Opinion
CLAIM NO. F000925
OPINION FILED JANUARY 14, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MARCELIERS HEWETT, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE THOMAS PENDOWSKI, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals a February 26, 2001 opinion of the Administrative Law Judge finding that claimant failed to prove by a preponderance of the evidence that she is entitled to benefits for a psychological injury. Claimant also appeals the Administrative Law Judge's failure to make findings concerning her entitlement to temporary total disability benefits for the admittedly compensable physical injury to her right upper extremity.
Claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). After our de novo review of the entire record, we find that claimant has met her burden of proof and, accordingly, reverse the opinion of the Administrative Law Judge.
Concerning the right upper extremity, the parties stipulated that claimant sustained such a physical injury on November 20, 1999, as a result of an attempted sexual assault by an inmate incarcerated in the Department of Correction for capital murder. A claimant "who has suffered a scheduled injury is entitled to benefits for temporary total disability during her healing period or until she returns to work." Ark. Code Ann. § 11-9-521(a) (Supp. 2001); Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The healing 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).
On the date of the injury, claimant presented to the emergency room of a local hospital, some tests were run, and claimant was told to see her family physician on Monday, November 23, 1999. Claimant saw Dr. Atiya Waheed, who provided conservative treatment for claimant's right upper extremity until on or about January 26, 2000. In the meantime, Dr. Waheed had referred claimant for psychological/psychiatric evaluations. Claimant credibly testified that she did not work between November 20, 1999 and January 26, 2000, when Dr. Waheed released her from treatment for her right upper extremity. Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that she remained in her healing period and had not returned to work as a result of the physical injury to her right upper extremity from November 20, 1999 to January 26, 2000. Therefore, claimant is entitled to benefits for temporary total disability during this period of time. Additionally, since respondent has clearly controverted claimant's entitlement to these benefits, we find that claimant's attorney is entitled to the maximum statutory attorney's fee based on this award.
The next issue is whether claimant is entitled to benefits for a psychological or mental injury or illness resulting from the assault. Ark. Code Ann. § 11-9-113 provides the following in pertinent part:
(a)(1) A mental injury or illness is not a compensable injury unless it caused by physical injury to the employee's body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
The parties agree that claimant was a victim of a crime of violence and, therefore, the requirement contained in Subsection (a)(1) has been met.
The Administrative Law Judge acknowledged that Dr. Ella M. Williams, a licensed psychiatrist, diagnosed claimant as suffering from Posttraumatic Stress Disorder and cited Section 309.81 of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). It is also important to note that respondent chose not to depose Dr. Williams, object to her reports, or obtain its own expert opinion in rebuttal of the opinion by Dr. Williams. However, notwithstanding the above, the Administrative Law Judge engaged in an independent comparison of the documentary evidence detailing claimant's condition with the DSM-IV to determine whether the diagnosis was valid.
In the absence of evidence, or at least some argument, that Dr. Williams is not an expert in the field of psychiatry, Dr. Williams is presumed to be a trained professional, who is qualified to make a valid diagnosis of a mental condition. A diagnosis in accordance with the DSM-IV "implies" that valid diagnostic criteria was present to support the diagnosis. Ritchie Grocery v. Glass, 70 Ark. App. 222, 16 S.W.3d 289 (2000).
In the present case, the Administrative Law Judge improperly substituted his opinion regarding a valid diagnosis for the expert opinion of Dr. Williams. If the General Assembly had intended for the Commission to make these diagnoses on its own, there would have been no reason to specifically require that the mental injury or illness be diagnosed by a licensed psychiatrist or psychologist. The Administrative Law Judge's position in this case would place an untenable burden on injured workers. Claimant's burden of persuasion is certainly met by evidence that a licensed psychiatrist or psychologist has given a diagnosis in accordance with the DSM. Respondents must surely go forward with some evidence to rebut or contradict the implication of validity. Even if there was sufficient evidence in the record to rebut the implication that the diagnosis was valid, we would find that the diagnosis of Posttraumatic Stress Disorder meets the criteria established in the DSM-IV.
The Administrative Law Judge found, and respondent has not challenged the findings, that claimant satisfied both requirements under Criterion A, three of the five requirements under Criterion B, and three of the five requirements necessary under Criterion D. The Administrative Law Judge denied this claim based on claimant's failure to satisfy Criterion C, which requires three or more of the symptoms listed thereunder. The Administrative Law Judge found that claimant had met only numbers 4 and 5 and had not met 1, 2, 3, 6, or 7. Respondent also challenges whether claimant satisfied Criterion E, requiring that duration of the disturbance (symptoms in Criteria B, C, and D) be more than one month. We find that claimant exhibited at least three of the characteristic symptoms listed under Criterion C and that she satisfied Criterion E.
The diagnostic criteria for Posttraumatic Stress Disorder includes the following:
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2) efforts to avoid activities, places, or people that arouse recollections of the trauma
(3) inability to recall an important aspect of the trauma
(4) markedly diminished interest or participation in significant activities
(5) feeling of detachment or estrangement from others
(6) restricted range of affect (e.g., unable to have loving feelings)
(7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
The Administrative Law Judge found that claimant satisfied C(4) by her inability to engage in her normal activities, such as go to the mall, go to movies, or go out to eat. She was afraid of going to places alone. We find that the claimant has met the criteria for C(4).
The Administrative Law Judge also found that claimant met C(5), feeling of detachment or estrangement from others. The record indicates that she felt like people were watching her, and she would not go out in public. She wanted to be alone much of the time. She felt isolated and would rarely leave her home. Thus, we also find that claimant has met C(5).
We disagree that claimant has not met at least one of the other criteria listed under C. In our opinion, claimant has clearly met C(2) by exhibiting efforts to avoid activities, places, or people that arouse recollection of the trauma. Claimant repeatedly testified, and the documentary evidence supports this testimony, that she could not go back to the job site, she couldn't stand the atmosphere there, she could not even walk through the prison, and she never went back, except as part of the therapy prescribed by Dr. Williams.
There appears to be an error in paragraph 2 of the social history assessment dated January 11, 2000. The second paragraph indicates that after this work-related incident, claimant was robbed at gun point in her home. However, claimant presented credible testimony that this robbery actually occurred prior to the work-related assault. She knows that the person who attempted to sexually assault her in the workplace and the person who robbed her at gun point are actually related. The assessment indicates that "she relates that she realized that they are walking around in the community and this frightens her even more." We also find that this satisfies C(2) by her not wanting to go out in the community for fear of meeting one or more of these persons.
Criterion E, the only other criterion the Administrative Law Judge found claimant to have failed to meet, requires that the duration of the disturbance (symptoms in Criteria B, C, and D) be more than one month. The record clearly supports a finding that claimant experienced the characteristic symptoms in these three categories for more than one month. At a minimum, she experienced the symptoms from shortly after the work-related assault until at least sometime in March 2000.
Accordingly, we find that claimant has, in fact, met the requirements set forth in the DSM-IV to support a diagnosis of Posttraumatic Stress Disorder.
Regarding temporary total disability benefits for the psychological injury, it is clear from Dr. Williams' records that she took claimant off work at least from January 25 until May 25, 2000, when claimant was released from treatment. Accordingly, we find that claimant is entitled to these benefits during that period of time.
For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that claimant failed to prove by a preponderance of the evidence that she is entitled to benefits for a psychological injury. Additionally, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for temporary total disability from November 20, 1999 to May 25, 2000. Further, claimant's attorney is entitled to the maximum statutory attorney's fee based on benefits awarded herein, one-half of which is to be paid by claimant and one-half to be paid by respondent in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996), Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990) and Chamness v. Superior Industries, Full Commission Opinion filed March 4, 1992 ( E019760). Respondents are directed to comply with the award set forth herein. 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 on this appeal before the Full Commission, 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.
______________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the findings of the principal opinion. I write separately only to address the dissenting opinion's argument that the record fails to establish that the claimant's mental condition adequately met diagnostic criteria "C" to establish a post-traumatic stress disorder under DSM Section 309.81.
I agree that the claimant has the burden of proof to establish her compensable mental injury. See generally Aluminum Company of America v. Rollon, ___ Ark. App. ___, ___ S.W.3d ___ (December 19, 2001). In the present case, the claimant satisfied that burden of proof with precisely that evidence prescribed by Ark. Code Ann. § 11-9-113(a)(2), i.e., with a diagnosis of post-traumatic stress syndrome 309.81 by Dr. Williams, a psychiatrist.
Notably, (1) the respondents did not object to the introduction of Dr. Williams' diagnosis into the hearing record (2) the respondents did not depose or call Dr. Williams as a witness to determine the foundation of Dr. Williams' diagnosis of post-traumatic stress syndrome disorder 309.1 and (3) the respondents did not introduce any expert medical opinion of their own to rebut Dr. Williams' diagnosis that the claimant has experienced post-traumatic stress disorder 309.81. Therefore, the only expert medical evidence regarding whether the claimant did or did not sustain post-traumatic stress syndrome is the diagnosis of Dr. Williams, the claimant's treating psychiatrist. Nevertheless, the dissenting opinion, without explanation (1) completely disregards Dr. Williams' diagnosis in the record, (2) completely disregards the lack of any expert medical evidence in the record to rebut Dr. Williams' diagnosis, and (3) concludes from the witness testimony and medical reports in the record that the claimant in fact did not sustain post-traumatic stress disorder as that condition is described in DSM Section 309.81. The dissenting opinion's analysis and conclusion are defective in several regards.
First, the dissent, without explanation, has arbitrarily disregarded Dr. Williams' expert diagnosis of post-traumatic stress disorder 309.81, even though the Courts have pointed out on numerous occasions that the Commission may not arbitrarily disregard witness testimony or other evidence presented in support of a claim. See Edens v. Superior Marble Glass, 343 Ark. ___, ___ S.W.3d ___ (November 8, 2001); Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001); Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000).
Second, as indicated above, the dissenting opinion is simply incorrect in suggesting that the claimant failed to establish by a preponderance of the evidence in the record that she sustained an injury pursuant to DSM Section 309.81. To the contrary, Dr. Williams diagnosed the claimant with post-traumatic stress syndrome 309.81, and as also pointed out above, the diagnosis of a psychiatrist and psychologist is precisely the type of evidence required by Ark. Code Ann. § 11-9-113(a)(2) to prove a compensable mental injury. I note that, in the present case, it is the respondent, not the claimant, who failed to offer relevant evidence to rebut Dr. Williams' diagnosis, and it is error for the dissent to ignore Dr. Williams' diagnosis. Accord Edens, supra; Freeman, supra; Hapney,supra.
Third, there is no dispute that Dr. Williams was never deposed or called as a witness by either party to explain her discussions with the claimant or to explain her application of the criteria of DSM Section 309.81 to the information made known to her during her contact with the claimant. Likewise, I note that Dr. Williams has not authored any reports in this record which explain what information was made known to Dr. Williams that led her to conclude that the claimant's condition met the DSM Section 309.81 criteria. Since the respondents make no effort to rebut Dr. Williams' expert medical diagnosis, I am at a loss to understand what evidence, in addition to Dr. Williams' diagnosis, that the dissenting opinion might expect the claimant to offer to establish that she developed post-traumatic stress syndrome as defined by DSM Section 309.81.
Fourth, under these circumstances of this case, I note that it is futile for the dissent to search through the witness testimony and Dr. Williams' office notes to ascertain whether Section 309.81 criteria are or are not met in this case because the claimant had no duty to establish each relevant criteria through testimony or office notes, and the claimant obviously made no attempt to put such corroborative evidence in the record in this case. Instead, the claimant sought to establish her compensable injury by Dr. Williams' diagnosis, expert medical evidence which the dissenting opinion simply chooses to ignore. As the Administrative Law Judge noted, aside from Dr. Williams' diagnosis,neither attorney argued the applicability of the specific criteria of Section 309.81 to any particular testimony or medical records in this case. Instead, the claimant presented Dr. Williams' diagnosis to establish her mental injury as post-traumatic stress syndrome 309.81, and the respondents offered no rebuttal.
Finally, implicit in the dissenting opinion's analysis is a presumption that all of the information from which Dr. Williams made her diagnosis of post-traumatic stress syndrome disorder 309.81 can be found somewhere in Dr. Williams' notes in the record. To my knowledge, there is simply no basis to support such an assumption in this case. For all we know, Dr. Williams may have made her diagnosis based primarily on information and/or observations which are not documented in the record before us. To my knowledge, there is no medical requirement that a diagnosing psychiatrist document all observations and patient discussions which bear on a potential diagnosis and clearly Dr. Williams made no such effort to prepare that type of highly detailed documentation in this case.
In summary, as I understand the law and the evidence, if the respondents did not agree with Dr. Williams' diagnosis of post-traumatic stress syndrome 309.91, then the respondents should have either deposed Dr. Williams, obtained their own second opinion, or provided credible evidence to show that Dr. Williams' diagnosis and opinion was invalid on its face. Compare Ritchie Grocery v. Glass, 70 Ark. App. 22, 16 S.W.3d 289 (2000); Banscum v. RNR Const. Co., 60 Ark. App. 116, 959 S.W.2d 429 (1998). The respondents did none of the above in this case. The dissent seeks to ignore Dr. Williams' diagnosis and substitute the dissent's own assessment as to the validity of Dr. Williams' diagnosis. However, Dr. Williams is a trained professional and the dissent cannot arbitrarily ignore Dr. Williams' diagnosis under the DSM. Ritchie Grocery v. Glass,supra. More importantly, the dissent seeks to perform a diagnosis under DSM criteria based on a record where neither party ever attempted to present evidence to either corroborate or rebut Dr. Williams' DSM diagnosis.
For all of the above reasons, I believe that the dissent's attempt to arbitrarily disregard Dr. Williams' diagnosis and substitute the dissent's own diagnosis under the DSM is legally flawed. Dr. Williams' diagnosis represents a preponderance of the evidence of record on the issue argued by the dissent. Absent any credible rebuttal to Dr. Williams' diagnosis, Dr. Williams' diagnosis should be accorded great weight, and should not be arbitrarily disregarded as the dissent attempts to do.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant to proved by a preponderance of the evidence that she was entitled to benefits associated with post-traumatic stress disorder. Based upon my de novo review of the record, I find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable mental illness injury pursuant to Ark. Code Ann. § 11-9-102.
Although the claimant meets Criteria A and B, in my opinion, she fails to meet the requirements set forth in Criteria C. My review of the record fails to reveal any evidence that the claimant suffered any symptoms in Sub-parts (1), (2), (3), (6), and (7) of Criteria "C". There is nothing in the record that indicates that the claimant persistently avoided stimuli associated with the attack and numbing of general responses, as indicated by any efforts to avoid thoughts, feelings, or conversations associated with the trauma. In fact, Dr. Williams, the claimant's treating psychiatrist, during her appointment on January 25, 2000, indicated that the claimant was very cooperative and engaging in her conversation. She also exhibited coherent thoughts. While the claimant stated that she felt anxious, nervous, and suspicious, there is no testimony in the record or any medical evidence that indicates that she attempted to persistently avoid stimuli associated with the trauma through efforts involving the avoidance of activity, places, or people that aroused recollections of the event itself. There is also no evidence that the claimant attempted to avoid any stimuli associated with the attack, indicated by any ability to recall an important aspect of the trauma. There is also no evidence that would bring the claimant under Criteria "C"(6). That criteria requires that the claimant persistently avoid stimuli associated with the trauma and numbing of general responsiveness, which would be indicated by "restricted range of affect". Further, there is no evidence that the claimant persistently avoided stimuli associated with the trauma and numbing of general responsiveness by indicating "a sense of shortened future." The claimant had a boyfriend during this time who lived with her and her two-year-old son. While the claimant exhibited many of the criteria of the diagnosis of post-traumatic stress disorder, the criteria in "C"(7) was not one of them. It is clear that the claimant only exhibited two of the seven criteria under Criteria "C". It is a requirement that the claimant exhibit at least three of the seven criteria under "C", rather than the two criteria which the evidence reflects. Therefore, after I consider all the evidence and the testimony, I find that the preponderance of the evidence fails to reflect that the claimant's diagnosis of post-traumatic stress disorder met the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders. Accordingly, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner