Opinion
CLAIM NO. E912379
OPINION FILED JUNE 21, 2001
Upon review before the FULL COMMISSION in Little Rock. Pulaski County, Arkansas.
Claimant represented by PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on October 27, 2000. In that opinion and order, the administrative law judge determined that claimant proved that she is entitled to additional medical treatment, including surgical intervention at the direction of Dr. Wilbur Giles. Based on our de novo review of the record, we find that claimant proved by a preponderance of the credible evidence that she is entitled to additional medical treatment, including surgery. Therefore, we must affirm the administrative law judge's decision.
Claimant sustained an admittedly compensable neck injury on October 13, 1999. She was operating a tractor, which overturned. On October 14, 1999, she received treatment from the McRory Family Clinic. An MRI was ordered, and that test revealed disc herniations at C5-6 and C6-7, with severe and moderate impingement respectively. Also, the test showed a herniation at the C7-T1 level with impingement.
On October 18, 1999, claimant returned to the clinic. Based on the MRI results, she was referred to Dr. Wilbur Giles. Claimant initially consulted Dr. Giles on October 28, 1999. He prescribed a two-week course of physical therapy, muscle relaxants, and high dose steroids. Also, claimant was excused from work. Dr. Giles stated that absent significant improvement, surgery would be likely.
On November 5, 1999, claimant presented to the emergency room, complaining of shoulder and neck pain. After receiving an injection of Demerol and Phenergan, she was discharged. Claimant returned to Dr. Giles on November 9, 1999. In a fax bearing the same date, Dr. Giles indicated that the traction he prescribed exacerbated claimant's symptoms. She reported that her condition was deteriorating. Due to the failure of conservative treatment measures, Dr. Giles scheduled surgery in the form of an anterior cervical diskectomy and arthrodesis at the C5-6 and C6-7 level. Following claimant's admission to Baptist Medical Center on November 22, 1999, surgery was performed.
Claimant returned to Dr. Giles' office on December 21, 1999. Although claimant reported shoulder pain and numbness, her intractable pain had dissipated. He prescribed medication, a soft collar, and an exercise program. Dr. Giles opined that claimant could return to work on February 1, 2000. He completed a form from respondents on December 21st, anticipating that in February, claimant could perform all duties enumerated. This included the ability to lift up to 100 pounds. Dr. Giles listed no restrictions.
On February 3, 2000, a functional capacity evaluation (FCE) was performed. A summary generated from the testing showed full effort, and no evidence of symptom magnification. With respect to her capabilities, it showed that claimant could not perform her regular job duties. She was placed in the light lifting category. In this regard, the FCE summary specified that claimant could not lift in excess of 40 pounds.
Claimant returned to Dr. Giles' office on February 15, 2000, for a final postoperative examination. Documentation of the visit revealed that she remained symptomatic. Specifically, claimant reported pain between her shoulder blades and a burning sensation in the upper left extremity. Dr. Giles' note indicated that respondents refused to furnish employment because of claimant's inability to lift at least 100 pounds. He ordered an MRI to determine the existence, if any, of residual compression. Dr. Giles also ordered bilateral nerve conduction studies.
On February 21, 2000, Dr. Giles reviewed the test results with claimant. No evidence of nerve root compression or muscle weakness was detected. He opined that claimant was unable to return to her former duties, and assigned an impairment rating of 10% to the whole body. Dr. Giles acknowledged that claimant may need "posterior foraminotomies at both levels" in the future to address intractable pain. Also, he indicated that medication would be needed occasionally.
According to a note dated February 28, 2000, claimant contacted the doctor's office, indicating that the pain she was experiencing was intolerable. Dr. Giles characterized claimant's arm, shoulder, and neck symptoms as ". . . secondary to her residual osteophytes following her anterior fusion surgery for discogenic herniations that remain in the foramens at the C5-6 level on the left with mild cord displacement and a lateral spur at 6-7 on the right with mild cord displacement." He recommended ". . . a posterior cervical decompression and foraminotomy at C5-6 on the left and C6-7 on the right, and possibly C7-T1 on the right."
Respondents refused to authorize the surgery proposed by Dr. Giles; therefore, claimant requested a hearing. The administrative law judge's pre-hearing order, which was dated July 26, 2000, failed to address a motion for an independent medical examination (IME) filed by respondents. In an order filed August 3, 2000, the administrative law judge denied the motion. In doing so, she pointed out that respondents would be afforded an opportunity to write or depose Dr. Giles prior to the hearing. Moreover, respondents were advised that claimant's records could be submitted to another physician for review.
In a letter dated August 22, 2000, the claims adjuster forwarded claimant's records to Dr. Scott Schlesinger. The letter indicated that respondents desired a second opinion regarding the reasonableness and necessity of the surgical procedure. The adjuster furnished the initial operative report, pathology report, and all follow-up reports authored by Dr. Giles. According to a handwritten note by the adjuster, Dr. Schlesinger's office requested the preoperative and postoperative MRI films.
In a letter dated September 11, 2000, Dr. Schlesinger noted that there was "no clear nerve root compression." He indicated that he was unable to offer an opinion with respect to the necessity for surgery. He explained that he neither had personally examined claimant nor performed an IME.
Dr. Giles is deemed a conservative physician, and his treatment of claimant commenced shortly after the injury. His vantage point is superior. In December of 1999, Dr. Giles anticipated that claimant would return to full duty in February of 2000. However, this proved incorrect. An FCE revealed claimant's limitations. Thus, he amended his position in this regard. Although Dr. Giles also altered his opinion regarding surgery, it is important to note that he never ruled out this course of treatment. After stating that surgical intervention may be needed for persistent intractable pain, claimant contacted Dr. Giles' office with that complaint. Accordingly, surgery was recommended. Under these circumstances, we find that surgical intervention at the direction of Dr. Giles is reasonably necessary for the treatment of claimant's compensable injury.
In reaching our decision, we note that the administrative law judge suggested that respondents obtain clarification from Dr. Giles. However, there is no evidence that this course of action was pursued. Their failure to do so suggests that respondents are more concerned with obtaining a second opinion than furnishing reasonably necessary medical treatment.
Our determination also includes a careful review of the opinion letter authored by Dr. Schlesinger, a document upon which respondents rely heavily. We are not persuaded. On September 7, 2000, respondents requested and received a continuance for the submission of medical exhibits from the administrative law judge. The request stated, in part, that: "We were finally able to arrange for a review by Dr. Scott Schlesinger and forwarded all medical records to him on 8/22/00." In his opinion letter, Dr. Schlesinger stated that claimant: ". . .may very well need an IME." Although not contained in the correspondence from the claims adjuster, this suggests that in addition to requesting an opinion regarding surgery, Dr. Schlesinger was also asked whether he deemed an IME necessary.
As an alternative remedy, respondents propose that we remand this cause to the administrative law judge so that Dr. Scott Schlesinger may be appointed to conduct an IME. In their appeal brief, respondents point out that it is routine to conduct IMEs in workers' compensation cases. Although this is true, it ignores the fact that the right of respondents to obtain an IME was, until recently, deemed unfettered. In Virginia King v. Willow Oaks Acres, Full Commission Opinion filed Jan. 25, 2001 ( E903202), we departed from that principle, stating that:
Based on our reading of Tibbs, and construing the statute strictly as we are compelled to do, it is our view that under § 11-9-511, the threshold question is whether the proposed examination is reasonable and necessary. If the examination is reasonable and necessary, the Commission designates or approves a physician. Moreover, we find that even if the exam is reasonable and necessary, the respondent or carrier is not free to send claimant to any physician. However, the employer or carrier is free to ask a physician of its choosing to participate in the exam performed by a physician designated or approved by the Commission. Notably, the place of examination must also be reasonably convenient for the employee. See generally, Wilson v. Armstrong Brothers Tools, Full Workers' Compensation Opinion filed Sept. 1, 1999 (W.C.C. No. E709892).
Based on our determination that an IME is not reasonably necessary, we decline the invitation of respondents to remand this case to the administrative law judge so that Dr. Scott Schlesinger may be appointed to conduct an examination.
Based on our de novo review of the entire record, and for the reasons stated herein, we find that claimant proved by a preponderance of the credible evidence that she is entitled to additional medical treatment at the direction of Dr. Giles, including surgery. Therefore, the decision of the Administrative Law Judge is affirmed. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED
___________________________________ SHELBY W. TURNER, Commissioner
___________________________________ MIKE WILSON, Commissioner
I respectfully dissent from the majority opinion finding that claimant proved that she is entitled to the surgery recommended by Dr. Giles, and also objecting to the Judge's denial of respondent's request for an independent medical examination prior to the hearing. After my de novo review of the entire record, I would remand this claim to the Administrative Law Judge to order claimant to undergo an IME by Dr. Schlesinger at respondent's expense in order to determine whether surgery or conservative treatment is reasonable and necessary.
On February 15, 2000, claimant was seen by Dr. Giles for her final postoperative visit. She complained of some discomfort between her shoulders and some burning occasionally in her left harm. He observed mild restriction of her range of motion in flexion/extension and rotation, and no severe spasm. Her current diagnosis was post anterior cervical discectomy and arthrodesis for cervical radicular syndrome, resolved, cervical degenerative disease, mildly inflammatory. His plan was to repeat her cervical MRI scan to make sure she doses not have any residual compression of any type, and do an EMG and nerve conduction study on both arms. He deferred impairment and employment statements until her next visit.
On February 21, 2000, claimant returned to Dr. Giles for evaluation of her diagnostic tests. The EMG and nerve conduction studies did not show nerve root compression, but did show mild carpal tunnel syndrome in her left hand. The MRI shows some osteophytosis in the foramen on the left at C5-6 and on the right at C6-7. His diagnosis was "status anterior cervical discectomy and arthrodesis with cervical radicular syndrome, mildly symptomatic; residual osteophytosis, bilateral." He wrote:
I have talked with her at length about this today and even though she has occasional burning paresthesias she does not show evidence of nerve root compression or muscular weakness by EMG and nerve conduction study and most of her problems are inflammatory in nature. Certainly, there is always the possibility that she might need posterior foraminotomies at both levels if she continues to have an intractable pain problem in the future. At the present time I do not feel that she is able to return to her present work status and engage in the use of jack — hammers or lifting of greater than 100 lbs. of weight which would aggravate her inflammatory joint disease. I do feel she has sustained a 10% permanent impairment to the body as a whole as a result of this injury and will be in need of occasional anti-inflammatory drugs, muscle relaxants and mild analgesics in the future.
On February 28, 2000, Dr. Giles reported that claimant "contacted my office stating she can simply deal with the intractable discomfort of her neck, shoulder and arm secondary to her residual osteophytosis (following her surgery) . . . As a result of that, I have recommended she go ahead and consider a posterior cervical decompression and foraminotomy at C5-6 on the left and C6-7 on the right, and possibly C7-T1 on the right." He stated that the surgery would be planned within 2-3 weeks upon approval. He wrote that "she stated she simply cannot deal with the bilateral arm pain and the inflammatory drugs are of no benefit to her."
The Judge issued an Order dated August 3, 2000, ruling on respondent's request for an independent medical examination prior to a hearing on claimant's entitlement to the surgery recommended by Dr. Giles. The Judge denied the request, deeming it unnecessary pursuant to Ark. Code Ann. Sec. 11-9-511(a), noting that respondent's would be given an opportunity to write or depose Dr. Giles, and that respondent could submit claimant's medical records to another physician for review.
Dr. Schlesinger reviewed claimant's medical records and prepared this report on September 11, 2000:
According to review of the records, Dr. Giles has recommended further surgery on Ms. Johnson at the 5-6 level on the left, C6-7 level on the right and possibly C7-T1 on the right from a posterior approach. The only symptoms mentioned are discomfort of the neck, shoulder, and arm. This does not mention which arm. I see no evidence that she has had any conservative treatment by review of the records with any epidural steroid injections or therapy postoperatively. Her surgery was on 11/22/99 for an anterior cervical diskectomy and fusion by Dr. Giles at the 5-6 and 6-7 levels. She has had an EMG/nerve conduction test of the upper extremities bilaterally which show no evidence of a radiculopathy. This would suggest that there is no root compression of any significance. There was mild carpal tunnel syndrome on the left per the report. I do not know if this is symptomatic. I have reviewed the MRIs. There is a spur at the left C5-6 level. There is no clear nerve root compression. There is a small spur at the right C6-7 level. There is no clear nerve root compression. There is a small right lateral disc protrusion at the C7-T1 level with no clear nerve root compression. I have not had the privilege personally of performing an IME on this patient nor a history and physical exam. I therefore cannot give the recommendation based on what I have reviewed for any surgery. She may very well need an IME. She might benefit from conservative care with therapy, epidural steroid injections, etc . Based on the limited information that I have been able to review, I could not recommend another operation at this point.
On September 13, 2000, respondents wrote to the Administrative Law Judge requesting a continuance of the hearing and an independent medical examination by Dr. Schlesinger, based upon his comment in the above letter.
The Administrative Law Judge gave no reason why an IME was not necessary, other than pointing out that claimant did not want one. Certainly, the availability of other forms of discovery does automatically make an IME unnecessary. It appears in this case that before a second surgery is performed a second opinion is appropriate, especially where, upon review of the records, another specialist has suggested that claimant may benefit from conservative treatment. The record is devoid of any reference to treatment, other than anti-inflammatories, in February 2000, or any reason why such treatment was not performed.
After my de novo review of the evidence, in my opinion, this matter should be remanded to the Administrative Law Judge to order claimant to undergo an IME by Dr. Schlesinger at respondent's expense in order to determine whether the surgery recommended by Dr. Giles is reasonable and necessary or whether Dr. Schlesinger's suggestion of conservative treatment is reasonable and necessary.
Therefore, I must respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner