Opinion
CLAIM NO. E507484
OPINION FILED FEBRUARY 12, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MARSHALL H. MOORE, Attorney at Law, Texarkana, Arkansas.
Respondents represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; reversed in part; vacated in part.
OPINION AND ORDER
[2] The claimant appeals and the respondent cross-appeals an opinion and order filed by the administrative law judge on December 30, 1997. In that opinion and order, the administrative law judge found that the claimant's healing period ended on or before June 17, 1996, but that the claimant is entitled to additional temporary total disability compensation beginning on or about October 24, 1997, and continuing until the claimant completes a full-time work hardening program. The administrative law judge also found that the claimant failed to establish by a preponderance of the evidence that he is entitled to any period of benefits pursuant to Ark. Code Ann. § 11-9-505(a). In addition, the administrative law judge found that the respondents were liable for an additional neuropsychological evaluation.After conducting a de novo review of the entire record, we find that the preponderance of the evidence establishes that the claimant's healing period ended on or before June 17, 1996. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. We also find that the claimant has failed to establish that he is entitled under the Arkansas Workers' Compensation Law to any period of additional temporary disability compensation at issue in this case, and we find that the claimant has failed to establish that the additional psychological evaluation at issue in this case is reasonably necessary for treatment of the claimant's compensable injury. Therefore, we find that the administrative law judge's decision in these regards must be reversed. In addition, we find that the claimant did not timely raise the Section 505(a) issue in this case. Therefore, we find that the administrative law judge's decision in this regard must be vacated.
The claimant was employed by the respondent as a truck driver. On May 8, 1995, the claimant was struck in the chest/abdomen area by a high pressure hose. A report from St. Michael's Hospital on that date indicates that the claimant hit his low back, coccyx and left wrist. The claimant received x-rays of his left wrist, lumbar spine, thoracic spine and coccyx. That report also mentions "multiple contusions and abrasions", with specific reference to the claimant's left hand.
The claimant drove his rig home, was off work for approximately one week, then returned to light duty until August of 1995, when his employer advised the claimant to take off work until he was fully recovered. The respondents paid the claimant temporary total disability compensation through August 19, 1996 (i.e., for approximately one year). In addition, between May of 1995 and August of 1996, the claimant had a significant number of medical referrals, diagnostic testing, and medical treatment, including referral for two rounds of work hardening and two psychological evaluations.
1. Claim for Additional Benefits Pursuant to Section 505(a)
The hearing record and the administrative law judge's opinion and order indicate that the claimant did not raise a claim for benefits pursuant to Ark. Code Ann. § 11-9-505(a) in a timely manner. Instead, the claimant raised this claim for the first time in a post-hearing brief to the administrative law judge.
The Full Commission may not consider issues which were not raised before the administrative law judge or developed by the evidence in the proceeding before the administrative law judge.See, Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987); Wooten v. Arkansas Aluminum Window and Door, Inc., 17 Ark. App. 209, 706 S.W.2d 198 (1986); Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983). Moreover, if an issue is not raised before the administrative law judge and a record developed on that issue, the Commission is in no position to conduct ade novo review regarding that issue.Wooten v. Arkansas Window and Door, Inc.,Supra.
We find that the administrative law judge erred in rendering a decision on the merits of the claimant's Section 505(a) claim which was not raised by the claimant until after the hearing in a post-hearing brief. Consequently, we vacate the administrative law judge's finding in this regard.
2. Neuropsychological Evaluation
The administrative law judge found the respondents liable for a third psychological evaluation which was recommended in 1996 by Dr. Walby, the claimant's treating physiatrist. Dr. Walby, a Texas physician, has opined that additional cognitive testing is required to (1) "objectify" the claimant's alleged brain damage from a "post-concussive" state, and to (2) quantify the degree of anatomical impairment that the claimant has sustained from alleged brain damage.
However, in assessing whether a third psychological evaluation is reasonably necessary for the claimant, we initially point out that the claimant has never established a compensable physical injury to the brain by "objective" medical findings. In this regard, we note that the claimant indicated to Dr. Walby on November 9, 1995, that he had experienced a one minute loss of consciousness and a significant laceration injury to his posterior skull area at the time of his May 8, 1995 injury. However, this history provided by the claimant six months after the incident is not corroborated by the May 8, 1995 note from Dr. B. K. Wade, who apparently saw the claimant in the emergency room at St. Michael's Hospital on May 8, 1995. That note specifically states that the claimant did not lose consciousness. In addition, that report indicates that the claimant hit his low back, coccyx, and left wrist, and does not contain any indication that the claimant hit his head. Likewise, we note that the claimant received x-rays of his left wrist, lumbar spine, thoracic spine and his coccyx, but did not receive an x-ray or other diagnostic test to the head. Moreover, while both Dr. Wade's report and the ER report diagnose the claimant with "multiple contusions and abrasions", the only specific reference in either report is to the claimant's left hand.
In addition, to the extent that Dr. Walby apparently seeks to "objectify" an alleged post-concussive syndrome and "quantify" an anatomical impairment rating through additional neuropsychological testing, we understand that the types of "cognitive" tests recommended by Dr. Walby are subjective (based on the patient's response) and are not "objective" within the meaning of Act 796 of 1993. Consequently, it does not appear that the neuropsychological testing recommended by Dr. Walby, would in any way provide the "objective" medical findings that are currently lacking in this case to establish a compensable injury to the brain under the Arkansas Workers' Compensation Law.
Finally, we note that two psychologists have already performed psychological testing on the claimant, that Dr. Wetherby's prior psychological testing appears to have included at least three of the cognitive tests that Dr. Walby has opined need to be performed to evaluate the claimant's cognitive ability, and Dr. Wetherby did not diagnose the claimant with a brain injury or post-concussive syndrome. In addition, we point out that Dr. Walby, a physiatrist, is not in as good a position as Dr. Wetherby, a neuropsychologist, to determine which cognitive tests are appropriate or to determine the appropriate conclusions to reach from those tests.
In light of the evidence that the claimant has already undergone two rounds of psychological testing, the lack of any objective findings in the record to support Dr. Walby's conclusion that the claimant has experienced an injury to the brain, the inability of subjective neuropsychological testing to establish objective findings of a brain injury, and Dr. Walby's lack of training as a psychiatrist or psychologist, we find that the claimant has failed to establish by a preponderance of the evidence that the third round of psychological evaluation recommended by Dr. Walby is reasonably necessary for treatment of the claimant's work related injury.
3. Additional Temporary Disability Compensation
The claimant asserts that he remained within his healing period and incapacitated to earn wages, entitling him to temporary total disability compensation, through the date of the hearing and to a date yet to be determined. The administrative law judge found that the claimant's healing period ended on or before June 17, 1996. Nevertheless, the administrative law judge found that the claimant is entitled to additional temporary total disability compensation beginning on the date of the hearing in this case and continuing through the date that the claimant completes a full-time work hardening program.
Temporary total disability benefits cannot be awarded after a claimant's healing period has ended. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987). A claimant's healing period ends when the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve the conditionId. The healing period has not ended so long as treatment is administered for healing and alleviation of the condition and continues until the employee is as far restored as the permanent character of the injury will permit. Arkansas Highway and Transportation Department v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). However, the respondents may also be liable for a second period of temporary total disability compensation when the claimant undergoes a second, distinct healing period. See, Elk Roofing Co. v. Pinson, Supra.
To the extent that the administrative law judge found that the claimant's healing period ended in June of 1996, but that the claimant is entitled to additional temporary total disability beginning on the date of the subsequent hearing, we point out these two findings appear to be inconsistent with the Court's statement in Pinson that a claimant cannot be awarded temporary total disability compensation after the healing period has ended.
In determining when the claimant's healing period ended in the present case, we note that Dr. Roy Blackburn and Dr. Jim Moore performed independent medical examinations in this case. It appears that Dr. Blackburn, Dr. Moore, and Dr. Walby have all agreed that the claimant's work-related physical injury reached maximum medical improvement by at least June 17, 1996, slightly over one year from the incident on May 8, 1995. However, beginning in August of 1996, the claimant's physicians also began to conclude that the claimant will require another round of work hardening to facilitate his return to work. Therefore, the issue presented in the present case is whether the claimant's program of work hardening, which was first recommended in August of 1996, and which the respondents refused to provide until shortly before the hearing will extend the claimant's healing period, in light of the evidence that the claimant's work related physicalinjury reached maximum medical improvement in June of 1996.
The parties have not cited any relevant authority, and this appears to be a case of first impression under the Arkansas Workers' Compensation Law. Initially, we note that the claimant has the burden of proving his entitlement to requested benefits. As we understand the nature and purpose of the "work hardening" at issue in this case, this type of activity program is not intended to heal or alleviate the claimant's work related physical injury. In this regard, we note that Dr. Walby's explanation of the full-time work-hardening program prescribed for the claimant is the most enlightening evidence in the record on this issue. While Dr. Walby did not provide a textbook definition of what the prescribed work hardening is intended to accomplish, from her explanation of intended goals through work hardening, we understand that the recommended work hardening was just what the term implies, and not an additional period of physical therapy intended to improve the claimant's work-related physical injury. Specifically, Dr. Walby explained the medical reasons for prescribing work hardening as:
Well, what type of work are we talking about returning to? The work hardening is pertinent when you have a target in mind that you need to prepare the body for.
Furthermore, Dr. Walby was asked:
Q. ". . . you probably answered my question, but I'm trying — are you saying he needs the work hardening or the work conditioning?
A. Either program will work. The best success I have using either program is if we have a nice clarified job that everybody is working towards. The therapist then can fine tune the work simulation tasks they put into the work hardening program towards that physical challenge. It's the same philosophy as if you're going to run a marathon, you train by running. So, if we know what job he's going to do, we'll train him with those job strategies, but without a clarified job, we're just going to have him in a physical training program.
Accordingly, we find that the work hardening at issue is intended to simulate the work environment in order to re-condition the body for physical work activity, i.e., as a sort of physical vocational rehabilitation. Because we find that work hardening at issue in this case is not intended to heal or alleviate the claimant's physical injury, we are constrained to find that the proposed work hardening program would not, of and by itself, extend the claimant's healing period beyond June 16, 1996, when the claimant's physicians agree that the claimant's physical injury reached maximum medical improvement. Because we find that the work hardening at issue would not extend the claimant's healing period beyond June 16, 1996, we find that we are without statutory authority to award the claimant additional temporary disability compensation beyond June 16, 1996. Likewise, to the extent that a program of work hardening might arguably be classified as a program of vocational rehabilitation within the meaning of Ark. Code Ann. § 11-9-505(b), we note that we are likewise without statutory authority to award the claimant "lost wages" during the period of time that the claimant would be enrolled in a program of vocational rehabilitation. See, Model Laundry Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (Ark.App. 1980).
In reaching our decision, we note that the dissent asserts that work hardening contains a component of physical therapy and that the Commission has, on at least one occasion, found that a prescription for physical therapy extended a claimant's healing for purposes of an award of additional temporary disability compensation. However, we would also point out that, under the circumstances of a different situation, this Commission found that a prescription for additional physical therapy was not sufficient to extend a claimant's healing period. See,Judy Ratchford v. Belden Wire Cable Company, Full Workers' Compensation Commission opinion filed September 23, 1997 ( E513736). In the present case, for the reasons discussed herein, we interpret from Dr. Walby's explanation that the claimant's work hardening in this case would not be intended to improve or heal the claimant's underlying work-related physical injury, and would therefore not extend the claimant's healing period for purposes of obtaining additional temporary disability compensation.
In short, we are not unsympathetic to the claimant's argument that he should be entitled to financial compensation during the period that the respondents have refused to provide the claimant work hardening which the claimant's physicians consider to be a prerequisite to the claimant's ability to return to work after his having been off work for over one year. However, where, as here, the record indicates that the claimant's healing period for his injury has already ended, we find that we are without authority to award the claimant lost wages during the period after the healing period ended that the respondents delayed providing work hardening, or during the subsequent period when the claimant is in fact engaged in work hardening.
Finally, we note that the administrative law judge's finding No. 7 states that the nature and extent of the claimant's injury, as well as the claimant's entitlement to additional temporary total disability and/or permanent partial disability benefits, requires further development of the relevant evidence and is by necessity specifically reversed. Except to the extent that we are denying the claimant's request for the additional psychological testing ordered by Dr. Walby, and are denying the period of additional temporary disability compensation at issue in this claim, we affirm the administrative law judge's finding No. 7.
After conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the preponderance of the evidence establishes that the claimant's healing period ended in June of 1996. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. We also find that the claimant has failed to establish that he is entitled under the Arkansas Workers' Compensation Law to any period of additional temporary disability compensation at issue in this case, and we find that the claimant has failed to establish that the additional psychological evaluation at issue in this case is reasonably necessary for treatment of the claimant's compensable injury. Therefore, we find that the administrative law judge's decision in these regards must be reversed. In addition, we find that the claimant did not timely raise the Section 505(a) issue in this case. Therefore, we find that the administrative law judge's decision in this regard must be vacated.
IT IS SO ORDERED.
CONCURRING OPINION
I agree entirely with all findings set forth in the majority opinion. I write separately only to address issues raised by the dissent.
All of claimant's treating physicians agree that claimant's healing period for his compensable injury ended by June 16, 1996. The dissent appears to rely upon Michael Taylor v. Blackman Produce, Full Commission Opinion filed November 17, 1997 ( E610722), and Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996) for the proposition that since additional medical treatment has been prescribed by claimant's treating physicians, claimant must still be within his healing period. However, it is well settled that after a claimant has reached the end of his healing period medical treatment necessary to maintain a claimant at his healing level is compensable although it does not bring the claimant back within the healing period. Artex Hydrophonics, Inc. v. Pippen, 8 Ark. App. 200, 649 S.W.2d 845 (1983). In the case presently before the Commission, it is undisputed through the medical testimony that claimant was as far restored as the permanent character of his injury would permit as of at least June 16, 1996. The recommendation of work-hardening was clearly prescribed to maintain claimant at this level of healing. The record is completely void of any evidence that the prescribed work-hardening is in any way intended as a means to heal or alleviate claimant's physical injury as claimant's injury reached the point of maximum medical improvement over three years ago. The dissent confuses the issue of whether claimant reached maximum medical improvement with medical treatment that is necessary to maintain that level of improvement. Medical maintenance does not and has never extended the healing period. This is not to say, however, that once a claimant reaches medical maximum improvement and requires further medical treatment to maintain that level of healing that a claimant cannot backslide and re-enter a second healing period. However, that is not the issue in this case. The issue in this case is whether claimant is entitled to temporary total disability benefits since work hardening was prescribed. Having found that claimant reached maximum medical improvement on June 16, 1996, there is nothing in this record to show that this claimant is still within his healing period or that claimant had a setback and the work hardening is necessary to extend claimant's period of healing.
I further write to point out that the dissent's reliance on work-hardening programs offered at various medical institutions through the United States has no controlling authority over the evidence presented in this case. As the Court of Appeals so succinctly stated in Hope Livestock Auction Company v. Knighten, 62 Ark. App. 74, 966 S.W.2d 943 (1998); "the Commission's de novo review is confined to the record established by the Administrative Law Judge. The extra judicial review of documentation not introduced into evidence was an error" [Emphasis Added]. The review of work-hardening programs from Michigan Crittenton Hospital, the Suburban Physical Therapy Center in New Jersey, and the Good Samaritan Hospital in Los Angles is even more far removed from the realm of generally accepted treatises and reference material than the Diagnostic and Statistical Manual of Mental Disorders which we relied upon in the Knighten case. As we were admonished in Knighten, reliance on such material is clearly prohibited. In determining the purpose of work-hardening for this claimant, we are limited to the record before us. After conducting a de novo review of the entire record, it is abundantly clear that the claimant failed to prove by a preponderance of the evidence that he in any way re-entered a period of healing or that his healing period should be extended simply because work-hardening has been prescribed. On the contrary, the evidence fails to support any such finding.
MIKE WILSON, Commissioner
DISSENTING OPINION
I respectfully dissent from the majority opinion which holds that claimant's healing period ended on or before June 17, 1996, and that he is not entitled to an additional neuropsychological evaluation.
We are asked to resolve a question of law for no factual dispute exists. The majority framed the issue in this case as follows: ". . . whether the claimant's program of work hardening, which was first recommended in August of 1996, and which respondents refused to provide until shortly before the hearing will extend the claimant's healing period, in light of evidence that the claimant's work related physicalinjury reached maximum medical improvement in June of 1996." (Emphasis original).
The majority holds that: "[b]ecause we find that work hardening at issue in this case is not intended to heal or alleviate the claimant's physical injury, we are constrained to find that the proposed work hardening program would not, of and by itself, extend the claimant's healing period beyond June 16, 1996, when claimant's physicians agree that the claimant's physical injury reached maximum medical improvement." In so holding, the majority determines that "the work hardening at issue is intended to simulate the work environment in order to re-condition the body for physical work activity, i.e., as a sort of physical vocational rehabilitation." This determination is based on the deposition testimony of Dr. Walby. However, Dr. Walby is never asked to provide a definition of work hardening. Rather, she explained the rationale for work hardening and responded to an inquiry with respect to whether claimant needs work hardening or work conditioning. Nevertheless, the majority uses Dr. Walby's responses to craft its own definition of the work hardening regimen at issue in this case.
The reasoning is fatally flawed because: (1) it confuses the rationale for prescribing work hardening with the definition of work hardening and; (2) it discounts the inherent contradiction in this case. That is, if work hardening is a condition precedent to claimant's return to the work force, how can claimant be as far restored as the permanent character of his injury will permit?
In order to illustrate the restrictiveness of the majority's work hardening definition, I have reviewed several work hardening programs offered in the United States. According to Michigan's Crittenton Hospital, work hardening is "an interdisciplinary structured program combining job simulation, body mechanics training and functional restoration." The Suburban Physical Therapy Center in New Jersey distinguished physical therapy and work hardening thus: "[w]ork hardening differs from conventional therapy because it incorporates the work environment and job tasks into the patient's program. Moreover, "[t]he program includes a team approach to evaluation, treatment, education/prevention and a planned graduated return to work." Good Samaritan Hospital in Los Angeles described the work hardening regimen offered as follows: "[i]n intensive two-to-six hour sessions, several times per week for up to four hour weeks, workers build up functional strength incrementally as they simulate their job tasks. Occupational and physical therapists oversee these regimens on the hospital's high-tech, work-simulating armamentaria. . . . These technologies . . . help workers regain upper and lower body strength." Good Samaritan boasts that: "within 30 days post-treatment, approximately 93% of [patients] have returned to their jobs at pre-injury capacities or at modified levels."
Against the back drop of the prevailing literature describing work hardening programs, it is apparent that work hardening is not merely job simulation. Rather, work hardening is a blend of physical therapy and job simulation. Since work hardening is a form of treatment which is designed to improve claimant's condition, it may extend claimant's healing period. Indeed, claimant testified that although he was unable to complete an earlier regimen of work hardening, the program improved his condition. The work hardening program at issue in this case is scheduled for four weeks. During that period, claimant's attendance is required for eight hours, five days per week.
In Michael Taylor v. Blackman Produce, Full Workers' Compensation Commission Opinion filed November 17, 1997 ( E610722), claimant was undergoing physical therapy three times per week for a three-week period. Although claimant had been released to return to work, we awarded temporary total disability benefits.
Since work hardening blends physical therapy with job simulation, I find that Taylor is instructive. Further, it is my opinion that Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996), also offers guidance in this matter. In Gansky, claimant's treating physician ordered a functional capacity assessment to determine whether it was feasible for claimant to return to work. Respondents contested the need for this additional treatment, and the assessment was never performed. The Supreme Court held that: "[u]nder these circumstances when the treating neurosurgeon has prescribed a functional capacity assessment and that was not done because Hi-Tech would not pay for it, we cannot agree with the Commission that additional medical treatment was not reasonably necessary or that the healing period had ended."
According to Crittendon Hospital, functional capacity evaluations ". . . objectively measure the maximum level at which a worker can safely function, considering his or her injury." Since the Gansky Court characterized a FCE as additional medical treatment, I find that work hardening, which includes physical therapy, should be similarly classified.
I am aware that the treating physicians in this case have opined that claimant was released from care upon a finding that he had reached maximum medical improvement. However, the treating physicians determined that claimant needed additional treatment in the form of work hardening before returning to work. Thus, work hardening was a condition precedent to claimant's return to the work force. It is well settled that we are not bound by medical opinion. Moreover, in his deposition testimony, Dr. Moore's recognized that this case presents a paradox with respect to the concurrent determinations of additional medical treatment and maximum medical improvement, which he articulated in his deposition testimony. Dr. Moore stated that: "in general and by and large, a year's healing is acceptable, and, yet, on the other hand, after I said that or after having said that, I indicated that it was unrealistic for the individual to return to work unless he has work hardening, and so we're dealing with two inconsistencies. . . . A year is enough time to heal for this sort of a problem. In retrospect, one could say, well, then he should have had all of these things done before that period of time, and that's true in retrospect. Hindsight is a lot better than foresight in many instances, but it has finally come to the point that we are now arrived at these medically appropriate decisions way too in the future."
Since claimant failed to receive the additional treatment ordered by his physicians, he cannot be as far restored as the permanent character of his injury will permit until the regimen is completed. Respondents refused claimant's treatment until immediately prior to the hearing. He remains symptomatic. Claimant endures constant pain between his shoulder blades. Moreover, he continues to experience numbness and tingling in his hands. Claimant uses a TENS unit for pain control. Respondents needlessly extended claimant's healing period by their refusal to pay for work hardening. Therefore, respondents should not be rewarded for their failure to promptly provide treatment which they concede is reasonable and necessary. Therefore, I find that claimant is entitled to temporary total disability benefits from September 10, 1996, until the completion of the work hardening regimen.
Finally, I find that claimant has demonstrated that he is entitled to an additional neuropsychological examination.
Based on the foregoing, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner