{"id":"alj-H102563-2023-01-05","awcc_number":"H102563","decision_date":"2023-01-05","opinion_type":"alj","claimant_name":"Mikalaj Schaeffer","employer_name":"Northwest Medical Center","title":"SCHAEFFER VS. NORTHWEST MEDICAL CENTER AWCC# H102563 JANUARY 5, 2023","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["shoulder","rotator cuff","back","fracture","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SCHAEFFER_MIKALAJ_H102563_20230105.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCHAEFFER_MIKALAJ_H102563_20230105.pdf","text_length":30030,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H102563 \n \nMIKALA J. SCHAEFFER, Employee                                                                   CLAIMANT \n \nNORTHWEST MEDICAL CENTER, Employer                                   RESPONDENT \n \nGALLAGHER BASSETT, CARRIER/TPA                            RESPONDENT \n \n \n OPINION FILED JANUARY 5, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD II, Attorney, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On October 20, 2022, the above captioned claim came on for hearing at Springdale, Arkansas.  \nA pre-hearing conference was conducted on September 1, 2022, and a pre-hearing order was filed on \nthat same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on January 10, 2021. \n 3.   The claimant sustained a compensable injury on January 10, 2021.  \n             4.    The compensation rates are $500.00 for temporary total disability and $375.00 for \npermanent partial disability. \n At the hearing, the parties discussed the issues set forth in Commission Exhibit 1. The \nfollowing were litigated: \n\nSchaeffer-H102563 \n2 \n \n           1. Whether claimant is entitled to additional medical treatment. \n           2.  Whether  claimant  is  entitled  to  additional  temporary  total  disability  benefits  from \nAugust 5, 2021, through December 13, 2021. \n            3. Attorney fees.   \n All other issues were reserved.  \n The  claimant  contends that  “on  January  10,  2021,  claimant  sustained  an  admittedly \ncompensable injury to her left shoulder when her shoulder popped as she was picking up a  tray of \nsurgical  instruments.  Respondents  sent  her  to  Dr.  Heim  at  the  Orthopedic  Center  of  Northwest \nArkansas. Dr. Heim noted that the MRI showed increased signal at the rotator cuff. He gave her an \ninjection  and  prescribed  physical  therapy.  Claimant  reported  back  to  the  Orthopedic  Center  of \nNorthwest  Arkansas and was seen  by  Dr.  Allard,  as  Dr.  Heim  was  off  work  on  medical  leave. Dr. \nAllard ordered an MR arthrogram. Dr. Allard opined that her injury sounded like a labral tear, but the \nrespondents denied her treatment with Dr. Allard and denied the MR arthrogram. Respondents then \nsent the claimant back to Dr. Heim, who agreed that it sounded like the claimant had a labrum tear \nand ordered a second MRI. On September 14, 2021, Dr. Heim reported that the EMG and MRI were \nnormal  and  released  her  at  maximum  medical  improvement  with  a  0%  rating  and  no  restrictions. \nClaimant then went to Dr. Dougherty who noted that he reviewed the MRI, and it showed an unstable \nbicep tendon due to rupture of the ligament. Dr. Dougherty noted that the tendon was perched on \nthe  spine,  which  explained  her  pain  with  movement.  He  believed  there  was  a  suprascapular  nerve \nentrapment and recommended a diagnostic shoulder arthroscopy. This was denied by the respondents. \nClaimant went to Dr. Earl Brewley, who reviewed the MRI, and noted that it showed clear findings \nof  a  subluxed  labrum  and  recommended  surgery.  Claimant  contends  she  is  entitled  to  medical \ntreatment, temporary total disability, and that her attorney is entitled to an attorney fee. All other issues \n\nSchaeffer-H102563 \n3 \n \nare reserved.” \n The  respondents  contend that “claimant has received all medical treatment and indemnity \nbenefits to which she is entitled.” \n From  a  review  of  the  record  as  a  whole,  including  medical  reports,  documents,  and  other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of the \nclaimant and to observe her demeanor, the following findings of fact and conclusions of law are made \nin accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant has met her burden of proof by a preponderance of evidence that she is entitled \nto temporary total disability benefits beginning August 5, 2021 and continuing through December \n12, 2022. \n4. Claimant has met her burden of proof by a preponderance of the evidence that she is \nentitled to additional medical benefits from Dr. Christopher Dougherty for her left upper extremity \ninjury. \n5.  Claimant has proven by a preponderance of the evidence that her counsel is entitled to a \ncontroverted attorney's fee on the indemnity benefits awarded herein pursuant to Ark. Code Ann. § \n11-9-715. \n FACTUAL BACKGROUND \n At the close of the hearing, the parties were asked to submit briefs in support of their \nposition.  Those are blue backed to the record of this matter as Commission’s exhibits. \n \n\nSchaeffer-H102563 \n4 \n \n \nHEARING TESTIMONY \n \n Claimant testified on January 10, 2021, that she was working for Northwest Medical Center as \na  certified  surgical  technologist\n1\n.  Claimant  said  that  she  reached  to  pick  up  a  tray  of  surgical \ninstruments.    When she  lifted  it,  she  felt  her  shoulder  pop.  She  immediately  felt  excruciating  pain, \nwhich she reported to the charge nurse on call that day. Claimant saw Dr. Blake Hansen first and was \nthen referred to Dr. John Heim. Both Dr. Hansen and Dr. Heim referred claimant to physical therapy, \nbut  claimant  said  neither  course  of  physical  therapy  helped.  Dr.  Heim  recommended  an  MRI \narthrogram, and the insurance carrier initially denied it, but eventually it was approved. Claimant also \nunderwent an EMG/MCV. Claimant was working using only her right arm, but believes the repeated \nuse caused it to start hurting. When it was reported to Dr. Heim, he sent her for a functional capacity \nevaluation.  Claimant  said  that  she  did  not  feel  good  after  the  FCE;  she  took Tylenol  and  iced  her \nshoulders. \n Claimant  stated  that  on  August  4,  2021,  Dr.  Heim  released  her  at  maximum  medical \nimprovement with a permanent light duty restriction. Claimant said that there was no light duty work \nin the operating room and respondent did not provide her with light duty work in another department. \nClaimant testified that her left shoulder was still not functioning properly as she did not have a lot of \ngrip strength in her hand.  \n Claimant felt that she was not getting proper care from Dr. Heim, so she sought and received \na change of physician from Dr. Heim to Dr. Christopher Dougherty. Claimant saw Dr. Dougherty on \nDecember 6, 2021.  Dr. Dougherty had the results of her MRI and nerve conduction study when she \nsaw him; additionally, Dr. Dougherty performed an ultrasound in his office. Claimant said after the \n \n1\n The transcript records that claimant said “certified social technologist” but from the context of her testimony, I \nbelieve this was an error. \n\nSchaeffer-H102563 \n5 \n \n \nexamination, Dr. Dougherty recommended a bicep tendonesis; however, this was denied by the claims \nadjuster for respondent Gallagher Bassett.  She testified that she was taken off work completely at that \nappointment. Despite that restriction from Dr. Dougherty, she began working around December 13, \n2021,  at an eye clinic, which she said was sedentary work. Because claimant was receiving no disability \nbenefits, she was in financial distress, and had to move to North Dakota to be with her family. She \ncurrently works in a position that is a light duty job, which she is able to perform.  \n Claimant said that she went on her own to see Dr. Earl Brewley in North Dakota. After Dr. \nBrewley  reviewed  the  diagnostic  reports  and  examined  claimant,  he  recommended  the  bicep \ntendonesis surgery.  \n Claimant testified that she believes that she has not gotten better since the injury, believing \nthat her left shoulder has either stayed the same or has gotten worse. She requested that the surgery \nrecommended by Dr. Dougherty, Dr. Brewley, and Dr. Aaron Humphreys with Genex be approved \nby the Workers’ Compensation Commission. \n On cross-examination, claimant confirmed that while the MRI arthrogram was initially denied, \nshe did eventually have it. She said that while she would not term what she was doing “light duty \nwork,” Northwest gave her work within her restrictions, and she was paid while she was doing one-\narmed duty. She stated at the time that Dr. Heim released her, he had discussed surgery but had not \nordered it or recommended it. Claimant did not agree with respondent’s counsel that her MRI was \nnormal and disagreed that the MRI arthrogram was normal but  did agree that the EMG/MCV test \ndid return a normal result. Claimant said the ultrasound test was done in Dr. Dougherty’s office. She \nagreed that Dr. Heim released her at maximum medical improvement on August 4, with a permanent \nrestriction. She stated that she wasn’t healed but had been released from care; no doctor took her off \nwork   from   August   4   through   December   6,   2021.  Claimant  said  when  Dr.  Dougherty’s \n\nSchaeffer-H102563 \n6 \n \n \nrecommendation for surgery was denied, she didn’t have any choice except to go to work on \nDecember 13, 2021. Claimant agreed that she had full and unrestricted passive range of motion in her \narm,  meaning  that  someone  else  could  move  her  arm.  Claimant  stated  that  Dr.  Brewley  was  an \nunauthorized physician that she had to pay for from her own pocket. \n On  redirect-examination,  claimant  said  she  had  no  income  between  August  5, 2021,  and \nDecember  13,  2021.  She  contacted  Northwest,  asking  to  work  anywhere  in  the  hospital,  and  was \nrepeatedly turned down. \nREVIEW OF THE MEDICAL RECORDS \n \n The parties did not duplicate many of the records, and this review will be done in chronological \norder, referring to both claimant’s exhibits as well as respondent’s. \n Claimant began seeing Dr. Blake Hansen on January 11, 2021.  At the initial visit, Dr. Hansen \ndid an x-ray of claimant’s left shoulder, finding no fracture or dislocation. While there are no physical \ntherapy notes submitted, Dr. Hansen discusses claimant’s course of treatment in physical therapy. On \nFebruary 10, 2021, Dr. Hanson made an orthopedic referral but continued to follow claimant until \nshe could see the orthopedist, Dr. John Heim. (CL.X.1-12) \n Claimant had an MRI on February 25, 2021. Both claimant and respondent listed the MRI as \nbeing part of their exhibits, but neither included the entire report (CL.X.13) (R.X.1). However, Dr. \nHansen included the MRI impression in his March 3, 2021, report: \n1.  Mild muscular edema in the infraspinatus muscle belly, this may \n    represent a mild strain.  \n2. Mild tendinosis of the mid and distal supraspinatus tendon. Mild \n    tendinosis of the distal infraspinatus tendon. \n3.  Otherwise, no source for shoulder pain, her shoulder is hurting \n    much worse than before. (CL.X.16) \n \n Claimant had her first appointment with Dr. Heim on March 10, 2021. Dr. Heim gave claimant \na cortisone injection at that first visit. In his discussion notes, Dr. Heim said “her MRI shows some \n\nSchaeffer-H102563 \n7 \n \n \nincreased  signal  at  the  insertion  of  the  rotator  cuff.  I  recommend  at  this  point  that  we  inject  the \nsubacromial  space  and  get  her  back  into  therapy  to  work  on  range  of  motion  modalities  and  cuff \nstrengthening exercises.” (CL.X.22) \n For reasons that are not clear from the records, after her initial visit with Dr. Heim, claimant \nreturned to Dr. Hansen on March 18. It appears Dr. Hansen first suggested the MR arthrogram but \napparently did not offer any treatment on that date. (CL.X.23-27) \n While  Dr.  Heim  was  recovering  from  surgery,  Dr.  Mark  Allard  saw  claimant  on  March  23, \n2021. He suspected that claimant had a labral injury and he too agreed that an MR arthrogram need \nto be done. (CL.X.28-31) Claimant had the MR arthrogram of her left shoulder on April 23, 2021. \nThe impressions as recorded by Dr. Joseph Yancy are as follows: \n1.  Superior labium appears intact. There is mild degenerative frame along the \nlabrum enterally. No discrete tear is seen. \n2.  Intact rotator cuff and long head of biceps tendon. \n3.   Minimal   chondral   thinning   at   the   glenohumeral   joint   with   normal \nsubchondral bone. Normal AC joint. (R.X.6)   \n \nIn his office notes of May 12, 2021, Dr. Heim recorded: \n \n“This patient’s MRI does not reveal any labral or cuff pathology. I \ndo  not  see  a  significant  outlet  obstruction  but  clinically  she  is  not \ndoing well. Passively she has good range of motion and actively she \ndoes not, so we are concerned about a neuromuscular problem. We \nare getting a nerve conduction study and an EMG, and I will see her \nback after these tests.” (CL.X.39) \n \n Following her EMG/NCV, claimant again saw Dr. Heim on June 2, 2021. Dr. Heim noted \nevidence of disuse muscle atrophy. He wanted claimant to go back to therapy to maximize her strength \nand lifted some of her restrictions on her left arm to allow a five-pound weight limit. Dr. Heim did \nnot think she was a surgical candidate at that time. \n Claimant returned to Dr. Heim on July 7, 2021.  His discussion notes mention that claimant \nwas reporting right shoulder pain in addition to that in her left shoulder and was feeling very agitated.  \n\nSchaeffer-H102563 \n8 \n \n \nDr. Heim asked her if she would like to see a therapist, but claimant declined.  “I am concerned about \nthe mental health of this patient, as I believe there is a psychosomatic component to her pathology.”  \nHe  then  referred  claimant  to  Functional  Testing  Centers,  Inc.  for  a  functional  capacity  evaluation \n(FCE), which was performed on July 15, 2021.  During the FCE, claimant continually complained of \npain in her left shoulder, and was unable to perform many of the tasks she was asked to do with her \nleft hand and arm. The examiner failed to notice the atrophy in claimant’s left upper extremity and \ndetermined  that  she  put forth “an unreliable effort” with 32 of 55 consistency measures within \nexpected limits. (R.X. 24-44) \nOn August 4, 2021, Dr. Heim saw claimant and based on the FCE, he believed claimant would \nbe  able  to  function  at  the  light  classification  of  work.  He  stated  claimant  had  reached  maximum \nmedical improvement and released her to return to work within the activity level as defined by the \nresults of the functional capacity evaluation. (CL.X.72), which was “in at least the light classification \nof work.” (R.X. 26).  His record of that date concludes:  \n“Note to provider: Mikala was seen in office today, 08/04/21 to review \nFCE results.  She has been released with the following restrictions: She \nis in the light category of work with occasional bi-manual lift/carry of \nup to 30 pounds.  Lift/carrying of up to 10 pounds on a frequent basis.  \nOccasional RUE  lift  of  25  pounds  and a  LUE lift  of  5  pounds  when \nlifting unilaterally from knuckle to shoulder level.  We can provide an \nimpairment rating if requested without another office visit.”  \n \nDr. Heim was then requested by the claims adjuster to assess an impairment rating. He issued \na  report  dated  September  14, 2021, in which he concluded “claimant does not meet criteria for \npermanent partial impairment.” (R.X.50) Dr. Heim did not explain how claimant was limited to light \nduty without having an anatomical impairment. \n After  being  discharged  from  Dr.  Heim,  claimant  returned  to  Dr.  Hansen  and  saw  him  on \nAugust 9, September 17, and September 22, 2021. It does not appear that Dr. Hansen offered any \n\nSchaeffer-H102563 \n9 \n \n \nform of treatment to claimant. (R.X.14) \n Claimant  received  a  change  of  physician  order  (R.NM.1-4)  and  then  saw  Dr.  Christopher \nDougherty.   After   evaluating   the   existing   records,   Dr.   Dougherty   performed   an   ultrasound \nexamination  which  showed  an  unstable  bicep  tendon  which  he  attributed  to  the  rupture  of  the \ntransverse  humoral  ligament.  Dr.  Dougherty  recommended  surgery,  as  claimant  had  failed a \nconservative care for nine months and surgery was the only option to repair what Dr. Dougherty saw \nduring  the  ultrasound  procedure.  (CL.X.82-90)  Dr.  Aaron  Humphreys  from  Genex  was  asked  by \nrespondent to review the records and agreed with Dr. Dougherty’s assessment; he advised the claims \nadministrator that the surgery that Dr. Dougherty recommended was certified. (CL.X.91-93) \n Following her move from Arkansas, claimant saw Dr. Earl Brewley in Minot, North Dakota \non January 24, 2022. Dr. Brewley was not claimant’s authorized treating physician; Dr. Dougherty was \n(and is) still in that role. On his first examination, Dr. Brewley did not have all her records but when \nshe returned on June 13, 2022, Dr. Brewley saw clear findings of a subluxed labrum on the MRI and \nstated in his assessment and plan that claimant “likely has a symptomatic superior labrum tear, which \nlikely would benefit from  a proximal bicep tenodesis verses tenotomy. I did recommend, however, \nthat this patient having additional symptoms could likely benefit from a referral to a neurology and \nassessment.  We  are  still  waiting  for  this  as  this  was  previously  rejected  from  insurance  coverage.” \n(CL.X.94-95, 103) \n Dr.  Theodore  Hronas, a  board-certified  radiologist,  was  asked  to  review  the  radiological \nreports and concluded “there is no objective finding of an acute injury of the rotator cuff, labrum, or \nlong head of the biceps tendon. I agree there is mild chronic supraspinatus tendinosis without tear.” \nDr. Hronas did not mention Dr. Dougherty in his list of reviewed records. (R.X 51-52) \n \n\nSchaeffer-H102563 \n10 \n \n \n \nREVIEW OF THE NON-MEDICAL EXHIBITS \n \n Respondent submitted the order allowing claimant to change physicians entered in November \n2021, and the Form AR-N signed by claimant on January 11, 2021.   \nADJUDICATION \n \n As  set  forth  above,  the  parties  litigated  whether  claimant  was  entitled  to  additional  medical \ntreatment and a period of temporary total disability (TTD).  While there is some overlapping of these \nissues, they will be addressed separately.  \n Is claimant entitled to additional medical treatment? \n  Claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical \ntreatment is reasonable and necessary. Goyne v. Crabtree Contracting Company, 2009 Ark. App. 200, 301 \nS.W. 3d 16.  It was stipulated that claimant had a compensable injury on January 10, 2021. Once it has \nbeen  established  that  a  claimant  has  sustained  a  compensable  injury,  she  is  not  required  to  offer \nobjective medical evidence to prove entitlement to additional benefits, Ark. Health Ctr. v. Burnett, 2018 \nArk. App. 427, at 9, 558 S.W.3d 408, 414.  \n As for the proof presented by the parties, I found claimant to be credible in her testimony. \nAlthough a claimant's testimony is never viewed as uncontroverted, the Commission need not reject \nthe claimant's testimony if it finds that testimony worthy of  belief. Ringier America v. Combs, 41 Ark. \nApp. 47, 849 S.W.2d 1 (1993). Having had the benefit of seeing claimant testify, I found her to be \ncredible  that  her  arm  has  not  stopped  hurting  since  the  day  of  the  compensable  injury.    It  then \nbecomes a matter of reconciling the doctor’s records with that credible testimony.  \nRespondents rely on the records from Drs. Hansen, Heim, Allard and Hronas.  While I don’t \nbelieve any of these doctors were  wrong in their assessment, I can dispense with three of them quickly.  \nDr.  Hansen provided only conservative care, turning claimant’s treatment over to Dr. Heim when \n\nSchaeffer-H102563 \n11 \n \n \nclaimant did not respond to what Dr. Hansen could provide. Dr. Allard saw claimant on one occasion \nin Dr. Heim’s absence  and  did  not  change claimant’s course  of  treatment.  Dr.  Hronas  never  saw \nclaimant, but only reviewed records that were provided to him.  As noted above, he did not have those \nfrom Dr. Dougherty.  \nThat leaves Dr. Heim’s records to consider, and those are confusing. He didn’t find anything \nhe  would  term  a  permanent  impairment,  yet  he  released  claimant  with  permanent  restrictions.  Dr. \nHeim suggested to claimant that her problem might be psychosomatic, offering mental health services \nto claimant, but she declined. That indicates to me that Dr. Heim believed there was something causing \nclaimant to have the pain and limitations with her arm that she reported but could not find the cause.   \n Claimant  submitted  records  from  Drs.  Dougherty,  Brewley  and  Humphreys.  I  agree  with \nrespondent  that  Dr. Humphreys’  report  is  of  little  use  because  he  utilizes  the  Official  Disability \nGuidelines, which are irrelevant to determining if a course of treatment is reasonable in Arkansas.\n2\n   I \nfound Dr. Brewley’s records to be more useful. Much of what he said was couched in the probable \nrather than the definite, but that is sufficient; a doctor need not be absolute in an opinion or use the \nmagic words \"within a reasonable degree of medical certainty\" so long as his medical opinion be more \nthan speculation, Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  I do not see any reference in \nDr. Brewley’s records to the ultrasound performed by Dr. Dougherty, which will be discussed below. \n(I did note the disagreement between Dr. Brewley’s reading of the MRI and the opinion rendered by \nDr.  Hronas.  Without  having  any  information  presented  about  the  qualifications  of  Dr.  Brewley  to \nread and interpret an MRI, I’d be inclined to accept the findings of Dr. Hronas over Dr. Brewley on \n \n2\n  I  found  a  report  by  the  same  doctor  in  2021 was  “not  particularly  helpful” for  that  very  reason,  see Duero  v. \nDoubletree Hotel, 2021 AR WRK. COMP. LEXIS 217.  However, under whatever criteria he used, I find it interesting \nthat  the  doctor  selected  by  respondent to  review  claimant’s  records agreed  with  Dr.  Dougherty’s  opinion,  but  his \nrecommendation to certify the surgery was rejected by respondent.   \n\nSchaeffer-H102563 \n12 \n \n \nwhat the MRI revealed, were that the last word in the matter.)    \n I am most persuaded by Dr. Dougherty’s findings following his examination of claimant on \nDecember 6, 2021. He used a different diagnostic tool than did Dr. Heim by utilizing an ultrasound \nas  part  of  his  examination  and  found “an unstable biceps tendon due to rupture of the transverse \nhumeral  ligament.”  As  claimant  had  not  responded  well  to  conservative  care  for  9  months,  Dr. \nDougherty determined that claimant should be scheduled for “a diagnostic shoulder arthroscopy with \nbicep tenodesis,” as it was the only option for her condition.  In view of all the  evidence, including \nclaimant’s credible  testimony,  I  find  claimant  has  met  her  burden  of  proof  that  she  is  entitled  to \nadditional medical treatment.  \n Respondent  raised  an  issue  in  its  brief  about  the  absence  of  the  ultrasound  report  in  the \nexhibits that claimant submitted: “The report of that ultrasound is not in the record although claimant \ntestified that the report is in her medical records.” Claimant’s testimony on direct testimony was indeed \nthat she gathered all her diagnostic tests to take to Dr. Brewley (TR.22) but on cross-examination, she \nwas asked if she said she had a report on the ultrasound, her answer was “it should be in my medical \nrecords.” (TR  28).    As  mentioned  above,  the  ultrasound  was  not  mentioned  by  Dr.  Brewley  in  his \nreport of June 13, 2022. From that, I conclude that Dr. Brewley did not receive it. Claimant testified \nthat the ultrasound was performed by Dr. Dougherty in his office; she watched it on the screen as he \ndid it.  What is recorded in his office notes of that day may be “the ultrasound report,” as it sets forth \nwhat the doctor who performed the test saw on the screen. I would have to assume that Dr. Dougherty \nmade a separate record that differed significantly from what he recorded in his office notes, and I see \nno reason to make that assumption. Therefore, I decline to make the inference that evidence that was \nnot submitted on that issue would have been prejudicial to claimant’s case.    \n  Before moving to the issue of TTD, I asked of the parties at the end of the hearing: “If I find \n\nSchaeffer-H102563 \n13 \n \n \nadditional medical treatment is warranted, who does it?”  Claimant  used  her  one-time  change  of \nphysicians  to  Dr.  Dougherty  before  she  moved  to  North  Dakota  due  to  her  financial  condition. \nRespondent was clear in its post-hearing brief: “If claimant is found to be entitled to the surgery, it \nshould  be  done  by  the  current  authorized  physician,  Dr.  Dougherty.”  Claimant  argued  that \nrespondent’s actions which caused claimant to have to leave Arkansas amounted to “bad faith” and \nset forth the expenses respondent would be expected to cover—such as travel, food, lodging—that \nwould be incurred if claimant had to return to Arkansas. She concluded that “the only equitable and \nreasonable solution is to allow the claimant to treat with Dr. Brewley in North Dakota.  \nAs  much  as  I  agree  that  an  equitable  solution  would  be  for  this  treatment  to  take  place  in \nNorth Dakota, this court is not one of equity, but of law.  Claimant failed to provide a case that would \nallow me to order that claimant can once again change to another authorized physician, and I did not \nfind one in my research to permit me to order the change to Dr. Brewley as the authorized treating \nphysician, and therefore decline to do so.  Respondent will need to decide if it wants to promptly pay \nall the additional expenses that are statutorily authorized for claimant to return to Dr. Dougherty for \ntreatment, or avoid those costs and authorize treatment in North Dakota.  \n Is claimant entitled to TTD from August 5, 201 through December 13, 2021? \n In its post-hearing brief, respondent urges that claimant was released by Dr. Heim on August \n4,  2021,  at  maximum  medical  improvement  (MMI)  and  therefore  would  not  be  entitled  to  any \nadditional TTD benefits until she saw Dr. Dougherty on December 7, 2021, who took her off work \nfollowing that visit.  Since claimant took a job on December 13, 2021, it is respondents’ position that \nthe six-day period between December 7 and December 13, 2021, is not long enough for claimant to \nbe entitled to any additional TTD benefit.   \nClaimant’s position is that while she had been released by Dr. Heim, it was for light duty work \n\nSchaeffer-H102563 \n14 \n \n \nand therefore she is entitled to TTD because her employer refused to provide light duty work to her \nwithin the restrictions imposed by Dr. Heim, and further, there is insufficient evidence in the record \nthat claimant had the capacity to earn the same or any part of the wages she was receiving at the time \nof the injury.  \nThe healing period is that period for healing of the injury which continues until the employee \nis as far restored as the permanent character of the injury will permit. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). If the underlying condition causing the disability has become \nmore stable and if nothing further in the way of treatment will improve that condition, the healing \nperiod has ended. Id. Whether an employee's healing period has ended is a factual determination to be \nmade by the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).  \n After reviewing all the evidence, I am convinced there was something further in the way of \ntreatment that could improve her condition when she was released by Dr. Heim. I do not question \nthat Dr. Heim made what he thought to be the correct decision in releasing claimant from his care at \nMMI, but I believe he did so at least in part based on the results of the FCE, which did not take into \naccount the extent of claimant’s shoulder injury.  As I have the benefit of information Dr. Heim did \nnot  have  on  August  4,  2021—the report from Dr. Dougherty’s examination of claimant—I  find \nclaimant’s healing period had not ended on August 4, 2021.   She  is  entitled to  TTD  benefits  from \nAugust 5, 2021 through December 12, 2021.\n3\n  \n \n \n \n \n \n3\n Claimant testified she accepted employment on or about December 13, 2021, making less money than what she \nwas making while working for respondent.  She reserved her claim for temporary partial disability benefits.  \n\nSchaeffer-H102563 \n15 \n \n \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $502.00. \n IT IS SO ORDERED. \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102563 MIKALA J. SCHAEFFER, Employee CLAIMANT NORTHWEST MEDICAL CENTER, Employer RESPONDENT GALLAGHER BASSETT, CARRIER/TPA RESPONDENT OPINION FILED JANUARY 5, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Ark...","fetched_at":"2026-05-19T23:10:58.220Z","links":{"html":"/opinions/alj-H102563-2023-01-05","pdf":"https://labor.arkansas.gov/wp-content/uploads/SCHAEFFER_MIKALAJ_H102563_20230105.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}