BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. F OPINION FILED AUGUST 1, 2003

Transcription

1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. F RUSSELL DOLLOFF USA TRUCK, INC. SELF INSURED CLAIMANT RESPONDENT OPINION FILED AUGUST 1, 2003 Hearing before ADMINISTRATIVE LAW JUDGE ELIZABETH DANIELSON in Fort Smith, Sebastian County, Arkansas. Claimant represented by JAMES FILYAW, Attorney, Fort Smith, Arkansas. Respondents represented by RODNEY MILLS, Attorney, Fort Smith, Arkansas. STATEMENT OF THE CASE A hearing was held on May 1, 2003, in Fort Smith, Arkansas. A pre-hearing conference was held in this claim, and as a result a pre-hearing order was entered in the claim on March 5, This pre-hearing order set forth the stipulations offered by the parties, the issues to litigate and the contentions thereto. following stipulations were submitted by the parties and are hereby accepted: 1. Arkansas Workers' Compensation Commission has jurisdiction of this claim. 2. On May 8, 2001, the relationship of employee-employercarrier existed between the parties. 3. claimant sustained a compensable injury to his general body as a whole on May 8, Medical expenses have been paid. 5. Temporary total disability has been paid from May 9, 2001, to May 31, 2001.

2 2 6. claimant is entitled to the maximum compensation rate for By agreement of the parties the issues to litigate are limited to the following: 1. Compensability of the claimant s head injuries. 2. Related medical for the claimant s head injury. 3. Temporary total disability from April 22, 2002, to a date to be determined. 4. Attorney s fees. In regard to the foregoing issues the claimant contends that he sustained a compensable injury in the course of his employment with the respondent. No benefits under the Arkansas Workers Compensation Law have been paid. In regard to the foregoing issues the respondents contend that all benefits due and owning the claimant as a result of his compensable injury have been paid. alleged injuries for which the claimant now seeks workers compensation benefits did not arise out of or in the course and scope of his employment for the respondent. medical treatment sought by the claimant is not authorized, reasonable and/or necessary as a result of a compensable injury. No compensable event is the major cause of the claimant s alleged injury or need for medical treatment. alleged condition for which the claimant now seeks benefits, if it in fact exists, was pre-existing and/or degenerative in nature and did not arise out of a compensable event. In the alternative, the respondent states that the alleged condition for which the claimant

3 3 now seeks benefits is the result of an independent intervening cause for which the respondent has no liability. documentary evidence submitted in this matter consists of the Commission s pre-hearing order marked Commission s Exhibit No. 1. claimant submitted medical records marked Claimant s Exhibit No. 1. respondents submitted documentation marked Respondent s Exhibit No. 1 and the deposition of the claimant marked Respondent s Exhibit No. 2. parties jointly submitted medical reports which are marked Joint Exhibit No. 1. All these exhibits were admitted without objection. DISCUSSION claimant testified that he was 40 years old, had completed high school and finished three years of college. claimant testified that he has been a long haul truck driver for seventeen years and has worked for the respondent approximately seven years. claimant testified that except for the accident on April 8, 2001, in Alabama he has never had a serious motor vehicle accident while driving trucks. claimant testified that after his accident he returned to work for the respondent and worked for them until he was terminated. claimant testified that when he returned to work for the respondent he began to experience headaches and then began to develop vision problems. claimant explained that they have computers on their trucks and when he would get messages he could not understand the messages and had a hard time comprehending what was being sent. claimant testified that prior to his May 8

4 4 accident he never had any problems with communication. claimant testified that as time went on his problems continued to increase as well as his physical problems such as numbness in his hands and his feet would hurt. claimant testified that he began forgetting things which normally he would have no problem with, explaining that he, before the accident, did not use a map but he had to start using a map to find his way around the country. claimant testified that he also began to develop angry outbursts and this affected his family. claimant testified that following his accident he was taken to the emergency room but does not remember what doctors saw him. claimant testified that he does remember being seen by Dr. Kennedy who is a psychologist and a Dr. Kent who is a neuro psychologist but does not remember when he began to first see them. claimant testified that he was terminated about a year after his motor vehicle accident. claimant testified that at the time of his termination his condition was deteriorating but he still had his CDL. claimant testified that he no longer has his CDL because the state of Louisiana took his drivers licence. claimant testified that he does not drive anymore because he is considered to have brain seizures with blackouts. claimant testified that he has not had a blackout spell for sometime because he is now taking medication for this problem. claimant testified that he also takes medication for depression and pain. claimant testified that he currently is on social security disability.

5 5 On cross examination, the claimant testified that he does not remember any of the details about his May 2001 accident, further stating that he does not even remember giving his deposition to the respondent on July 31, When asked, the claimant testified that it was his understanding that he had hit the upper front part of his forehead and the back of his head in the wreck. respondent s attorney asked the claimant a series of questions concerning details about his accident but the claimant indicated that he did not remember or recall any of the information which was being asked of him. claimant did indicate that he was wearing a seat belt with a shoulder harness at the time of his accident. claimant indicated that he was aware that the respondent had a policy that if a driver is involved in an accident, if they are able, they are to get out and take pictures with the disposable or portable camera which the respondent provides. claimant testified that he may have taken some pictures but not the day of the wreck and he did not know where the pictures are. claimant indicated that he does not remember telling Dr. Benjamin Nguyen, a neurologist in Shreveport, about his accident and showing him pictures which were taken at the scene. claimant s attorney read portions of the doctor s report dated May 17, 2001, where it indicates that the claimant reported to him that he got out of the truck and took pictures of the accident scene. claimant responded that no he did not do that. claimant indicated that Dr. Nguyen may have written his report out of spite because he had sort of a vendetta against the claimant. Again, the claimant was

6 6 non responsive or responded that he did not remember any of the details when he was at the emergency room or once he was released from the hospital and about his transportation to Birmingham, Alabama. claimant further testified that he does not remember any of his medical treatment or the doctors he was seeing or tests which he was administered. claimant further testified that he did not remember whether the respondent paid him any benefits but thought that possibly they had paid his medical bills. claimant indicated that he does not remember hiring an attorney but was aware that there was an ongoing civil law suit in Alabama concerning the accident. claimant testified that he does not recall Dr. Dennie on May 23, 2001, releasing him to return to regular duty on May 29, claimant testified that he did not remember whether he received any medical treatment from the time he was released by Dr. Dennie on May 29 until he returned to work for the respondent. claimant agreed that he underwent a DOT physical on August 16, 2001, some three months after his accident. claimant agreed that he had checked no on basically all of the boxes in the list of ailments being asked about in the DOT physical. claimant agreed that he signed this form and signed it with the understanding that all of the answers to the questions and the information on the form which he had provided were true. claimant testified that he went on his own to see Dr. Allen and did not ask the respondent to send him. claimant testified that he does not remember what problems he stated he was

7 7 having when he was seen by Dr. Allen on March 5, claimant testified that these problems which he reported to Dr. Allen did not start immediately after this accident but started after he began driving for the respondent and before he went to Kentucky. claimant testified that when he got to Kentucky his problems became gradually worse. claimant was asked, but you hadn t had these problems prior to going to Kentucky: is that correct? claimant responded, oh, I can t say I didn t have these problems. That s just when I really started realizing it. claimant agreed that he was terminated by the respondent on April 22, 2002, and he returned to his home in Shreveport, Louisiana. claimant indicated that he does not remember being seen at the LSU Medical Center where it is indicated that he presented with a history of mini strokes times two previously or that he was seen by a doctor at the medical center reporting that he had fallen and hit his head. claimant testified that he does not recall telling the respondent in his deposition that he fell and hit the right front quarter of his head on a table and sustained a concussion. Again, the claimant was asked a series of questions concerning his medical treatment and testing at the LSU Medical Center and the claimant indicated that he does not have any memory of these events. claimant testified that he does not remember reporting to the personnel at the LSU Medical Center that since his stroke he has had some difficulty with memory. claimant also testified that he does not remember a doctor diagnosing him as having had a stroke. claimant stated that he

8 8 did remember being seen by Dr. Ronald Gobel, a neuro psychologist. claimant was asked who sent him to see Dr. Gobel and the claimant responded, one of the attorneys. claimant testified that he does remember being referred to the NeuroRehab center in Texas where he was seen by Dr. Kent Foster, a neuro psychologist. claimant testified that he does not remember telling Dr. Foster on December 19, 2002, in regard to his motor vehicle accident of 2001 that he was unconscious for several hours and for a period of time following the accident his right leg was weaker than his left. claimant testified that he does not think that he reported to Dr. Foster that he had fallen and hit his head while at home and had to be taken to the emergency room by ambulance because he does not remember the fall. claimant testified that he, his wife and daughter receive social security. claimant also testified that currently he has no plans to return to work. claimant testified that he went through some rehabilitative program with the Texas NeuroRehab facility where they taught him to learn new job skills. claimant testified that he had not had any gainful employment since he last worked for the respondent. claimant testified that the treatment he has received at the LSU Medical Center, the Willis Knighton, Pierremont, and the Texas NeuroRehab Institute was done on his own. claimant testified that the respondent was not asked to provide this medical treatment and he did not have authorization from the respondent for this treatment. claimant

9 9 testified that he did not ask the respondent to send him to any of these treatment centers. In the claimant s deposition taken on July 31, 2002, the claimant gave a list and description of the various medications which he was taking at that time as well as the doctors who had prescribed the medications. claimant also testified that it was recommended by one of his physicians to take an aspirin per day because he had a history of stroke in his family. claimant testified that one month prior to this deposition he had been hospitalized and was diagnosed with partial schizophrenia. When asked, the claimant testified that he had never been treated for psychological illnesses prior to this hospitalization. claimant testified that he also had been hospitalized three years ago for knee surgery resulting from a workers compensation injury. claimant was asked about the events of his motor vehicle accident on May 8, 2001, and the claimant gave a detailed account of how the accident happened and what occurred during the accident. claimant testified that besides hitting his head on the windshield and being hit in the back of the head by the objects coming from behind him, he also injured his arms. claimant testified that approximately two weeks after the accident he began to experience numbness in his legs. claimant testified that he was pretty much out of it after the accident and was pretty sure that he was knocked unconscious but he really could not remember. claimant testified that he was pretty sure that he did not take any pictures of the accident because he was placed in the ambulance

10 10 and taken to the hospital pretty soon after the accident. claimant testified that he did not recall very much about being in the hospital but does remember being tested. claimant stated that the next morning he woke up, contacted the respondent, took a cab to his wrecked truck and the respondent rented him a car to get him to Birmingham so that he could fly home to Shreveport. claimant testified that once in Shreveport he went to the hospital and was diagnosed with having a concussion. claimant remembers that the respondent sent him to see a doctor. claimant stated that after he returned to work for the respondent, his wife indicated to him that she had noticed a difference in him in that he was exhibiting unusual anger and the two of them arranged for him to be seen by some doctors in Kentucky where he was working. claimant testified that he remembers undergoing several tests by the two physicians he saw in Kentucky. claimant stated that he did not receive permission from the respondent to be seen by these physicians because the doctors who had previously been treating him after his wreck had released him. claimant testified that sometime after he was fired by the respondent he fell, hurting his head, which resulted in him being placed in the hospital for a couple of days. claimant then remembers that he was hospitalized again for a few days and began being treated by Dr. Horatio Millan and was subsequently referred to Dr. Gobel. claimant, after being asked, stated that when he was at home he fell and twisted his ankle and bumped his head. When asked what caused him to fall at his home, the claimant testified that he just

11 11 slipped and fell. claimant testified that as a result of this fall at his home, he was taken by ambulance to the LSU Medical Center where he was admitted. claimant testified that it was during the period of time that he was at the LSU Medical Center that he became acquainted with and began treating with Dr. Millan, a psychotherapist. claimant testified that he sees Dr. Millan once a week for consultation as well as monitoring of his medications. claimant testified that currently he has loss of memory as well as headaches. medical records set forth that on May 8, 2001, a call was made to respond to a motor vehicle accident. EMT notation dealing with the claimant indicates that he walked up to the emergency unit requesting his blood pressure be checked and complained of pain in his left chest area. It is noted that the claimant reported that he had impact with the steering wheel and he was encouraged to be seen at the hospital. Due to an elevated heart rate, the claimant was put on a cardiac monitor and he was transported to the hospital. claimant was seen at the DCH Regional Medical Center on May 8, 2001, where he reports that during the motor vehicle accident, he struck the steering wheel but was able to get out of his truck on his own and was up and ambulatory. It is noted that the claimant was complaining of pain in his abdomen stating that he had not been knocked out and he has some soreness in his back. claimant denied any other complaints or other medical problems. claimant was diagnosed with abdominal contusion as well as neck and back strain.

12 12 claimant was released the following day with information and medication and a recommendation to be seen by a doctor when he returns home. Dr. Raymond Dennie saw the claimant on May 10, 2001, and after taking a history as well as giving him a physical examination, the claimant was diagnosed with having acute cervical/thoracic lumbar spine strain. It was recommended that the claimant remain off work for a few days and medications were prescribed. claimant was seen at the Pierremont Health Center on May 12 where it is reported that he is complaining of headache, generalized pain in his neck and difficulty breathing. doctor writes that the claimant s wife states that the claimant has been a little bit confused off and on and being combative which is not his normal behavior. claimant s motor vehicle accident was discussed and it is noted that he had no loss of consciousness, however, had some amnesia to the event and he had hit his chest on the steering wheel and his head on the windshield. After examination, the claimant was diagnosed with head percussion syndrome as well as neck and back pain and he was released with instructions and medications. claimant underwent a brain CT scan on May 12 which was unremarkable. claimant was seen again at the Pierremont Health Center on May 15 with complaints of weakness and dizziness. After examination, the claimant was diagnosed with having acute concussion syndrome, more tests were ordered and the claimant was admitted to the facility. claimant underwent an EEG on May 17, 2001, which was normal with no evidence of epileptic discharge or seizure activity. On the same

13 13 date Dr. Benjamin Nguyen, after examination and review of the claimant s tests, diagnosed the claimant with a possible mild concussion. On May 23, 2001, Dr. Dennie released the claimant to return to work on May 29, 2001, with no restrictions. claimant underwent a Department of Transportation physical examination on August 16, claimant checked no in every box under part two health history on the DOT form. After examination, the examining doctor checked that the claimant meet the standards required for passing the DOT physical. claimant was seen and tested by Dr. Christopher Allen on February 22, 2002, and again on March 5, claimant was put through a battery of psychological tests and after review of the claimant s various medical examinations and tests as well as the psychological testing and interview with the claimant, Dr. Allen notes that the claimant s CT scan of the claimant s brain was interpreted as negative, however, the MRI scan of the claimant s brain revealed, small lacunar infarcts in the left basal ganglia. doctor notes that the claimant s overall cognitive skills fall within normal limits and the doctor notes that his performance on tests for other functions fell within normal limits. Dr. Allen writes that the claimant did exhibit significant deviations on tests of object naming, object perception, verbal learning and long term memory. doctor indicates that this pattern of neuro psychological dysfunction is indicative of cerebral dysfunction involving primarily left temporal and parietal structures and there is evidence of right parietal dysfunction. Dr. Allen writes that

14 14 it is quite possible that the claimant s deficits are attributable to his traumatic brain injury sustained in May 2001 and there is a less likely possibility that the result of the recent MRI scan is some form of a cerebrovascular process (i.e. multiple infarcts.) Dr. Allen notes that since it has been some ten months since his accident it is reasonable to assume that the vast majority of spontaneous improvement has already occurred and his neuro psychological deficits are permanent. Dr. Allen writes on May 3, 2002, that based on his evaluation of the claimant and the findings from that evaluation as well as the information provided to him by the claimant, it is his opinion that the claimant is totally and permanently disabled. claimant was seen at the LSU Medical Center on May 10, 2002, where it is reported that he has had mini strokes times two previously and was in a motor vehicle accident. claimant was again seen at the LSU Medical Center on May 12, 2002, where he reports that he fell and hit his forehead causing bleeding. It is also noted that the claimant has speech slurred times four days. claimant underwent a series of tests which were normal and a repeat CT scan of the claimant s head was negative for bleed or infarct but noted that there was a small old left basal ganglia lacunar infarct. claimant underwent an EEG which demonstrated evidence of ongoing brain stem dysfunction including anachronistic sleep stagging. It is noted that the dysfunction appeared to be acute and there was no evidence of any sort of epileptic activity.

15 15 claimant had a stay in the hospital beginning on May 17 for an overdose of medications, one being Phenobarbital prescribed for his dog for seizure episodes. claimant filled out a recreation therapy assessment plan on May 24, 2002, where it indicates that since his stroke he has had difficulty with memory. claimant was seen by Dr. Ronald A. Gobel on July 3, Dr. Gobel reviews the claimant s history as to his motor vehicle accident of May 8, doctor notes that there is some question as to whether this accident rendered the claimant unconscious at the scene but the claimant was diagnosed with having sustained a severe concussion and he had contusions to the frontal and posterior portions of his head. This doctor notes that the claimant was able to return to work two or three weeks after the accident and there were no complaints about his work which included not only driving but training new students. Dr. Gobel notes that the claimant was abruptly fired on April 22, 2002, and since that date he had had increased depression, headaches, irritability and hypersomnia. Dr. Gobel writes that the claimant s personality assessment via the MMPI-2 indicated he was consciously defensive with evidence of variable response in consistency. In spite of the claimant s defensiveness the profile in Dr. Gobel s opinion is indicative of depression, anxiety and social withdraw. Dr. Gobel writes that the neuro psychological data is abnormal and suggest the presence of defused organic cerebral brain dysfunction, noting that the pattern of cognitive deficit suggests greater impairment in the right cerebral hemisphere. Dr. Gobel writes that this would

16 16 be consistent with the report that the claimant struck the right frontal portion of his head on the windshield in addition to being hit on the back of the head by shifting cargo. doctor notes that he certainly cannot rule out the possibility of other contributing factors such as the side effect of medications and excessive somnolence. doctor further notes that certainly the claimant s emotional condition is a factor. Dr. Gobel writes; Subjectively, I believe that Mr. Dolloff (the claimant) did indeed experience mild organic cerebral brain impairment as a result of his accident. He was nevertheless able to return to work and function successfully for approximately 11 months. I am lead to believe that the circumstances of his termination appear to relate more to his use of medical benefits and possible litigation issues than with his job performance. Secondly, his psychological condition appears to have deteriorated since his termination. se factors are more consistent with emotional and psychological compromise than any organic brain impairment. claimant was seen at the Pierremont Health Center on September 30, 2002, by Dr. Jerry Davis as a result of his altered mental status. It is noted that the claimant has had TIAs times three and nerve damage to his upper extremities. Due to the claimant s bazaar behavior, several tests were run all of which were unremarkable except for his drug screen which was positive for Benzodiazepines which he was not prescribed, noting that he had been prescribed Lorazepam and Barbiturates. A CT scan again was run of the claimant s brain and it was unremarkable. Dr. Davis writes that at this time there is no evidence of encephalitis, meningitis, electrolyte abnormality, inter cranial bleed, alcohol

17 17 intoxication, metabolic disarray, hypoxemia and ichemic etiology. Dr. Davis writes that it is his gut impression that it is the barbiturates which the claimant reports he accidentally ingested which has caused his altered mental status. medical records, which are extensive, set forth that the claimant has attempted suicide by various means several times. It is noted that when the claimant was seen at the Texas NeuroRehab Center in December 2002 he reported that in his May 2001 motor vehicle accident he was unconscious for several hours. After a complete review of this entire record, I find that the claimant has failed to prove by a preponderance of the evidence that his mental problems and any type of closed head problems which he is experiencing are not as a result of his motor vehicle accident of May 8, claimant by his own testimony to the EMT personnel as well as to the ER personnel on the day of the accident indicate that he was not complaining of any kind of impact or problems with his head. Dr. Nguyen notes in his report when he had a consultation with the claimant on May 17, 2001, that the claimant did report to him that he hit his head on the windshield but the doctor notes that there is no evidence of bleeding or bruises. Dr. Nguyen notes that the claimant reported that he was able to get out of his truck and take multiple pictures of the wreck with his own camera, noting that the claimant showed the pictures to him. A CT scan of the claimant s head was made on May 12, 2001, which was negative and an MRA of the Circle of Willis dated May 17, 2001, shows no abnormalities. An MRI of the

18 18 claimant s brain done on May 16, 2001, did reveal a small lacunar infarct, left basal ganglion but this test was otherwise unremarkable. Dr. Nguyen notes that the lacunar infarct as noted on the claimant s MRI and indicates that this finding appears to be old. After reviewing the claimant s MRI as well as examining the claimant, Dr. Nguyen diagnosed the claimant with a possible mild concussion noting that his neurological examination at this time was found to be within normal limits. Dr. Nguyen had an EEG run on the claimant on May 18, 2001, and notes that it was normal with no evidence of epileptic discharge or seizure activity. claimant was released to return to full duty on May 29, 2001, and did in fact return to driving for the respondent as a over the road truck driver. claimant underwent a DOT physical in August 2001 and the claimant himself indicated that he had no problems with head injury or any type of physical problem and he pasted this test. claimant continued to drive for the respondent and was not seen by a physician until February 2002 when he was seen by Dr. Allen. Dr. Gobel on March 3, 2002, after reviewing the claimant s medical history as well as psychological history and examining the claimant, writes that the neuro psychological data are abnormal and suggests the presence of defused organic cerebral brain dysfunction. Dr. Gobel notes that the neuro psychological protocol also reveals evidence of other factors and he cannot rule out the possibility of the side affects of medication as well as insomnia. Dr. Gobel writes that certainly his emotional condition also plays a part. Dr. Gobel writes that subjectively he is lead to believe

19 19 that the circumstances of his termination appear to relate more to his use of medication and possible litigation issues of his job performance and that his psychological condition appears to have deteriorated since his termination. Dr. Gobel sets forth that these factors are more consistent with emotional and psychological compromise than with organic brain impairment. It is not questioned that this claimant has some psychological problems which need to be addressed. However, with his family history as well as his report of strokes, a fall at home when he struck his forehead on a table and certainly now his excessive use of drugs and chemicals have exacerbated his mental state. claimant may have experienced a mild concussion at the time of his motor vehicle accident but his need for psychological treatment at this time, I feel, are not related to his motor vehicle accident of May 8, refore, this claimant s request for benefits for his head injuries as well as temporary total disability subsequent to his termination should be denied in its entirety. FINDINGS & CONCLUSIONS 1. Arkansas Workers' Compensation Commission has jurisdiction of this claim. 2. On May 8, 2001, the relationship of employee-employercarrier existed between the parties. 3. claimant sustained a compensable injury to his general body as a whole on May 8, Medical expenses have been paid.

20 20 5. Temporary total disability has been paid from May 9, 2001, to May 31, claimant is entitled to the maximum compensation rate for This claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury to his head which has resulted in his need for medical treatment at this time. See discussion above. ORDER claimant has failed to prove by a preponderance of the evidence that his current need for medical treatment for his alleged head injuries are related to his motor vehicle accident of May 8, refore, this claim for benefits for this claimant s head injuries should be denied in its entirety. IT IS SO ORDERED. ELIZABETH DANIELSON ADMINISTRATIVE LAW JUDGE