Opinion
CLAIM NOS. E302850 E401817
OPINION FILED JANUARY 23, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by GAIL PONDER GAINES, Attorney at Law,
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Claimant appeals from a decision of the Administrative Law Judge filed April 16, 1996 finding that the claimant is not entitled to additional medical benefits and additional temporary total disability benefits. Based upon our de novo review of the entire record, we find that the claimant has failed to meet her burden of proof. It appears that the Administrative Law Judge's opinion was drafted by respondent's attorney and not the Administrative Law Judge which is contrary to our policy statement announced in Lee A. Bennett v. City of Benton, Full Workers' Compensation Commission, Aug. 14, 1996 ( E500506). Therefore, we decline to adopt the opinion.
Claimant sustained two admittedly compensable injuries to her neck, the first on February 10, 1993 and the second on January 12, 1994. Claimant's first injury occurred when she slipped in water and fell. Claimant was treated through the Baptist Medical Emergency Room and missed two weekends of work. However, claimant did not miss a sufficient amount of time from work to be eligible for temporary total disability benefits. Claimant's second injury occurred when she was helping to lift a heavy patient. Claimant felt she pulled her neck and right shoulder. Again, claimant was treated initially through the Baptist Medical Center Emergency Room. Eventually, claimant was referred to Dr. David Gilliam, an orthopaedic specialist. Dr. Gilliam treated the claimant conservatively and held her off work. Due to symptoms which were "difficult to ferret out" and claimant's lack of improvement, Dr. Gilliam referred the claimant to Dr. David Collins, also an orthopaedic specialist. In a report dated March 9, 1994, Dr. Collins diagnosed resolved muscle strain in the neck and right shoulder with residual myofascial pain. As of that date, Dr. Collins offered no further treatment or work-up and assigned no permanent impairment. Claimant returned to Dr. Gilliam who concurred with Dr. Collins' diagnosis and released the claimant to return to work on March 23, 1994. However, in July of 1994, claimant returned to Dr. Gilliam with continued complaints of neck and shoulder pain. Claimant was seen by both Dr. Gilliam and Dr. Collins who again diagnosed chronic myofascial pain syndrome. Claimant underwent additional cervical and shoulder MRI's which were essentially normal. Claimant was referred to Dr. Annette Meador for chronic pain syndrome. Dr. Meador diagnosed myofascial pain syndrome and eventually released the claimant to return to sedentary work in September of 1994.
Respondent accommodated claimant's light duty release and placed the claimant in a position as utilization review clerk which involved no direct patient care. Claimant remained in the position as utilization review clerk until her termination from Baptist in March of 1995.
The record reveals that claimant initiated treatment with Dr. Thomas Hart, an unauthorized physician. Claimant testified that she was aware at the time she initiated her treatment with Dr. Hart that she would be responsible for the treatment. Claimant further acknowledged her signature on the Form-ARN. Through referrals from Dr. Hart, claimant has been seen by Dr. Chris Adams, Dr. Scott Bowen, Dr. Barry Baskins and Dr. Richard Peek. Dr. Bowen initially indicated that he had nothing to offer the claimant, however, he eventually performed arthroscopic surgery of claimant's shoulder for diagnostic and treatment purposes. Dr. Bowen also performed such surgery on claimant's knee.
As noted above, claimant was referred to Dr. Barry Baskins, a physiatrist, by Dr. Hart in March of 1995. Dr. Baskins diagnosed chronic myofascial pain of the claimant's shoulder girdle. Dr. Baskins related claimant's problems to a shoulder strain from lifting a table in 1992, followed by a slip and fall incident in 1993 and a lifting injury in 1994. (It must be noted that the table lifting incident in 1992 is a nonwork-related injury which occurred approximately four months prior to claimant's first compensable injury.) Dr. Baskins also diagnosed the claimant with mild carpal tunnel syndrome. This condition has not been related to claimant's compensable injuries.
In April of 1995, Dr. Hart referred the claimant to Dr. Richard Peek, a neurosurgeon. Dr. Peek diagnosed the claimant with fibromyalgia, which is simply another term for chronic myofascial pain syndrome. Dr. Peek recommended conservative care, stretching and non-narcotic medication.
In June of 1995, Dr. Hart referred the claimant to Dr. Christopher Adams. Dr. Adams diagnosed the claimant with generalized fibrositis.
The record reveals that claimant sustained an injury lifting a table at her home in November of 1992. Claimant was treated for this injury by her primary care physician, Dr. Benny Green. Dr. Green diagnosed the claimant with a cervical neck strain, with significant spasm and pain. She was treated for this condition by Dr. Green until February 4, 1993, just six days prior to her first injury at Baptist. The record further reveals that the claimant has been on medication for anxiety and depression symptoms since 1991 and has received treatment for her knees as early as 1991.
Claimant's original work-related injury occurred prior to the effective date of Act 796 of 1993. However, it is our opinion that claimant completely recovered from her original work-related injury prior to her second injury in January of 1994. It is the second injury which required the claimant to miss a sufficient amount of time to be eligible for temporary total disability benefits. Moreover, it is the second injury which required extensive treatment by Dr. Gilliam and Dr. Collins, orthopaedic specialists. Accordingly, it is our opinion that this claim is governed by the law as amended by Act 796 of 1993.
At the hearing claimant testified that in addition to the pain in her shoulder and arm, she suffers from numerous other symptoms. Specifically, claimant testified that she has pain behind her eyes and suffers from numbness and tingling in both arms. Claimant contends that her wrist problems are so severe that she is required to wear cock-splints 12 hours a day. Moreover, claimant contends that her neck and shoulder pain has now moved from the right side into claimant's left side. Claimant testified that she takes muscle relaxers, medication for peptic ulcer disease, and sleep medication. Claimant uses a stadol inhaler and a TENS unit for pain. According to the claimant, her major problem is fatigue.
In our opinion, claimant failed to present any objective medical evidence substantiating her continued complains of pain. All diagnostic tests, including right shoulder MRI, cervical MRI, and EMG-NCV studies were essentially normal except for a finding of mild carpal tunnel syndrome. As noted above, claimant's carpal tunnel syndrome has not been related to her compensable injury. Claimant's only diagnosis is in the nature of chronic myofascial pain syndrome or fibromyalgia. This diagnosis is based merely upon claimant's complaints of pain. Claimant has received treatment from noted orthopaedic specialists and from a physician specializing in pain management. These physicians concluded that claimant would not benefit from additional medical care. In fact, the physicians all concurred that the claimant should return to light duty work.
Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Temporary total benefits do not, in all cases, correspond to the healing period; temporary disability is not based on the claimant's healing period, but is awarded where the claimant's injury-caused incapacity prevents him from earning the wages he was receiving at the time of the injury. County Mkt. v. Thornton, 27 Ark. App. 235, 770 S.W.2d 156, supp. op. reh'g denied. 27 Ark. App. 241-A, 771 S.W.2d 793 (1989).
The record reveals that claimant sustained a compensable injury to her shoulder. Claimant was diagnosed with a shoulder strain. This condition resolved as of September 24, 1994 when she was released to return to work in a modified position. Claimant failed to present evidence, nor did she argue, that her termination in March of 1995 was any way related to her compensable injury. Although claimant alleges to suffer from a multitude of other symptoms, the only symptom which is related to her compensable injury is that of pain. The persistence of pain may not in and of itself prevent a finding that one's healing period has ended. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
Based upon a preponderance of the evidence, we find that the claimant's healing period ended as of September 24, 1995 when her condition stabilized and reached maximum medical improvement. Therefore, we find that claimant has failed to prove by a preponderance of the evidence entitlement to temporary total disability benefits beyond that date.
We further find that the claimant has failed to prove that the medical treatment initiated by Dr. Hart is related to her compensable injury. Claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary. Norma Beatty v. Ben Pearson, Inc., Full Workers' Compensation Commission, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Workers' Compensation Commission, Aug. 27, 1993 ( D703346). 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., FC Opinion Dec. 13, 1989 ( D512553).
As previously noted, neither Dr. Hart nor the physicians to whom he referred the claimant offered any new medical treatment to the claimant. Moreover, claimant's only complaint which is arguably related to her compensable injury is that of pain. Dr. Gilliam, Dr. Collins and Dr. Meador have all concluded that claimant reached maximum medical improvement and released her to return to work. Thus, we find that claimant has failed to prove that the treatment received by Dr. Hart and through the referrals from Dr. Hart are reasonable and necessary for the treatment of her compensable injury.
Moreover, the record clearly reveals that Dr. Hart was not an authorized treating physician. Claimant completed a Form AR-N and was aware of the change of physician rules before she initiated treatment with Dr. Hart. Consequently, we find that all treatment received from Dr. Hart and through his chain of referral are unauthorized as well as not reasonable and necessary.
Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to additional benefits in the form of temporary total disability and medical benefits subsequent to her released by Dr. Gilliam and Meador on September 24, 1994. Therefore, we affirm the decision of the Administrative Law Judge.
IT IS SO ORDERED.
Commissioner Humphrey dissents.