Howell Pippin, Jr. v. Houston General Insurance Company

ca04-299

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-299

March 2, 2005

HOWELL PIPPIN, JR. AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E607342]

V.

HOUSTON GENERAL INSURANCE

COMPANY

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Howell Pippin, Jr., appeals from a decision of the Workers' Compensation Commission denying him temporary-total-disability benefits and compensation for medical treatment after July 27, 1998. He argues that the Commission erred in considering a medical report from a doctor after the Houston General Insurance Company ("Houston General") directed him to see that doctor in contravention of a pre-hearing order. He further argues that the Commission's decision that his healing period had ended on July 27, 1998, was not supported by substantial evidence. We hold that Pippin waived his objection to Houston General's selected doctor by seeing the doctor before filing his objection with the Commission. We also hold that the Commission's decision was supported by substantial evidence. Thus, we affirm.1

Pippin was a crop duster for Casey's Flying Service when he was injured in a plane crash on April 4, 1996. The impact of the crash threw him forward and backward and broke his seat. He did not feel any pain until that night, when he felt soreness in his shoulders, back, and stomach; however, he did not seek medical attention immediately. Pippin attempted to fly again after his aircraft was repaired, but he felt too much pain in his lower back and legs. He went to his personal physician, Dr. Deborah Bibb, on May 10, 1996. Dr. Bibb referred him to a physical therapist; however, Houston General would not allow him to go forward with the claim at that time. Dr. Bibb then referred him to neurosurgeon Dr. John Howser, whom Pippin first saw on July 1, 1996. Dr. Howser ordered diagnostic testing and continued medication. Houston General initially did not pay benefits; however, they eventually paid temporary-total-disability benefits for the period of April 5 through October 5, 1996. Pippin continued to see Dr. Howser through July 1998. During that time, he was having spasms. Dr. Howser recommended that Pippin undergo a rhizotomy, but Houston General did not authorize the procedure.

At some point, Houston General demanded that Pippin see a physician of its choosing. However, he objected to Houston General's physician and commenced this workers' compensation action. At the pre-hearing conference, he requested that the Commission select a physician if an independent medical examination was to be required. The ALJ ordered the parties to agree to a neurosurgeon for an independent medical evaluation. Despite the order, Houston General directed Pippin to see Dr. Rodney Feild for an independent medical examination. Pippin saw Dr. Feild and submitted to a brief examination. In a July 27, 1998 letter to Houston General, Dr. Feild reported the following:

1. The diagnosis is as illustrated. I think the patient is taking excessive quantities of narcotics for a nonmalignant syndrome.

2. Prognosis. I suspect that he will continue to complain of pain and refuse to work. He seems fairly fixed. All of the studies are normal as you know. I am confused as to how Dr. Howser can make a diagnosis of a facet syndrome when the MRI photographs do not reveal any abnormality of his facets, in fact show a relatively normal lumbar spine at 50 years of age. In my opinion the prognosis is good for returning to work because I would have recommended that he return to work within 30 days following the accident.

3. Present treatment and planned future treatment. I don't think he needs any present treatment other than with medication that he can buy over the counter at the drug store. I do not think he needs any planned supervised medical treatment.

4. When was Mr. Pippin able to return to work? In my opinion he should have returned to work within 30 days or even sooner following the wreck.

5. Are there any pre-existing injuries or medical problems? Not to my knowledge.

6. When did Mr. Pippin reach the end of his healing period? In my opinion within 30 days following the crash.

7. Current charges and anticipated future charges. I can't see the reason for any charges. In fact I can't see the reason why this patient has been off for two years with entirely normal studies, being a negative CAT scan of his back, a negative MRI of his thoracic spine and lumber spine, a normal EMG and a normal myelogram. He does have arthritis of his neck but that is consistent with his age. I do not see why this patient has been given narcotics in the form of Lorcet and Vicodin for nonmalignant pain this long. These are addicting. He also has been given Soma which is a semiaddicting medication, at least is a street drug. There is no reason for this.

I would estimate he has no permanent partial physical impairment and is at high risk for drug addiction if he is not already addicted and feel that he could have returned to work with no permanent disability other than pain and suffering within 30 days or sooner following his crash.

Pippin saw Dr. Richard Peek on August 23, 1999, in an effort to return to work. Dr. Peek recommended an intradiscal electrothermal treatment (IDET).2 Dr. Peek referred him to Dr. Jeffrey Ketchum, who performed diagnostic testing, gave him several lumbar epidurals, and recommended an IDET.

In her opinion, the ALJ found that Pippin's healing period had ended. While she noted that Dr. Howser's July 22, 1998 report stated that Pippin was still within his healing period, the ALJ relied on Dr. Feild's independent medical examination for the basis of her decision. She found that Houston General was responsible for benefits from October 20, 1997, through July 27, 1998, the date of Dr. Feild's report. The Commission affirmed and adopted the ALJ's opinion. This appeal followed.

Pippin first argues that the Commission erroneously considered Dr. Feild's medical report in determining whether he was within his healing period. We disagree. The Commission is given broad discretion in the admission of evidence, and its decision on the admission of evidence is not to be reversed absent an abuse of that discretion. Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 (2001). The Commission is not bound by technical rules of evidence; rather, it is to conduct hearings "in a manner as will best ascertain the rights of the parties." Ark. Code Ann. § 11-9-705 (Repl. 2002); Bryant v. Staffmark, Inc., supra.

In her discovery order, the ALJ ordered the parties to discuss a neurosurgeon (agreeable to both parties) for an independent medical evaluation. However, according to Pippin, rather than discussing the issue with him, Houston General ordered him to see Dr. Feild without first consulting him or his attorney. Houston General's directions to Pippin were in violation of the ALJ's order and of Ark. Code Ann. § 11-9-511(a) (Repl. 2002), which requires the Commission to designate or approve the physician who performs the independent medical examination.

However, we hold that Pippin effectively waived his objection when he submitted to an examination by Dr. Feild instead of filing an objection with the Commission. When Houston General told Pippin to see Dr. Feild, Pippin should have stood on his rights. He should have pursued his remedy with the Commission then, not after the fact. By opting to go to Dr. Feild's office instead of asking the Commission for a remedy, Pippin abandoned his right to argue that it was improper for Houston General to require him to see Dr. Feild.

Moreover, Pippin cites no case law, nor are we aware of any, that requires the Commission to disregard relevant medical evidence obtained in contravention of the ALJ's orders. Although the violation of statutes and rights may lead to the exclusion of evidence in most criminal cases, see State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986) (citing United States v. Payner, 447 U.S. 727 (1980); Rakas v. Illinois, 439 U.S. 128 (1978)), we are unaware of any such exclusionary rule in workers' compensation cases. Accordingly, we hold that the Commission did not err in considering Dr. Feild's independent medical examination report.

Next, Pippin argues that the Commission erred in determining that his healing period ended July 27, 1998. We disagree. The standard of review for appeals from the Commission is well established:

The employee has the burden of proving a compensable injury. Ark. Code Ann. § 11-9-102(4)(E) (Supp. 1999). In reviewing decisions from the Workers' Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirms if supported by substantial evidence. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Byars Constr. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000). A decision by the Workers' Compensation Commission will not be reversed unless it is determined that fair-minded persons could not have reached the same conclusions if presented with the same facts. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000). Where the Commission denies a claim because of the claimant's failure to meet her burden of proof, the substantial-evidence standard of review requires that we affirm if its decision displays a substantial basis for the denial of relief. Rice v. Georgia-Pacific Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000).

Carman v. Haworth, Inc., 74 Ark. App. 55, 59, 45 S.W.3d 408, 411 (2001). When the Commission adopts the conclusions of the ALJ, we consider both the decision of the Commission and the decision of the ALJ. Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003).

A claimant's healing period is that period for the healing of an injury, which continues until the claimant is as restored as the character of the injury will permit. Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002). If the condition causing the disability has become stable and nothing further in the way of treatment will improve that condition, the claimant's healing period has ended. Id. The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Id. The determination of when the healing period ends is a factual determination to be made by the Commission. Id.

Pippin argues that, other than Dr. Feild's examination, there was no evidence presented to show that his healing period had ended in July 1998. He notes the opinions of Drs. Howser, Ketchum, and Peek supporting his position. However, Dr. Feild's report stated that Pippin was outside his healing period. His report explicitly contradicts Dr. Howser's diagnosis of facet syndrome in light of MRI photographs that show no abnormality. In addition, the ALJ cited a number of negative studies in her opinion:

Under cross examination, the claimant confirmed that x-rays done immediately after the accident were normal; a CAT scan three days later was normal; EMG and nerve conduction studies were normal; an August 22, 1996, MRI of the cervical, thoracic and lumber spine was normal; a September 27, 1996, EMG study was normal; an October 20, 1996, myelogram was normal; a December 11, 1996, MRI of hips was normal; a bone scan produced negative results; an EMG on July 18, 1997, was normal; and a rheumatoid arthritis work-up in June 1997, revealed no rheumatoid arthritis.

While there is evidence showing that Pippin was still in his healing period, this evidence is, at best, in conflict with Dr. Feild's opinion. Conflicts in medical evidence are for the Commission to resolve. Searcy Indust. Laundry Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). We hold that there was substantial evidence to support the Commission's decision. Accordingly, we affirm.

Affirmed.

Robbins, J., agrees.

Roaf, J., concurs.

1 Also litigated at the hearing were Pippin's status as an independent contractor and a potential statute-of-limitations defense. Neither are issues on appeal.

2 WebMD.com describes the IDET procedure as follows:

Using "live" X-ray imaging (fluoroscopy), a doctor inserts a hollow needle containing a flexible catheter and heating element into the spinal disc. The catheter is positioned in a circle around the inside of the disc, and is then slowly heated to about 194 °F (90 °C). The heat is meant to kill the nerve fibers and toughen the disc tissue, sealing any small tears. Antibiotics, either intravenous or injected into the disc, are used to prevent a disc infection.

Intradiscal electrothermal treatment (IDET) for low back pain, http://my.webmd.com/hw/back_pain/tn9268.asp (accessed Feb. 8, 2005).