Opinion
CLAIM NO. F011008
OPINION FILED MARCH 11, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE TERENCE C. JENSEN, Attorney at Law, Benton, Arkansas.
Respondents represented by HONORABLE WENDY S. WOOD, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an Administrative Law Judge's opinion filed May 30, 2002. The Administrative Law Judge found, "The claimant fails to prove by a preponderance of the evidence of record that further medical treatment for his right shoulder injury of August 21, 2000, would constitute reasonable and necessary medical treatment as it relates to the claimant's compensable injury." After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
The parties stipulated that Ronald Harding, Sr., age 44, sustained a compensable injury to his right shoulder on August 21, 2000. The claimant was treated by Dr. Kenneth M. Rosenzweig, who noted on September 26, 2000:
He is still having a lot of pain, difficulty sleeping and a crunching sensation that is getting worse with time. He states that the constant pain is more and more debilitating as time goes on. The MRI report does show a pathology. It shows suggestion of a labral tear, but more importantly, a large multi-like layer cyst off the labrum in the area of the infraspinatus. This appears to be the source of the symptomatology and the etiology of it with a traumatic and slow onset or pre-existing that has been aggravated by a recent trauma is unclear and remains speculation. Since his symptomatology has worsened over the past five weeks despite conservative treatment, the MRI does show pathology intra-articular. I recommend Mr. Harding visit with Dr. Pearce regarding an arthroscopic evaluation of his joint and address these issues to facilitate his recovery and outcome.
Dr. Charles E. Pearce, Jr. wrote to an adjuster on October 24, 2000:
You are correct in your assessment that degenerative changes in the AC joint mentioned in the text of the MRI report likely predate this gentleman's injury. However, the cyst in the area described posterior and superior to the labrum can be an indirect indication of a labral tear and, therefore, can be part of his acute picture. Regardless, when I saw this man, he shoulder was quite stiff with adhesive capsulitis (otherwise known as "frozen shoulder") and was in dire need of physiotherapy, in my opinion. My plan was to see him in about a month after his initial visit following therapy and use of anti-inflammatories for reassessment regarding any further treatment and care.
Dr. Pearce performed a "right shoulder arthroscopic labral repair" on December 4, 2000. The claimant testified that surgery provided no relief from his pain.
Dr. Pearce wrote on February 2, 2001 that the claimant had not reached "maximum medical improvement" and could not return to his regular work duties. However, Dr. Pearce returned the claimant to restricted work on February 8, 2001.
The claimant testified that the respondents sent him to Dr. Thomas P. Rooney, who reported on February 8, 2001:
Mr. Harding is a 42 year old man who came here for another opinion with regard to his right shoulder. . . .
A lateral view of the cervical spine shows slight posterior subluxation of 5 on 6, but the disc spaces appear well preserved. X-rays of the shoulders show two suture anchors in the glenoid. I do not see any other definite abnormalities.
I am not exactly sure why he is having such severe pain. I did suggest that he go ahead and have the MRI repeated of the shoulder, and at the same time do one of the cervical spine to be sure he is not having radicular pain.
Dr. Rooney also wrote that the claimant "may return to light duty status at any time."
An MRI of the right shoulder was taken on February 16, 2001:
There is questionable mild superior subluxation of the humeral head, a finding which can be seen with chronic degenerative changes of the rotator cuff. Irregular increased signal is noted within the supraspinatus tendon, though a discrete defect within the tendon is not seen, nor is there evidence for atrophy or retraction of the supraspinatus muscle. Hypertrophic changes of the A-C joint are noted with slight deformity of the underlying supraspinatus muscle. Increased signal is noted within the superior labrum, though a discrete tear is not appreciated. No abnormal fluid collection is appreciated except for a small amount of fluid within the A-C joint. The biceps tendon appears normally positioned within its groove.
IMPRESSION: 1) INCREASED SIGNAL WITHIN THE SUPRASPINATUS TENDON CONSISTENT WITH TENDONITIS/TENDINOSIS; A PARTIAL TEAR IS DIFFICULT TO EXCLUDE. 2) HYPERTROPHIC CHANGES OF THE RIGHT A-C JOINT WITH MINIMAL IMPINGEMENT. 3) IRREGULAR INCREASED SIGNAL WITHIN THE SUPERIOR LABRUM; A DISCRETE TEAR IS NOT APPRECIATED.
The claimant visited Dr. Rooney on February 28, 2001:
He is doing light duty and still has pain over the acromioclavicular joint and anteriorly over the shoulder, and pain at times down the arm. His MRI of the cervical spine shows mild spondylosis at 6-7 and mild central posterior bulges at 4-5 and 5-6. In the shoulder, there may be mild superior subluxation of the humeral head. There are findings consistent with tendonitis and/or tendinosis of the supraspinatus and possibly a partial tear. There are also hypertrophic changes in the acromioclavicular joint with minimal impingement, and also an irregular increased signal within the superior labrum, where his previous labral tear had been repaired.
I explained to him that I do not really know anything else that is going to help very much. Perhaps excising the outer end of the clavicle would help some, but the result would not be very predictable. He is almost three months postop now, so he is probably approaching his healing period and I doubt that therapy is going to help much more, although he may improve with time. He is anxious to return to his regular job, which I think would be okay whenever it is okay with Dr. Pierce (sic).
Dr. Rooney wrote on March 12, 2001:
I think that Mr. Harding has reached his maximal medical improvement. I think that he should be able to return to his usual occupation, and I do not find any objective basis to assign him a permanent anatomical impairment of his upper extremity.
The claimant returned to Dr. Rooney on June 6, 2001:
He has recently been to see Dr. Pierce (sic) again and was not received very joyfully, he says that Dr. Pierce informed him that he, meaning Dr. Pierce, does nothing wrong. He still has about the same degree of pain. He has tried going back to work, but had to stop recently because the pain became worse. X-ray does not show anything knew. A lot of his tenderness is about the acromioclavicular joint. I injected the acromioclavicular joint with Xlyocaine, Marcaine and Celestone to see if this would give him any relief at all. If it were to give him significant relief of pain, then it may be beneficial to do a Mumford procedure.
Dr. Pearce wrote to the adjuster on July 17, 2001:
It is my opinion that Mr. Harding has likely reached maximum medical improvement after right shoulder surgery 12/4/00. Mr. Harding did not keep his last follow up appointment with me on March 9, 2001, and I have heard nothing further from him. When last seen 2/02/01, he was still working on range of motion exercises and he was to see a physical therapist for that.
As of his last visit, I had not returned him to duties but he is now about 7 months postop and it would be my opinion that he could return to regular activities without restriction at this time, and that he would be at maximum medical improvement under normal circumstances.
Mr. Harding claimed entitlement to additional worker's compensation. The claimant contended that he was entitled to additional medical treatment. The respondents contended that additional medical treatment was not reasonably necessary in connection with the compensable injury. After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove he was entitled to additional medical treatment. The Administrative Law Judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.
II. ADJUDICATION
The claimant bears the burden of proving that he is entitled to benefits, and he must sustain that burden by a preponderance of the evidence. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). An employer must promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). In the present matter, the Full Commission affirms the Administrative Law Judge's finding that the claimant failed to prove he was entitled to additional medical treatment.
The claimant sustained a compensable right shoulder injury in August 2000, initially treating conservatively with Dr. Rosenzweig. Dr. Pearce stated in October 2000 that there had been pre-existing degeneration in the AC joint. Dr. Pearce performed an "arthroscopic labral repair" in December 2000 and returned the claimant to restricted work in February 2001. The claimant eventually began treating with Dr. Rooney, who was unsure why the claimant reported chronic pain. The dissent cites Dr. Rooney's February 28, 2001 report as evidence that the claimant proved he was entitled to additional treatment. Dr. Rooney did write that there "may be" mild subluxation of the humeral head, and that there "possibly" was a partial tear. However, Dr. Rooney also reported degenerative findings and stated, "I do not really know anything else that is going to help very much." Dr. Rooney could not predict that additional surgery would improve the claimant's condition.
Dr. Rooney pronounced maximum medical improvement in March 2001. Dr. Rooney reported in June 2001 that an x-ray did not show anything new. Dr. Pearce, the treating surgeon, also pronounced maximum medical improvement in July 2001. Dr. Pearce stated that the claimant had failed to keep a previous follow-up appointment, and that the claimant could return to regular activities without restriction. What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Ark. Dept. of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994). We find that the claimant failed to prove that additional medical treatment was reasonably necessary in connection with the claimant's compensable injury.
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge's finding that the claimant failed to prove that additional medical treatment was reasonably necessary in connection with the claimant's compensable injury. This claim is denied and dismissed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the finding that claimant failed to prove by a preponderance of the evidence that any additional treatment would be reasonably necessary in connection with the compensable shoulder injury. The opinion of the Administrative Law Judge should be reversed.
On August 21, 2000, claimant sustained an admittedly compensable injury to his right shoulder. Claimant eventually came under the care of Dr. Charles Pearce, an orthopedic surgeon, who performed arthroscropic labral repair on December 4, 2000. Claimant experienced no lasting relief as a result of this surgery. Respondent apparently paid temporary total disability benefits through February 12, 2001.
Incidentally, in its brief to the Commission, respondent states that "[t]he claimant had a second opinion from yet another orthopedist, Dr. Thomas Rooney, on February 8, 2001." (Emphasis added.) This statement is particularly offensive because respondent requested the evaluation and directed claimant to Dr. Rooney. Be that as it may, after an MRI scan, Dr. Rooney stated the following in an office note dated February 28, 2001:
He is doing light duty and still has pain over the acromioclavicular joint and anteriorly over the shoulder, and pain at times down the arm. His MRI of the cervical spine shows mild spondylosis at 6-7 and mild central posterior bulges at 4-5 and 5-6. In the shoulder, there may be mild superior subluxation of the humeral head. There are findings consistent with tendonitis and/or tendinosis of the supraspinatus and possibly a partial tear. There are also hypertrophic changes in the acromicoclavicular joint with minimal impingement, and also an irregular increased signal within the superior labrum, where his previous labral tear had been repaired.
I explained to him that I do not really know anything else that is going to help very much. Perhaps excising the outer end of the clavicle would help some, but the result would not be very predictable. He is almost three months postop now, so he is probably approaching his healing period and I doubt that therapy is going to help much more, although he may improve with time. He is anxious to return to his regular job, which I think would be okay whenever it is okay with Dr. Pierce [sic].
In spite of the above findings on the MRI scan, Dr. Rooney, in a report dated March 12, 2001 opined that claimant had reached maximum medical improvement and that there were no objective findings on which to base a permanent anatomical impairment.
Claimant returned to Dr. Rooney on June 6, 2001. Dr. Rooney documented the following in his office note:
. . .X-ray does not show anything new. A lot of his tenderness is about the acromioclavicular joint. I injected the acromioclavicular joint with Xylocaine, Marcaine, and Celestone to see if this would give him any relief at all. If it were to give him significant relief of his pain, then it may be beneficial to do a Mumford procedure.
Following the June 2001 examination by Dr. Rooney, respondent controverted claimant's entitlement to any additional medical treatment. The evidence indicates that subsequent to controversion, claimant was examined by Dr. Kent Davidson, an associate of Dr. Pearce, on November 28 and December 18, 2001. Claimant testified that Dr. Davidson returned him to the care of Dr. Pearce.
Claimant testified that he continues to have significant pain and cannot receive any treatment or prescription medications because respondent has controverted his claim. Claimant said "I need something, because I can't use it." He experiences constant pain, a catching, locking sensation in the shoulder and occasional numbness down his arm and into the hand. He is unable to raise his arm above head level. His shoulder swells at times and pops and grinds whenever he moves it. There is no evidence whatsoever that claimant has sustained a new injury or any sort of independent intervening cause of his shoulder difficulties. Further, there is insufficient medical evidence that claimant is not entitled to any additional treatment. The Administrative Law Judge and now the Commission have unjustifiably ended this claim for benefits. In my opinion, and based on the above evidence, claimant has proven by a preponderance of the evidence that he is entitled to additional treatment for this compensable injury. He is certainly entitled to additional treatment to maintain or stabilize his condition. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
Finally, respondent's cross examination of claimant dealt only with claimant's capacity to work and his drawing of unemployment insurance benefits since being released to return to work. In its brief to the Commission, respondent repeatedly states that claimant has reached maximum medical improvement and has the capacity or ability to work. I would point out, however, that these factors are not determinative of whether claimant is entitled to additional medical treatment. While these may be factors to consider, neither will preclude such a finding.
For the foregoing reasons, I must respectfully dissent. The opinion of the Administrative Law Judge should be reversed. Claimant is entitled to additional medical treatment for this compensable shoulder injury.
_______________________________ SHELBY W. TURNER, Commissioner