Milligan v. West Tree Serv.

Steven Ray MILLIGAN v. WEST TREE SERVICE et
al.

CA 96-789                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
                 Opinion delivered April 2, 1997


1.   Workers' compensation -- temporary total disability benefits not awarded
     after end of healing period. -- Temporary total disability benefits
     cannot be awarded after a claimant's healing period has ended.

2.   Workers' compensation -- healing period -- when it ends. -- 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 condition; 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. 

3.   Workers' compensation -- healing period -- Commission determines ending --
     factors on review. -- The determination of when the healing
     period ends is a factual determination to be made by the
     Workers' Compensation Commission; the court of appeals must
     uphold such factual findings unless there is no substantial
     evidence to support them.

4.   Workers' compensation -- standard of review. -- Substantial evidence
     is such relevant evidence as a reasonable mind might accept as
     adequate to support a conclusion; the appellate court does not
     reverse a decision of the Workers' Compensation Commission
     unless it is convinced that fair-minded persons with the same
     facts before them could not have arrived at the conclusion
     reached; while these rules provide for some degree of
     insulation of the Commission from judicial review, this
     insulation cannot be absolute or else the appellate courtþs
     function in reviewing workers' compensation cases would be
     rendered meaningless.

5.   Workers' compensation -- temporary total disability -- appellant was not
     entitled to benefits. -- The appellate court agreed with the
     Workers' Compensation Commission that appellant was not
     entitled to temporary total disability because, according to
     medical testimony, between January 21 and May 13, 1992, he had
     reached maximum medical benefit unless he decided to have
     recommended surgery for his hand condition; the court affirmed
     the Commission's decision regarding that time period.

6.   Workers' compensation -- healing period -- appellate court reversed
     Commission's finding that healing period had ended. -- The appellate
     court, considering the evidence before the Workers'
     Compensation Commission, could not find substantial evidence
     to support the finding that appellant's healing period ended
     on November 13, 1992; the court reversed the Commission's
     finding, noting that it was clear that at the time the record
     was closed, appellant was still in a healing period; the court
     held that appellant had remained in his healing period from
     May 13, 1992, through the entire period covered by the record,
     which ended on April 2, 1996, and to a date yet to be
     determined.

7.   Workers' compensation -- matter remanded for taking of additional evidence
     regarding appellant's surgery, recovery period, and current status. -- The
     appellate court remanded the matter to the Workers'
     Compensation Commission for the taking of additional evidence
     regarding appellant's surgery in Houston, his recovery period,
     and up-to-date medical records to determine his current
     status.   

8.   Workers' compensation -- matter remanded for award of appropriate
     attorney's fee. -- The appellate court remanded the matter to the
     Workers' Compensation Commission for the award to appellant's
     attorney of the appropriate fee on the entire claim of
     temporary total disability pursuant to Ark. Code Ann.  11-9-
     715 (1987), because the entire claim was controverted.

9.   Workers' compensation -- matter remanded for consideration of penalty
     against appellee for refusal to pay benefits on time. -- The appellate
     court remanded the matter to the Workers' Compensation
     Commission for consideration of the assessment of a penalty
     against appellee for the refusal to pay rightfully due
     benefits on time pursuant to Ark. Code Ann.  11-9-802(b)
     (1987).

10.  Workers' compensation -- Commission's order allowing out-of-state change of
     physicians affrimed. -- The appellate court approved the Workers'
     Compensation Commission's interpretation of Ark. Code Ann. 
     11-9-102(17) (1987), as it read at the time of appellant's
     injury, to mean that appellant could receive treatment from an
     out-of-state physician and affirmed the Commission's order
     allowing appellant an out-of-state change of physicians,
     noting that there was no language in the statute placing on a
     claimant the burden of first proving that there were no
     physicians licensed in Arkansas who could provide the
     necessary treatment and that a more logical meaning of section
     11-9-102(17) was that a claimant may receive compensation only
     for treatment provided by the community of medical-service
     providers whose discipline is regulated in the State of
     Arkansas through its licensing procedures.


     Appeal from Arkansas Workers' Compensation Commission;
affirmed in part and reversed in part on direct appeal; affirmed on
cross-appeal; remanded with instructions.
     David J. Potter, for appellant.
     Huckabay, Munson, Rowlett & Tilley, P.A., by:  Jim Tilley and
Julia L. Busfield, for appellees/cross-appellants.

     Sam Bird, Judge.
     Steven Ray Milligan, the claimant, appeals from a decision of
the Workers' Compensation Commission that found he was not entitled
to any additional temporary total disability.  West Tree Service
has appealed the Commission's finding that approved a change of
appellant's physician to the Hand Surgery Centres of Texas in
Houston, Texas.  
     Appellant testified that he had dropped out of school in the
tenth grade and started working for Texarkana Mack Trucks in
Texarkana, Texas, cleaning the shop, carrying garbage, and going
after parts; he then worked for Tyson Foods in Oklahoma processing
poultry; he also worked for Barksdale Lumber Company in Amity,
Arkansas, making fencing and posts; he went back to work for Tyson
Foods; and then he began working for West Tree Service.  
     On June 19, 1990, appellant was in his early twenties and was
working for West Tree Service.  He was up in a bucket truck
trimming trees around power lines with a chain saw when his right
hand swelled up "real big."  He was taken to the emergency room by
his supervisor and was diagnosed by Dr. Samuel Peebles as having
tendinitis.  He missed two or three days of work, then returned and
worked until February 14, 1991, when his wrist mobility, swelling,
and pain forced him to quit.  
     Dr. Peebles then referred appellant to Dr. Lloyd Mercer of
Hope, an orthopedic surgeon.  Dr. Mercer referred him to Dr. Marsha
L. Hixson, a Little Rock hand specialist, who recommended surgery
in the form of a radial shortening osteotomy.  After several months
of conservative treatment during which his hand condition
deteriorated, appellant finally agreed to the surgery, and it was
performed in May 1992.  Appellant testified that he had wanted to
get a second doctor's opinion before submitting to the surgery but
the employer's insurance carrier, U.S. Fidelity and Guaranty
Company, refused to authorize it, and appellant could not pay for
it himself. 
     Dr. Hixson, testifying by deposition, explained that
appellant's injury was to the lunate bone, a half-moon-shaped bone
located where the forearm meets the wrist that allows the wrist to
swivel.  X-rays and other tests revealed that the lunate bone in
appellant's right wrist was fragmented and partially collapsed. 
Dr. Hixson said appellant's condition is known as "Keinbock's
Disease," vascular necrosis of the lunate, and it is very rare. 
She described the surgery she performed as breaking the radius bone
in the arm, shortening it, and thereby taking the pressure off the
lunate.  Dr. Hixson testified that after several months of recovery
from the surgery, appellant still had a stiff, painful wrist,
decreased sensation in his palm, and a stiff forearm in which he
had lost some motion.  She said  appellant thought he was better
off before the surgery than he was afterward.  She last saw
appellant on November 13, 1992, and assessed a twenty-seven percent
loss of the right upper extremity.  
     Appellant testified that his wrist never got well enough to
use and that he had filed a malpractice claim against Dr. Hixson. 
He said he had been examined by Dr. Michael G. Brown and Dr. Brent
Keyser of the Hand Surgery Centres of Texas and was told that the
lunate bone in his right wrist was crushed, fragmented, and dead. 
Dr. Brown recommended surgery during which he would remove the
diseased lunate bone and replace it with a soft tissue allograft,
repair the damaged nerve, and remove the nonabsorbable sutures that
had been left in his hand after the previous surgery.  Appellant
said the sutures go from the bottom part of his thumb through the
fatty part of the thumb three and one-half or four inches, and that
anytime he tries to pick up something with his right hand, the
sutures feel like "little needles sticking, and sometimes it gets
to itching like it's on fire, but I cannot [scratch] it, because I
can't stand to touch it.  It hurts when you touch it."  
     Appellant testified that he could no longer do any of the jobs
he had previously held because they all involve lifting, pushing,
and pulling with both hands, and he cannot do anything that might
cause vibration in the right wrist because it could disrupt the
precarious blood supply to the lunate.  Consequently, appellant has
not looked for work since February 14, 1991.  
     The opinion of the administrative law judge, which was
affirmed and adopted by the Commission, states that initially
appellee, through its insurance carrier USF&G, agreed to the
surgery recommended by Dr. Brown, but subsequently withdrew its
approval, citing Ark. Code Ann.  11-9-102(17) (1987) and the
definition of "medical services" contained therein as services
performed by any practitioner licensed under the State of Arkansas
relating to the healing arts.  The record reveals that appellee did
not object to the surgery itself; rather, it objected to appellant
utilizing physicians from out of state.  
     The opinion also states that following the initial hearing in
this case, an opinion was entered changing appellant's treating
physician to a Dr. R. Cole Goodman of Fort Smith.  However, Dr.
Goodman refused to treat appellant and the law judge withdrew that
opinion.  The opinion from which this appeal arises says that
appellant had speculated that because the community of hand
specialists in Arkansas is so small, none of its members will
willingly treat a patient who is pursuing a malpractice action
against another member of the group.  The judge said, "Dr.
Goodman's withdrawal of his services is consistent with the
claimant's theory," and that it was unlikely that appellant would
receive appropriate medical care locally.  Consequently, the law
judge approved a change of physicians for appellant to the Hand
Surgery Centres of Texas. 
     Appellant described his condition at the time of the hearing: 
     [T]he lunate bone is collapsed and disintegrated into my
     hand and þ or into the end of my forearm where it meets
     my hand, and the rest of my hand has been sliding down,
     you know, over the top of that.  I've got that problem
     that I've had since þ- since February 14, 1991, in
     addition to the problem that I've had since May 13th of
     '92, which I had the radial shortened.  I can't turn my
     forearm all the way, because of the radius and ulnar
     joint are -- well, my radius is shorter, and now it is in
     a bind.  My forearm rotation is in a bind. ... And I've
     still got the pain of the collapsed bone.  It's like my
     hand is, from the inside out, crushed like, so to speak,
     and any movement that you move it, it hurts.  You know,
     it's a crushed joint.  Anything I pick up that is very
     heavy or anything, or even sometimes, if the weather does
     just right, it swells up, and it hurts. ... [A]lso, I
     have pain that runs all the way up that is slanted this
     a way (witness indicating), up to my elbow.  

     Q.   Indicating from the inside of your arm to the
     outside of your arm across the top of the elbow?

     A.   [A]nd any movements whatsoever sets that off.

     The administrative law judge found appellant to be entitled to
temporary total disability benefits from February 14, 1991, through
January 21, 1992, and again from May 13, 1992, through November 13,
1992, during the time he was recuperating from surgery.  In January
1992, Dr. Hixson reported that if appellant refused to have the
radial shortening procedure done, he had reached maximum medical
benefit.  The law judge held, "There is no indication that the
claimant has yet entered another healing period and has also become
incapacitated to earn wages, so that he would be entitled to
additional temporary total disability benefits."  
     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 condition.  Id.  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 & Transp. Dep't. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993) (emphasis added).  The determination of when the healing
period ends is a factual determination to be made by the
Commission.  Thurman v. Clarke Indus., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994).  The court of appeals must uphold such factual
findings unless there is no substantial evidence to support them. 
Arkansas Highway & Transp. Dep't. v. McWilliams, supra.  
     Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion, and we do
not reverse a decision of the Commission unless we are convinced
that fair-minded persons with the same facts before them could not
have arrived at the conclusion reached.  Willmon v. Allen Canning
Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992).  While these rules
provide for some degree of insulation of the Commission from
judicial review, this insulation cannot be absolute or else this
courtþs function in reviewing these cases would be rendered
meaningless. Arkansas State Police v. Davis, 45 Ark. App. 40, 870 S.W.2d 408 (1994); Boyd v. General Indus., 22 Ark. App. 103, 733
S.W.2d 750(1987).
     In making its decision that appellant's healing period had
ended on November 13, 1992, the law judge relied upon Dr. Hixson's 
statement that she had last seen appellant on November 13, 1992,
and felt that he had healed from the radial shortening osteotomy. 
The Commission apparently failed to discover that in her
deposition, taken on February 2, 1993, Dr. Hixson said appellant's
healing period from the surgery probably ended around November 13,
1992, but that:
     He was still having some decreased sensation in the palm
     and he thought that his wrist was still stiff and
     painful. ... I thought that he had healed from -- I mean,
     he had healed from the bone and the osteotomy.  It
     generally takes, oh, between sometimes up to a year-and-
     a-half to heal, I mean to say that things have settled
     down after that particular operation.  So he had healed
     the soft tissues and the bone, but I don't think he had
     fully recovered from surgery at that time, but he was
     doing about as expected.  I didn't expect any great
     improvements for a while.  (Emphasis added.)

On January 4, 1993, Dr. Hixson wrote to the insurance carrier:
     His [appellant's] limitations at this time are unchanged
     in that he cannot lift, push or pull more than 10 to 15
     pounds using the right wrist, and he is unable to use the
     wrist in a repetitive fashion.  His last measurements
     indicated a mild loss of motion of the wrist and forearm
     and a loss of grip strength in the right hand measuring
     30 kg on the right versus 55 kg on the left.  Based on
     mild wrist synovitis and loss of forearm and wrist
     motion, I have calculated a 27% loss of the right upper
     extremity.  At this point, Mr. Milligan is unable to
     perform his former job due to loss of motion, loss of
     strength, and pain.

     In her deposition Dr. Hixson said, "There is a possibility
that over the next six months, he might improve some relative to
his distal radial ulnar joint pain, but that wasn't going to
[a]ffect anything that I had -- any restrictions or impairment
rating.  So I can't say that he had actually reached maximum
medical improvement."  (Emphasis added.)  
     In a letter dated June 8, 1993, Dr. Edward R. Weber wrote:
     Mr. Milligan was seen by me on 1/27/93.  The diagnosis of
     Kienbock's disease was confirmed.  He had undergone a
     radial shortening osteoplasty.  It usually takes one to
     two years for the navicular to revascularize after such
     a procedure.  Symptoms after that period of time should
     decrease.  I would advise this patient to wait for the
     healing period to be completed which should be
     approximately another nine to twelve months.  No further
     surgical intervention is indicated until that time. 
     (Emphasis added.)

Appellee argues that the decision is supported by substantial
evidence and emphasizes other evidence in the record.
     It appears that since the day his injury incapacitated him in
February 1991, appellant has been unable to work, has lost the use
of his right hand, has had one unsuccessful surgery and needed
another.
     We agree with the Commission that appellant was not entitled
to temporary total disability because between January 21 and May
13, 1992, according to Dr. Hixson, appellant had reached maximum
medical benefit unless he decided to have the recommended surgery. 
The Commission's decision regarding that time period is affirmed.
     However, when we consider the evidence before the Commission
we cannot find substantial evidence to support the finding that
appellant's healing period ended on November 13, 1992.  Dr. Hixson,
in a letter dated January 4, 1993, to the insurance adjuster, wrote
that "Steve Milligan was last examined here at UAMS on 11/13/92. 
At that point, I felt that he had healed from the radial shortening
osteotomy."  She also said in the same letter:
     He was still having problems with the wrist in terms of
     loss of motion and wrist pain. ... his limitations at
     this time are unchanged in that he cannot lift, push or
     pull more than 10 to 15 pounds using the right wrist, and
     he is unable to use the wrist in a repetitive fashion.
     ... At this point, Mr. Milligan is unable to perform his
     former job due to loss of motion, loss of strength, and
     pain.

On February 2, 1993, Dr. Hixson testified by deposition that as of
November 13, 1992, appellant's soft tissue and bone had healed but
he had not fully recovered from surgery; it sometimes takes a year
and one-half to heal; he had not reached maximum medical
improvement; his before and after x-rays showed no improvement; and
"Milligan has not reached his maximum medical improvement at this
point."  
     In an April 19, 1993, letter, Dr. Brent Keyser of Hand Surgery
Centres of Texas, said that appellant has at least a stage III
Kienbock's disease; "Comparison of serial x rays from 11-8-91 to 1-
20-93 show [sic] progressive collapse and fragmentation of the
lunate. ... Since he has worsening of his pain and progression of
the radiologic picture I have recommended that he have a second
surgical procedure in order to alleviate his symptoms." 
     On June 8, 1993, Dr. Edward R. Weber, of the Arkansas Hand and
Microsurgery Center, wrote, "It usually takes one to two years for
the navicular to revascularize after such a procedure [a radial
shortening osteoplasty]."  On July 19, 1993, Dr. Hixson wrote of
the surgery Dr. Brown had recommended.  "The proposed second
surgery is an attempt to resolve a work-related injury.  This is
the same problem for which Mr. Milligan has already received
treatment from myself and from Dr. Ed Weber.  The surgery sounds
reasonable and is aimed towards resolution of Mr. Milligan's more
severe problems."
     On February 28, 1994, Dr. Brown wrote:
     "Radiographs revealed a Stage IV Kienbock's with collapse
     of the lunate and perilunar arthrosis. ... This patient
     had the radial shortening performed for State IV
     Kienbock's and that is inappropriate.  Radial shortening,
     a joint leveling procedure, is used in early (Stage I)
     Kienbock's to unload the lunate and preserve the lunate. 
     When the patient had this procedure performed, the lunate
     had already collapsed and the procedure was doomed to
     failure. ... Clearly, the patient needs excision of the
     lunate and I would replace the lunate with allograft
     fascia lata.  In addition, I would remove the foreign
     bodies [non-absorbing sutures left in during the radial
     shortening surgery] and perform neurolysis of the volar
     cutaneous branch of the radial nerve in hopes of
     achieving some relief in that region as well.  Should
     this patient's condition go untreated long enough then he
     will have complete arthrosis of the entire wrist
     necessitating total wrist fusion and this would result in
     a considerate impairment as opposed to performing the
     lunate excision and arthroplasty and preserving some
     wrist motion.  

     On March 3, 1994, Dr. Brown wrote to the appellant, "It is
imperative that you have treatment before you have complete
degeneration of the wrist."
     With this evidence before it, we cannot understand how the
Commission could have held that appellant's healing period ended
November 13, 1992.  Consequently, we reverse the Commission's
finding that appellant's healing period ended on November 13, 1992. 
It is clear that at the time the record was closed appellant was
still in a healing period.  We hold that appellant has remained in
his healing period from May 13, 1992, through the entire period
covered by the record, which ends on April 2, 1996, and to a date
yet to be determined.
     We remand to the Commission to take additional evidence
regarding appellant's surgery in Houston, his recovery period, and
up-to-date medical records to determine his current status. 
     Appellant also argues that we should provide for attorney's
fees on the entire claim of temporary total disability pursuant to
Ark. Code Ann.  11-9-715 (1987), because the entire claim was
controverted.  We agree and remand to the Commission to award
appellant's attorney the appropriate fee.   
     Appellant also argues that we should assess a penalty against
appellee for refusal to pay rightfully due benefits on time 
pursuant to Ark. Code Ann.  11-9-802(b) (1987).  We agree that the
actions of the employer and the insurance carrier have been
egregious and remand for the Commission to consider assessing a
penalty.
     Appellee argues in its cross-appeal that the Commission erred
in interpreting Ark. Code Ann.  11-9-102(17) (1987) to mean that
appellant could receive treatment from an out-of-state physician. 
At the time of appellantþs injury, the statute read, þþMedical
servicesþ means services performed by any practitioner licensed
under the laws of the State of Arkansas relating to the healing
arts.þ  Although cross-appellant conceded in its oral argument that
this definition should not be so narrowly applied as to prohibit a
claimant from ever being treated by an out-of-state physician, it
contended that a claimant could seek the services of an out-of-
state physician only after he or she had shown that there were no
medical-service providers licensed in Arkansas that could provide
the treatment that claimant required.  We do not agree.  If, as
cross-appellant concedes, section 11-9-102(17) does not prohibit
treatment by out-of-state medical-service providers, there is no
language in the statute which places on a claimant the burden of
first proving that there are no physicians licensed in Arkansas who
can provide the necessary treatment.  We think a more logical
meaning of section 11-9-102(17) is that a claimant may receive
compensation only for treatment that is provided by the community
of medical-service providers whose discipline is regulated in the
State of Arkansas through its licensing procedures.  This would
exclude compensation for the cost of services charged, for example,
by faith healers, psychic healers, or any other purported
practitioners of the healing arts that might be recognized in other
states but which are not regulated or licensed in Arkansas.
     The Commission's order allowing appellant a change of
physicians to the Hand Surgery Centres of Texas in Houston, Texas,
is affirmed.
     Affirmed in part and reversed in part on direct appeal,
affirmed on cross-appeal, and  remanded with directions to the
Commission.
     Robbins, C.J., and Cooper, J., agree.