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Before the Arkansas Workers' Compensation Commission Claim No. F504222 Roy G. Tipton, Employee Claimant Colson Monette, Emplo

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Before the Arkansas Workers' Compensation Commission Claim No. F504222 Roy G. Tipton, Employee Claimant Colson Monette, Emplo BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. F504222 ROY G. TIPTON, EMPLOYEE CLAIMANT COLSON MONETTE, EMPLOYER RESPONDENT FEDERAL INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT #1 SECOND INJURY FUND RESPONDENT #2 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #3 OPINION FILED MARCH 05, 2008 Hearing before Chief Administrative Law Judge David Greenbaum on January 25, 2008, at Jonesboro, Craighead County, Arkansas. Claimant represented by Mr. Jim R. Burton, Attorney-at-Law, Jonesboro, Arkansas. Respondent #1 represented by Mr. David C. Jones, Attorney-at-Law, Little Rock, Arkansas. Respondent #2 represented by Mr. David L. Pake, Attorney-at-Law, Little Rock, Arkansas. Respondent #3 waived appearance. STATEMENT OF THE CASE A hearing was conducted January 25, 2008, to determine whether the claimant was entitled to additional workers’ compensation benefits for an admitted, compensable injury. A prehearing conference was conducted in this claim on September 26, 2007, and a Prehearing Order was filed on September 27, 2007. A copy of the Prehearing Order was introduced as “Commission’s Exhibit 1.” At the prehearing conference, it was stipulated that the employment relationship existed between the claimant and respondent #1 on February 21, 2005; that the claimant sustained a compensable back injury on said date; that he earned sufficient wages to entitle him to compensation rates of $387.00 per week for temporary total disability and $290.00 per week for permanent partial disability; that respondents #1 paid temporary total disability through September 20, 2005; and that respondents #1 controverted all medical treatment after September 20, 2005, as well as all indemnity benefits after said date. At the hearing, the parties amended their stipulations, agreeing that the claimant either was paid all appropriate temporary total disability or continued working for the employer herein until November 14, 2005, and would not be entitled to additional temporary total disability before November 14, 2005, which was apparently the last day that the claimant worked. By agreement of the parties, the primary issue presented for determination was whether or not a medically diagnosed spinal syrinx was directly and causally related to the February 21, 2005, admitted incident and injury. If answered affirmatively, the following corollary issues were presented for determination: 1) The date claimant’s healing period ended. 2) Claimant’s entitlement to additional temporary total disability. 3) Respondent #1's responsibility for additional medical treatment. At the prehearing conference, the claimant contended, in summary, that as a result of the February 21, 2005, admitted injury, he required additional medical -2- treatment after respondents terminated all benefits on or about September 20, 2005; that respondents should be held responsible for all outstanding hospital, medical, and related expenses, including, but not limited to, treatment by Dr. Adada, which included back surgery; that respondents should remain responsible for continued follow-up medical treatment; that he was entitled to additional temporary total disability for the period beginning September 21, 2005, and continuing until on or about September 6, 2007, at which time he was released by Dr. Adada; and that a controverted attorney’s fee should attach to any additional benefits awarded. Claimant specifically reserved entitlement to permanent impairment, as well as wage- loss disability. if applicable. Again, at the hearing, the claimant amended his contentions to request temporary total disability beginning November 14, 2005, through September 6, 2007. Respondents #1 contended that it had paid all appropriate benefits in regard to the claimant’s back and/or neck injury of February 21, 2005, maintaining that claimant’s continued complaints and physical problems are not related or associated with the February 21, 2005, injury. Specifically, respondents #1 contended that the claimant’s continued problems were the result of a prior injury and claim, possibly a result of his pre-existing condition or a result of a medical or congenital defect not directly associated or related to the injury in the current claim. Respondents #1 further contended that the claimant should be bound by Dr. John D. Brophy’s independent medical examination report and opinion of July 3, 2006. Respondents #1 maintained that the claimant previously requested a change of physician through -3- the Commission to Dr. Brophy in December, 2005; that Dr. Brophy refused the claimant’s and Commission’s request for a change of physician and that based upon Dr. Brophy and Dr. Scott Schlesinger’s eventual refusal to accept the claimant as a new patient, the parties mutually agreed upon Dr. Brophy to perform an IME to determine whether the claimant’s spinal syrinx and continued problems were associated with the injury in the current claim or related to other issues. Again, respondents #1 maintained that Dr. Brophy’s opinion should be controlling in this claim. Respondents #1 further contended that the claimant was previously released following a functional capacity evaluation to return to work, while maintaining that work was available within his capacity and that claimant should not be entitled to any temporary total disability following his release to return to work at full duty as of September 16, 2005. Furthermore, respondents #1 contended that the claimant executed a Commission Form AR-N and would not be entitled to payment for treatment by providers outside the authorized chain of treating physicians approved by the carrier. Based upon the IME report and prior medicals, respondents #1 contended that the major cause of claimant’s continued problems and cervical issues (the alleged syrinx) was not related to the original injury. Alternatively, respondents #1 contended that it would be entitled to an offset for any group health and/or disability payments made to or on behalf of the claimant, including both short-term and long-term disability benefits. Respondents #2 and #3 have no liability on the issues presented for determination. The attorney for respondent #2 appeared, but did not participate in -4- the proceedings. Respondent #3 agreed to defer to the outcome of litigation on the end of claimant’s healing period. The claimant was the only lay witness to testify. The record is composed solely of the transcript of the January 25, 2008, hearing which is composed of a transcript of the claimant’s testimony and a separate exhibit transcript containing volumes of medical and non-medical exhibits. The claimant and respondents #1 submitted post-hearing briefs addressing how the medical evidence supported their respective contentions. In addition, respondents #1 proffered the unsolicited discovery deposition of the claimant taken August 17, 2006, contemporaneous with its post-hearing brief which is retained in the Commission file in bound form. From a review of the record as a whole, to include medical reports, documents and other matters properly before the Commission, and having had an opportunity to hear the testimony of the claimant and to observe his demeanor, the following findings of fact and conclusions of law are made in accordance with Ark. Code Ann. §11-9-704: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. 2. The stipulations agreed to by the parties are hereby accepted as fact. 3. On or about February 21, 2005, the claimant sustained a temporary aggravation of a pre-existing spinal condition which resulted in a period of disability and need for medical treatment. -5- 4. The claimant’s healing period for the admitted injury ended on or before September 16, 2005. Respondents have paid all appropriate temporary total disability to which the claimant is entitled. The claimant has failed to prove that he is entitled to additional temporary total disability as the result of his admitted injury. 5. Respondents are responsible for all hospital, medical, and related expenses, including various diagnostic testing through July 3, 2006, at which time an independent medical examination and evaluation determined that the claimant’s spinal syrinx, a/k/a syringomyelia, was unrelated to the traumatic accident of February 21, 2005. Respondents are not responsible for medical and related treatment, including back surgery performed by Dr. Adada after July 3, 2006, because it is herein specifically determined that the claimant’s need for treatment was unrelated to the admitted minor incident. 6. In the event it was determined that the claimant’s spinal syringomyelia (hereinafter syrinx) was the result of the February 21, 2005, work-related trauma, which is inconsistent with the findings and conclusions herein, then respondents would be responsible for all medical treatment, including surgery, because it is herein specifically found that all treatment was provided by referral of an authorized treating physician or through chain of referrals by authorized physicians. 7. Further, in the event it is determined that the claimant is entitled to additional benefits, respondents #1 would be entitled to an offset or credit, dollar-for- -6- dollar for all short-term and long-term disability benefits paid pursuant to Ark. Code Ann. §11-9-411. DISCUSSION This is an extremely difficult claim. It is primarily a medical question. Although it is undisputed that the claimant was involved in a work-related incident which resulted in an injury which
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