Tatum
v.
International Paper Company

This case is not covered by Casetext's citator
Before the Arkansas Workers' Compensation CommissionFeb 26, 1998
1998 AWCC 81 (Ark. Work Comp. 1998)

CLAIM NO. E115092

OPINION FILED FEBRUARY 26, 1998

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part


OPINION AND ORDER

[2] The respondent appeals and the claimant cross appeals various portions of an opinion and order filed by an administrative law judge on March 26, 1997. In that opinion and order, the administrative law judge found in relevant part that the claimant is entitled to additional temporary total disability compensation from September 28, 1992, through December 22, 1992; from October 17, 1993 through January 1, 1994; and from January 19, 1995, and continuing through April 24, 1995. The administrative law judge also found that medical treatment rendered to the claimant by Dr. J.E. Lasner, as well as referrals therefrom is unauthorized medical treatment for which respondent is not liable. The administrative law judge also found that medical treatment rendered to the claimant by Dr. John Dodson, as well as referrals therefrom to include Dr. Gene Sloan, represented authorized, reasonable and necessary medical treatment relative to the claimant's August 27, 1991, compensable injury.

After conducting a de novo review of the entire record, we find that the claimant established that she is entitled to additional temporary total disability compensation for the period September 28, 1992, through December 22, 1992. In addition, we find that the greater weight of the evidence establishes that the treatment rendered by Dr. Lasner, as well as referrals therefrom, are unauthorized medical treatment for which the respondent is not liable. We also find that the scar revision surgery (cosmetic surgery) performed by Dr. Gene Sloan was 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 affirmed. However, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation for the period beginning October 17, 1993, and continuing through January 1, 1994, or for the period beginning January 19, 1995, through April 24, 1995. Therefore, we find that the administrative law judge's decision in these regards must be reversed.

1. Additional Temporary Total Disability

[5] The claimant sustained compensable injuries to both upper extremities on August 27, 1991, when her arms became lodged between the cylinder of a paper winder machine. The claimant was treated for injuries which included fractures in the fingers of the left hand, and crushing-type injuries to both the hands and forearms. Following that accident, the claimant was off work from August 28, 1991, through December 21, 1991. The claimant returned to work on December 22, 1991, and continued to work until she was involved in a non-compensable motor vehicle accident on April 26, 1992.

The claimant was released to return to light-duty work in September of 1992 and returned to work for the respondent in December of 1992, in the bathhouse. The claimant was also off work thereafter for approximately 2 1/2 months in late 1993, and for a period of months beginning in January of 1995.

The respondent asserts that light-duty work was made available to the claimant for all relevant periods prior to 1995, and that the respondent's delay in returning the claimant to light-duty work in 1995 was essentially caused by the claimant's invalid efforts on two functional capacity evaluations. In this regard, Mr. Bernard Burns, Supervisor of Safety for the respondent testified that, for the period beginning in January of 1995, the respondents were unable to place the claimant in an exact position because of the invalidity of two functional capacity examinations that she underwent during that period that she remained off work beginning in January of 1995. The claimant was ultimately returned to work after this period of alleged temporary total disability in the bathhouse facility. In addition, Mr. Burn's testimony indicates that the claimant returned to work at the bathhouse (consistent with her physical limitations) during the prior periods the claimant returned to work for the respondents between December of 1992 and January of 1995.

After considering the testimony of the claimant and the testimony of Mr. Burns, the medical records and medical reports, and all other evidence properly in the record, we find that the claimant established that she is entitled to additional temporary total disability compensation for the period from September 28, 1992, and continuing through December 22, 1992. In reaching that decision, we note that the respondent asserts on appeal that the respondent made available to the claimant light-duty work at all times during the period for which she currently seeks additional temporary total disability compensation prior to 1995. However, the claimant's unrebutted testimony indicates that, although she was released to light-duty work on September 28, 1992, she did not actually receive a response from the respondent advising her that light-duty work would be available with the respondent until December of 1992, at which time she was assigned to the bathhouse and returned to light-duty work. Consequently, we see no basis in the record to support the respondent's assertion that the claimant was offered light-duty work and should be denied additional temporary total disability compensation for the period between September 28, 1992, and continuing through December 22, 1992.

However, in all other respects, we find that the greater weight of the evidence indicates that the respondent had available for the claimant light-duty employment (in the bathhouse) during the periods for which she currently seeks additional temporary total disability compensation in 1993 — 1994, and that the claimant was unemployed after January 19, 1995, as a direct consequence of her invalid efforts during functional capacity evaluation. Therefore, for the reasons discussed herein, we find that the claimant failed to establish that she is entitled to additional temporary total disability compensation for any period at issue after December 22, 1992.

2. Medical treatment rendered by Dr. J.E. Lazner

[11] The claimant acknowledged that she initiated treatment under Dr. Lasner of her own volition.

Evidence in the record indicates at the time that claimant initiated Dr. Lasner's treatment she was represented by counsel. While the claimant asserts that she undertook treatment with Dr. Lasner because she was unable to schedule an appointment with Dr. Collins for treatment relative to her left shoulder following her discharge by Dr. Rutherford, Ms. Carol Kriss, the claims adjustor for the respondent's third-party administrator testified that, had she received information of the claimant's inability to schedule an appointment with Dr. Collins, appropriate measures would have been taken. Therefore, after considering the testimony of the claimant, the testimony of Ms. Kriss, a review of the medical reports, and all other evidence in the record, we find that the claimant failed to establish that the treatment rendered under the care of Dr. Lasner as well as referrals therefrom, represent authorized medical care for which the respondent should be held liable.

3.
Medical treatment rendered by Dr. John Dodson And Dr. Jean Sloan

[14] On appeal, the respondent seems to assert that the medical treatment provided by Dr. Dodson, a general practitioner, was duplicative and cumulative of treatment provided by orthopaedic specialists.

During the period that the claimant presented to Dr. Dodson, the claimant was also being seen by Drs. Nix and Collins. Each of these physicians are orthopedic specialists. It should be noted the claimant initially began treating with Dr. Dodson as a result of her non-compensable automobile accident, and it was only later that he began treating her for her shoulder condition while she was being treated by orthopedic specialists. Moreover, we find that the claimant failed to show that Dr. Collins or Dr. Nix failed to prescribe reasonably necessary treatment for her condition including prescription medication, physical therapy, or surgery. On that basis, we find that Dr. Dodson's treatment was in fact cumulative in nature and was therefore not reasonably necessary for treatment of the claimant's compensable injury.

However, we find that the preponderance of the evidence does establish that Dr. Sloan's surgery was reasonably necessary for treatment of the claimant's compensable injury. In reaching that decision, we note that Dr. Sloan is a plastic surgeon who performed scar revision surgery on the scar remaining after the claimant's shoulder surgery, and we note that the claimant missed no work as a result of her scarring and there is no evidence in the record indicating that she suffered any anatomical impairment as a result of the scarring.

The respondent asserts that the scar revision surgery is essentially cosmetic in nature and that the Workers' Compensation Laws in the State of Arkansas allow surgery to repair disfigurement only when such scarring is on the head of a claimant. Therefore, the respondent asserts the surgical treatment rendered in this case is neither reasonable nor necessary nor is the subject of workers' compensation benefits. In assessing the respondent's contentions in this regard, we initially note that the respondent has cited no statutory authority or case law in support of this argument that a scar revision surgery is non-compensable under the Arkansas Worker's Compensation Laws unless the surgery relates to disfigurement to the head. In addition, we note that the respondent's assertion in this case appears to be contrary to the analysis of the Court of Appeals in Crain Burton Ford Company v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984). In comparing the facts of this case to the circumstances in Rogers, we find no basis in the law or the evidence to support the respondent's contention that cosmetic surgery is only permissible to correct disfigurement to the head.

Moreover, we also note that on June 5, 1996, Dr. Sloan described the scar as "secondary to an accident", the claimant testified the scar which received surgery was approximately 4 to 6 inches long, and that she had developed a dull, aching sensation under the skin and a feeling as if her neck was being drawn to one side. The claimant testified that, following surgery, she continues to have one small sensitive spot, but that in all other respects the scar revision surgery has helped the problems which she experienced prior to surgery. After considering the testimony of the claimant, the reports of Dr. Sloan, and all other evidence in the record, we find that the greater weight of the evidence in the record establishes that the scar revision surgery was reasonably necessary for treatment of the claimant's compensable injury and subsequent multiple surgeries.

Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant established that she is entitled to additional temporary total disability compensation for the period September 28, 1992, through December 22, 1992. In addition, we find that the greater weight of the evidence establishes that the treatment rendered by Dr. Lasner, as well as referrals therefrom, are unauthorized medical treatment for which the respondent is not liable. We also find that the scar revision surgery (cosmetic surgery) performed by Dr. Sloan was 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 affirmed. However, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation for the period beginning October 17, 1993, and continuing through January 1, 1994, or for the period beginning January 19, 1995, through April 24, 1995. We further find that the treatment rendered to the claimant by Dr. Dodson was cumulative and therefore not reasonably necessary for treatment of the claimant's compensable injury. Therefore, we find that the administrative law judge's decision in these regards in these decisions must be reversed.

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, 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.


CONCURRING AND DISSENTING OPINION

[24] I concur with that portion of the principal opinion which finds that claimant is entitled to additional temporary total disability benefits from September 28, 1992, through December 22, 1992; and that the scar revision surgery performed by Dr. Gene Sloan was reasonably necessary treatment for claimant's compensable injury. However, I must respectfully dissent from the finding that claimant failed to prove that she is entitled to additional temporary total disability benefits from October 17, 1993, through January 1, 1994, and from January 19, 1995, through April 24, 1995. I must also respectfully dissent from the finding that treatment rendered by Dr. Lasner and his referrals was unauthorized.

[25] Commissioner Wilson concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION

[27] I respectfully concur in part and dissent in part from the majority's opinion. I concur in the majority's finding that the treatment rendered by Dr. Lasner and his referrals were unauthorized. I also concur in the majority's finding that the claimant is not entitled to temporary total disability for the period beginning October 17, 1993 and continuing through January 1, 1994, or the period beginning January 19, 1995 through April 24, 1995. However, I dissent in the majority's finding that the claimant is entitled to temporary total disability for the period September 28, 1992 through December 22, 1992. I also dissent from the majority's finding that the scar revision surgery performed by Dr. Gene Sloan was reasonable and necessary medical treatment. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.

The claimant was employed in the excluder department of the respondent's facility at the time of her 1991 injury. The claimant was treated and released to light duty tasks and the claimant was subsequently assigned to the bath house. Each time the claimant was released to return to light duty work, she was put to work in the bath house. This was supported by the testimony of Mr. Barney Burns.

Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. JA Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The healing period is defined as that period for healing of the injury resulting from the accident which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve the condition, the healing period has ended. Id. The determination that is to be made by the Commission, and if that determination is supported by substantial evidence, it must be affirmed. Id.

In my opinion, the evidence fails to support a finding that the claimant is entitled to temporary total disability for the period of September 22, 1992 through December 22, 1992. The claimant was released to return to work but did not return to work until December 22, 1992. Work was available to her. I also find that the scar revision surgery was not reasonable and necessary medical treatment.

Employers are only liable for medical treatment and services which are reasonably necessary for the treatment of employee's injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). 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). In my opinion, the treatment of Dr. Sloan in the form of the scar revision surgery on the claimant's scar remaining after her shoulder surgery was not reasonable and necessary medical treatment. The claimant missed no work as the result of her scarring and it was not shown by the evidence that she suffered any impairment as the result of the scarring.

Therefore, for the reasons stated herein, I respectfully concur in part and dissent in part from the majority opinion.

MIKE WILSON, Commissioner