Download before the arkansas workers` compensation commission claim no

BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION
CLAIM NO. G403457
LISA GATTIS, EMPLOYEE
CLAIMANT
OZARK NURSING HOME INC., EMPLOYER
RESPONDENT
CANNON COCHRAN MGMT. SERVICES INC.,
INSURANCE CARRIER
RESPONDENT
OPINION FILED JANUARY 13, 2015
Hearing before ADMINISTRATIVE LAW JUDGE AMY GRIMES, in Fort Smith, Sebastian
County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas.
Respondent represented by MICHAEL RYBURN, Attorney, Little Rock, Arkansas.
STATEMENT OF THE CASE
On November 18, 2014, the above captioned claim came before the Workers’ Compensation
Commission in Fort Smith, Arkansas, for a hearing. A pre hearing conference was conducted on
September 23, 2014, and a pre hearing order filed that same day. A copy of the pre hearing order has
been marked as Commission’s Exhibit No. 1 and with modification and no objection is made part of
the record.
The parties agreed to the following stipulations:
1.
The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.
2.
The employee-employer-insurance carrier relationship existed at all relevant times on
May 8, 2013.
3.
The case is controverted in its entirety.
4.
The rates of compensation are $257.00 for TTD and $ 193.00 for PPD.
The issues to be litigated are limited to the following:
1.
Whether claimant sustained a compensable injury to her back on May 8, 2013.
2.
Claimant’s entitlement to medical treatment.
The claimant contends she sustained a compensable injury to her back with pain in her tail bone
and down her lower extremities on May 8, 2013. The claimant contends that she is entitled to
appropriate medical treatment. Additionally, the claimant reserves the issue of temporary total disability.
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The respondent contends the claimant allegedly injured her coccyx. There are no objective medical
findings to substantiate the alleged injury. The claimant was not injured on the job. The claimant has
demonstrated no proof of disability or the need for medical treatment.
The above stipulations are hereby accepted as fact. From a review of the record as a whole to
include medical reports, documents, and having heard testimony and observed the demeanor of all
witnesses, the following decision is rendered.
FACTUAL BACKGROUND
The claimant was involved in an accident on May 8, 2013 while working as a CNA for the
respondent. The claimant had only worked for the respondent for a couple of months at the time of
the incident; however, she had worked for the respondent “on and off” for 15 years (T. 8). The
claimant testified that on May 8, 2013, she was bathing a patient. She stated that she was bent over for
a period of ten minutes. She added that she was pushing the patient over and washing the patient. The
claimant testified that when she stood up her tail bone was burning (T. 6). She added that she eventually
had back pain. The claimant reported her problem to her supervisor. However, she added she
completed her shift and did not get any medical treatment (T. 8). The claimant continued that the
patient was a “heavy woman” and the activity she was engaged in was physically demanding (T. 6). The
claimant stated that the patient weighed about 190 pounds (T. 6).
The claimant testified that her general job duties included bathing, feeding, and taking care of
the general needs of elderly patients (T. 7). She stated that she was involved in bending, stooping, and
lifting (T. 7). The claimant stated that, in her opinion, she had to be in good physical condition to
perform the job duties. She added that she had been a CNA for about 20 years (T. 7). She added that
prior to May of 2013 she had never had treatment for her back (T. 7-8). She added she had no prior
back issues or chiropractic treatment (T. 8). The claimant testified that after work, she went home and
used a heating pad and laid down to stop the pain (T. 9). She continued that her symptoms got worse
but she went to work the next day, hoping she would get better (T. 9). The claimant eventually went
to the company doctor who ordered physical therapy (T. 9). Dr. Carrick’s records from June 4 and 11,
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2013 reflect a diagnosis of back pain. He prescribed medication and physical therapy (Cx 1, p. 1-2).
On June 25, 2013, the claimant saw Dr. Wilson at Mercy Hospital. He noted worsening and radiating
pain. He added that the pain was worse during the day and added that the claimant had leg pain and
tingling (Cx1, p. 3). Dr. Wilson noted that the claimant had some treatment but it only provided
temporary relief. The claimant’s pain began radiating (Cx 1, p. 3). Dr. Wilson assessed lumbago and
prescribed and injection (Cx1, p. 3).
The claimant stated that she underwent the ordered physical therapy and was given prescription
medications (T. 9-10). The claimant testified that she continued under the care of Dr. Carrick, but
continued to work on restricted duty (T. 11; Cx 1, p.4-6). The claimant had an MRI of her back in
August of 2013 that showed a bulging disk at L5-S1 (T. 11; Cx1, p. 7). The claimant was sent by the
workers’ compensation carrier to Dr. Seale in Little Rock (T. 12). The claimant testified that Dr. Seale
stated his job was to find out if she was scamming workers’ compensation or not (T. 12). She testified
that he then examined her (T. 12). Dr. Seale stated that he had reviewed the previous MRI and despite
the fact that the radiologist noted disc bulges at L5-1, he believed them to be non- existent. However,
Dr. Seale prescribed physical therapy for the claimant. The claimant stated that he prescribed physical
therapy on two different occasions (T. 12). Dr. Seale also prescribed medication and SI joint injections
(T. 12; Cx 1, p. 9). The claimant testified that Dr. Seale also placed restrictions on the claimant’s
activities. She was not to lift over 20 pounds and was to refrain from bending and twisting (T. 13). He
also prescribed Hydrocodone for the claimant (Cx 1, p. 11). Dr. Seale continued the restrictions until
the day he released the claimant on April 30, 2014 (T. 13). His notes reflect that he released the
claimant on April 30, 2014 to full duty without restrictions (Rx 1, p. 15). He assessed no impairment
rating. The claimant testified that before the claimant was released by Dr. Seale, she requested a change
of physician (T. 13). The claimant stated that on April 2, 2014 when she saw Dr. Seale, she was still
on restrictions and in severe pain (T. 13). Dr. Seale’s notes from April 2, 2014 reflect that the claimant
got only temporary relief from injections and physical therapy (Rx 1, p. 13). He continued restrictions
and physical therapy (Rx 1, p. 13). She added that nothing happened between April 2 and April 30 of
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2014 that caused her to improve or become well (T. 13).
The claimant testified that she had an
appointment to see Dr. Blankenship, but never saw him (T. 14). The claimant stated the appointment
was canceled because workers’ compensation would not approve it (T. 14).
The claimant continued that she was not improved as of the date of the hearing. She stated that
she was still having a lot of pain in her lower back and right butt cheek. She stated that she also had
pain in her right hip and the back of her right leg (T. 14-15). She continued that many times she had
difficulty walking and felt as if she could fall (T. 15). The claimant testified that she had never had such
pain before the May 2013 accident (T. 15). The claimant stated that she was still working, with the help
of co-workers (T. 15-16). She added that they helped her with lifting (T. 16). The claimant stated that
if her co-workers did not help her, she would not be able to perform her job duties (T. 16). She added
that the problems she was having with her back were the same as when she was being treated by Dr.
Carrick and Dr. Seale (T. 17). The claimant added that she had also had some injections in her back
for bulging discs (T. 17). The claimant testified that she underwent physical therapy, had injections,
and was prescribed medication while seeing Dr. Carrick. The claimant stated that her condition was
about the same and on some days seems worse (T. 18).
She added that she feels that she needs
medical treatment. The claimant stated that she would see any doctor the judge approved (T. 18).
DISCUSSION
The Commission has been asked to determine if the claimant suffered a compensable injury to
her back on May 8, 2013. A.C.A. §11-9-102(4)(A)(i) defines compensable injury as:
“An accidental injury causing internal or external physical harm to the
body . . . arising out of and in the course of employment and which
requires medical services or results in disability or death. An injury is
accidental only if it is caused by a specific incident and is identifiable by
time and place of occurrence.”
The claimant must prove by a preponderance of the evidence that she sustained a compensable
injury as defined under A.C.A. §11-9-102(4)(A)(i); See also §11-9-102(4)(E)(i). A preponderance of the
evidence means the evidence having greater weight or convincing force. Smith v. Magnet Cove Barium
Corp., 212 Ark. 491, 206 S.W. 2d 442 (1947). Furthermore, to be compensable under the same burden,
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the claimant must prove that the existence of physical injury or damage is supported by medical
evidence. A.C.A. §11-9-102(4)(D) requires that a compensable injury must be established by medical
evidence.
The statute also requires that the medical evidence submitted be in the form of objective
findings. Objective findings are defined in A.C.A. §11-9-102(16)(A)(i) as those findings which cannot
come under the voluntary control of the patient. The statute requires medical opinions addressing
compensability must be stated within a reasonable degree of medical certainty, A.C.A. §11-9-102(16)(B).
Here, the claimant testified to her continued back pain. She stated that the treatment she received did
not result in relief. The claimant saw several doctors, including Dr. Carrick, Dr. Wilson, and Dr. Seale.
The three doctors noted the claimant’s back pain and prescribed physical therapy, medication, and
injections. Furthermore, the claimant was placed on restrictions and given light duty. While Dr. Seale
noted that the claimant did not have an abnormal MRI, the radiologist noted a disc bulge at L5-S1 on
the August 2013 MRI. Dr. Seale also added Hydrocodone to the claimant’s medications. The claimant
was seen by Dr. Seale on April 2, 2014 and he noted that she continued to have pain; however, he
released the claimant on April 30, 2014. Clearly, there is medical evidence that this claimant suffered
a back injury on May 8, 2013. She testified to her pain, restrictions, and limitations. The notations by
all three doctors reflect that the claimant had back pain and an MRI from August 8, 2013 reflects that
the claimant had a mild disc bulge at L5-S1. This claimant suffered a work related injury on May 8,
2013. Furthermore, there are objective medical findings to support the claimant’s contention that she
suffered a work related injury in May of 2013. The claimant must prove by a preponderance of the
evidence that she sustained a compensable injury and the compensable injury must be supported by
objective medical findings. This claimant has proven both the injury and provided objective medical
findings to support her claim.
The claimant has next asked the Commission to determine if she is entitled to medical
treatment. Arkansas Code Annotated §11-9-102(4)(F)(i) states:
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“When an employee is determined to have a compensable injury, the
employee is entitled to medical and temporary disability as provided by
this chapter.”
Once it is settled that the claimant has a compensable injury, the question of medical services
must be determined by looking at the facts in question and determining if the medical services are
reasonably necessary for the treatment of the claimant’s injury. A.C.A. §11-9-508(a) requires that:
“The employer shall promptly provide for an injured employee such
medical, surgical, hospital, chiropractic, optometric, podiatric, and
nursing services and medicine, crutches, ambulatory devices, artificial
limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as
may be reasonably necessary in connection with the injury received by
the employee.”
What constitutes reasonable and necessary treatment under A.C.A. §11-9-508(a) is a fact
question for the Commission. Wright Contracting Co. v. Randall, 12 Ark App. 358, 676 S.W.2d
750(1984). The Arkansas Court of Appeals has addressed the issue of whether medical care was
reasonably necessary for treatment of a compensable injury in prior decisions.
In Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W. 2d 463 (1997), the
respondents denied payment for medical treatment in the form of office visits for treatment from 1993
to 1995, Id at 464. The Court affirmed the Commission’s finding that the claimant’s follow up medical
care was reasonably necessary for treatment of her compensable injury, Georgia-Pacific, at p. 466. In
the Georgia-Pacific case, the records submitted described the ongoing nature of the claimant’s
symptoms and indicated the continued use of the TENS unit and the taking of medication. The Court
noted that the Commission considered the multiple surgeries, the claimant’s persistent symptoms of
pain, irritation, and limitation of motion in her elbow, her continued use of medication, and a TENS
unit for pain control in finding that the office visits and medical treatment in 1993 through 1995 were
reasonably necessary. Georgia-Pacific, at p. 466. The claimant, in that case, also testified at length about
the ongoing problems with her elbow, and stated that she continued to take medication and used a
TENS unit for pain. Id. at p. 466. The claimant, in this matter, has been found to have suffered a
compensable injury on May 8, 2013. The claimant wishes to seek medical treatment from Dr.
Blankenship. She filed for a change of physician prior to being released by Dr. Seale. She testified that
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she made the request because she had continued pain and the prior medical treatment had not provided
relief. She stated that between April 2 and April 30, 2014 her condition had not improved despite the
fact that Dr. Seale released her. Furthermore, the claimant had been prescribed medications, injections
and physical therapy and had found no relief.
In this case, the claimant has proven that her request for medical treatment is reasonable and
necessary for the treatment of her compensable injury from May 8, 2013. I designate Dr. Blankenship
as the doctor to provide the requested medical treatment for the claimant. Dr. Blankenship presents
the best option for review and examination of the claimant’s medical condition. Furthermore, he is the
best equipped to determine the claimant’s neurosurgical needs, if there are any to be addressed.
FINDINGS OF FACT AND CONCLUSION OF LAW
1.
The claimant has proven by a preponderance of the evidence that she suffered a
compensable injury to her back on May 8, 2013. She has provided objective medical
findings to support such a claim.
2.
The claimant has proven by a preponderance of the evidence that the medical treatment
she has requested in the form of treatment by Dr. Blankenship is reasonable and
necessary for the treatment of her compensable injury.
ORDER
The claimant is found to have suffered a compensable injury to her back on May 8, 2013.
The respondents shall be responsible for treatment provided to the claimant by Dr. Blankenship.
IT IS SO ORDERED.
________________________________
AMY GRIMES
ADMINISTRATIVE LAW JUDGE
January 13, 2015
Mr. Eddie Walker, Jr.
Attorney at Law
P.O. Box 998
Fort Smith, AR 72902-0998
Mr. Michael E. Ryburn
Attorney at Law
650 So Shackleford, Ste 231
Little Rock, AR 72211
RE:
Lisa Gattis v. Ozark Nursing Home, Inc.
WCC No.
G403457
Counselors:
Enclosed you will find a copy of the Opinion rendered on today’s date in above referenced case
along with instructions and information for an appeals process.
Sincerely,
Deborah Rollins
Deborah Rollins
Legal Support Specialist
Judge Amy Grimes
Enclosure
Certified Return-Receipt
c:
Ms. Lisa Gattis
5339 Deer Track Trail
Ozark, AR 72949