Erika WENTZ v. SERVICE MASTER
CA 01-132
Court of Appeals of Arkansas Division IV
October 24, 2001
Petition for rehearing denied November 28, 2001.
57 S.W.3d 753
296
Rieves & Mayton, by: Eric Newkirk, for appellee.
OLLY NEAL, Judgе. This is a workers’ compensation action. Appellant, Erika Wentz, appeals from the decision of the Workers’ Compensation Commission (the Commission) denying her claim for additional benefits. The Commission adopted the administrative law judge‘s (ALJ) finding that appellant failed to prove she sustained a compensable physical injury to the brain because the medical evidence was not supported by objective findings. On appeal, appellant argues there was no substantial evidence
Appellant was employed by appellee, Service Master, as a service partner cleaning and servicing machines at Planter‘s Peanuts. On the evening of December 30, 1998, she was cleaning the floor, and when she came out from underneath a line, her feet came out from under her and she fell head first, hitting her head and the right side of her face on a concrete floor. Although appellant suffered a concussion as a result of the fall, she did not immediately seek medical attention.
On January 5, 1999, appellant was treated in the emergency room of Sparks Regional Medical Center by an internist, Dr. Lance Hamilton. After performing X-ray and MRI testing on appellant, he opined that appellant was suffering from symptoms secondary to the fall. Due to delirium, appellant was admitted to the hospital in February. At this time, she reported to Dr. Hamilton that since the fall, she had been suffering from severe hеadaches and changes in her mental status. Dr. Hamilton referred appellant to Dr. Douglas Brown, a neuropsychologist. After performing a neuropsychological evaluation on appellant, Dr. Brown diagnosed appellant as having an organic brain disorder, secondary to closed-head injury, mild. Appellant‘s workers’ compensation case manager, Yolanda Kimbrough, asked Dr. Michael Morse to see appellant. Dr. Morse diagnosed appellant as having post-traumatic headaches, along with a post-traumatic encephalopathy and depression. Prior to appellant‘s visit with Dr. Morse, appellee acknowledged that the injuries to appellant‘s head and face were compensable and paid temporary total disability benefits and medical benefits through June 9, 1999. However, after Dr. Morse‘s diagnosis, appellee denied liability for additional benefits.
The ALJ found that the injury to appellant‘s right jaw and face were compensable injuries. However, the ALJ found that appellant failed to prove by the greater weight of the credible evidence that her jaw/head injuries caused her to be rendered temporarily totally disabled after June 9, 1999. The ALJ also found that apрellant failed to prove she sustained a compensable physical injury to the brain as the result of her fall. The Commission affirmed and adopted the
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence in the light most favorable to the Commission and affirm the decision if it is supported by substantial evidence. Rice v. Georgia-Pacific Corp., 72 Ark. App. 149, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support а conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Rice, supra.
The purpose of our workers’ compensation law is to pay benefits to legitimately injured workers who suffer an injury arising out of and in the course of their employment. Baker v. Frozen Food Express Transp., 63 Ark. App. 100, 974 S.W.2d 487 (1998); see also
In his testimony, Dr. Morse stated that “[a] neuropsychological evaluation is objective testing for brain function.” He explained that “neurological examination will show you if there is any big problem like paralysis or numbers or vision рroblems or coordination problems, and then the neuropsychological evaluation looks at the mental function of the brain; the ability to do calculations, memory, organize thought, learn, carry out activities.”
Dr. Brown admitted that with neuropsychological testing, the patient controls her response. He explained that the “ultimate diagnosis is based upon [the] results of [the patient‘s] responses which are compared with results of thousands and thousands of others who have done the exact same tests for many years before.” He also
The evidence establishes that appellant had only a ninth-grade education. On March 18, 1999, she saw Dr. Brown for neuropsychological testing. The testing was not finished until March 24, 1999, because appellant suffered exhaustion after the first testing session. Dr. Brown testified that the fatigue factor determines whether psychological examinations are done on one day or two separate days. He explained that administering the examination on one day or two separаted days does not affect the validity of the testing. Dr. Brown testified that different tests were administered on each occasion. Dr. Brown further testified that he did not believe that:
Ms. Wentz‘s intellectual level or her memory capacity were high enough to manipulate the neuropsychological test. Also, given the broad spectrum of testing that we administer to people such as Ms. Wentz for neuropsychological evaluations, its [sic] virtually impossible to manipulate them to come out the way you want them to, because you don‘t know what each and every piece of the testing means.
We hold there was no evidence that suggested appellant manipulated the testing.
The Pennsylvania courts have found that neurological testing is not generally accepted in the scientific community as a reliable method for diagnosing an encephalopathy when there is no other objective evidence of an encephalopathy. Skoogfors v. Haverstick-Borthwick Co., 44 Pa. D. & C.4th 1 (2000). However, in the case at bar, there is other objective evidence that indicates appellant suffered an injury to her brain. It is uncontroverted that when appellant fell, she landed on the right side of her face on a concrete floor. Dr. Morse opined that appellаnt suffered nausea and vomiting, and that light made her symptoms worse. He also noted that she did not have any of these symptoms prior to the fall. Furthermore, Drs. Brown and Morse testified that appellant suffered a closed-head injury as a result of the fall. Dr. Brown stated in his report that appellant is suffering from behavioral and cognitive agitation. He also stated that cognitive agitation is often seen with injuries to the cortical processes. Dr. Brown testified that prior to the fall, he estimates that appellant‘s intellectual capacity was in the
I was cleaning up the floor, standing in some water and chemicals, and my feet came out from under me at a side angle. I fell. My feet came up above me. I came down on the right side of my face and head and that‘s what hit first. My head and the right side of my face actually hit the floor first. It was a cement floor.
When a person of that size and stature falls head first onto a concrete floor, it is conceivable that her brain will suffer some jarring.
Objective findings are also defined as medical opinions stated with a reasonable degree of medical certainty. Freeman v. ConAgra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001); see also
Appellant testified that on November 13, 1998, she was kicked in the chin, and the blow caused her to hit her head on the edge of
The evidence clearly establishes that appellant began experiencing her current problеms after her fall at work. The medical opinions are sufficiently certain and definite that her injuries are the result of her fall at work. Therefore, a causal relationship exists between the resulting injury and her work activity. Based on the evidence, we hold that fair-minded persons could not have reached the same conclusions if presented with the same facts.
Appellant also asks us to hold that there was no substantial evidence to support the Commission‘s determination that she failed to prove by a preponderance of the evidence that she is entitled to temporary total disability and medical benefits after June 9, 1999. 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). 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).
Dr. Morse testified that appellant suffered from post-traumatic encephalopathy and depression. He believed her post-traumatic encephalopathy and depression prevented her from returning to work. The other physicians did not address whether appellant was unable to work. Appellant testified that she has not worked since the accident. She testified that as a result of the fall,
Reversed and remanded.
STROUD, C.J., agrees.
GRIFFEN, J., concurs.
WENDELL L. GRIFFEN, Judge, concurring. Although I join the decision to reverse and remand for an award of benefits, I write separately to explain why our past decisions concerning objective findings should be overruled. Prior to a hearing before the administrative law judge, appellee conceded that appellant sustained compensable injuries to the right side of her face or head as a result of the fall. However, appellee disputed whether the accident also resulted in an injury to appellant‘s brain. It also disputed whether appellant was entitled to the payment of medical expenses and temporary total disability benefits from June 10, 1999, through a date to be determined.1 As proof of her claim that she sustained an injury to her brain, appellant presented the medical testimony and/or records of Dr. Michael Morse, a board certified neurologist; Dr. Douglas Brown, a certified neuropsychologist; Dr. Lance Hamilton, a general practitioner; Dr. Joe Dorzab, a psychiatrist; and Dr. Timothy Best, a board certified neurologist. All of the medical experts who evaluated appellant agreed that she suffered an injury to her brain as a result of her December 30, 1998, fall. There is no evidence to the contrary.
Dr. Morse testified that when he initially evaluated appellant, she was experiencing severe headaches, face pain, and emotional problems. After treating appellant for post-traumatic headaches and face pain, and diagnosing her with post-traumatic encephalopathy as a result of her December 30, 1998, fall, Dr. Morse referred her to a neuropsychologist for an evaluation. He testified that neuropsychological tests differ from neurological tests, in that neurological
The record also includes a November 9, 1999, medical report from Dr. Lance Hamilton. Dr. Hamilton‘s assessment of appellant in February 1999 was that her change in mental status and symptomatology was secondary to a closed head injury that she suffered from a fall at work. The report indicated that Dr. Hamilton admitted appellant into the hospital in February 1999 for delirium after she experienced severe headaches and a change in mental status. It further relayed that appellant had an MRI of her brain, which was normal exceрt for sinusitis; an X-ray of her facial bones that was normal; a repeat CT scan in February 1999 that was normal for the brain but continued to show sinusitis, and laboratory work that did not show any significant abnormalities. Appellant also underwent an EEG during her February hospital stay that did not demonstrate seizures. In addition, the report indicated that appellant was seen by representatives of the neuropsychology, neurology, and psychiatry departments, who concurred that appellant‘s mental changes were secondary to her concussion. Dr. Hamilton concluded his report by stating that he had appellant assessed by Dr. Doug Brown, whо found that appellant had an organic brain disorder secondary to closed head injury and organic affective disorder of the depressed type that was moderate to severe.
Appellant also introduced a medical report from Dr. Joe Dorzab that was dictated on February 27, 1999. Dr. Dorzab described appellant‘s mental status exam as normal except for irritability, easy crying, and depression. He also stated that her memory was excellent, and that she was not suicidal or psychotic. Under a heading entitled “Psychiatric Impression,” Dr. Dorzab indicated “deferred, suspect some combination of post-concussion syndrome, medication depression and situation factors.”
In his deposition testimony, Dr. Brown, a neuropsychologist, testified that he performed a neuropsychological evaluation on
Specifically, Dr. Brown stated that he found appellant had a low average range of intelligence, with a very large and significant difference between verbal and nonverbal ability that occurred only in certain situations such as brain damage or learning disabilities. He also found a loss of intellectual capacity that looked to be in the fifteen to seventeen point range, and a memory loss in the same range. Dr. Brown stated that the neuropsychological tеst indicated a weakness of the right frontal cortex and general cortical processing as a whole, with a very severe depression with cognitive and behavioral agitation. He also stated that appellant fit a profile that had been established over the years as consistent with a closed-head injury.
The Commission affirmed and adopted the decision of its administrative law judge based on
It is settled law that the overriding purpose of our workers’ compensation laws is to pay benefits to legitimately injured workers. See
In Duke v. Regis Hairstylists, supra, we affirmed the Commission‘s decision to deny workers’ compensation benefits to a woman who alleged that she sustained carpal tunnel syndrome arising from her employment. The treating physician diagnosed the worker‘s condition based upon medical test findings which were based on the patient‘s responses to certain stimuli administered by the physician. It was undisputed that an informed patient could voluntarily control her responses to the stimuli administered by the testing physician. In view of the requirement of
In Swift-Eckrich, Inc. v. Brock, supra, we affirmed the Commission‘s decision awarding benefits to a worker injured after she was knocked unconscious when struck by a vehicle in her employer‘s parking lot. In that case, CT scans revealеd cerebral edema and interhemispheric hemorrhage and neuropsychological test results
Although this court has previously found that objective findings included diagnoses developed by physicians “based on results obtained from clinical tests which reveal consistent and repeated responses to specific stimuli,” [citing Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992)] Keller, 40 Ark. App. at 98, 845 S.W.2d at 17, such holdings are no longer valid in light of the strict interpretation of the statute which defines objective findings as those not under the voluntary control of the patient. Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996). Objective findings did not exist in Duke where the findings were based upon patient responses to stimuli even where the tests had built in safeguards against patient fabrications.
Id. at 122, 975 S.W.2d at 860.
That statement and the decision in Duke v. Regis Hairstylists, supra, resulted from a fundamental mistake about the meaning of the word “findings.”
But a finding is a determination, not the data upon which that determination is based. “Finding” in the medical sense means a determination by a physician based upon certain data about a condition, disease, or injury.
I am sure my analysis will be viewed by some as an attempt to circumvent Act 796 of 1993. I view Act 796 аs a draconian legislative scheme; however, that perspective does not control my analysis. Rather, I reach this decision because
Test data and patient responses are not findings under any reasonably necessary implication or logical inference. Admitting the distinction between them is entirely consistent with strict construction. Pretending that they mean the same thing is not. Rather than pretend that we are distinguishing this case from our decisions in Duke and Swift-Eckrich, I would overrule those decisions outright. We can either acknowledge that our past reasoning was flawed, or we can act in slavish obedience to those decisions from an equally flawed notion of stare decisis. There is nothing noble or intellectually honest about slavish obedience to a rule whose error is obvious upon deeper reflection.
Moreover, the fields of science and medicine have long recognized a distinction between the responses made by patients and test subjects to stimuli and findings reached by scientists and physicians. When a patient who undergoes an eye examination looks at a visual field and declares whether he sees certain letters, numerals, and
Finally, this case and our decision in Swift-Eckrich, supra, demonstrate that neuropsychology addresses medical and scientific realities that cannot always be anatomically quantified. The uncontradicted expert testimony in this record is that appellant suffered a closed-head injury consistent with a physical injury to the right frontal area of her brain, accompanied by headache, facial pain, nausea, loss of coordination, personality changes, loss of concentration, and other cognitive changes. The opinion of the administrative law judge (which was adopted by the Commission) acknowledges that this evidence medicаlly proves “the presence or existence of some degree of physical injury to the claimant‘s brain.” However, the uncontradicted expert testimony in this record is that such injuries often go undetected even with magnetic resonance imagery or computerized axial tomography. In isolated cases, they have been detected following postmortem inspection of the brain.
Neuropsychology is not superstition, witchcraft, or junk science. Rather, it is a respected and established body of science that combines neurology, physiology, and psychology. There is no intelligent reason why cоurts and judges should disregard an entire body of scientific knowledge long acknowledged as legitimate merely because current medical technology does not enable radiologists to detect what neuropsychologists can confirm. The experience of Galileo dying under house arrest centuries ago should give us caution us about making sweeping legal conclusions based on the limitations of current and past technology.