Opinion
CLAIM NO. E702191
OPINION FILED AUGUST 25, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JIM R. BURTON, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by WENDY S. WOOD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
[2] The claimant appeals a decision of the Administrative Law Judge filed on February 17, 1999. The Administrative Law Judge conducted a hearing in Claimant's case on November 13, 1998, on the issues of compensability (specifically causal connection) and reasonable and necessary medical treatment. The Judge held that the case was within the Commission's jurisdiction, that claimant had suffered a compensable cervical disc injury, that claimant failed to prove by a preponderance of the evidence that his cerebral hematomas were causally related to his compensable injury or treatment for that injury, and that respondent is not liable for the treatment of his cerebral hematomas and subsequent care by Dr. Tonymon because those treatments were not reasonable and necessary for care of claimant's compensable injury. The Judge refused to consider claimant's proffered evidence of a checkmark letter completed by Dr. Tonymon. It is our opinion, based upon a de novo review of the entire record, that the letter was properly excluded and, even if it was entered into the record, it carries little or no credibility and cannot bolster claimant's case enough to warrant a finding of compensability. Dr. Tonymon's treatment was not reasonable and necessary treatment of, or causally related to, claimant's compensable injury. The Administrative Law Judge's decision is affirmed.Claimant has appealed, arguing that he proved by a preponderance of the evidence that Dr. Tonymon's care was reasonable and necessary treatment for claimant's compensable neck injury, and that the proffered checkmark letter was wrongly excluded and should be considered by the Commission. He argues that his letter was timely proffered to both respondent and the Commission and that it provides decisive evidence in support of claimant. Respondent contends that the letter was correctly excluded based upon claimant's discovery delays, non-compliance with Judge Hogan's directives, the fact that the timing of claimant's notice of the letter to respondent allowed no time prior to the hearing to cross-examine Dr. Tonymon in regard to the information in the letter, and that the letter does not fully or correctly relate the facts necessary for the doctor to form an opinion. Further, respondent argues that, with or without the letter, there is not a preponderance of the evidence to prove a causal connection between claimant's cervical injury and his subdural hematomas or that Dr. Tonymon's treatment of claimant was reasonable and necessary treatment of the cervical injury.
On October 27, 1998, claimant notified respondent and the Administrative Law Judge of his intention to offer the checkmark letter filled out by Dr. Tonymon dated October 20, 1998. Respondent objected by letter to the judge, dated October 28, 1998. Respondent outlined the delays experienced in regard to scheduling and discovery deadlines in this case, occasioned by claimant's repeated statements that he intended to schedule the deposition of Dr. Tonymon in regard to the cisternogram results and repeated failure to do so. Respondent also asserted that there was insufficient opportunity to cross-examine the witness as represented by the report due to claimant's timing, false assurances and delays. On November 3, 1998, the judge notified the parties that respondent's objections to the report were sustained and that the report would be proffered.
Section 11-9-705(a)(1) of the Arkansas Code Annotated states that the "Workers' Compensation Commission shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter, but may make such investigation or inquiry, or conduct the hearing, in a manner as will best ascertain the rights of the parties." The statute goes on to require that all evidence be presented at the initial hearing, with a further hearing for the introduction of additional evidence being available only at the discretion of the hearing officer or commission. Ark. Code Ann Sec. 11-9-705(C)(1). The statute states requirements for the introduction of medical reports or testimony at the hearing:
Both parties have cited numerous cases for the following proposition: "In order to submit new evidence, the claimant must show that the new evidence is relevant; that it is not cumulative; that it would change the result of the case; and that he was diligent in presenting the evidence to the Commission." Nixon v. Penntex Construction Co., Inc., 1999 ARKANSAS WORKERS' COMPENSATION COMMISSION 390 Full Workers' Compensation Commission, Opinion Filed 1996 (WCC No. ( E714417) ( citing Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960)); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982)). These cases elucidate the importance of exercising diligence in preparing a claimant's case for hearing. However, they concern the consideration of evidence proffered to the record after the hearing, not two weeks prior to it, and thus are irrelevant to this opinion.
(2)(A) Any party proposing to introduce medical reports or testimony of physicians at the hearing of a controverted claim shall, as a condition precedent to the right to do so, furnish to the opposing party and to the commission copies of the written reports of the physicians of their findings and opinions at least seven (7) days prior to the date of the hearing. . . .
(B) If the opposing party desires to cross-examine the physician, he should notify the party who submits a medical report to him as soon as practicable, in order that he may make every effort to have the physician present for the hearing.
(3) A party failing to observe the requirements of this subsection may not be allowed to introduce medical reports or testimony of physicians at a hearing, except in the discretion of the hearing officer or the commission. Ark. Code Ann Sec. 11-9-705(c).
Claimant and respondent completed pre-hearing questionnaires and received a pre-hearing order from the Administrative Law Judge. The order, dated September 2, 1998, stated specifically:
The parties are bound by the exhibits and witnesses disclosed at the pre-hearing conference. . . . Any additional medical reports (received after the conference and not attached to the questionnaire) must be exchanged at least seven days prior to the hearing pursuant to A.C.A. Sec. 11-9-705(c).
. . .
Evidence, either in the form of depositions, documentary evidence or testimony of witnesses, not disclosed through the pre-hearing questionnaire or set forth in the terms of this order shall not be considered as evidence at the hearing, unless prior permission of the Commission is obtained and for good cause shown.
Despite claimant's attorneys less than desirable behavior, the procedures mandated by Section 705(a)(2)(A) were met by claimant's provision of copies of the evidence more than seven days prior to the judge and respondent
However, claimant did not meet the requirement of the next subsection, Ark. Code Ann. Sec. 11-9-705(c)(2)(B). The statute requires the respondent to notify the claimant as to his desire to cross-examine so that the claimant can obtain the doctor's presence at the hearing. The section of the statute must be construed to require the party submitting the report to "make every effort to have the physician present for the hearing" upon notice from the opposing party. To hold otherwise would render the subsection absurd. Certainly, if the opposing party was the party intended by the statute to make the "effort" to have the physician available, the notice to the submitting party — in and of itself — would be unnecessary. However, the notice would be crucial to the submitting party's ability "to make every effort" to have the physician at the hearing.The Arkansas Workers Compensation Act is to be strictly construed, otherwise stated as the "construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes nothing that is not expressed, takes the language used in its exact and technical meaning and admits no equitable considerations or implications." Golden v. Westark Community College, Full Workers' Compensation Commission, Opinion Filed August 14, 1996 (WCC No. E402532) (citing Ark. Code Ann. § 11-9-704(c)(3) (Cumm. Supp. 1995); Black's Law Dictionary, at 283; see also, Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); (1993); Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980); Arkansas State Highway Commission v. S.W. Bell, 206 Ark. 1099, 178 S.W.2d 1002 (1944) (McFaddin, J., dissenting). "Moreover, statutes are not to be so strictly construed that the interpretation leads to absurd results or defeats the plain purpose of the law." Golden, supra, citing Thomas v. State, supra; Hice v. State, supra; Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985)). See also Davis v. Your Employment Services, Inc., Full Workers' Compensation Commission, Opinion Filed December 5, 1996 (WCC No. E415603); Smith v. Gerber Products, Full Workers' Compensation Commission, Opinion Filed April 24, 1995 (WCC No. E312569); Dugan v. Jerry Sweetser, Inc., Full Workers' Compensation Commission, Opinion Filed June 28, 1995 (WCC No. E316904).
The Supreme Court stated the following rules of statutory construction in regard to a workers' compensation case in Nelson v. Timberline Int'l, Inc., 332 Ark. 165, 176, 964 S.W.2d 357 (1998):
In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning. . . . The basic rule of statutory construction, to which all other interpretative guides must yield, is to give effect to the intent of the legislature. . . . In attempting to ascertain legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, legislative history, and other appropriate matters that shed light on the matter. . . .
See also Minnesota Mining Manufacturing v. Baker, 337 Ark. ___, ___ S.W.2d ___ (March 25, 1999) (workers' compensation statute of limitation issue).
It is our opinion that the statute required the claimant to produce the physician, Dr. Tonymon, at the hearing, upon receipt of notice that respondent desired the opportunity to cross-examine him. To construe a different meaning would be to avoid the obvious reading of the subsection and to render the subsection absurd.
The record indicates that respondent was clear in its desire to cross-examine Dr. Tonymon. However, it is not clear that respondent was aware that the statute gave it the ability to compel claimant to obtain Dr. Tonymon's appearance at the hearing. Nonetheless, claimant did not fulfill his duty under the statute to obtain Dr. Tonymon's presence at the hearing, upon notice of respondent's desire to cross-examine him. The statute states that the hearing officer has the discretion to refuse the introduction of reports which do not meet the requirements of the subsection, which includes Section 705(c)(2)(B).
The Administrative Law Judge also has the ability to refuse entry of the evidence as a sanction under Arkansas Rule of Civil Procedure 37(b) and the Commission`s Rule 16. The Commission and the administrative law judges have "the authority to make such orders and to impose such sanctions as are reasonably necessary to exercise our statutory powers and perform our statutory duties."Francis v. Daily Lumber Company, Full Workers' Compensation Commission, Opinion Filed March 16, 1995 (WCC No. E215360) ( citing Harrington Construction Co. v. Williams, 45 Ark. App. 126, 872 S.W.2d 426 (1994) and Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988)). The Administrative Law Judge required that evidence not included in the pre-hearing questionnaire responses and the order would not be considered without permission and a showing of good cause. The record shows no good cause for claimant's failure to depose Dr. Tonymon as repeatedly promised or for claimant's delay in procuring the statement of Dr. Tonymon in the checkmark letter. In light of claimant's discovery delays, the judge was justified in refusing to consider the proffered letter. Furthermore, the lack of reliability and credibility of the letter also supports the action of the judge.
In Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988), the court upheld the Administrative Law Judge's dismissal of claimant's case where he failed to respond to interrogatories after two and one-half months, despite an extension of time. "ARCP Rule 37(b) provides that sanctions may be imposed against a party who is disobedient to those orders, and dismissal of an action is one of the sanctions authorized. The Commission must, of course, administer its rules subject to basic rules of fair play." Brewer v. Tyson Foods, Inc., 10 Ark. App. 88, 661 S.W.2d 423 (1983).
In Francis v. Daily Lumber Company, Full Workers' Compensation Commission, Opinion Filed March 16, 1995 (WCC No. E215360), the Commission dismissed the claimant's case with prejudice because of his repeated refusal to answer discovery requests, including attending depositions and answering requests for admission, requests for the production of documents, and interrogatories, even under threat from the Administrative Law Judge that the claim would be dismissed if discovery was not complete at that time. Certainly, the limited sanction of refusing the entry of a single piece of evidence in light of claimant's delaying and dissembling with regard to obtaining Dr. Tonymon's deposition and failure to comply with Section 705(C)(3) is not overly harsh. Even when considering claimant's discovery behavior in the light most favorable to him, which we are under no obligation to do, the conclusion that claimant was neglectful and not diligent in his efforts is inescapable.
Lastly, the Administrative Law Judge was free to exclude the evidence due to its lack of reliability stemming from the manner in which the doctor's statement was obtained, despite the Commission's freedom from the technical rules of evidence. InSouthwest Pipe Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984), the Commission correctly disregarded a blood alcohol test where the circumstances surrounding it made the test unreliable as evidence. In this case, the doctor's statement, via a signed checkmark opinion, was obtained through a misleading and incomplete description of the results of a test conducted upon the claimant, a fact further discussed later in this memorandum.
The Arkansas Supreme Court, in St. Paul Ins. Co. Et Al v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980), addressed the balance the Commission must strike when acting as the fact-finder in a case. The Commission is "not bound by technical rules of evidence or procedure" but "is expected to adhere to basic rules of fair play, such as recognizing the right of cross examination and the necessity of having all the evidence in the record." In Brewer v. Tyson Foods, Inc., 10 Ark. App. 88, 661 S.W.2d 423 (1983), the Court of Appeals, citing Touzin, held that the inclusion of two reports was inappropriate where the appellant was denied the opportunity to cross-examine the individuals who prepare the reports. The Court looked to a case in which evidence was properly allowed because of the subsequent appearance and cross-examination of the physician preparing the evidence.Potlatch Forests v. Funk, 239 Ark. 330, 389 S.W.2d 237 (1965). The Court also looked to Browning's Restaurant v. Kuykendall, 263 Ark. 374, 565 S.W.2d 33 (1978), where a doctor's letter written subsequent to the findings of the Administrative Law Judge was improperly admitted. In Browning's, the improper admission was harmless because the Commission specifically stated the doctor's letter was disregarded for the purposes of arriving at its decision.
If Dr. Tonymon's checkmark letter was entered into evidence without respondent having an opportunity to cross-examine Dr. Tonymon, respondent would be denied a fair hearing as to his testimony in the letter. It is our opinion that, in balancing the Commission's ability to make rules and sanctions, the flexibility of the Commission's evidentiary standards and the basic rules of fair play, it would be inappropriate to consider unreliable evidence obtained from claimant's delaying and dissembling tactics and outside the requirements of Section 705(c) and the Administrative Law Judge's pre-hearing order, without opportunity for cross-examination by respondent.
Claimant has appealed the Administrative Law Judge's finding that respondent is not liable for the costs of Dr. Tonymon's treatment of cerebral hematomas because such treatment was not reasonable and necessary treatment of claimant's compensable injury; and that claimant failed to prove by a preponderance of the evidence that his cerebral hematomas were causally related to his compensable injury or treatment for that injury.
The testimony of claimant and Dr. Tonymon's and many of claimant's medical records are in the record for our consideration. Claimant testified that after his fall on February 1, 1997, respondent's insurance carrier directed claimant to see Dr. Braden, an osteopath, who recommended steroid injections. The first injection relieved some of claimant's discomfort, but the second brought back some of his pain, and the third injection was painful. His records reflect that claimant underwent his third cervical epidural steroid injection on April 17, 1997 by Dr. Sutton at Methodist Hospital. When the needle was advanced into the C6-C7 interspace, a transient paresthesia was noted in the right shoulder. The needle was withdrawn slightly and realigned toward the midline and no further paresthesia were noted. No residual paresthesia or numbness were noted in any of the upper extremities. Claimant testified that approximately two hours after the third injection, he suffered a headache which was characterized as a spinal headache by Dr. Heron, an anesthesiologist. He was told to lie flat and later was prescribed a narcotic pain medication. Claimant testified his headaches persisted for a considerable time and resulted in two trips to the emergency room.
Claimant's May 1, 1997 CT of the head was normal. The clinical history portion of the CT report indicated Claimant suffered "general weakness, tightness."
A case manager, Lillian Rawlings, RN, CCM, for CNA Managed Care, Inc. prepared an Initial Evaluation Report regarding claimant on May 10, 1997. Claimant did not complete a FCE because he was afraid of injury and the onset of a headache. Dr. Hoke indicated that if they were spinal headaches, they should be resolving and that claimant could return to work at light duty and proceed with the FCE. Dr. Hoke indicated that if the headaches continued, they would be the longest lasting headaches from an epidural steroid injection of which he was aware. Despite release to light duty work, claimant has not returned because he cannot get out of bed if he has headache. Respondent had a position for him at the express checkout within his physical restriction.
Rawlings prepared a CNA Managed Care, Inc. Closure Report on June 4, 1997, stating that Dr. Braden noted in the May 16, 1997, office visit tenderness to claimant's right trapezius, that he could identify no objective pathology preventing a return to work, that absent a completed FCE he could not state a lifting restriction with a reasonable degree of medical certainty and that claimant was at MMI status and had a PPD rating of 6%. Claimant indicated to the case manager that he had some neck pain and right shoulder area pain when he saw Dr. Braden on May 16, 1997, that he continued to have headaches without warning, and that he had to lay down to get relief. Claimant indicated that he could not spend his normal many hours at the computer but was limited to two hours at a time. Claimant would not return to work because a headache would prevent him from performing. He was terminated after he did not complete his FCE on May 8 1997.
Between May 5 and May 20, 1997, Dr. Braden completed a CNA insurance form stating that the date of claimant's maximum medical impairment was May 16, 1997, that he had a permanent partial impairment rating of 6% per the AMA Guidelines, that his return to work date was May 16, 1997, and that his return to work restriction was no lifting more than 50 pounds.
On May 16, 1997, Dr. Braden completed an AWCC Physician's Report that claimant hurt his back at work, that the diagnosis was a "C5-6 herniated disc R," with treatment of therapy, medications and (apparently although partially illegible) epidural injections, that the prognosis was fair, that claimant could return to work on May 16, 1997 with the restriction of no lifting more than 50 pounds. The doctor noted that a FCE was not performed to actually measure limitations. Further the report states that the claimant suffered a 6% permanent impairment rating to the body as a whole based upon the objective and measurable findings that he had a cervical spine herniated disc at C5-6.
Dr. Braden's May 16, 1997 office note states that claimant had symptomatic neck pain and right pain in between shoulder blades, "some difficulty with headaches that causes him to avoid bright lights and that he cannot stare at his computer terminal for more than a few hours at a time." Later Dr. Braden states: "Mr. Brake has reached maximum medical improvement from the injury he sustained in January of 1997." Claimant's central to right paramedian herniated nucleus pulposus at C5-6 would correspond to a six percent impairment of the whole person, based on the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition. Dr. Braden released claimant to return to work, recommending a 50 pound weight limit.
Dr. Chan, in his neurological consultation report, stated that his impression of claimant was "chronic daily headache, more of the muscle tension type, aggravated with Valsalva's maneuver." Chan prescribed a sleeping aid and physical therapy.
On June 9, 1997, Dr. Hoke released claimant to work "from a medical standpoint," stating that, however, claimant "found it impossible to work" during one of his headaches.
Dr. Hoke's notes for September 26, 1997, state that claimant continued to have headaches of a 7-8 value on a 1-10 scale three or four times a week and tolerable headaches on the other days, that claimant has developed a management strategy for relaxing during the severe headaches, that stress seems to make the headaches a lot worse, (for example disappearing during 3 day Tunica trip, but reappearing upon his return to deal with father's illness), that the left portion of his scalp was tender, that he suffered possible major depression.
On December 25, 1997, claimant went to St. Bernard's Regional Medical Center Emergency Room, complaining of headaches all day, relieved by laying down. The doctor noted that claimant had a motor vehicle accident and spinal steroid injections causing pain and cerebrospinal fluid leakage. Claimant has had multiple recurrences of headache including date of emergency room visit. The doctor's impression was tension headache.
Claimant returned to the emergency room on December 27, 1997. At that time a CAT scan was run, and a large blood clot was found on his brain. Dr. Tonymon's "History and Physical" report dated December 27, 1997, describes claimant's left subdural hematoma, his history of headaches and the doctor's suspicion "of persistent cerebral spinal fluid leak or even cerebellar tonsillar herniation secondary to cerebrospinal fluid leak on a chronic basis with a iatrogenic QR malformation. "He is to receive a cervical MRI to rule out CSF leak and cerebellar tonsillar herniation as an outpatient. Both claimant and Dr. Tonymon testified that an was MRI performed to look for a leak of spinal fluid, but it did not reveal a spinal leak.
Dr. Tonymon's operative report dated December 27, 1997 concerning the bur hole evacuation of the left subdural hematoma described the procedure and noted the "crank-case-colored" blood. On December 27, 1997, Dr. Tonymon reported that claimant's right hematoma evidenced no malignancy after laboratory testing. A CT scan performed after claimant's first bur hole operation on December 28, 1997 revealed successful left hematoma drainage and the existence of a small right subdural hematoma.
Claimant testified that his headaches improved for a while after the surgeries, but began to return again.
A CT scan of claimant's cervical spine was performed on December 30, 1997. The subsequent report concluded the following: "small right posterolateral HNP . . . at C5-C6 level causing probable mild compromise of the right C6 nerve root; small left posterolateral HNP . . . at C6-C7 level causing probable mild compromise of the left C7 nerve root; no other disc herniations, significant posterior disc bulges, stenosis, or other apparent abnormality identified on the MRI study."
A CT scan of claimant's head on December 31, 1997 demonstrates a successful bur hole operation on left side of the brain and a possible hemorrhage on right side of the brain where fluid accumulation was more isodense. A CT scan of claimant's head dated January 2, 1998, reveals a mild worsening of claimant's right subdural hematoma, small residual left hematoma, pneumocephalus on left side, and an otherwise normal CT of head. Dr. Tonymon's operative report dated January 6, 1998, describes the successful bur hole evacuation of claimant's right subdural hematoma, noting "crankcase, brownish-red blood." Claimant underwent a CT scan of his head in January 7, 1998, in which no new accumulation of blood was noted.
In claimant's discharge summary from St. Bernard's Regional Medical Center on January 9, 1998, claimant's medical history was reviewed and his two bur hole evacuations were described. The doctors encouraged claimant to have a cisternogram done several times during his hospitalization; however, claimant refused. Claimant did not have a headache after his second surgery through January 9, 1998, at his discharge.
Claimant had his staples removed on January 16, 1998 at which time he related to the nurse practitioner that he "is really doing quite well and his headaches have gotten much better."
On January 22, 1998, claimant underwent a MRI showing "evacuation of hematoma but with some residual. Some opacity that would be consistent even with residual blood as it is still opaque." On February 5, 1998, claimant underwent a MRI which showed very tiny residual collections of blood and/or fluid which had improved. On February 11, 1998, Dr. Tonymon wrote Dr. Hoke to state that claimant's head was healing nicely for the two bur hole evacuations of hematomas, that claimant was released from his care, and that he suspected spontaneous intra-cranial hypotension, the treatment of which is, he believed, a lumbar epidural blood patch.
Claimant stated that Dr. Hoke has prescribed pain medication to help him get by until he can afford to get the blood patch. Claimant still requires pain medication. His headaches have decreased in frequency and severity, but he still describes them as frequent, just not twenty-four hours a day.
Claimant saw Dr. Hoke on October 6, 1998 because of "bad headaches" and blurred vision in right eye. His examination was unremarkable. Dr. Hoke ordered a CT scan. He noted claimants's decreased concentration, emotional lability fatigue and hopelessness and prescribed Celexa for depression upon negative CT scan. On October 14, 1998, per Dr. Hoke's order, claimant underwent a CT scan with and without contrast, which showed no evidence of intra-cranial hemorrhage.
Dr. Hoke, claimant's family doctor, in a handwritten note dated November 6, 1998, stated that he "would have to say that Mr. Brake's headaches and surgery were due to the injury that he suffered in 1997 while working at Kroger's.
Claimant, acting as general contractor on the construction of his own home, oversaw the completion of his house between June 1997 and December 1997, including installation of sheet-rock, kitchen cabinetry, heat and air. Claimant stated that he used his savings account and bank loans in excess of Eighty-six Thousand Dollars ($86,000) to pay the contractors. He states that he did nothing more than make phone calls and sometimes visit the building site and that, while he had planned to do a lot of work on his house, he was unable to do so. Claimant also admitted to visiting Tunica to gamble several times. Someone had to drive him. He used money ($40 — 50) that the casinos sent him every month to gamble, and that he received free hotel accommodations and everything. When questioned about hiring professional movers, Claimant stated that he hired professional movers because he could not afford to live in his apartment and pay a house payment as well. He sold his pick up truck for the money.
Claimant stated that he was involved in a car accident which he characterized as a fender bender in a parking lot in which his car was not damaged and that the only reason he mentioned in to the emergency room doctor in December 1997 was because the emergency room staff asked if Claimant had been in any car accidents.
Dr. Tonymon, in his deposition, was clear that there is no diagnosis which, at the time of the deposition, had been proven. Claimant's headaches which had worsened in three weeks prior to his hospitalization regarding the hematoma were consistent with the clinical evidence that the hematoma was approximately two to three weeks old. There was no history or evidence of trauma to explain existence of hematoma.
Based upon claimant's history, Dr. Tonymon's initial hypothesis was a cerebrospinal fluid leak, which is a risk of epidural injections. However, he could not prove this hypothesis. The leak would cause headaches. Hematomas can be induced by draining too much spinal fluid which causes the brain to shrink causing bleeding into subdural space. A leak significant enough to cause symptoms should appear on a MRI. A pocket of spinal fluid should have been apparent. The MRI revealed no leak or pocket of spinal fluid. There are no objective findings demonstrating a leak. Dr. Tonymon does not have a good explanation for claimant's hematoma. It is unusual for a "healthy guy," with no evidence of trauma.
Dr. Tonymon stated that it would be unlikely, given the imaging studies, that claimant's April 1997 epidural injection that was so painful would result in a December 1997 subdural hematoma. "I should have seen it." The leakage, enough to cause headaches, might not have been enough to appear on the May 1997 CT scan. Dr. Tonymon stated:
But again, it's hard for me to think that he had spinal fluid leakage going on. That's not captured on the cervical MRI in December. Because he was still having headaches, and then if you postulate that he had spinal fluid leakage bad enough to cause a subdural hematoma, we should have seen it.
Dr. Tonymon has determined that claimant suffers "spontaneous intra-cranial hypotension," because there is no evidence to prove any other explanation. "I don't know what caused his headaches, but they certainly sounded very consistent clinically with the headache that we see in spontaneous intra-cranial hypotension." Dr. Tonymon describes this as a "diagnosis of exclusion," and a "presumptive diagnosis." While claimant's prognosis regarding the hematomas is good, if he still has headaches, then, if you rely upon "presumptive diagnosis of exclusion of spontaneous intra-cranial hypotension," he recommends a lumbar epidural blood patch which is recommended in "the literature" as sometimes resolving symptoms.
Dr. Tonymon found it "odd" that a possible injection in April 1997 that might have caused a leak would result in problems in December 1997. An unreasonable amount of time passed between the possible puncture and the subdural hematomas, especially in light of the normal cervical MRI taken when looking for a leak. For purposes of establishing a causal relationship between the epidural injections and the hematomas, the time span from April to December is unreasonably long. "[I]t would be unlikely that the subdural hematomas, the blood clots on the brain, it's unlikely that they're directly related to the April 1997 work related injury. But to be honest with you, I have no explanation as to why he spontaneously developed these in the absence of a history of trauma."
A conclusion that the spontaneous intra-cranial hypotension is related to claimant's February 1997 work injury would be "purely hypothetical on my part." A subdural hematoma can come from a blow to the head, however, Dr. Tonymon stated that it is highly unlikely to manifest itself in December 1997 with the intervening CT scan in May. Dr. Tonymon suggested that a cisternogram might show a spinal leak responsible for the headaches and hematomas. A cisternogram is a radioisotope test to localize a leakage of spinal fluid. He recommended performing a blood patch at the same time. If the cisternogram showed an "insult to the dura somewhere resulting in a leakage of spinal fluid," Dr. Tonymon would "absolutely rethink his position. It would tie the "chronology together."
Claimant testified that a cisternogram was performed with some difficulty, because of his very low spinal fluid pressure. This cisternogram did not show a leak. The records reflect that during the cisternogram on April 27, 1998, upon the first needle insertion, no fluid could be obtained "[p]resumably due to a dry tap." A needle was then inserted at the L5-S1 intervertebral disc space, and clear fluid was obtained at the hub. The report stated:
On early images a lumbar leak was suspected but not confirmed. Irregular distribution of uptake in the lumber region on early images thought to be contamination or related to injection site. A focus of CSF leak cannot be identified. . . . Point of leak not identified by scintigraphic technique. . . . Please be aware that at the time of the lumbar puncture, the opening pressure was too low to measure. The patient had to be tilted on the table to obtain fluid. (Emphasis added.)
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1996). "When an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury." Burmingham v. Dixie Foods, Full Workers' Compensation Commission, Opinion Filed May 4, 1999 (WCC No. E502446) ( citing Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). When subsequent complications are the natural and probable result of the original injury, the employer remains liable. However, the claimant must show, by a preponderance of the evidence, that there is a causal relationship between the compensable injury and the subsequent complications. Shirley A. Mitchell v. Circle K Corp., Full Commission Opinion Filed October 21, 1996 (WCC No. E608414). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees' injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). Injured employees have the burden of proving by a preponderance of the evidence that the medical treatment is reasonably necessary for the treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Compensation Commission Opinion Filed February 17, 1989 (WCC No. D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion Filed Aug. 27, 1993 (WCC No. D703346). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy.Deborah Jones v. Seba, Inc., Full Workers' Compensation Commission, Opinion Filed Dec. 13, 1989 ((WCC No. D512553). Also, the respondent is only responsible for medical services which are causally related to the compensable injury. "What constitutes reasonable and necessary treatment under Arkansas Code Annotated § 11-9-508 (Repl. 1996), is a fact question for the Commission." General Elec. Railcar Repair Servs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998) ( citing Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
Dr. Tonymon makes clear in his deposition that there is no evidence to prove that anything caused claimant's headaches and hematomas. At the time of his deposition, there was no evidence of trauma, spinal fluid leakage or any other cause. Each diagnosis — spinal fluid leakage and spontaneous intra-cranial hypotension — was unproven. Dr. Tonymon made clear that the trauma in February 1997 and a possible injury due to an epidural injection in April 1997 are each too remote in time to provide a reasonable explanation for the hematomas. In fact Dr. Tonymon used the word "hypothesis" and explained unequivocally that he did not know the cause of the hematomas. He stated that if one could produce evidence of a spinal fluid leak, the headaches and hematomas would be explained. However, Dr. Tonymon noted and the record demonstrates that there is no evidence of spinal fluid leak. The report from the cisternogram which was performed clearly stated that there is no evidence of a spinal fluid leak. Without such evidence, we are reduced to speculation and conjecture, which are insufficient to prove the causal connection between claimant's epidural injection and his headaches and surgeries. Thomas v. Arbor Interiors, Inc./Jafco Supply Corp., Full Workers' Compensation Commission, Opinion Filed January 29, 1999 (WCC No. E708233).
A note written by Dr. Hoke states that claimant's surgery and headaches were "due to" claimant's injury. We cannot give Dr. Hoke's statement any credibility. It is devoid of any reference to the basis for his opinion and is in direct conflict with Dr. Tonymon's testimony. Certainly, the opinion of Dr. Tonymon, a specialist in this field, and intimate with the details of claimant's surgery, as well as the search for an adequate diagnosis, is entitled to more weight, decisive weight, than Dr. Hoke, a family doctor, providing a unexplained statement, on a piece of note paper, seven days prior to the hearing. Dr. Hoke's opinion is insufficient to link claimant's headaches and hematomas to the fall in February 1997 where there is no evidence that the hematomas existed prior to May at the earliest and according to Dr. Tonymon, no earlier than three weeks prior to his surgery for the hematomas, and where there is no evidence that he suffered headaches until after the epidural injections. Further, if Dr. Hoke intends to connect the headaches and hematomas to the epidural injection, there is no evidence other than speculation to support such a relationship. "Conjecture and speculation, even if plausible, cannot take the place of proof." Thomas v. Arbor Interiors, Inc./Jafco Supply Corp., supra. Lastly, this item of evidence suffers the same procedural defect as the checkmark letter from Dr. Tonymon, despite the failure of respondent and the Administrative Law Judge to mention it.
Bur hole procedures to alleviate left and right subdural hematomas cannot be treatment for a cervical neck injury where the cervical neck injury, the fall which resulted in the injury and its treatment cannot be causally related to the hematomas. Claimant has failed to prove by a preponderance of the evidence that the treatment for his hematomas is reasonably necessary treatment of his cervical injury. Also, the blood patch procedure proposed by Dr. Tonymon, a treatment for a hypothetical spinal leak which may or may not cure the headaches, is also not reasonably necessary treatment.
This determination that the treatment by Dr. Tonymon was not "reasonable and necessary" treatment did not take into account claimant's proffered evidence. However, in the interests of thoroughness, if the evidence is considered, the results are the same. Claimant's attorney sent Dr. Tonymon a letter, dated October 20, 1998, which related claimant's epidural injections including the paresthesia requiring repositioning of the needle during the third injection and also claimant's two bur hole procedures for hematoma. The complete explanation of claimant's cisternogram and Dr. Tonymon's response are as follows:
On 4/27/98 a cisternogram was performed, which is remarkable in that (1) the opening pressure was too low to measure, and (2) the patient had to be tilted on the table to obtain fluid.
Given the foregoing, within a range of reasonable medical certainty, would the problem noted in the 4/17/97 epidural injection constitute the likely etiology if the patient's subsequent intra-cranial hypotension and spinal headaches?
Yes [Check mark] No. __________
[Signed by Dr. Tonymon] Date: 10/20/98.
The Commission can accord no weight to this opinion. Claimant's attorney purposefully left out the portion of the cisternogram results which clearly states that no leakage was found: "A focus of CSF leak cannot be identified. . . . Point of leak not identified by scintigraphic technique." The Commission has previously disregarded a physician's opinion in part because it was based on faulty information, in Reed v. Con Agra Frozen Foods, Full Workers' Compensation Commission, Opinion Filed February 2, 1995 (WCC No. E317744). Certainly the omission of such a significant portion of the report is sufficient to defeat any credibility the checkmark letter might hold.
Dr. Tonymon's hypothesis all along has been that the claimant suffered an unexplained hypotension, a pressure lower than normal. The facts provided to Dr. Tonymon merely restate that, yes, claimant suffers from an unexplained spontaneous intra-cranial hypotension. What the information does not provide to Dr. Tonymon, and which has never appeared in any test performed upon claimant, is the existence of a spinal fluid leak. Dr. Tonymon was confident in stating that both headaches and hematomas could be caused by intra-cranial hypotension, but there is no evidence to show what caused the hypotension. Without that proof, there is no demonstrable connection between claimant's third epidural injection and his subdural hematoma or his headaches. With or without claimant's proffered evidence, Dr. Tonymon's checkmark letter, claimant has failed to demonstrate a relationship between claimant's cervical injury and treatment for it and the claimant's treatment by Dr. Tonymon. Any finding of such a relationship would require speculation. To repeat, "[c]onjecture and speculation, even if plausible, cannot take the place of proof."Thomas v. Arbor Interiors, Inc./Jafco Supply Corp., supra.
Claimant sought compensation for Dr. Tonymon's services beginning in December 1997 for his subdural hematomas. These hematomas have no proven causal relationship to either claimant's fall in February 1997 or to the treatment for his compensable cervical injury resulting from the fall in April 1997. Therefore, claimant's treatment for the hematomas is not compensable because it is not reasonable and necessary for the treatment of claimant's compensable injury. The continued liability of respondent for treatment of claimant's cervical injury arising out of the February 1997 injury was not at issue here. Respondent is not responsible for the treatment of claimant by Dr. Tonymon. The opinion of the Administrative Law Judge is affirmed.
IT IS SO ORDERED.
_______________________________ MIKE WILSON, Commissioner
CONCURRING OPINION
[63] I concur in the principal opinion's findings that Dr. Tonymon's treatment was not reasonable and necessary treatment of, or causally related to, the claimant's compensable injury. I also concur that the letter at issue was properly excluded from the record. I write separately only to point out that, since the letter signed by Dr. Tonymon on October 20, 1998, was properly excluded from evidence, the issue as to what weight that lettermight have been entitled to, if not excluded from the record, is moot.__________________________________