Opinion
CLAIM NO. F100097
OPINION FILED JUNE 18, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE KEITH BLACKMAN, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by HONORABLE RANDY F. PHILHOURS, Attorney at Law, Paragould, Arkansas.
Decision of the Administrative Law Judge: Reversed in part and modified in part.
OPINION AND ORDER
The respondents appeal from an Administrative Law Judge's Opinion filed September 24, 2002. It was stipulated that the claimant sustained a compensable injury on December 27, 2000. The respondents have paid a 10% permanent impairment rating and temporary total disability benefits from December 28, 2000, through April 4, 2001. The Administrative Law Judge found that the claimant was entitled to some additional medical treatment; that pain management care for her back was reasonably necessary; but that additional psychological treatment was not reasonably necessary. The Administrative Law Judge also found that the claimant remained in her healing period and was entitled to temporary total disability benefits through May 16, 2002. The issues asserted by the respondents on appeal are: whether the claimant proved by a preponderance of the evidence that she is entitled to pain management for her back; and, whether the claimant proved by a preponderance of the evidence that she remained in her healing period through May 16, 2002. The claimant did not cross-appeal the Administrative Law Judge's denial of additional psychological treatment at this time.
After conducting a de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the evidence that her current low back complaints are causally related to her work-related injuries sustained on December 27, 2000. Therefore, we find that the Administrative Law Judge's award of additional pain management for the low back must be reversed. We further find that the healing period for the claimant's brain injury ended on January 3, 2002. Therefore, we modify the Administrative Law Judge's award of temporary total disability compensation accordingly.
On December 27, 2000, the 39-year-old claimant was working on a railcar assembly line when she was crushed between two railcars. She was resuscitated by emergency medical personnel and suffered injuries related to oxygen depravation to her brain. A CT scan of the claimant's lumbar spine obtained on the date of her accident revealed:
Normal lumbar spine alignment. Normal vertebral body outlines. Normal spinal vertebral body rings. No definite fractures identified. The neuroforamina and spinal canal are within normal limits. No obvious traumatic HNPs.
A CT scan of the claimant's cervical spine obtained on that date revealed:
Normal superficial and deep cervical soft tissues. Normal cervical spinal canal and neuroforamina. No definite intraspinal hematoma or paraspinal hematomas. The bony rings of the vertebral bodies C1-C7 appear intact. No definite fractures identified. On the reconstruction, there is apparent subluxation anteriorally of C3 upon C4. However, this is thought to be due to patient motion.
The claimant was released from the hospital in early January of 2001. On January 17, 2001, the claimant underwent a neuropsychological evaluation by Dr. Michael Inman. Based on that evaluation, Dr. Inman assigned the claimant a 10% permanent impairment rating on April 5, 2001.
The claimant underwent a functional capacity evaluation on March 21, 2001, which found that she was capable of walking 300 meters, and could tolerate 45 minutes of uninterrupted standing and walking, and 1 hour and 8 minutes of uninterrupted sitting.
The claimant was initially seen by Dr. Masur, a neuropsychologist, on April 5, 2001, and underwent testing by him on July 5 and 31, 2001.
The respondent's human resources manager, Dean Inman, testified that the claimant came to his office on September 4, 2001 and informed him that she was feeling better and hoped that she could return to work. The respondent had not received a release to return to work and contacted Dr. Masur, who stated that he wanted to see the claimant for a follow-up in December, before he released her to return to work. During her testimony, the claimant stated that she could not recall any visit with Dean Inman. The claimant's testimony overall was largely incoherent and is of little value.
The claimant's case manager, Lisa Johnson, went with the claimant for the follow-up visit with Dr. Masur in January 2002. Ms. Johnson later wrote that during that visit the claimant stated that she had been "involved in two MVAs and totaled both vehicles." The first of these accidents occurred on July 24, 2001 and was apparently quite severe. The claimant flipped her SUV, had to crawl through her window to exit the vehicle, and was taken to the hospital for treatment. The second MVA was apparently less severe. No medical records associated with either of these accidents were offered into evidence. The claimant's mother, Janet Randolph, testified that the claimant had been driving when the accidents occurred, but she did not think the claimant had been released to drive. She further stated that she did not think the claimant should be driving as her reflexes were slow because of the medications she was on.
Dr. Masur did not feel it was safe for the claimant to return to work; however, he did not feel he could re-test her and obtain accurate results because of the pain medication she continued to be on. His note from the January 3, 2002 visit states:
Since I last saw her none of my recommendations were fully followed. She continues on at least two benzodiazepines, Klonopin and Alprazalam, along with a muscle relaxant, Soma, and an analgesic in the form of Tylenol with Codeine. Since all these affect cognitive processes, there is conflicting stories regarding same. Follow up with me in three months for further neuropsychological testing.
An office note from Dr. Masur dated March 5, 2002, states:
Patient called for an appointment and was asked if she had received any of the recommended treatment. She indicated that she had not and was told that Dr. Masur could do no further neuropsychological testing until she had followed his recommendations and that she would not need another appointment at this time.
Dr. Masur referred the claimant to neurologist Dr. Spanos, and she saw him in April 2002. Dr. Spanos' report from that day states:
The patient primarily complains of memory problems. Recent neuropsychological evaluations cannot be performed apparently because of the patient's current medications. However, the patient is unable to discontinue the medications because of her significant pain. I thought the best approach would be to have the patient evaluated by chronic pain management, thus altering her pain medications to the degree to which we can proceed with a full neuropsych evaluation. I think part of the patient's symptoms clearly stem from depression and her home situations, which has deteriorated since her accident of two years ago.
Dr. Spanos recommended that the claimant undergo MRIs of her cervical, thoracic, and lumbar spine. The cervical spine MRI obtained on April 15, 2002 revealed a right posterolateral disc rupture at C5-C6, with the herniated disc material abutting the anterior aspect of the spinal cord. The thoracic MRI revealed a degenerative disc with a mild bulging annulus and a small left paracentral HNP at T11-T12 with no evidence of spinal cord compromise. The lumbar MRI revealed only mild degenerative disc changes with no herniation or stenosis evident.
Dr. Spanos referred the claimant to pain management specialist Dr. Savu, and her initial appointment with him was on April 26, 2002. In Dr. Savu's report of this visit he wrote that most of the claimant's present problems were associated with her mid and low back. He diagnosed her as having lumbosacral spondylosis with facet disease, with secondary myofascial pain syndrome. He wrote that while he could not rule out moderate cervical spondylosis, it seemed secondary to the claimant's lower back complaints.
In a report dated May 16, 2002, Dr. Spanos wrote that he recommended the claimant continue with chronic pain management. He stated:
The patient had undergone a CT scan of the cervical spine following her initial work-related injury in December of 2000, which was normal with no evidence of disc disease. I therefore have to conclude that the MRI finding of the cervical spine are unrelated to her initial work injury. I feel the patient has reached maximum medical improvement with respect to the work injury. However, there are still problems she is facing which may be contributing to her current symptoms. . . .
Case manager Lisa Johnson testified at the hearing that when she accompanied the claimant for her medical treatments in April 2001, the claimant was complaining more of memory loss and being unable to function at home than she was complaining of pain. Following that visit, Ms. Johnson did not have contact with the claimant until she accompanied her to see Dr. Masur in January 2002, at which time Ms. Johnson stated that the claimant was primarily complaining of pain in her back.
ADJUDICATION
1. Low Back Pain Management
Injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for the treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers' 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 Workers' Compensation Commission Opinion filed December 13, 1989 ( D512553). The respondent is only responsible for medical services which are causally related to the compensable injury. Benefits are not payable for a condition which results from a nonwork-related independent intervening cause which causes or prolongs disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(F)(iii). The question is whether there is a causal connection between the primary injury and the subsequent disability; and if there is such a connection, there is no independent intervening cause unless the subsequent disability was triggered by activity on the part of the claimant which was unreasonable under the circumstances. Broadway v. B.A.S.S. 41 Ark. App. 111, 848 S.W.2d 445 (1993).
In the present case, we find that the claimant has failed to establish a causal connection between her current low back problems and the injuries that she sustained at work on December 27, 2000. Our conclusion that the claimant's current request for low back pain management is not related to her 2000 crush injury is based on several items of evidence. First, we note that prior to the motor vehicle accidents, the claimant underwent a functional capacity evaluation on March 21, 2001, which found that she was capable of walking 300 meters, and could tolerate 45 minutes of uninterrupted standing and walking, and 1 hour and 8 minutes of uninterrupted sitting. Further, the testimony of Lisa Johnson was that when she accompanied the claimant for her medical treatments in April 2001, the claimant was complaining more of memory loss and being unable to function at home than she was complaining of pain. Following that visit, and after the motor vehicle accidents, the claimant was primarily complaining of pain in her neck and back. The results of the diagnostic tests performed on the date of the claimant's 2000 accident, and those MRIs performed in 2002, demonstrate that the neck abnormalities noted in 2002 for which she now seeks pain management treatment, were not caused by her work-related accident. We note that the record before us is devoid of any medical reports indicating what degree of medical treatment, if any, that the claimant may have received for her low back after March of 2001 until January of 2002, during which time she was involved in the two motor vehicle accidents discussed above. In light of the lack of any medical opinion, the lack of any medical reports documenting ongoing back problems between March of 2001 and January of 2002, the evidence that the claimant experienced two motor vehicle accidents during that interim which resulted in a herniated cervical disk, and in light of the minimal weight that we accord the claimant's hearing testimony, we find that the claimant has failed to establish by a preponderance of the credible evidence that her low back complaints in 2002 are causally related to her December 2000 accidental injury. Therefore, we must reverse the Administrative Law Judge's award of additional pain management for the claimant's current low back complaints.
2. Temporary Total Disability Compensation
A claimant with an unscheduled injury is entitled to receive temporary total disability benefits during the time within her healing period that the claimant experiences a total incapacity to earn wages. Arkansas State Highway Transportation Dept. v. Beshears, 274 Ark. 244, 613 S.W.2d 391 (1981). 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(12) (Repl. 2002). The healing period continues until the injured employee is as far restored as the permanent character of the injury will permit. The healing period ends once the underlying condition has become stable and when nothing further in the way of medical treatment will improve the permanent character of the injury.Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain is not sufficient, by itself, to extend the healing period provided that the underlying condition has stabilized. Id.
In the present case, we find that preponderance of the evidence establishes that the claimant remained within her healing period and incapacitated from her brain injury until January 3, 2002, and that her healing period for her brain injury ended on that date.
In reaching that conclusion, we note that the respondents argue that the claimant's healing period for her brain injury ended on April 5, 2001, when Dr. Inman calculated a permanent anatomical impairment rating for the claimant's brain injury based on earlier neuropsychological testing that Dr. Inman had performed. We might normally infer that a claimant's healing period ends on or before the date that a physician assigns a permanent impairment rating. Therefore, Dr. Inman's assignment of a rating on April 5, 2001 might, absent any other relevant evidence, support the respondents' argument that the claimant's healing period ended on April 5, 2001. However, both Dr. Inman's April 5, 2001 letter to Lisa Johnson at Intracorp, and Lisa Johnson's April 19, 2002 letter to Dr. Savu, indicate that Dr. Inman calculated an impairment rating for the brain injury in April of 2001 because Ms. Johnson requested that he do so and not because Dr. Inman had necessarily concluded that the claimant's brain injury was as far restored as the permanent nature of the injury would permit on or before April 5, 2001.
Moreover, as even the respondents acknowledged in September of 2001, the claimant was still scheduled for active follow-up for her brain injury from Dr. Masur at that time, and even the respondents would not consider re-hiring the claimant without a release from Dr. Masur in follow-up.
Unfortunately, when the claimant presented to Dr. Masur on January 3, 2002, and when she called Dr. Masur's office on March 5, 2002, Dr. Masur determined that his prior recommendations were not fully followed. On that basis, Dr. Masur declined to attempt any further neuropsychological testing until his recommendations were complied with. Consequently, the Administrative Law Judge denied the claimant's request for additional psychological treatment, and the claimant has not appealed that denial of benefits. Under these circumstances, we find that the healing period for the claimant's brain injury ended on January 3, 2002, when Dr. Masur concluded that he cannot perform valid neuropsychological testing until his recommendations are complied with.
In finding that the claimant's healing period ended on January 3, 2002, we recognize that Dr. Spanos indicated that the claimant has reached maximum medical improvement on May 16, 2002. However, we interpret Dr. Spanos as having referred to the claimant's 2002 spine complaints, and not her brain injury. As discussed above, we find that the claimant has failed to establish that either her 2002 cervical problems or her 2002 lumbar complaints are causally related to her 2000 work injury. Therefore, Dr. Spanos' reference to maximum medical improvement on May 16, 2002 cannot extend the healing period for purposes of determining temporary disability compensation for the claimant's work-related injuries.
Finally, we note that the Administrative Law Judge's denial of additional psychological treatment and our denial of additional temporary disability compensation beyond January 3, 2002 are both based on Dr. Masur's determination that he has nothing else to offer the claimant until his recommendations are followed, and based on the fact that his recommendations had not yet been followed as of the date of the hearing held in this case. We note in passing that the claimant may re-enter a healing period and be entitled to additional psychological treatment at a future date if Dr. Masur's recommendations are followed at some point in the future.
Therefore, after conducting a de novo review of the entire record, for the reasons discussed herein, we find that the claimant has failed to establish that any of her back complaints in 2002 are causally related to her 2000 injury at work. Therefore, we reverse the Administrative Law Judge's award of additional pain management treatment for the claimant's lower back. In addition, we find that the claimant has established by a preponderance of the evidence that she remained within the healing period for her admittedly compensable brain injury only until January 3, 2002. Therefore, the Administrative Law Judge's temporary disability compensation award is affirmed as modified.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing in part on this appeal before the Full Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
Commissioner Yates concurs and dissents.
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority opinion. I concur with the reversal of the Administrative Law Judge's award of additional pain management for the claimant's low back complaints. However, I dissent from the award of temporary total disability through January 3, 2002. Based upon my review of the evidence, I find that the claimant's healing period ended on
April 5, 2001, when Dr. Inman assigned the claimant a permanent impairment rating, did not opine that she would require additional follow-up care. Therefore, I respectfully concur in part and dissent in part from the majority opinion.
_____________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion that claimant failed to prove entitlement to pain management treatment and that her healing period ended in January 3, 2002. Upon my de novo review, I find that claimant's work-related injury is causally related to her current physical condition and that her healing period ended on May 16, 2002. I therefore dissent from the majority opinion.
______________________________ SHELBY W. TURNER, Commissioner