BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G SHIRLEY SEVERSON, Employee CLAIMANT. SUGAR CREEK ELEMENTARY, Employer RESPONDENT

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G SHIRLEY SEVERSON, Employee CLAIMANT SUGAR CREEK ELEMENTARY, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, Carrier RESPONDENT OPINION FILED SEPTEMBER 6, 2017 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Claimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. Respondents represented by CURTIS L. NEBBEN, Attorney, Fayetteville, Arkansas. STATEMENT OF THE CASE On August 9, 2017, the above captioned claim came on for a hearing at Springdale, Arkansas. A pre-hearing conference was conducted on April 12, 2017, and a pre-hearing order was filed on that same date. A copy of the pre-hearing order has been marked Commission's Exhibit #1 and made a part of the record without objection. At the pre-hearing conference the parties agreed to the following stipulations: 1. The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The employee/employer/carrier relationship existed among the parties on or about May 24, The respondents have controverted this claim in its entirety. At the time of the hearing the parties agreed to stipulate that claimant earned sufficient wages to entitle her to compensation at the rates of $ for total disability benefits and $ for permanent partial disability benefits. At the pre-hearing conference the parties agreed to litigate the following issues: 1. Compensability of injury to claimant s head and left shoulder on May 24, 2016.

2 2 2. Medical. 3. Temporary total disability benefits. 4. Attorney s fee. At the time of the hearing claimant chose to reserve as an issue compensability of an injury to her shoulder. Claimant also clarified that the requested dates of temporary total disability include benefits from the date of the injury through June 17, The claimant contends that on May 24, 2016, she was knocked down while working and injured her head and left shoulder. She is having cognitive difficulties from the head injury. She contends she is entitled to medical, temporary total disability benefits, and an attorney s fee. Claimant reserves all other issues. The respondents contend the claimant did not sustain an injury arising out of and in the course of her employment as defined by the Arkansas Workers Compensation Act. The claimant report an incident on May 24, She was seen by Dr. Berestnev at Arkansas Occupational Health Clinic on May 24, 2016; June 3, 2016; and June 17, There were no measurable and objective findings in the reports of Dr. Berestnev and he released the claimant to return to work without restrictions on June 17, From a review of the record as a whole, to include 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, the following findings of fact and conclusions of law are made in accordance with A.C.A : FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at a pre-hearing conference conducted on April 12, 2017 and contained in a pre-hearing order filed that same date are hereby accepted as fact. 2. The parties stipulation that claimant earned sufficient wages to entitle her to

3 3 compensation at the rates of $ for total disability benefits and $ for permanent partial disability benefits is also hereby accepted as fact. 3. Claimant has met her burden of proving by a preponderance of the evidence that she suffered a compensable injury to her head on May 24, Respondent is liable for payment of all reasonable and necessary medical treatment provided in connection with claimant s compensable injury. 5. Claimant has failed to prove by a preponderance of the evidence that she is entitled to temporary total disability benefits beginning May 25, 2016 and continuing through June 17, FACTUAL BACKGROUND The claimant is a 78-year-old woman who graduated from high school and attended one year of business school in Omaha, Nebraska. Claimant received a certificate in junior accounting. Claimant worked as a teacher s assistant for eleven years. Her job duties included assisting students when they went to gym, art, or music. Claimant would take the teacher s place in order to allow the teacher to prepare for the next class. While working at May Jones Elementary, the claimant worked with the general student population and while she was working at the respondent, Sugar Creek Elementary, she worked in the special education department. Claimant testified that she only remembers the events of May 24, 2016 through hearsay. Claimant testified that on that date she was hit in the head by a ball and that she does not remember anything else before she was taken home by her husband on December 22, 2016, from Springwoods Behavioral. While claimant believed that she was hit in the head by a ball, the initial medical records from May 2016 indicate that claimant was accidentally pushed by a student,

4 4 causing her to fall to the gym floor and strike the back of her head. This history is also contained in a recorded statement claimant gave to the carrier on June 8, After this incident the claimant was sent later that day for medical treatment with Dr. Berestnev. Dr. Berestnev s report of May 24, 2016 indicates that claimant s chief complaint was a head injury which occurred after she fell and struck the back of her head. Dr. Berestnev diagnosed claimant s condition as a contusion of an unspecified part of the head as well as low back pain. Dr. Berestnev prescribed medication and released claimant to return to regular work duties. Claimant was again evaluated by Dr. Berestnev on June 3, 2016, for complaints of head, neck, and back pain. Dr. Berestnev ordered physical therapy for the claimant s back complaints and prescribed medication as well as placing a 20-pound lifting restriction on her. Claimant s final visit with Dr. Berestnev occurred on June 17, 2016, at which time he noted that claimant was healing well and she should continue performing her home exercises. He also noted that claimant was released to regular work status and was released from his care. In August 2016 the claimant apparently returned to work for respondent for two or three days before she developed some issues driving to work. Testifying at the hearing was Richard Severson, claimant s husband of 57 years. Severson testified that claimant worked on a Thursday and Friday in August of 2016, but that on both Monday and Tuesday of the next week he received a phone call from the school asking whether claimant had left for work. Severson indicated that claimant had left their home at 6:00 a.m. Claimant did not show up at the school on Monday until 10:00. On Tuesday, an alert was put out for claimant and she was discovered in Gravette, about 15 miles from where she was supposed to be. Claimant had pulled her car into a gas station and straddled a cement pillar. Claimant was ticketed and not permitted to drive home. Claimant has not

5 5 worked since that date. Following her release by Dr. Berestnev on June 17, 2016, the claimant underwent an MRI scan of the brain on June 22, The MRI scan indicates that claimant has a history of memory loss and the scan was read as showing (1) no acute territorial infarct or intracranial hemorrhage, and (2) moderate atrophy and changes of chronic small vessel ischemic disease and a small chronic right cerebellar infarct. Medical records indicate that after this date claimant was evaluated at the emergency room for complaints of numbness in her head. The first evaluation occurred on August 12, Claimant was evaluated by Dr. Franklin Mayhue and by teleconference by Dr. Emily Gilmore, a neurologist. Dr. Gilmore s impression was that claimant s complaints were due to an underlying/depressive disorder. She related those problems to a decrease in claimant s medication and recommended that she receive follow-up care from her family provider, Ashley Goss, APRN. The medical records indicate that claimant was again seen at the emergency room on August 14, 2016, for complaints of leg pain after she lost her balance and fell and again on August 17, 2016, for complaints of dizziness. On August 23, 2016, claimant was seen at NWAMC Behavioral Health by Judy Smith-Dandridge. Smith-Dandridge s report of that date indicates that claimant had been referred for evaluation of depression and anxiety. The report indicates that claimant had fallen at the end of the school year and struck the back of her head and had since developed problems with her memory which had progressively worsened. The report indicates that claimant s husband reported that she suffered from spells during which time claimant seemed to not be there. Smith-Dandridge also noted: As I interviewed the patient, I was aware of the short lapses which seemed to be similar to a seizure. Smith- Dandridge diagnosed claimant s condition as a single current episode of major depressive disorder without psychotic features and anxiety associated with depression. It was Smith-

6 6 Dandridge s opinion that claimant would benefit from individual therapy. On December 13, 2016, claimant was again evaluated at the emergency room with complaints of an altered mental status. The report indicates that claimant s family reported claimant having increased memory loss and cognitive issues since a head injury in May of The report noted that the claimant was pleasant but confused at times. The report indicates that claimant has worsening dementia. On December 15, 2016, claimant was seen by Dr. Brown for a consultation regarding delirium versus dementia. Dr. Brown noted that claimant had memory problems since she was hit in the head in May 2016 and that her condition had worsened over the last several months and past couple of weeks. Dr. Brown noted that a CT of the claimant s brain showed nothing acute as did an MRI scan which showed chronic small bilateral cerebellar infarcts but no acute lesions. Dr. Brown diagnosed claimant s condition as memory loss and dementia consistent with Alzheimer s disease. He recommended that claimant be treated with medication. On this same date claimant was admitted into Springwoods Behavioral where she stayed until she was discharged on December 21, While at Springwoods claimant was evaluated by Dr. Ronald McInroe, Psy.D. Dr. McInroe s report of December 17, 2016 indicates that claimant was referred for a neuropsychological screening evaluation to determine if she was experiencing a significant level of cognitive dysfunction. Dr. McInroe noted that claimant had made numerous comments maintaining a delusion that she was working at her previous occupation. Dr. McInroe s testing determined that claimant was suffering from impaired general cognition; processing speed; verbal reasoning; visual reasoning; verbal memory; and visual memory. Dr. McInroe noted that claimant s overall level of functional ability for day-to-day tasks was in the extremely low range. Dr. McInroe diagnosed claimant s condition as delusional disorder along with major depressive disorder; mild memory impairment; and generalized anxiety disorder. It was his opinion that claimant should not be permitted to drive or provide care for herself.

7 7 The discharge summary from Springwoods dated December 21, 2016 indicates that claimant continued to have the delusion that she was at school teaching/preparing things even though she was in a hospital. On January 16, 2017, claimant was evaluated by Dr. Sarah Downing at NWAMC Behavioral Health. Dr. Downing performed numerous neurobehavioral tests on the claimant and did not find any ongoing cognitive symptoms of a head injury. Dr. Downing s diagnosis was that claimant suffered from major depression with generalized anxiety. Finally, claimant underwent a neuropsychological exam by Dr. Richard Back on May 25, Dr. Back s diagnosis of claimant s condition was a major neurocognitive disorder due to head injury. On that date, Dr. Back recommended that claimant undergo a PET scan of the brain. This scan was performed on June 2, In his deposition of July 10, 2017, Dr. Back stated that the findings of the PET scan were consistent with dementia, especially frontal lobe involvement. Claimant has filed this claim contending that she suffered a compensable injury to her head on May 24, She seeks payment of related medical treatment as well as temporary total disability benefits and a controverted attorney fee. ADJUDICATION Claimant contends that she suffered a compensable injury to her head on May 24, 2016 when her head struck the gym floor while she was working as a teacher s assistant. Claimant s claim is for a specific injury identifiable by time and place of occurrence. In order to prove a compensable injury as the result of a specific incident that is identifiable by time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an injury arising out of and in the course of employment; (2) the injury caused internal or external harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings establishing an

8 8 injury; and (4) the injury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. After reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, I find that claimant has met her burden of proving by a preponderance of the evidence that she suffered a compensable injury to her head on May 24, Specifically, I find that claimant suffers from dementia which was caused by the accident on May 24, First, I find based upon the evidence presented that claimant s injury occurred out of and in the course of her employment with respondent and that it was the result of a specific incident identifiable by time and place of occurrence. While claimant testified at the hearing that she was struck in the head by a ball, the documentary evidence in the form of medical reports indicates that claimant actually struck her head on the gym floor on May 24, Likewise, claimant in her recorded statement to the carrier reported that her injury occurred when she struck the back of her head on the gym floor while playing with a ball with a student. There is no indication that claimant was not performing job duties at the time of this incident and based upon the totality of the evidence presented I find that claimant s injury arose out of and in the course of her employment with respondent and that it was the result of a specific injury identifiable by time and place of occurrence. I also find that claimant s injury resulted in disability or the need for medical treatment. Claimant was evaluated by Dr. Berestnev on three separate occasions before he released her from his care. Claimant subsequently sought additional medical treatment from various other physicians. Dr. Berestnev stated in each of his medical reports that the cause of claimant s problems appeared to be related to her work activities. Accordingly, based on the foregoing, I find that claimant s injury resulted in the need for medical treatment, thus satisfying that element of compensability. The primary issue in this case involves whether claimant has offered objective

9 9 findings establishing an injury to her head. In order to prove a compensable injury, claimant must offer objective findings establishing an injury. Objective findings are those findings which cannot come under the voluntary control of the patient. A.C.A (16)(A)(i). Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. A.C.A (16)(B). However, there is no requirement that medical testimony be based solely or expressly on objective findings; instead, the statute only requires that the medical evidence of injury be supported by objective findings. Wayne Smith Trucking, Inc. v. McWilliams, 2011 Ark. App. 414, 384 S.W. 3d 561. Claimant has undergone some neurological psychological testing which reveals cognitive limitations. However, neuropsychological testing standing alone is not sufficient evidence of a brain injury; instead, there must be some other objective evidence of an injury. Watson v. Tayco, Inc., 79 Ark. App. 250, 86 S.W. 3d 18 (2002). The documentary evidence indicates that claimant has undergone multiple MRI scans and CT scans. The first MRI of claimant s brain took place on June 22, 2016 and revealed no acute territorial infarct or intracranial hemorrhage. However, it did reveal moderate atrophy and changes of chronic small vessel ischemic disease and small chronic right cerebular infarct. Likewise, this same finding was noted on a CT scan of claimant s brain taken on August 17, 2016 which revealed periventricular white matter disease consistent with small vessel ischemic change. As previously noted, claimant was evaluated by Dr. Richard Back on May 25, 2017, and he ordered a PET scan. Dr. Back in his deposition testified that a PET scan is a more elaborate and efficient neuroimaging test than either a CAT scan or MRI scan. The PET scan was read as revealing the following: 1. Frontal lobe predominant cerebral atrophy with secondary prominence of the frontal extra-axial spaces. 2. Hypometabolism of the anterior cingulum, anterior frontal lobes, and anterior temporal lobes compatible with

10 10 frontotemporal dementia. These are objective findings and based upon those findings Dr. Back in an addendum to his report of May 25, 2017, stated: ADDENDUM: Ms. Severson was administered a PET/CT on 6/2/17, as recommended. It is attached. My conclusion is that Ms. Severson suffered a frontal lobe injury at school, then has developed dementia. I based this on two pieces of information. First of all, according to her husband and daughter, Ms. Severson was functioning normally at home and work before the injury. If she had been declining with dementia before the injury, they would have noticed and/or her employer would have been concerned. Secondly, an article in the journal Brain Injury reviewed articles concerning the lateoccurring effects of Traumatic Brain Injury (TBI). It found that a TBI increased the changes of a patient having dementia (later) five-fold. It also found that the increased risk factor for a psychotic disorder was two to five times. (Emphasis added.) At his deposition, Dr. Back went on to indicate that he was willing to state within a reasonable degree of neuropsychological certainty that claimant developed dementia as a result of hitting her head on May 24, Q. Can you say within a reasonable degree, I guess, of neuropsychological certainty that that s what happened in this case or is that just a hypothesis on your part? A. Yeah. That would be - - yeah, that would be a theory based on what happens in most cases, but there s no - - there s the neuropsychological testing she had in the hospital that suggests or indicates frontal lobe involvement. Q. Obviously, frontal lobe involvement based on the PET scan and her diagnostic findings. Is that correct? A. Correct. *** Q. Are the current neuropsychological problems Ms. Severson is currently suffering from, are they dementia problems? A. Well, the way that I see it was that she was functioning normally until she got struck in the head and it s been a significant decline since then. I ve testified in one other

11 11 case or more, maybe two, where the literature shows that someone over 65 is particularly susceptible in a head injury if they slip and fall or the way they get a head injury to developing dementia. They are five times as likely to develop dementia. *** Q. Okay. You cannot state with a reasonable degree of neuropsychological certainty that the incident of May 24, 2016, caused Ms. Severson s dementia A. Well, I would say that I can because she functioned normally before it happened and within six months she was delusional. I mean, even before that she got lost. I m kind of scattering around here, but my answer is yes. I think that the injury created the dysfunction and she s cascaded downhill since. Q. Is that based entirely on the fact that allegedly before May 24, 2016, she was having no issues and after or at some point in time she developed those afterwards? A. Yes. Dr. Back s understanding that claimant was functioning normally before the accident of May 24, 2016 is supported by the testimony of several witnesses. Testifying at the hearing was Angela Woods, an RN who worked with claimant at the school. Woods testified that prior to May 2016 the claimant was always spunky, full of life, very organized, able to herd all the children in her classroom and keep up with them out on the playground just the same, very sharp, very - - very in tune to her special-needs kids. Woods testified that since the accident there is an extreme difference and that now it is as if she is talking to a completely different person. Woods testified that claimant s affect was flat, angry, confused, agitated, just not Shirley. Also testifying at the hearing was Constance Hinton, claimant s neighbor for four years. Hinton testified that she sees claimant several times a month and that they sit in church together. Hinton testified that prior to the accident claimant and other neighbors would meet a couple of times each month and play cards. Hinton testified that claimant

12 12 always kept score and that she was always impressed as to how quickly claimant could add up the score without a calculator. Hinton testified that claimant was very skilled with strategy during the games. Hinton testified that after the accident claimant was very confused and could not play cards anymore because she could not remember the rules of the game. Finally, also testifying at the hearing was Richard Severson, claimant s husband. Severson testified that prior to the accident claimant had no difficulty driving and that after the accident she got lost on two occasions which was previously noted. Severson testified that before the accident claimant was coherent with no cognitive issues. He testified that claimant was able to cook food without a recipe but that since the accident she has to follow a recipe and the food does not turn out as well. Severson also testified that prior to the injury claimant was able to do housework and pay all of the bills by herself on the computer. Now, they have to pay the bills together. In summary, the PET scan contains objective findings involving claimant s brain. Those findings establish a diagnosis of dementia and it is Dr. Back s opinion that this dementia was a direct result of the accident which occurred on May 24, I find that the opinion of Dr. Back is credible and entitled to great weight under the circumstances of this case. Accordingly, I find that claimant has offered objective evidence establishing a compensable injury to her head. Based on the foregoing reasons, I find that claimant has satisfied all elements of compensability and find that she has met her burden of proving by a preponderance of the evidence that she suffered a compensable injury to her head on May 24, Having found that claimant suffered a compensable injury, respondent is liable for payment of all reasonable and necessary medical treatment provided in connection with claimant s compensable injury. Notably, Dr. Back testified at his deposition that he did not recommend any treatment for the claimant. Dr. Back testified that from a

13 13 neuropsychological standpoint there was no treatment that would be helpful. Q. What treatment at all did you recommend for Ms. Severson? A. None. Q. From a neuropsychological standpoint, is there any treatment you would recommend or could recommend for Ms. Severson? A. No. At her - - well, at her age, the brain is not very viable and it s just - - I mean I ve looked at all the things, all the cognitive retraining and all the, you know, things out there that are marketed, and if you look at the research, nothing unfortunately is helpful. The final issue for consideration involves claimant s request for temporary total disability benefits. In order to be entitled to temporary total disability benefits, claimant has the burden of proving by a preponderance of the evidence that she remains within her healing period and that she suffers a total incapacity to earn wages. Arkansas State Highway & Transportation Department v. Breshears, 272 Ark. App. 244, 613 S.W. 2d 392 (1981). Here, claimant requests temporary total disability benefits from the date of her injury through June 17, 2016, the date she was released by Dr. Berestnev. While Dr. Berestnev did release claimant from his care as of that date and also indicated that claimant could perform regular work duties, Dr. Berestnev had also indicated that claimant could perform regular work duties as of the time of his initial evaluation on May 24, Dr. Berestnev did place a 20-pound lifting restriction on claimant as of June 3, 2016, but he did not indicate that claimant suffered a total incapacity to earn wages. In short, while claimant may have been in a healing period, I do not find that she suffered a total incapacity to earn wages between the date of her injury and June 17, 2016.

14 14 AWARD Claimant has met her burden of proving by a preponderance of the evidence that she suffered a compensable injury to her head on May 24, Respondent is liable for payment of all reasonable and necessary medical treatment provided in connection with claimant s compensable injury. Pursuant to A.C.A (a)(1)(B)(ii), attorney fees are awarded only on the amount of compensation for indemnity benefits controverted and awarded. Here, no indemnity benefits were controverted and awarded; therefore, no attorney fee has been awarded. Instead, claimant s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A (a)(4). The respondents are ordered to pay the court reporter s charges for preparing the hearing transcript in the amount of $ IT IS SO ORDERED. GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE