before the arkansas workers’ compensation … · 2/17/2015 · disney - claim no. g105141 3...

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION

WCC NO. G105141

KATHY DISNEY, EMPLOYEE CLAIMANT

MAYFLOWER SCHOOL DISTRICT, EMPLOYER RESPONDENT

ARKANSAS SCHOOL BOARDS ASSN., CARRIER/TPA RESPONDENT

OPINION FILED FEBRUARY 17, 2015

Hearing before Administrative Law Judge O. Milton Fine II on November 19, 2014, inConway, Faulkner County, Arkansas.

Claimant represented by Ms. Adrienne Kincaid Murphy, Attorney at Law, Fayetteville,Arkansas.

Respondents represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, Arkansas.

STATEMENT OF THE CASE

On July 29, 2014, the above-captioned claim was heard in Russellville, Arkansas.

A prehearing conference took place on September 8, 2014. A prehearing order entered

on that date pursuant to the conference was admitted without objection as Commission

Exhibit 1. At the hearing, the parties confirmed that the stipulations, issues, and respective

contentions, as amended, were properly set forth in the order.

Stipulations

At the hearing, the parties discussed the stipulations set forth in Commission Exhibit

1. They are the following, which I accept:

1. The Arkansas Workers’ Compensation Commission has jurisdiction over this

claim.

Disney - Claim No. G105141 2

2. The employee/employer/carrier relationship existed between the above-

captioned parties on June 15, 2011, when Claimant sustained a

compensable head injury.

3. Indemnity benefits were paid through January 25, 2012.

4. Claimant’s average weekly wage of $400.00 entitles her to compensation

rates of $267.00/$200.00.

Issues

At the hearing, the parties discussed the issues set forth in Commission Exhibit 1.

Following an amendment of the first at the hearing, the following were litigated:

1. Whether Claimant is entitled to additional temporary total disability benefits

from January 26, 2012, to April 1, 2013.

2. Whether Claimant is entitled to additional medical treatment, specifically with

Dr. John Dornhoffer.

3. Whether Claimant is entitled to a controverted attorney’s fee.

All other issues have been reserved.

Contentions

The respective contentions of the parties, as amended, read as follows:

Claimant:

1. Claimant contends that she sustained a head injury in the course and scope

of employment on June 15, 2011, when she fell from the top of an eight-foot

tall ladder while painting a classroom. She was taken by ambulance to the

emergency room at Baptist Medical Center, where she was hospitalized for

three days with a head contusion with subgaleal hematoma. Claimant


received conservative treatment from numerous physicians, but continues

to have chronic vertigo, memory problems, and cognitive impairment–none

of which she experienced prior to June 15, 2011. She has been unable to

work since falling from the ladder June 15, 2011.

2. Claimant contends that temporary total disability benefits should not have

been stopped on January 25, 2012, and that she was entitled to temporary

total disability benefits to April 1, 2013.

3. Claimant also contends that she is entitled to additional medical treatment

as recommended by her neurologist, Dr. Michael Chesser, who has indicated

that the second opinion of another ear/nose/throat specialist could provide

some answers.

4. Finally, Claimant contends that she is entitled to a controverted attorney fee.

5. Claimant reserves her right to any and all additional benefits associated with

this claim.

Respondents:

1. Respondents contend that they accepted Claimant’s claim as compensable

and paid all appropriate benefits in relation to her compensable injury

through January 25, 2012.

2. The claimant’s present complaints are not related to her work injury, and any

additional treatment is not reasonable, necessary, related or authorized.

3. Likewise, the claimant is not entitled to any additional indemnity benefits and

is not temporarily totally disabled.


FINDINGS OF FACT AND CONCLUSIONS OF LAW

After reviewing the record as a whole, including medical reports, documents, and

other matters properly before the Commission, and having had an opportunity to hear the

testimony of the witnesses and to observe their demeanor, I hereby make the following

findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-704

(Repl. 2012):

1. The Arkansas Workers’ Compensation Commission has jurisdiction over this

claim.

2. The stipulations set forth above are reasonable and are hereby accepted.

3. Claimant has proven by a preponderance of the evidence that she is entitled

to additional treatment of her compensable head injury in the form of

evaluation and treatment of her benign paroxysmal positional vertigo by Dr.

John Dornhoffer.


to additional temporary total disability benefits from January 25, 2012 to April

1, 2013.


to a controverted attorney’s fee on the amount of additional temporary total

disability benefits awarded herein, pursuant to Ark. Code Ann. § 11-9-715

(Repl. 2012).


CASE IN CHIEF

Summary of Evidence

The witnesses at the hearing were Claimant and Angela Karen Hoskins, a former

co-worker for Respondent Mayflower School District.

In addition to the prehearing order discussed above, the other exhibits admitted into

evidence in this case were Claimant’s Exhibit 1, a compilation of her medical records,

consisting of three index pages and 122 numbered pages thereafter; Claimant’s Exhibit 2,

non-medical records including her performance evaluation and her disability decision from

the Social Security Administration, consisting of one index page and nine numbered pages

thereafter; Respondents’ Exhibit 1, another compilation of Claimant’s medical records,

consisting of three index pages and 87 numbered pages thereafter; Respondents’ Exhibit

2, surveillance reports, consisting of one index page and 15 numbered pages thereafter;

and Respondents’ Exhibit 3, two DVDs containing surveillance footage of Claimant.

Testimony

Claimant, who is 61 years old, testified that she completed two years of college and

received a certificate in college studies with an emphasis on secretarial-type work. She

was employed during school by a department store and later as a secretary for a mental

health facility in Kentucky. In the latter position, she eventually became office manager,

and also did work as a hospitalization aide. While working there, she did arts and crafts,

planned activities to be performed, accompanied social workers to nursing homes to

interact with patients, and functioned as the medical records librarian. She was employed

by the mental health facility for approximately ten years.


Also, Claimant has worked in the field of education for several years. She was a

substitute teacher in Kentucky. After moving to Arkansas, she first became a pre-

kindergarten aide in the Pulaski County Special School District. In 1998, she began

working for Respondent Mayflower School District. At first, she worked with those students

who had behavioral problems. Later, she became a Title I paraprofessional. This required

that she work with students who had not performed well on their benchmark examinations,

and also work with third and fourth-grade students on math and reading. She had

lunchroom duty as well.

According to Claimant, she suffered a work-related injury on June 15, 2011 while

painting in the media room of Mayflower High School during the summer break. She

elaborated:

I was painting and I was on a[n] eight-foot ladder. I wasn’t on the very topof the ladder but I was on the step down, one step down, and I mean, I waspainting the–where the metal goes around . . . I did have a small cup that youheld onto and you put it near where you would paint . . . The last thing Iremember was just going up the ladder. I don’t remember–I don’t rememberanything else.

Claimant testified that her first memory thereafter was regaining consciousness in the

nurse’s office. She does not know if the fall was due to a fainting spell or a loss of balance

while on the ladder. Asked about her symptoms at that point, she responded:

I had a big knot on the back of my head and I don’t know, I was sort of–Idon’t know what’s that word to use–incoherent, I mean, I just couldn’t believeI fell off the ladder because that’s not something that, you know, I would do,because I’m very careful at things. I’ve roofed houses before and a fewyears before that I actually roofed–helped roof the house, my own house, Imean, I’m just one that does all kinds of things.

She later elaborated that the knot was located on the left side of the rear of her head.


Claimant was taken by ambulance to Baptist Medical Center, where she was

hospitalized for two to three days. At that point, according to Claimant, her condition was

as follows: “I was very dizzy, just like trying to walk, and my back hurt a whole lot. And my

head, I mean, my head was obviously hurting, but I just–I mean, I just wasn’t in good

shape.” As for her condition after she was discharged, she related:

I had a whole lot of dizziness, a whole lot of pain coming from the front,which I still have, up to my ear, and I have soft spots still yet in my head. Ihave headaches that go this direction and then I have sharp pains that comein here. I’m trying to think. I have ringing in my ears all the time now.

She went to Mayflower Medical Clinic, where she was given muscle relaxers and

medication for dizziness. Eventually, she went to see Dr. John Dickins at the Arkansas

Otolaryngology Center. He performed testing on her in relation to her dizzy spells and had

her undergo physical therapy to improve her balance. Claimant treated with him

approximately six months. She also saw Dr. Brent Sprinkle with Arkansas Specialty

Orthopedics in connection with pains in her left side and lower back.

Because she was still having problems, Claimant sought and received from the

Commission a change of physician to Dr. Michael Chesser. He had her undergo an MRI

of her head and prescribed anti-depressants. In addition, he referred her to Dr. A.J. Zolten,

a psychologist. He performed testing.

Asked about her current symptoms, Claimant replied:

I still have episodes at home. I still have the ringing in my ears all the time.I have–it’s not like a regular headache, it’s a different kind of headache thanI’ve experienced before. The headache, like I say, it goes from here to here[pointing from a position above her right ear and tracing it along the top ofher head to the same position on the other side], and then I have sharp painsthat go straight down . . . [a]nd then I do have headaches where it’s likesharp, on the left side of my head, and it goes straight down, down thisdirection. I also have like wiggling in my head, which is crazy, like something


moving in the top of my head and on occasions and in my left ear . . . if I’mriding in a car it just sort of–it’s back into here, like it’s past my ear, it’s in theback part of my ear, and they just look at you like nothing’s wrong with you,which just really makes you feel bad.

She has “good days” and “bad days.” There are a lot of the former. While she suffers from

dizzy spells each day, on “bad days” her symptoms are severe. Because of these spells,

she has fallen several times. On two occasions, the falls resulted in injuries.

Because of her head condition, Claimant no longer works for Mayflower. She does

not work anywhere else, either. In relating her daily activities, she stated that although she

performs housework and does the laundry, she has difficulty staying on-task. She has a

tendency to do such things as place items in the wrong container or forget to put fabric

softener in the washer. Claimant stays home a lot. While she still attends church, she

generally sits in the back because crowds bother her and so she can read the lyrics to the

songs off of the screen.

Recently, she was approved to receive Social Security disability benefits. Prior to

this, she was paid disability benefits through a private policy she had through USAble.

Once she was approved for Social Security, she had to reimburse USAble.

Asked about the surveillance footage that is in evidence, Claimant testified that she

has viewed it. She stated that she was not surprised that it depicts her shopping at such

places as a local home improvement establishment because the business is located near

her home. Claimant added that she also goes to the grocery store, but only does so

“whenever I’m really feeling good and I don’t have a whole lot of issues.” As for footage

showing her rolling a large garbage receptacle, she stated that she is able to maneuver it

because it is on wheels. Claimant hastened to add that the footage reflects that she was


looking at the ground. Her testimony was that this “was obviously a bad day” because she

feared falling.

Claimant maintained that she had no pre-existing cognitive or memory problems.

She had never been treated for depression or anxiety. Before her work-related fall, she

had no problems performing her job duties. She added:

Well, before I fell off the ladder I could do, I mean I did work with the kids atschool and was very fluent with all the things that they needed help with. Athome, I mean, I could do anything. I worked in my husband’s workshop withhim. He has a workshop and he–he’s making cabinets for a house. I coulddo–I could cut board, straight boards, if I needed to. I have done puttingroofs on, not only our house, but our house several years ago. I would mowand weed eat. Anything that needed to be done outside, I could do it.Except I couldn’t work the chainsaw because he did all the chainsaw. ButI would, you know, I would stack the wood up, fix things in the house, justhelp him with everything he did, and a lot of that stuff I can’t do now. Ipainted a lot, like I had arts and crafts several years ago and I did a lot ofpainting and a lot of small work, but now, I can’t pain because my handshakes. I mean, I could do a whole lot of things that other women generallydon’t do.

She admitted that two or three years prior to the incident at issue, she tripped at

home, striking her face and suffering an orbital blowout fracture. Claimant underwent

treatment for this injury, but only lost two or three days of work as a result and had no

problem performing job duties thereafter. She has had a diabetes diagnosis for 10 to 15

years, and takes medication to keep the condition under control. Before her injury, she

had only been treated for vertigo or dizziness on one occasion. Her deposition testimony

was that before the fall, she never had any blackout spells, fainting, or something of a

similar nature. At that time, and continuing to the present, she was taking Lisinopril.

Claimant at the hearing stated that at some point before her head injury, the Lisinopril was


causing her to experience a drop in blood pressure. The following exchange took place

during her cross-examination:

Q. Well, let me ask you, ma’am, if I can interrupt just for a second–

A. Yes.

Q. –does this mean you didn’t remember to tell me that you were havingblackout spells, fainting or anything before June of 2011, becausewe’re talking about treatment you got after that event?

A. I wasn’t correlating “pass out” and “fainting.” I mean, that justdidn’t–that just didn’t–

Q. Don’t they mean the same thing?

A. Yes, but that was just something I didn’t correlate when you wasasking me that.

Q. Okay, so are you telling me now that you did have passing out orfainting before this event in June the 15th of 2011?

A. Yes, I did, at night, um-hm.

Q. At three o’clock in the morning?

A. Yes, whenever I had severe cramps.

Q. Now, was my medical records exhibit what brought this to mind or didyou just remember it at some point in time?

A. When I read that–

Q. When you read the medical records?

A. –I remembered–I don’t know, passing out and fainting, I mean, I justdidn’t–I just didn’t correlate that.

Q. They mean the same thing, don’t they?

A. Yes, they do.


Q. And you didn’t remember it until you looked through my medicalexhibit which does show you’ve had either blackout spells or faintingor passing out before this event in June of 2011, correct?

A. Yes.

Claimant agreed that prior to the June 2011 fall, she also suffered from migraine

headaches and underwent treatment for them.

Since her work-related injury, Claimant has come under the care of two ear, nose

and throat (“ENT”) doctors: Drs. John Dickins and Ward Gardner. She received a change-

of-physician to Dr. Chesser after Dickins indicated that he could not do anything else for

her. Chesser is an orthopedic surgeon, and stopped seeing her because he retired. She

has seen Dr. Brent Sprinkle as well. No one has recommended any surgery to address

her condition. Dr. Zolten, the psychologist, has not recommended any treatment. She

would now like to see another ENT: Dr. John Dornhoffer. He is the person to whom

Chesser intended to refer her. Dr. Richard Back, a neuropsychologist whose report is in

evidence, never saw Claimant. She is aware that all of the CT scans of her head have

been negative; but she is also aware that they show that she sustained a contusion with

a subgaleal hematoma in the extracranial right occipital and posterior parietal regions. Dr.

Chesser had her undergo an MRI of her brain, which only showed a moderate degree of

small vessel disease. She knows that that condition can be related to her diabetes. But

she took issue with the report relating the findings to hypertension, asserting that she does

not have the condition even though she takes a medication, Lisinopril, that is prescribed

for it. Claimant also underwent an EEG, and Chesser sent her back to Dickins thereafter.

But Dr. Dickins indicated that he could not do anything else for her.


Claimant underwent physical therapy in conjunction with her ENT visits. She

disagrees with the therapist’s note of December 20, 2011 that she was no longer having

issues with balance. She is aware that Dr. Dickins on January 16, 2012 found her

electronystagmogram was normal and that her subjective complaints of dizziness were not

corroborated by objective findings.

Dr. Zolten conducted a second neuropsychological evaluation of her in March 2013.

But he did not tell her that her current limitations were determined to be minimal. On April

1, 2013, Chesser wrote that Claimant’s complaints of memory, cognitive, gait and vertigo

problems had no objective test results to tie them to her June 2011 concussion. But he did

not inform Claimant of this, or that he found that she had reached maximum medical

improvement as of that date regarding her concussion.

Asked about references in her medical records, pre-incident, about episodes where

she would suffer a “sinking feeling” and be profoundly weak, Claimant attributed these to

side-effects of Lisinopril.

Claimant continued to receive temporary total disability benefits until January 25,

2012. She has not worked anywhere since the day she fell. Asked why, she responded:

“I feel like I can’t work.”

Called by Claimant, Angela Hoskins testified that she has known her 15 to 20 years.

They met when working together at Mayflower Middle School, and worked together at least

10 years. Hoskins considers Claimant a friend, and the two still socialize. Asked to

describe the difference in Claimant’s demeanor before and after the June 2011 fall,

Hoskins responded:


Well, it was a very marked difference. Before the accident I would use theword “powerhouse” to describe Kathy Disney. She ran our tutoring program.She was a paraprofessional at the middle school. She ran our tutoringprogram working specifically with all students to improve their math skills. Inone year the teachers wanted to vote her teacher of the year because of herattitude, her hard work. They wouldn’t let us do it because she was not acertified teacher, but that was actually the teachers’ choice, was to give it toher because of her energy, the way she worked with the students, herpassion for the students, and that was Kathy. Kathy, she and I wouldexercise together, you know, walking, and it wasn’t anything for us to get outthere at the track and go three to five miles, just around and around thattrack together. Night or day, rain or shine. After the accident all of thatchanged. She could not come back to work. I talked to her about, you know,was there something that she could do, you know, because it was driving hercrazy just to be home all the time and not, you know, not be able to interactlike she had in the past . . . [w]e had talked about, you know, her doingsomething, even in a limited capacity, and she told me that she didn’t trusther own mind even to tutor students. She said that she felt like even withsimple math things she was likely to tell them things incorrectly and shedidn’t trust herself to, you know, that she couldn’t stand it if she thought she’dnot helped one or even hindered a child. She–her energy was different. Wenever walked together again. She was not sure of herself mentally orphysically. She–when we did–would occasionally meet for lunch I could justtell that she–even walking from the car to Subway Restaurant in Mayflowershe would hesitate and there were times, there were several times, in fact,that I would reach out to steady her. I’m sorry. Because I was afraid thatshe was going to fall. She would forget things. She would forget details.She would forget words. In mid-conversation she would ask me, you know,what is that thing, and it might be something like a tissue, what is–it’s whiteand you blow your nose on it, and you know, and I would have to say, “aKleenex?” And she would get very frustrated and she obviously, you know,became depressed. I mean obvious to me that she was depressed anddiscouraged, and just felt like she wasn’t herself anymore. And in a lot ofways, she wasn’t.

Hoskins admitted that she lacks any medical training, and has not reviewed the

medical exhibits in this case. The last time the two of them socialized was in December

2012. Asked when the Subway incident took place, Hoskins could only narrow it down to

some time prior to May 2013.


Medical Evidence

The medical records contained in Claimant’s Exhibit 1 and Respondents’ Exhibit 1

reflect the following:

Pre-Incident. Claimant on July 23, 2008 present to Dr. Joseph Rose with a history

“over the last several years of” five incidents where she “will get a very sinking feeling of

being profoundly weak. She will literally have to crawl to the bathroom. She will vomit. 2½

hours later she is fine.” Rose noted that she has diabetes. She was treated by him with

Lisinopril. Claimant reported that in November 2009 she had a blow-out fracture of the left

orbit as the result of a fall. She was treated for diabetes and hypertension on an ongoing

basis. On April 28, 2010, she reported to Dr. Roach that as she got off the commode at

home, she started feeling arm and leg weakness and fell. It took a couple of minutes to

regain her strength before she could return to bed.

Post-Incident. Claimant presented to Metropolitan Emergency Medical Services on

June 15, 2011 following a fall from four to nine feet. She was noted to have “blunt trauma”

to her head/face, but she was also found to be oriented as to time, place and person.

Claimant was transported to Baptist Health Medical Center, where she presented with

soreness in the neck and head after falling off a ladder and striking her head on a hard

surface, with a one-minute loss of consciousness. Again, she was oriented as to time,

place and person, but was found to have a hematoma on the posterior portion of her scalp.

She was admitted for observation. The CT scan of her head on that date was negative for

skull fracture or acute intracranial abnormality, but showed a “contusion with subgaleal

hematoma demonstrated on the extracranial right occipital and posterior parietal regions.”

Claimant was discharged from the hospital on June 17, 2011.


On June 21, 2011, Claimant presented to Mayflower Medical Clinic with episodes

of dizziness with movement, along with headaches. She was assessed as having “[p]ost

concussion syndrome.” In a follow-up visit on June 29, 2011, she stated that she was

having “continued vertigo” of moderate intensity that lasts the majority of the day and is

exacerbated by movement. Claimant had headaches as well. Again, she was assessed

as having “[p]ost concussion syndrome.”

Dr. John Dickins with Arkansas Otolaryngology Center evaluated Claimant on July

11, 2011. She presented with vertigo. The note reads: “She has also noted some clear

nasal drainage since the accident. Several years ago she had a blowout fracture on the

left side and had a transient CSF [cerebrospinal fluid] leak following that.” Her scalp was

noted to be normal in appearance. Dickins wrote that Claimant “has a clear nasal drainage

from the R side.” His impressions were benign paroxysmal positional vertigo,

cerebrospinal fluid leak from nose and mouth, and peripheral vertigo, and he ordered, inter

alia, that she undergo CT scans of her brain and sinus cavities and see a physical

therapist. On July 12, 2011, the doctor wrote that Claimant’s nasal drainage “may well be

vasomotor rhinitis.” The sinus CT scan that day was normal. Her vestibular exam results

read: “Positive hallpike, CDP non organic probably due to apprehension.” On July 20,

2011, Dr. Dickins stated that Claimant’s vestibular testing per the electronystagmogram

showed “[s]ignificant benign positional vertigo with a positive Hallpike on the right side as

an isolated finding.” He added that her vertigo findings are “consistent with her symptoms

and her type injury,” but that she should start a walking program and that after a course of

amitriptyline, physical therapy and the passage of time, “she will make a full and complete

recovery.” As of August 16, 2011, Claimant was still having symptoms of dizziness when


turning her head left and looking upward. On September 27, 2011, she was noted by

Dickins to have made some progress but was still having “marked balance problems.” He

ordered on December 20, 2011 that she have a repeat vestibular test and stated that

Claimant had related that she was still having significant problems with positional vertigo.

Her physical therapist, Joe Wall, wrote on that date that she had undergone 11 therapy

sessions and that positional vertigo and balance are no longer major issues, but that her

looking up or down results in dizziness and that she still has memory issues. Dickins on

January 16, 2012 wrote:

Ms. Disney returned to see us on 12-20-2011 with continued complaints ofpositional vertigo. She feels as though when she looks around quickly ormoves quickly she will become dizzy. She can drive for short distances, butthen becomes dizzy following that. As you remember, we initially saw her on07-11-2011 complaining of an injury that occurred 05-15-2011 [sic] when shefell off of a ladder striking her head on the concrete. Since that time she hashad a full feeling in her ear, weakness, headache and significant positionaldizziness.

Our vestibular evaluation early on revealed no major abnormalities, but wepersisted in working with her for positional dizziness. We did this based onher subjective symptoms more than objective findings.

Because of her continued problem we elected to repeat her vestibular test.She returned on 01-12-12. Her electronystagmogram was absolutelynormal. Her dynamic posturography showed some difficulty with herbalance, but primarily in the easier portions of the test. In the more difficultportions, she was absolutely normal.

Ms. Disney continues with symptoms of movement induced dizziness.However, there are no objective findings that go along with this. I am afraidthat our treatment has had no impact on her symptoms and I really do notthink we have much to offer her. Although her symptoms would suggest thatshe would have limited ability to work I cannot back her symptoms up withany objective findings.

Claimant on January 26, 2012 presented to Dr. Cary Roach at the Barg-Gray Clinic

with “intermittent vertigo and left occipital parietal headaches with difficulty recalling


words/finding words in conversation.” She stated that her symptoms have improved since

the fall but still persist. He order her to undergo an MRI of her head, neuropsychological

testing, have a neurology referral, and resume taking Gabapentin. Claimant told Roach

on February 7, 2012 that she has “short-term memory loss and difficulty staying on task

and doing some executive-level, function decision making.” She added “that she is still

having difficulty just writing up checks or figuring change and exchanging money.” He

assessed her as having, inter alia, memory lapses or loss, post-concussion syndrome, and

vertigo. On a form dated May 1, 2012, he wrote that her diagnoses are “[t]raumatic [b]rain

[i]njury[,] post-concussive syndrome[,] vertigo, memory loss [and] fatigue.” He stated that

her restrictions are no climbing, frequent lifting or bending, prolonged standing, multi-

tasking or executive decision-making.

Dr. Michael Chesser saw Claimant on May 16, 2012. She made the same

complaints as before of headaches, memory loss, dizziness with bending over, and clear

nasal drainage. His neurological examination showed possible mild left lower facial

weakness. He ordered a brain MRI, an analysis of the drainage to determine if it is

cerebrospinal fluid, and a consultation for neuropsychological testing. He took her off work

for four to six weeks, until her next appointment. Claimant’s June 11, 2012 EEG showed

“[m]ildly abnormal awake, drowsy and sleep EEG because of shifting bitemporal sharp and

slow wave activities, somewhat more prominent on the left side.” Dr. Gordon Gibson wrote

that these “findings are nonspecific but would suggest mild insult to bitemporal regions of

brain, especially on the left side.” Claimant underwent the MRI of her brain on June 12,

2012. Dr. William Henry wrote:


1. No acute intracranial process and specifically no acute ischemia.

2. There are innumerable foci of abnormal FLAIR signal predominantlyin the subcortical white matter. This may just relate to microvascularischemic changes but the patter is a little atypical with lessperiventricular disease than subcortical disease. The possibility ofdemyelinating process would also be considered though this is not aclassic pattern for demyelination either.

3. Vague abnormal FLAIR signal in the mid brain near the pyramidicdecussation and around the aqueduct of uncertain significance.There are no areas of acute infarct.

4. Paranasal sinuses and mastoid air cells are clear. I am uncertain asto the site of the cerebrospinal fluid leak given in the history.

On June 18, 2012, Dr. Chesser wrote:

Ms. Disney returns for followup and she has not had any change in hersymptoms since her first visit on May 16, 2012. I reviewed her MRI findingswith her. She has a moderate degree of small vessel disease. I had the MRIimages also reviewed by Dr. Brad Pierce, neuroradiologist, and especiallybecause of the previous report, which suggested abnormality in the flairsignal in the mid brain. He thought this was a normal finding and did notthink it was anything significant. He thought that the white matter changeswere all consistent with small vessel ischemic disease. There were nofindings suggesting of demyelinating disease.

Her EEG was mildly abnormal due to shifting bilateral temporal slowing,sharp and slow wave activity, more prominent on the left side . . . Shecomplains of persistent vague dizziness, which is worsened by any suddenmovement. She complains of poor memory. She had been complaining ofclear nasal drainage and there was possible history of CSF leak, and wetried to collect nasal drainage to check the beta-2 transferrin to see if therewas any evidence of spinal fluid in the nasal drainage; however, she has nothad any significant nasal drainage since her first visit, and there has notbeen enough to even collect. Her MRI did not show any fluid in her sinusesaround the mastoids. Her recent CT, reviewed by Dr. Dickins, did not showany evidence of fluid either. Her diagnosis at the ENT clinic was benignparoxysmal positional vertigo. She has a remote healed inferior floor fractureof the left orbit on CT from last year.

She is awaiting her neuropsychologic testing with Dr. Kleitsch. She has beenthrough extensive treatment with Joe Wall, the physical therapist, at the ENT


clinic, for positional vertigo; however, she states it has not helped. At thistime, her main complaints are both her dizziness and her poor memory.

Chesser added that he wanted to see if Dr. Dickins had anything else to offer in the way

of treatment. He wrote that Claimant should continue to remain off work for one month or

until their next appointment.

Dr. A.J. Zolten conducted a neuropsychological evaluation of Claimant on July 9,

2012. His report reads in pertinent part:

Impressions:1. Kathy Disney is a 59 year old female who is 1 year status post mild

closed head injury with post concussive symptoms, orthopedic pain,and vertigo. Current testing does not indicate any significantdementia process, with all measures of memory in the average range.Kathy does demonstrate some residual cognitive problems that Iwould associate with a closed head injury, including relatively weakgeneral verbal skills and impaired verbal fluency, but these arerelatively benign and likely to improve over time. Kathy alsodemonstrates some subtle motor programming problems consistentwith subcortical involvement, consistent with previous findings onMRI. These are most likely a reflection of generalized cerebralvascular disease related to her diabetes.

2. Kathy is depressed, although she is currently attempting to keep fromadmitting this. I would think that a course of a low dose of anoradrenergic antidepressant might be helpful, like Cymbalta, 30mg,Qday.

3. Kathy’s vertigo certainly sounds like Benign Positional Vertigo andshe has benefitted from treatment with the Eply maneuver.

Dr. Chesser saw Claimant again on July 16, 2012. She reported that her vertigo

had improved, and that she is only having “some minor episodes.” He reviewed Dr.

Zolten’s findings and wrote:

She is still not ready to return to work. I am not certain if she will be able toreturn to work, but I do expect some improvement over the next severalmonths, but we do not know exactly where she will end up as far as hermemory problems and her dizziness.


He added:

IMPRESSION:1. Status post concussion with mild residual cognitive deficits related to

concussion. She also has some moderate small-vessel ischemicchanges most likely related to diabetes plus or minus hypertension.This probably placed her at more risk of having problems with herconcussion.

2. Her benign positional vertigo developed after her concussion and Ithink that it is definitely related to her head injury.

3. She also has depression, which has worsened in relationship to herhead injury.

He continued to keep her off work.

On August 20, 2012, Claimant reported that some of her symptoms had improved,

but that she was still having dizziness when bending over or turning in bed. Dr. Chesser

wrote: “She is still bothered quite a bit by the positional vertigo, and it affects her activities

around the house, and it is the symptom that is preventing her from returning to work at this

time.” The doctor wanted her to return to Wall and Dickins, and stated that she “will need

to continue off work for now [the next appointment in two months].”

Dr. Dickins saw Claimant on August 30, 2012 and wrote:

We went back over things with her again. She has some degree of benignpositional vertigo that goes and comes. When this flares up she can see ourphysical therapist for a repositioning. As far as the pressure in her ears andbalance impairment I had no objectives [sic] data to substantiate that thevestibular system is involved. She will continue to follow with her neurologistregarding that problem.

A psychologist, Dr. John Faucett, evaluated Claimant on September 19, 2012 as

part of her Social Security disability determination. The report contains the following

assessment:


Although the claimant appears to be functioning above the level of MentalRetardation intellectually, she appears to have suffered some cognitivedeficits. Although she is likely to be able to perform basis work-like tasks,she does not appear to be capable fo performing the tasks of aParaprofessional.

When Claimant again saw Dr. Chesser on October 22, 2012, she reported that

physical therapy had helped calm her vertigo. She stated that she wants to return to work

at some point, but does not feel that is ready yet. Working around that house only comes

in five to ten-minute sessions because of dizziness. Claimant added that she feels that

she is not improving and that she lost her balance and fell several weeks ago, injuring her

right ankle. Chesser wrote that when she returns to him in two months, an impairment

rating will be assigned to her. He again kept her off work. On December 17, 2012,

Claimant complained to Dr. Chesser that had recently passed out and that she had fallen

three times in the past six weeks. She stated that she was feeling worse than she was six

months before. He set her up for a cardiac evaluation, stating: “this is separate from her

workman’s compensation illness.” The doctor also recommended another

neuropsychological evaluation by Dr. Zolten. He deferred the assignment of an impairment

rating and kept her off work.

Dr. Stephen Greer, who performed the cardiac evaluation on January 10, 2013, felt

that Claimant’s syncope episodes were likely related to a neurocardiogenic syncope with

pain being the trigger. On February 22, 2013, Chesser wrote that because of Claimant’s

condition, she should only work at the sedentary level.

Claimant on March 4, 2013 underwent a second evaluation by Dr. Zolten. His report

reads in pertinent part:

Impressions:


1. Kathy Disney is a 60 year old female who is now 22 months statuspost mild closed head injury. Current neuropsychological testingreveals a mixture of improvements in cognitive domains includingrecall of remote and academic information, nonverbal reasoning andnaming skills, but declines in processing speed for both simple motorskills and on the Trail Making test. These declines do not fit eitherexpectations of the recovery curve for closed head injury or anyprogressive disease process and are thought to reflect non-neuropsychological performance factors including the possibility ofdepression-related helplessness or fatigue.

2. Kathy’s current limitations are minimal but her depression symptomsare quantifiably greater than when she was last seen despite currenttreatment with an antidepressant and her subjective report that she“feels” somewhat better. The likelihood that Kathy’s depression isnow her most limiting factor should be considered and counseling toaddress her depression and her perception of helplessness might behelpful.

On March 19, 2013, Dr. Chesser wrote:

Ms. Disney completed her followup neuropsychologic testing interpreted byDr. A.J. Zolten. The test results indicated a mixture of improvement incognitive domains, with decline in processing speed for simple motor skillson the Trail Making test. There was no evidence of significant residual fromher previous concussion. The most outstanding of the followup testing wasthat she has a significant degree of depression. Although she hascomplaints of problems with her memory and cognition as well as persistentvertigo and gait instability, we have no objective test results which show thatthese symptoms are related to her previous mild concussion.

I will talk with her about a referral to try to obtain maximum improvement forher chronic depression. She does have other medical problems which areundoubtedly contributing to her symptoms, including small vessel diseasefrom hypertension and diabetes.

Her impairment rating from her previous injury is 0%.

On April 1, 2013, Claimant complained to Dr. Chesser that she suffered a fall due to a

dizzy spell. X-rays of her chest and CT scans of her head and chest were negative. He

referred her to Dr. Owings for evaluation and treatment for depression, which he stated

was “worse since last visit.” He added that she has a “[h]istory of concussion, with no


evidence on neuropsychologic testing of any persistent concussion-related cognitive

deficits.” Finally, Chesser wrote:

I think she has reached maximum medical improvement from the standpointof her concussion and there is no evidence of injury-related disability, see myrecent separate note pertaining to that. Her followup will need to be doneaccording to her insurance coverage for her diabetic small vessel diseaseand other medical problems.

On July 1, 2013, the doctor wrote a letter that reads:

Ms. Disney is followed in this clinic for neurologic problems. She hascerebral small vessel disease, related to chronic hypertension and diabetes.She has chronic vertigo and gait ataxia. She has multilevel degenerativedisk disease of the cervical and lumbar spine, and she also has chronicdepression. In addition, she has a remote history of concussion.

It is my medical opinion that she is totally and permanently disabled. Pleaselet me know if I can be of assistance.

Thereafter, on March 10, 2014, Claimant returned to Dr. Chesser and continued to

present with chronic dizziness. She was noted to have “a mild degree of anxiety and

depression, as well as chronic fatigue.” The doctor stated that he would “consult with Dr.

Dornhoffer ENT for a second opinion regarding her chronic vertigo.” Dr. Chesser on April

23, 2014 wrote:

Ms. Disney is followed in this clinic for neurologic problems, includingcerebral small vessel disease, chronic vertigo, and gait ataxia. Her cerebralsmall vessel disease is thought to be due to hypertension and diabetes. Inaddition, she has multilevel significant degenerative disk disease of thecervical and lumbar spine, and chronic depression. Her last visit here wason March 10, 2014, and her neurologic examination was abnormal due togait ataxia.

She remains totally and permanently disabled due to a combination of theseneurologic disorders. Please contact me if further information is needed.

On November 4, 2014, Dr. Richard Back, PhD, a clinical neuropsychologist, wrote

a letter to Claimant’s counsel that reads:


I have read both neuropsychological reports by A.J. Zolten, Ph.D. He seemsto minimize Ms. Disney’s cognitive dysfunction and emphasize emotionalfactors.

Addressing pertinent issues in the first report starts with Dr. Zolten’sconclusion that Ms. Disney produced valid results. This is important. Next,he states that her estimated premorbid intelligence (92) “is consistent withacademic achievement.” This is misleading. A 92 (10th percentile) is theaverage IQ of high school dropouts who then earn a GED. On the otherhand, people with 14 years of education average around an IQ of 105 (63rd

percentile). Consequently, her VCI of 83 (14th percentile) is very low. Inaddition, the WAIS-IV difference between VCI and PRI (98-83) is significantat the .05 level. It is a pattern suggestive of a left hemisphere dysfunction.He does not give a score for her PSI (Processing Speed Index). This is alittle negligent, as he does address it in his second report. The next biggestresult is Ms. Disney’s markedly impaired Verbal Fluency score (3rd

percentile). This also indicates a left hemisphere dysfunction, temporal-frontal. Her low Matrix Reasoning (WAIS-IV) performance (9th percentile)also suggest a frontal lobe dysfunction. He concludes in this first report thatshe has residual deficits consistent with a closed head injury, but minimizesthem by saying they’ll improve. He overlooks the evidence for frontal lobedysfunction. Frontal dysfunctions here result in poor linguistic processing,impaired information processing, and in occasional cases dizziness (ifcerebellum is involved). As you can see, frontal dysfunction causes the kindof problems she describes to him before testing began.

The crux of the second neuropsychological evaluation is what Dr. Zoltenstates in his “Impressions” section: she’s improving in lots of areas, but thelack of improvement “does not fit either expectations of the recovery curvefor closed head injury or, etc.” Consequently, he credits depression as theetiology of her continuing cognitive problems and recommends moretreatment. I offer the following from Neuropsychological Assessment, editedby Lezak, a leader in this field:

“Fluctuations (in scores) are most usual in patients with impairedexecutive functions (frontal lobe) and, rather than reflecting someunderlying change in brain function, they probably represent a lack ofinternal stability and self-regulation. Millis, Rosenthal, and their group(2001) reported that 22.1% of their patients improved, 15.2%declined, and 62.2% were unchanged. Improvements in verbalfluency, cognitive speed and attention, and problem solving wereseen in over 10% of the improving patients, while similar rates ofdecline were found in cognitive speed and attention, problem solving,and motor coordination in patients whose functioning had declined.


Almost 30% of one sample of moderate-to-severe TBI patientsexhibited cognitive decline over five years (Till et al., 2008).”

Frontal lobe dysfunctions are subtle, and debilitating. The MRI done on herdoes not identify the frontal lobe dysfunction because it is a poor test forchemical/electrical (metabolic) impairments in the brain. A functional MRI(fMRI) is much more accurate (and helpful).

In conclusion, we don’t know how “severe” Ms. Disney’s closed head injurywas because the MRI is not very helpful, and she wasn’t seen inneuropsychological evaluation until a year post-injury. As illustrated above,the course of recovery from brain injury varies significantly between patients.A frontal lobe dysfunction often looks like an “emotional” problem secondaryto the lack of internal stability and poor self-regulation.

Nonmedical Evidence

Claimant’s Exhibit 2 contains two items. The first is a staff evaluation of Claimant’s

performance for the Mayflower School District dated April 11, 2011. She is described as

one of the schools’s “greatest assets,” a “self-starter,” and one who has taken on new

roles, worked diligently, and serves as a positive role model. The second is a disability

determination by the Administrative Law Judge Eliaser Chaparro of the Social Security

Administration dated August 13, 2014 that finds that she has been disabled since the date

of the work-related fall.

Respondents’ Exhibit 2 is a surveillance report by Meridian Investigative Group

concerning the surveillance undertaken, and footage obtained of, Claimant in August-

September 2012.

Respondents’ Exhibit 3 consists of two DVDs that contains the surveillance footage

referenced above. The first disc contains two separate files: one of footage obtained by

the investigator while sitting in his vehicle, and the other consisting of footage obtained by

him while surreptitiously observing Claimant while he was standing nearby. The file of the


vehicular footage on this disc, which is 20 minutes, 55 seconds in length and was

apparently taken on August 3, 8 and 20, 2012, shows Claimant using her left hand/arm to

pull a rolling trash receptacle from a garage to the street. The footage also shows her

exiting her vehicle and entering different locations, including a home improvement store.

She is shown leaving the store and carrying a bag with her right hand and cradling items

in the bend of her left arm. Claimant repeats this when she arrives home and enters her

house. She is also shown entering and leaving a Subway sandwich shop.

The file on the first disc that contains footage apparently obtained by the investigator

while standing in close proximity to Claimant is six minutes, 38 seconds in length and

shows her inside the home improvement store on August 20, 2012. While 2:56 shows her

drop a piece of paper and retrieve it by bending at the waist, as the investigator’s report

mentions, what the report fails to note is that Claimant takes a stagger step at 3:01 while

doing so. Similarly, while his report reflects that the footage depicts Claimant raising her

right foot at 3:29 and bending at the knee, leaving her standing on one foot, the report fails

to reflect that Claimant while doing this was resting her forearms on a chest-high counter

for balance.

In a related vein, the second disc contains two files, one showing footage taken from

the investigator’s vehicle and the other depicting footage taken inside business

establishments. The vehicular footage, taken on September 16 and 29, 2012 and ten

minutes, seven seconds in length, shows Claimant exiting and entering a Kohl’s retail store

and a Sherwin Williams pain store. It shows her putting a boot cast on her right lower

extremity each time she exits her automobile.0


The other file on the second disc is nine minutes, three seconds in length and

shows Claimant shopping inside Kohl’s and Sherwin Williams.

Adjudication

A. Whether Claimant is entitled to additional medical treatment.

Introduction. Claimant has contended that as a result of her work-related fall, she

continues to suffer from vertigo, memory problems and cognitive impairment. She is

asking that she be allowed to treat with Dr. Dornhoffer at Respondents’ expense.

Respondents, in turn, have argued that Claimant’s alleged problems are not related to her

compensable injury, and that any treatment therefor would not be reasonable or necessary.

Standards. Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that

an employer shall provide for an injured employee such medical treatment as may be

necessary in connection with the injury received by the employee. Wal-Mart Stores, Inc.

v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). But employers are liable only for

such treatment and services as are deemed necessary for the treatment of the claimant’s

injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The claimant

must prove by a preponderance of the evidence that medical treatment is reasonable and

necessary for the treatment of a compensable injury. Brown, supra; Geo Specialty Chem.

v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The standard “preponderance of the

evidence” means the evidence having greater weight or convincing force. Barre v.

Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark.

491, 206 S.W.2d 442 (1947). What constitutes reasonable and necessary medical

treatment is a question of fact for the Commission. White Consolidated Indus. v. Galloway,


74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40

S.W.3d 333 (2001).

A claimant’s testimony is never considered uncontroverted. Nix v. Wilson World

Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The determination of a witness’

credibility and how much weight to accord to that person’s testimony are solely up to the

Commission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).

The Commission must sort through conflicting evidence and determine the true facts. Id.

In so doing, the Commission is not required to believe the testimony of the claimant or any

other witness, but may accept and translate into findings of fact only those portions of the

testimony that it deems worthy of belief. Id.

Discussion. The Arkansas Court of Appeals has held, a claimant may be entitled

to additional treatment even after the healing period has ended, if said treatment is geared

toward management of the injury. See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230,

184 S.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d

845 (1983). Such services can include those for the purpose of diagnosing the nature and

extent of the compensable injury; reducing or alleviating symptoms resulting from the

compensable injury; maintaining the level of healing achieved; or preventing further

deterioration of the damage produced by the compensable injury. Jordan v. Tyson Foods,

Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.

As the parties have stipulated, Claimant on June 15, 2011 suffered a compensable

head injury. The evidence before me clearly shows that on that date, she fell from a ladder

and struck her head on the floor, resulting in a loss of consciousness. A CT scan of her

head that took place the date of the fall confirmed that she suffered a contusion with a


subgaleal hematoma on the extracranial right occipital and posterior parietal regions. She

has undergone extensive treatment for her head injury from multiple providers. Early on,

she was diagnosed as having post-concussion syndrome. No provider has disputed this.

When Dr. Dickins, an ENT physician, saw her on July 11, 2011, he diagnosed her as

having benign paroxysmal positional vertigo. On July 20, 2011, he wrote that her vestibular

testing per the electronystagmogram showed “[s]ignificant benign positional vertigo” and

that these findings are “consistent with her symptoms and her type injury.” This diagnosis

has not been challenged by any provider, either. To the contrary, Drs. Zolten and Chesser

agreed that she has this condition. The Commission is authorized to accept or reject a

medical opinion and is authorized to determine its medical soundness and probative value.

Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay

Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999). I credit these findings.

Respondents have highlighted Dickins’latter statement that Claimant lacks objective

findings of such a condition. Chesser made such a statement ultimately as well. But

again, there is a stipulated compensable head injury, and the record does not reflect that

any doctor disputes that Claimant incurred these conditions. Moreover, a claimant is not

required to furnish objective medical evidence of her continued need for medical treatment.

Castleberry v. Elite Lamp Co., 69 Ark. App. 359, 13 S.W.3d 211 (2000); Chamber Door

Ind. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). This is thus not an impediment

to her quest for additional treatment of her vertigo.

The case at bar is very similar to Creekbaum v. Bill Davis Trucking, 2013 AWCC

145, Claim No. G010523 (Full Commission Opinion filed November 7, 2013). In that case,

the claimant was found to have suffered a compensable injury as a result of a fall inside


his truck cab. No objective findings of a head injury other than the external head wound

were established. The Full Commission wrote:

Nevertheless, although objective medical findings are required to establishthe existence and extent of an injury, objective medical findings are notrequired to establish causation. Qualserv Corp. v. Rich, 2011 Ark. App. 548.Medical evidence on causation is not required in every case. Wal-MartStores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). In thepresent matter, the claimant established a compensable injury to his head,i.e., the three-centimeter laceration to his occipital scalp. The claimantestablished a compensable injury to his neck in the form of cervical edema.Dr. Garrett, a treating physician, subsequently diagnosed post-concussionsyndrome and post-traumatic headaches. There are no medical opinions ofrecord contradicting or disputing Dr. Garrett’s diagnoses. The instantclaimant was not required to prove post-concussion syndrome or post-traumatic headaches by medical evidence supported by objective findings.The claimant therefore proved that treatment for post-concussion syndromeand post-traumatic headaches as recommended by Dr. Garrett wasreasonably necessary in connection with the compensable injuries to theclaimant’s head and neck.

In the case at bar, Claimant unquestionably has benign paroxysmal positional vertigo. The

parties stipulated that she sustained a compensable head injury–which was documented

by CT findings of a contusion and a subgaleal hematoma. Under Creekbaum, She is not

required to prove objective findings supporting the vertigo diagnosis as an element of her

establishing entitlement of treatment therefor.

Furthermore, the above standard explains why Dr. Chesser’s latter statements in

Claimant’s record do not pose a barrier to her quest for additional treatment. Again,

Claimant is wanting to treat with Dr. Dornhoffer. The sole reference in the record to him

is the March 10, 2014 note by Chesser that reads: “We will consult Dr. Dornhoffer ENT

for a second opinion regarding her chronic vertigo.” The record before me reflects that this

is one of three instances–all contemporaneous with one another–in which the doctor

describes the condition in this manner. This is different from the statement he made on


July 16, 2012: “Her benign positional vertigo developed after her concussion and I think

that it is definitely related to her head injury.”

In Cooper v. Textron, 2005 AWCC 31, Claim No. F213354 (Full Commission

Opinion filed February 14, 2005), the Commission addressed the standard when

examination medical opinions concerning causation:

Medical evidence is not ordinarily required to prove causation, i.e., aconnection between an injury and the claimant's employment, Wal-Mart v.Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999), but if a medical opinionis offered on causation, the opinion must be stated within a reasonabledegree of medical certainty. This medical opinion must do more than statethat the causal relationship between the work and the injury is a possibility.Doctors' medical opinions need not be absolute. The Supreme Court hasnever required that a doctor be absolute in an opinion or that the magicwords "within a reasonable degree of medical certainty" even be used by thedoctor; rather, the Supreme Court has simply held that the medical opinionbe more than speculation; if the doctor renders an opinion about causationwith language that goes beyond possibilities and establishes that work wasthe reasonable cause of the injury, this evidence should pass muster. See,Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).However, where the only evidence of a causal connection is a speculativeand indefinite medical opinion, it is insufficient to meet the claimant's burdenof proving causation. Crudup v. Regal Ware, Inc., 341, Ark. 804, 20 S.W.3d900 (2000); KII Construction Company v. Crabtree, 78 Ark. App. 222, 79S.W.3d 414 (2002).

After considering the evidence and after assessing the July 16, 2012 opinion of Dr.

Chesser in light of the above standard, I credit said opinion. The evidence before me

shows that Claimant had no pre-existing vertigo condition. While her medical records

preceding her June 2011 fall reflect that in 2008 and 2010 she had episodes of feeling very

weak, and Claimant at the hearing admitted that she had suffered from dizziness on one

occasion prior to the fall at issue, nothing before me reflects that this was benign

paroxysmal positional vertigo–the condition that Dr. Chesser would like Claimant to see Dr.


Dornhoffer concerning. Per DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 2035 (30th ed.

2003) (hereinafter “DORLAND’S”),“vertigo” is defined as:

an illusory sense that either the environment or one’s own body is revolving;it may result from diseases of the inner ear or may be due to disturbancesof the vestibular centers or pathways in the central nervous system. Theterm is sometimes erroneously used to mean any form of dizziness.

In turn, “benign paroxysmal positional vertigo” is defined there as “recurrent positional

vertigo and nystagmus occurring when the head is placed in certain positions such as with

one ear down, and relieved by returning to an upright position.” Id. Claimant’s medical

records in evidence that pre-exist her work-related fall do not reflect such symptoms, let

alone such a diagnosis.

I am well aware of the following exchange that occurred during the cross-

examination of Claimant at the hearing:

Q. Okay. And you had only treated for vertigo or dizziness, you told meonce 15 years before this event, do you remember telling [me that]?

A. Yes.

Q. Because I asked you specifically if you’d ever had vertigo ordizziness, right?

A. Yes, um-hm.

Q. And you’d not ever had any other vertigo, fainting or dizziness beforethat, is that correct?

A. Yes, I said, that, but I–I didn’t recall passing out with falling off of aladder.

But Claimant was asked if she was treated for vertigo OR dizziness–it was framed in the

disjunctive. And per DORLAND’S, dizziness is not at all synonymous with vertigo. Moreover,


nothing indicates that she was suffering from such contemporaneously with the work-

related fall.

Dr. Chesser on March 19, 2013 wrote: “Although [Claimant] has complaints of

problems with her memory and cognition as well as persistent vertigo and gait instability,

we have no objective test results which show that these symptoms are related to her

previous mild concussion.” This statement, made after he received the findings of Dr.

Zolten’s second neuropsychological evaluation, was near in time to Chesser characterizing

the vertigo as “chronic.” But again, Claimant does not have to present objective findings

concerning causation. The evidence before me instead preponderates that Claimant’s

benign paroxysmal positional vertigo is causally related to her work-related fall of June 15,

2011.

At the hearing, Claimant testified that she still suffers from this condition. I credit

this, and note that it is corroborated by her medical records in evidence. In sum, I find that

Claimant has proven by a preponderance of the evidence that she is entitled to additional

treatment of her compensable head injury in the form of evaluation and treatment of her

benign paroxysmal positional vertigo by Dr. Dornhoffer.

B. Whether Claimant is entitled to additional temporary total disability benefits.

Introduction. Claimant was paid temporary total disability benefits through January

25, 2012. In this action, she is seeking additional temporary total disability benefits from

January 26, 2013 to April 1, 2013. Respondents have argued that Claimant is not entitled

to such benefits.

Standards. The compensable injury to Claimant’s head is unscheduled. See Ark.

Code Ann. § 11-9-521 (Repl. 2012). An employee who suffers a compensable


unscheduled injury is entitled to temporary total disability compensation for that period

within the healing period in which he has suffered a total incapacity to earn wages. Ark.

State Hwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The

healing period ends when the underlying condition causing the disability has become

stable and nothing further in the way of treatment will improve that condition. Mad Butcher,

Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

Discussion. The ending of payment of temporary total disability benefits in this case

was contemporaneous with Dr. Dickins’ findings on January 16, 2012, which read in

pertinent part:

Our vestibular evaluation early on revealed no major abnormalities, butwe persisted in working with her for positional dizziness. We did thisbased on her subjective symptoms more than objective findings.

Because of her continued problem we elected to repeat her vestibular test.She returned on 01-12-12. Her electronystagmogram was absolutelynormal. Her dynamic posturography showed some difficulty with herbalance, but primarily in the easier portions of the test. In the more difficultportions, she was absolutely normal.

Ms. Disney continues with symptoms of movement induced dizziness.However, there are no objective findings that go along with this. I am afraidthat our treatment has had no impact on her symptoms and I really do notthink we have much to offer her. Although her symptoms would suggest thatshe would have limited ability to work I cannot back her symptoms up withany objective findings.

(Emphasis added) I find the highlighted language interesting in light of the following

statement made by Dr. Dickins on July 20, 2011:

IMPRESSION:Significant benign positional vertigo with a positive Hallpike on the right sideas an isolated finding.

(Emphasis added)


As discussed above, Dr. Dickins’ opinion that he cannot back up the diagnosis of

benign paroxysmal positional vertigo with objective findings is not a barrier to her obtaining

benefits therefor. But even he agreed on January 16, 2012 that “her symptoms would

suggest that she would have limited ability to work.” Moreover, the medical evidence

before me shows that she continued to have severe problems with this condition after the

cessation of temporary total disability benefits. On May 1, 2012, Dr. Roach gave Claimant

restrictions that included no climbing, frequent lifting or bending or prolonged standing.

Once Dr. Chesser first saw her, on May 16, 2012, he kept her off work because of her

head condition until April 1, 2013, when he found that she had reached maximum medical

improvement. I credit this. He wrote on August 20, 2012 that the vertigo “is the symptom

that is preventing her from returning to work at this time.” I credit this as well. On October

22, 2012, she reported that the condition had caused to her fall and injure her ankle. This

is corroborated by the contemporaneous surveillance footage in evidence, which shows

Claimant wearing a boot cast on her right lower extremity.

Hoskins gave credible testimony that Claimant, her co-worker for the Mayflower

School District, was a “powerhouse” before the work-related fall. Thereafter, however,

Hoskins noted that Claimant was unsteady on her feet and appeared that she might fall.

Claimant’s job for the school district entailed her working with elementary-age children

throughout the day, helping them with, inter alia, math. After consideration of the evidence,

I find that it establishes that she suffered a total incapacity to earn wages from January 26,

2012 to April 1, 2013. I thus find that Claimant has proven by a preponderance of the

evidence her entitlement to additional temporary total disability benefits for this period.


C. Whether Claimant is entitled to a controverted attorney’s fee.

One of the purposes of the attorney's fee statute is to put the economic burden of

litigation on the party who makes litigation necessary. Brass v. Weller, 23 Ark. App. 193,

745 S.W.2d 647 (1998). Respondents have controverted Claimant’s entitlement to

additional temporary total disability benefits. Claimant’s counsel is thus entitled to a

controverted attorney’s fee on this amount, pursuant to Ark. Code Ann. § 11-9-715 (Repl.

2012).

CONCLUSION AND AWARD

Respondents are directed to furnish/pay benefits in accordance with the findings of

fact and conclusions of law set forth above. All accrued sums shall be paid in a lump sum

without discount, and this award shall earn interest at the legal rate until paid, pursuant to

Ark. Code Ann. § 11-9-809 (Repl. 2012). See Couch v. First State Bank of Newport, 49

Ark. App. 102, 898 S.W.2d 57 (1995).

IT IS SO ORDERED.

________________________________Hon. O. Milton Fine IIAdministrative Law Judge

before the arkansas workers’ compensation … · 2/17/2015 · disney - claim no. g105141 3...

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