Lela I. Dollins v. L.A. Darling Company and Management Claims Solutions

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CA 05-217

SEPTEMBER 28, 2005



[NO. F111349]


John B. Robbins, Judge

Appellant Lela Dollins appeals a decision by the Workers' Compensation Commission denying her request for additional temporary total disability (TTD) benefits. Appellant sustained an admittedly compensable injury when she fell on December 1, 2000, while working for appellee L. A. Darling Company. She received workers' compensation benefits through May 31, 2002. Appellant contends that the Commission's decision, that she was not entitled to TTD after May 31, 2002 because she was not in her healing period, is not supported by substantial evidence. We agree with her argument. We reverse and remand.

It is undisputed that appellant fell at work, catching herself by grabbing a nearby rail with her right hand. This caused a compensable injury to her right shoulder on December 1, 2000. The company doctor, Dr. Shotts, treated her conservatively with steroid injections and anti-inflammatory medication for a sprain/strain of her shoulder. Appellant complained that she was allergic to steroids and that her pain was otherwise not improving. Dr. Shotts eventually referred her to an orthopedic surgeon because she was not improving; she reported constant pain in her shoulder, most intense in the shoulder blade. The surgeon, Dr. Schechter, ordered x-rays, which he read as normal. Dr. Schechter ordered physical therapy for right shoulder impingement and scapulothoracic strain. His diagnosis in May 2001 was "consistent with some impingement with RTC tendonitis and bursitis as well as a scapulothoracic strain." Dr. Schechter did not think she had a torn rotator cuff due to her full strength upon exam. Dr. Schechter kept appellant on light duty and in physical therapy through the summer of 2001, but because she was not responding to conservative therapy, he ordered an MRI.

The August 6, 2001, MRI showed joint effusion and abnormal signs in the rotator cuff consistent with a partial-thickness tear. Dr. Schechter performed surgery on September 21, 2001, after which appellant remained off work. The surgery revealed significant inflammation under the rotator cuff and impingement of the cuff, and degenerative fraying of the biceps tendon (which was debrided), and bursitis in the subacromial space (which was decompressed to give more room for movement). In early November 2001, appellant reported that her symptoms had not improved and perhaps worsened after surgery. Dr. Schechter was concerned that because appellant was not participating in therapy due to pain, she might be developing adhesive capsulitis. By late November 2001, appellant had recovered more range of motion, but she was reporting that everything, not just her shoulder, hurt. Dr. Schechter was concerned that there was a psycho-somatic overlay to her problem. As a result, she was referred to a pain specialist, Dr. Savu. Dr. Savu first saw appellant in January 2002, and her psychological assessment included severe depression, anxiety, and some somatization component to her pain.

An independent medical evaluation was conducted by another orthopedic surgeon on February 19, 2002. In that evaluation, Dr. Rosenzweig opined that appellant had complications after her shoulder injury and surgery that resulted in residual adhesive capsulitis, also known as "frozen shoulder." Dr. Rosenzweig recommended additional diagnostic testing and aggressive conservative therapy with effective pain management to attempt to reach a higher level of improvement. To that end, Dr. Rosenzweig recommended an MRI and nerve testing to determine the exact origin of the pain. Although Dr. Rosenzweig believed that an impairment rating was premature, he speculated a six-percent rating to her upper extremity at that time, given that he anticipated no further significant improvement based upon her current care. Appellee began paying the six-percent rating.

Dr. Savu agreed with Dr. Rosenzweig's assessment. On May 9, 2002, appellant presented to orthopedic surgeon, Dr. Hansbrough. He ordered an arthrogram of the right shoulder, which was negative for a rotator-cuff tear but showed a very tight adherent capsule. Dr. Hansbrough offered appellant a steroid injection and a course of physical therapy, which appellant declined. Dr. Hansbrough stated on May 28, 2002, that he could not determine that there was anything wrong with her shoulder, except for the very tight capsule and limited motion that would best be treated by physical therapy. Because he had nothing else to offer, Dr. Hansbrough planned to see her "p.r.n." Appellee paid TTD through May 31, 2002. Appellant sought the treatment of orthopedic surgeon Dr. Thorpe on her own, seeing him for the first time on June 12, 2002. Dr. Thorpe reviewed her old x-rays and pictures, and he ordered a new MRI. His office note dated June 24, 2002, read:

MRI was reviewed by myself. She has the following problems that are clear. She has definite thickening of the glenoid labrum inferiorly. A tear anteriorly and I think shemay have a tear posteriorly although it is less obvious. The superior labrum is somewhat difficult to evaluate and the rotator cuff shows a partial rotator cuff tear with a fairly prominent spur impinging upon it. This certainly explains why she is having her continued problems. Why she is having senses of instability. Why she complains of the shoulder going in and out of joint and why she is having scapular thoracic dysfunction. I don't think these problems were addressed at her first surgery.

She underwent arthroscopic surgery on July 3, 2002, to be followed by physical therapy. Dr. Thorpe's operative note stated that there was labral tear, a partial rotator cuff tear with impingement, and multidirectional instability, which he repaired and stabilized. Appellant reported stability in her shoulder following the July 2002 surgery. Appellant went back to work in mid-October 2002, but had some difficulty even with light duty. By November 15, 2002, Dr. Thorpe recommended six more weeks of physical therapy and then a return to work with restrictions. Because there was no work offered within her restrictions, appellant did not return to work.

Appellant stated that Dr. Thorpe performed surgery again on March 3, 2003, to take out some scar tissue, though there were no medical records provided to show that this surgery took place. Appellant also stated that she underwent physical therapy through March 24, 2003, and she last saw Dr. Thorpe in July 2003. Appellee did not dispute that there was no work available for her within her present restrictions.

When appellant instituted a request for further benefits, appellee sought out another orthopedic surgeon's opinion on the matter. Appellee deposed Dr. Dickson, who did not see appellant but reviewed her medical records. Dr. Dickson opined that because Drs. Schechter, Hansbrough, and Rosenzweig did not believe any further surgical intervention was necessary after May 2002, he did not believe that any of Dr. Thorpe's surgeries were reasonable or necessary. Dr. Dickson would not say that Dr. Thorpe's reading of the June 2002 MRI was wrong, but he stated that Dr. Thorpe's reading was "somewhat magnified" and that surgery was not necessary or useful. He thought that the better course would have been to do things other than surgery. He believed Dr. Thorpe to be more aggressive, though he declined to say that Dr. Thorpe did anything wrong. Dr. Dickson admitted that he tended to be more conservative in his reading of MRIs. Dr. Dickson agreed that Dr. Thorpe's treatment resulted in improved multidirectional stability.

Appellant pursued her claim for additional benefits contending that all her medical treatment was reasonable and necessary and that she was entitled to TTD after May 31, 2002. She also sought benefits under Ark. Code Ann. § 11-9-505 (Repl. 2002). Appellee resisted the claim in its entirety. The administrative law judge found that the treatment provided by Dr. Thorpe and any referrals by Dr. Thorpe were not compensable because they were unauthorized treatment that appellant attained on her own. The administrative law judge went on to find, however, that appellant was temporarily totally disabled until December 25, 2002. The administrative law judge set this date because it was six weeks after the last documented note from Dr. Thorpe, which recommended six weeks of additional physical therapy.

Appellee appealed to the Commission, whose decision we review today. The Commission found that appellant's healing period ended on or before May 31, 2002, when she was released by orthopedic surgeon Dr. Hansbrough. The Commission placed greater weight on the opinion of Dr. Hansbrough, who noted the lack of frank abnormalities on MRI and released her from care. The Commission added that Dr. Dickson opined that the later surgeries were not reasonable or necessary. This appeal followed.

Our standard of review is well settled. We view the evidence in a light most favorable to the Commission's decision and affirm if it is supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993); Robinson v. St. Vincent Infirmary Med. Ctr., __ Ark. App. __, __ S.W.3d __ (Oct. 27, 2004). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Where, as here, the Commission denies benefits because it determines that the claimant has failed to meet the burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

These rules insulate the Commission from judicial review because it is a specialist in this area and we are not. See Wade v. Mr. C. Cavenaugh's, 25 Ark. App. 237, 756 S.W.2d 923 (1988). However, a total insulation would obviously render our function in these cases meaningless. Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998); Boyd v. Gen. Indus., 22 Ark. App. 103, 733 S.W.2d 750 (1987).

Appellant asks us to hold that there was no substantial evidence to support the Commission's finding that she failed to prove by a preponderance of the evidence that she was entitled to TTD after May 31, 2002, because she remained in her healing period. Temporary total disability is awarded when the claimant shows she is within her healing period and is totally incapacitated from earning wages. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). The healing period is that period for healing of an injury which continues until the claimant is as far restored as the permanent character of the injury will permit. Byars Constr. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Arkansas Highway & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). Whether a claimant's healing period has ended is a factual question that is resolved by the Commission. Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001).

Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Johnson v. Rapid Die & Molding, 46 Ark. App. 244, 878 S.W.2d 790 (1994). Temporary total disability is not based on the claimant's healing period, but is instead awarded where the claimant is incapacitated because of injury to earn the wages she was receiving at the time of the injury. See id.

We hold that the Commission's finding, that appellant failed to prove by a preponderance of the evidence that she remained in her healing period, is not supported by substantial evidence. The physician providing the independent medical evaluation suggested that appellant undergo more aggressive conservative therapy in February 2002. She was sent to Dr. Hansbrough for that reason-to continue conservative treatment. The Commission erred when it found that Dr. Hansbrough had "released" her from his care on May 28, 2002. To the contrary, Dr. Hansbrough recommended that she have a cortisone injection and physical therapy, "which I think is the best thing for her." Appellant declined at that time due to her pain. His progress note on that date ends with the plan to "see her back again p.r.n." Even appellee's expert, Dr. Dickson, thought that appellant should have had nerve conduction studies after May 2002 to develop an alternative treatment plan. Dr. Dickson's critique was of the choice to operate, not that she did not need any treatment. Thus, all relevant physicians here agreed that appellant needed further care after May 2002. The Commission's finding that appellant's healing period ended on or before May 31, 2002, is not supported by substantial evidence.

Because of the Commission's finding regarding appellant's healing period, it did not reach the question of whether appellant was totally incapacitated to earn wages. The entitlement to TTD rests upon two requirements: (1) that the claimant is in her healing period; and (2) that the claimant is within that period and suffering a total incapacity to earn pre-injury wages. Johnson v. Rapid Die & Molding, supra. Appellant argues that there is more than a preponderance of the evidence that she suffered a total incapacity to earn wages through at least December 23, 2002. The Commission did not reach the issue, and thus there are no findings on this issue upon which we can perform appellate review. Because we reverse the finding as to the healing period, we must remand for further fact-finding.

The Commission is charged with the duty to make and enter findings of fact and rulings of law. Ark. Code Ann. § 11-9-207(a)(5) (Repl. 2002). Such fact-findings are necessary to permit appellate review. Green v. Smith & Scott Logging, 54 Ark. App. 53, 54-55, 922 S.W.2d 746, 747 (1996). We reverse and remand for the Commission to make specific findings of fact. See Priest v. United Parcel Serv., 58 Ark. App. 282, 950 S.W.2d 476 (1997). Reversed and remanded for further proceedings consistent with this opinion.

Griffen and Crabtree, JJ., agree.