary and useful tools, the Commission should not blindly insist that the parties cannot modify or add to the issues at the time of the hearing. If neither party objects, there is no reason to prohibit the parties from presenting new issues or the Administrative Law Judge from deciding them. This is simply a wise use of time and resources.
For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant is entitled to benefits for temporary total disability from March 5 through May 19, 1993; that claimant is entitled to benefits for a permanent anatomical impairment of 5% to the body as a whole; and that the treatment provided by, or at the direction of, Dr. Raben is authorized, as well as reasonable and necessary. Further, we remand this matter to the Administrative Law Judge for a determination as to the extent of claimant's wage loss disability. Respondents are directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
Commissioner Tatum dissents.