{ "id": 6136619, "name": "Michael David LUTEN v. XPRESS BOATS & BACKTRACK TRAILERS and Wausau Underwriters", "name_abbreviation": "Luten v. Xpress Boats & Backtrack Trailers", "decision_date": "2008-06-18", "docket_number": "CA 08-31", "first_page": "24", "last_page": "31", "citations": [ { "type": "official", "cite": "103 Ark. App. 24" }, { "type": "parallel", "cite": "285 S.W.3d 710" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "267 Ark. 1118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719821 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "upholding determination that healing period did not end when treating physician had indicated claimant could return to work but further treatment would be required" }, { "parenthetical": "upholding determination that healing period did not end when treating physician had indicated claimant could return to work but further treatment would be required" } ], "opinion_index": 0, "case_paths": [ "/ark/267/1118-01" ] }, { "cite": "102 Ark. App. 119", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138174 ], "weight": 2, "year": 2008, "pin_cites": [ { "parenthetical": "reversing Commission's determination that claimant's healing period had ended when physician who stated claimant had reached maximum medical improvement also stated claimant should receive injections for his back and workers' compensation should pay for the treatment" }, { "parenthetical": "reversing Commission's determination that claimant's healing period had ended when physician who stated claimant had reached maximum medical improvement also stated claimant should receive injections for his back and workers' compensation should pay for the treatment" } ], "opinion_index": 0, "case_paths": [ "/ark-app/102/0119-01" ] }, { "cite": "41 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135928 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "upholding Commission's determination that claimant's healing period had ended when treating physician opined that claimant was not expected to improve in any significant amount in the future" }, { "parenthetical": "upholding Commission's determination that claimant's healing period had ended when treating physician opined that claimant was not expected to improve in any significant amount in the future" } ], "opinion_index": 0, "case_paths": [ "/ark-app/41/0001-01" ] }, { "cite": "74 Ark. App. 177", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139550 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "upholding Commission's finding that claimant remained in her healing period when only one of several treating physicians found that claimant had reached maximum medical improvement" }, { "parenthetical": "upholding Commission's finding that claimant remained in her healing period when only one of several treating physicians found that claimant had reached maximum medical improvement" } ], "opinion_index": 0, "case_paths": [ "/ark-app/74/0177-01" ] }, { "cite": "79 Ark. App. 402", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142262 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/79/0402-01" ] }, { "cite": "92 Ark. App. 65", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136769 ], "weight": 3, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/92/0065-01" ] }, { "cite": "73 Ark. App. 333", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142145 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/73/0333-01" ] }, { "cite": "77 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135984 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/77/0001-01" ] } ], "analysis": { "cardinality": 708, "char_count": 16496, "ocr_confidence": 0.763, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5223435806489104 }, "sha256": "6ff2be166d9929b1a8c838a833ed7a51c63e29e0c3aa6d19b53de79572f25814", "simhash": "1:261fe9079bcb25d2", "word_count": 2578 }, "last_updated": "2023-07-14T22:49:33.837419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart and Baker, JJ., agree." ], "parties": [ "Michael David LUTEN v. XPRESS BOATS & BACKTRACK TRAILERS and Wausau Underwriters" ], "opinions": [ { "text": "Sarah J. Heffley, Judge.\nAppellant appeals the Commission\u2019s order that reversed the order of the administrative law judge (ALJ) and found that appellant had failed to prove that he is entitled to additional temporary total disability benefits. On appeal, appellant contends that the Commission\u2019s opinion is not supported by substantial evidence; that the Commission mischaracterized critical evidence; and that the Commission unlawfully required appellant to prove the continuation of his healing period with objective evidence. We agree that there is a lack of substantial evidence to support the Commission\u2019s decision; therefore, we reverse and remand.\nAppellant sustained an admittedly compensable back injury on August 16, 2004, while attempting to load a boat onto a trailer. Appellant was examined by his family physician, Dr. Robert Daniels, on August 18, 2004. An MRI performed on August 20, 2004, revealed diffuse degenerative changes throughout appellant\u2019s lumbar spine and a foraminal disc herniation at L5-S1. Appellant had no history of prior back problems or back injuries.\nOn October 1, 2004, appellant was examined by Dr. Michael Atta, appellees\u2019 company physician, whose examination revealed tenderness along the left paralumbar musculature with mild muscle spasms noted. Dr. Atta assessed appellant\u2019s condition as low back pain with L5-S1 herniated nucleus pulposus and referred appellant to Dr. James Arthur for a neurosurgical evaluation \u201cto determine further management of his current condition.\u201d Dr. Atta also ordered that appellant be kept off work due to the narcotic medications he was taking.\nOn October 13, 2004, appellant was seen by Dr. James Arthur, a neurosurgeon. In his report of that visit, Dr. Arthur noted that appellant had \u201cdiminished range of motion in the lumbar spine with paraspinous muscle spasm\u201d and was suffering from a \u201cfairly significant lumbar strain injury.\u201d Dr. Arthur recommended a lumbar epidural steroid injection and a rehabilitative exercise program prior to appellant returning to work.\nAppellant was next seen by Dr. Bruce Smith, an orthopedic surgeon, on October 25, 2004. Dr. Smith noted that appellant had some tenderness in the left paralumbar area and some subjective radicular symptoms into the left leg. Dr. Smith also acknowledged that the lumbar MRI showed a disc bulge at L5-S1, but stated that \u201cit is really on the right inconsistent with his present clinical findings.\u201d Dr. Smith recommended a lumbar epidural steroid injection and physical therapy. He also stated that appellant remained unable to return to work.\nAppellant underwent a lumbar spine epidural steroid injection on October 26, 2004, and followed up with Dr. Smith on November 3, 2004. Dr. Smith noted that appellant was \u201cbasically unchanged\u201d since the epidural steroid injection and was still complaining of pain in the left paralumbar area. Dr. Smith concluded that appellant had suffered a lumbar strain, which was \u201cresolving,\u201d and that there was \u201cnothing surgical\u201d about appellant\u2019s condition. On November 12, 2004, Dr. Smith released appellant from his care and to full work duty as of November 3, 2004.\nAppellant did not return to work and was seen by Dr. Ron Williams, a neurosurgeon, on December 7, 2004. Dr. Williams ordered a repeat MRI of appellant\u2019s lumbar spine, and this MRI showed multilevel degenerative disc disease and a combination of diffuse bulge and spur at the L2-3 and L4-5 levels. After evaluating these MRI findings, Dr. Williams opined that while most of appellant\u2019s pain was on his left, he (Dr. Williams) did not think it was very significant, and there was nothing surgically to be done for appellant. Dr. Williams ordered a second epidural steroid injection and a work evaluation \u201cto see ifit is safe for [appellant] to return to work.\u201d\nAppellant underwent a functional capacity evaluation on January 18, 2005. The evaluator found that appellant \u201cput forth inconsistent effort and demonstrates inconsistencies with inappropriate illness responses.\u201d The evaluator concluded that appellant could perform work at the \u201clight\u201d physical demand classification. After the evaluation, appellant returned to Dr. Williams on February 1, 2005, and Dr. Williams noted appellant was still having trouble with his left hip. Dr. Williams recommended a repeat MRI of the back and an MRI of the left hip. After these MRIs were performed, Dr. Williams noted a paralabral cyst on appellant\u2019s left hip and referred appellant to Dr. William Hefley, an orthopedic surgeon.\nAppellant saw Dr. Hefley on April 6, 2005. After examining appellant and the MRIs, Dr. Hefley opined that appellant was suffering \u201cdiscogenic lumbar pain with referred pain into the left lower extremity\u201d and that appellant\u2019s symptoms were not \u201creally reflective of hip pathology.\u201d Dr. Hefley recommended a course of aggressive and well-coordinated lumbar rehabilitation and physical therapy, and he noted that appellant had not had any physical therapy or rehabilitation made available to him in the seven and a half months since his injury. Dr. Hefley also recommended that appellant see a pain management specialist.\nPursuant to Dr. Hefley\u2019s suggestion, Dr. Williams arranged for appellant to receive physical therapy three times a week for six weeks, a total of eighteen sessions. However, only five of these sessions were approved by appellant\u2019s insurance carrier. After these sessions, appellant again saw Dr. Williams, who noted that appellant\u2019s back pain had improved but his hip pain had not. On June 15, 2005, Dr. Williams advised appellant to remain off work until further notice.\nOn July 10, 2005, appellant was seen by Dr. Barry Baskin for an independent medical evaluation at the appellees\u2019 request. Dr. Baskin opined that appellant\u2019s pain was coming primarily from his back and not from his hip, but he noted that there was \u201cstill some question as to what this gentleman\u2019s actual pain producer is.\u201d Dr. Baskin recommended a myelogram and a post-myelogram CT to assist in defining the source of appellant\u2019s pain. Dr. Baskin also stated that appellant had not received adequate physical therapy with only five sessions, and he recommended that appellant undergo a work-hardening program with more extensive physical therapy and reconditioning.\nDr. Williams referred appellant to Dr. Robert Kleinhenz, an orthopedic surgeon, to have the myelogram and post-myelogram CT performed; however, Dr. Kleinhenz discontinued his orthopedic practice and the tests were not performed. On August 22, 2005, Dr. Williams opined, in response to a letter from appellant\u2019s insurance carrier, that he did not know if appellant had reached maximum medical improvement and that appellant\u2019s injury would produce a five percent whole person impairment based on the AMA guidelines.\nA hearing was held on February 16, 2006, before the ALJ to determine appellant\u2019s entitlement to additional temporary total disability benefits. Appellees contended that appellant was not entitled to additional temporary total disability benefits because he had reached the end of his healing period on November 4, 2004, after Dr. Smith released him to return to full duty. In his opinion, the ALJ found:\nThe record here shows that the claimant\u2019s incapacitating symptoms have continued to require medical care, although the respondents have not always provided the reasonably necessary testing and physical therapy recommended by the claimant\u2019s treating physicians, not to mention their own second opinion doctor. ... [T]he record tends to show that the claimant has continued in his healing period and has been incapacitated to earn wages. Even Dr. Baskin indicated that the claimant needed a work-hardening program to assist him back into the workforce.\nThe ALJ held that appellant was entitled to temporary total disability benefits from November 4, 2004, when his benefits were terminated, until a date to be determined.\nThe Commission reversed the ALJ in an opinion filed December 12, 2006. The Commission stated that appellant\u2019s history showed that \u201ceach time the claimant was released with regard to his low back, he would redirect his complaints to his hip,\u201d but appellant had never been diagnosed with a compensable hip injury. The Commission also stated that \u201cthe claimant\u2019s lumbar spine condition, which has been found to be the source of the claimant\u2019s continuing complaints of pain, is degenerative in nature and does not require surgical intervention.\u201d The Commission declared that the medical evidence did not corroborate appellant\u2019s alleged inability to function either at home or in employment and concluded that appellant had \u201cfailed to prove by objective medical findings that his physical condition has worsened since his release by Dr. Smith in November of 2004.\u201d\nAppellant appealed to the Court of Appeals, and in an opinion delivered October 3, 2007, this court reversed and remanded due to the unclear basis of the Commission\u2019s findings and conclusions. This court noted that, although a claimant must offer objective medical evidence to prove the existence of an injury, objective medical evidence to show that his healing period continues is not required. Because it was unclear to this court whether the Commission believed that the lack of objective medical evidence to show continuance of the healing period was of itself fatal to appellant\u2019s claim, we remanded the case for the Commission to clarify the basis for its decision.\nIn response, the Commission filed an opinion on November 27, 2007, tracking the language in its first opinion verbatim except for the omission of the paragraph discussing the lack of objective medical findings and the addition of the following paragraph:\nIn conclusion, the claimant has failed to prove by a preponderance of the evidence that he remained within his healing period and totally incapacitated from earning wages since his release by Dr. Smith in November of 2004. The credible evidence presented in this claim simply does not corroborate the claimant\u2019s self-serving testimony regarding his alleged inability to function. In short, the preponderance of the evidence demonstrates that the claimant sustained a severe lumbar strain on August 16,2004, and regardless of the claimant\u2019s personal beliefs as to whether he is currently disabled as a result of that strain, the evidence does not support a finding that the claimant is, or has been totally incapacitated from earning wages since November of 2004, when he was released by Dr. Smith.\nAppellant now brings his appeal to this court once again.\nOn appeal, appellant argues that the Commission erred in finding that his healing period had ended on November 4, 2004. In determining the sufficiency of the evidence to support the findings of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings, and we will affirm if those findings are supported by substantial evidence. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). We will not reverse the Commission\u2019s 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. Id.\nWhen an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary total disability. Searcy Indus. Laundry, Inc. v. Ferren, 92 Ark. App. 65, 211 S.W.3d 11 (2005). The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id. Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d 861 (2002). The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Searcy, supra.\nAppellant argues that in this case, no less than five physicians have recommended or requested that he undergo physical therapy, but this treatment has not been adequately provided to him. In addition, there are diagnostic tests, namely the myelogram and post-myelogram CT recommended by appellees\u2019 own medical examiner, which have been requested but not yet performed. Appellant contends that as long as this care and treatment continues to be recommended but not completed, his healing period has not ended.\nWe agree with appellant that the findings that appellant\u2019s healing period ended on November 4, 2004, and that appellant was not totally incapacitated from earning wages since his release by Dr. Smith, are not supported by substantial evidence. As stated previously, a claimant\u2019s healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Breakfield, supra. In this case, there is treatment, most prominently physical therapy, which has been recommended by a number of appellant\u2019s treating physicians and would be administered for the healing and alleviation of appellant\u2019s condition, but appellees have refused to authorize such treatment. Appellees cannot now rely on that refusal to assert that appellant is receiving no treatment to heal and alleviate his condition.\nRegarding the release to full work duty issued by Dr. Smith, we note that Dr. Smith did so after appellant had received only one epidural steroid injection and had not received any physical therapy, even though Dr. Smith himself had recommended appellant undergo physical therapy. We also note that Dr. Smith was one of several physicians treating appellant, therefore the fact that Dr. Smith saw nothing in appellant\u2019s condition that required surgery and released appellant from his care does not necessarily mean that appellant was in fact fully recovered and able to return to work. See Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001) (upholding Commission\u2019s finding that claimant remained in her healing period when only one of several treating physicians found that claimant had reached maximum medical improvement).\nIn addition, none of appellant\u2019s treating physicians, including Dr. Smith, has ever opined that appellant has reached maximum medical improvement. Cf. Ark. Highway and Transp. Dep\u2019t v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993) (upholding Commission\u2019s determination that claimant\u2019s healing period had ended when treating physician opined that claimant was not expected to improve in any significant amount in the future). Indeed, Drs. Arthur, Smith, Hefley, Williams, and Baskin all appear to believe that intensive physical therapy would improve appellant\u2019s condition and allow him to return to work.\nIn conclusion, we hold that substantial evidence does not support the findings of the Commission and we therefore reverse the Commission\u2019s decision and remand for an appropriate award of temporary total disability benefits from November 4, 2004 to a date to be determined. See Amaya v. Newberry\u2019s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008) (reversing Commission\u2019s determination that claimant\u2019s healing period had ended when physician who stated claimant had reached maximum medical improvement also stated claimant should receive injections for his back and workers\u2019 compensation should pay for the treatment); Southeast Arkansas Farmers Ass\u2019n v. Walton, 267 Ark. 1118, 597 S.W.2d 603 (Ark. App. 1980) (upholding determination that healing period did not end when treating physician had indicated claimant could return to work but further treatment would be required).\nReversed and remanded.\nHart and Baker, JJ., agree.", "type": "majority", "author": "Sarah J. Heffley, Judge." } ], "attorneys": [ "Lane, Muse, Arman & Pullen, by: Shannon Muse Carroll, for appellant.", "Michael E. Ryburn, for appellees." ], "corrections": "", "head_matter": "Michael David LUTEN v. XPRESS BOATS & BACKTRACK TRAILERS and Wausau Underwriters\nCA 08-31\n285 S.W.3d 710\nCourt of Appeals of Arkansas\nOpinion delivered June 18, 2008\nLane, Muse, Arman & Pullen, by: Shannon Muse Carroll, for appellant.\nMichael E. Ryburn, for appellees." }, "file_name": "0024-01", "first_page_order": 52, "last_page_order": 59 }