Opinion
CLAIM NO. E805168
ORDER FILED JANUARY 25, 2001.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondent appeals a decision by the administrative law judge finding that the claimant proved by a preponderance of the evidence that he was entitled to ongoing medical treatment as prescribed by Dr. Greg Johnston. Based upon our de novo review of the record, we find that the decision of the administrative law judge is affirmed.
The claimant sustained an admittedly compensable injury on April 25, 1998. The claimant initially treated with Dr. Greg Johnston, his family physician, and was later referred to Dr. David Gilliam who, in a report dated May 8, 1998, stated that an MRI revealed a partial tear of the claimant's rotator cuff. Dr. Gilliam performed surgery on the claimant's left shoulder on May 27, 1998. After follow-up visits with Dr. Gilliam, the claimant was later evaluated by Dr. David Collins at the request of the respondents on August 26, 1998. A September 24, 1998, bone scan of the claimant's left shoulder was unremarkable, except for a healing trauma from the surgery. Dr. Collins released the claimant on December 2, 1998, stating that the claimant had reached maximum medical improvement and he did not have any restrictions. The claimant was assessed with a 9% permanent impairment rating.
The claimant did not seek any other medical treatment until July 13, 1999, when he returned to see Dr. Johnston. Dr. Johnston has treated the claimant several times subsequent to this visit and has recommended that the claimant undergo diagnostic testing including nerve conduction studies, bone scans, and MRI's. The administrative law judge found that these diagnostic tests recommended by Dr. Greg Johnston were reasonable and necessary medical treatment for the claimant's compensable injury of April 25, 1998.
The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary.Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 ( D7033346). 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). In workers' compensation cases, the burden rests upon the claimant to establish his claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). 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 Commission Opinion, Dec. 13, 1989 ( D512553).
The evidence shows that the claimant was released by Dr. Collins in December of 1998, without restrictions. The claimant did not seek any other medical treatment for his shoulder until July, 1999. At that time, the claimant gave a history of "getting out of the shower, as he reached overhead and moved his arm back in a certain angle, he felt the severe pain in his neck." Dr. Johnston diagnosed the claimant with a cervical strain. The claimant did not seek treatment again until December, 1999. Dr. Johnston noted on December 17, 1999:
He comes in today with shoulder pain. He had surgery on the left shoulder but he had had a jerking injury that caused significant trauma to the rotator cuff after it had been repaired.
Dr. Johnston went on to write that the shoulder pain was probably degenerative in origin. There is no indication in Dr. Johnston's report of a recurrence of the claimant's original injury.
The claimant saw Dr. Johnston again on February 10, 2000. At this time, Dr. Johnston characterized the claimant's complaints as "basically a radicular type pain." The medical records from Dr. Johnston indicate Dr. Collins felt his problem was from the neck, not the shoulder. On February 28, 2000, the claimant saw Dr. Collins. Dr. Collins' notes indicate that the claimant did well for about a year and was now complaining of increasing numbness in the entire left upper extremity over the past two to three months. Dr. Collins noted:
On examination, he is in no acute distress. The cervical spine shows a prominent interspinous ligament with flexion. This is tender. Extension and rotation seem to be well tolerated. The AC joint is nontender. There is no crepitation of the shoulder. Range of motion is full. Pulses do not change with arm position. There are no color changes in the hand. His power is good. Provocative maneuvers to obliterate the pulse are not positive.
IMPRESSION: Left upper extremity numbness and tingling, etiology unknown. As noted in my office note dated 12/1/98, I do not know the relationship of the present symptoms as they relate to his work-related injury.
Dr. Collins' examination of the claimant's shoulder was normal, with the only tenderness being to the claimant's cervical spine. Dr. Collins stated that there was nothing to offer the claimant at this time, from his standpoint, and that the claimant could continue working at his present duties.
The medical records also indicate that on May 4, 1995, the claimant reported problems with numbness in his left arm. On August 18, 1995, the claimant sought medical treatment for a "history of numbness in his left arm." The report states:
He came in today with a history of numbness in his left arm. He states that if he tries to use the left arm for any extended period, he gets a sensation that the arm starts hurting badly and he just has to drop what he is doing. He has dropped coffee, he has dropped his machine that he uses with his left arm twice this week. He states that his arm just goes numb and it takes about 30 minutes for the feeling to come back. He stated that he was having that sensation at this time.
Dr. Johnston noted that the claimant had normal deep tendon reflexes, normal sensation in the extremity, and excellent pulses. Dr. Johnston noted:
Degenerative-like pain in the left shoulder with subjective numbness and a history of dropping objects. The possibilities include neuoropathy from the cervical disc disease or a pinched nerve in the arm or just simple inflammatory disease in the shoulder. He does have a history of an injury in the past where he really hit his shoulder bad when he was coming in to base and thought he had dislocated it.
It is of note, that when the claimant sought treatment on May 4, 1995, that he was having swelling and pain in both upper extremities from the elbows down to the hands on the left greater than right. The claimant had been using IV crystal amphetamine. He also thought that he might have gotten electrocuted.
The respondents and the dissent rely on the records of Dr. Collins and the 1995 records of Dr. Johnston to argue that the claimant has failed to establish that his current symptoms are causally related to his 1998 injury at work, and that his current symptoms instead either arose in 1995 or instead began long after his 1998 work-related injury. To the extent that the reports of Dr. Johnston and Dr. Collins conflict, the dissent and the respondents argue that the reports of Dr. Collins should be entitled to greater weight since Dr. Collins is an orthopedic specialist and Dr. Johnston is a family practitioner.
The Commission has the duty of weighing the medical evidence as it does any other evidence, and the resolution of any conflicting medical evidence is a question of fact for the Commission to resolve. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993).
In assessing the relative weight to accord the reports and conclusions of Dr. Collins and Dr. Johnston, we are highly persuaded by the fact that Dr. Johnston was the claimant's physician in 1995, and the claimant's initial treating physician following his 1998 injury, and the claimant's treating physician in 2000. Therefore, Dr. Johnston was in an excellent position to compare the claimant's symptoms in 1995 to his symptoms in 1998 to his symptoms in 2000. On the other hand, Dr. Collins only saw the claimant for the first time several months after the claimant's rotator cuff surgery. Under these circumstances, we accord great weight to Dr. Johnston's March 10, 2000 notation indicating that the claimant's current symptoms at issue "started when he injured his shoulder and have been present in a progressive and worsening fashion ever since." [Emphasis added]. Consequently, we find that the claimant has established by a preponderance of the evidence that the condition for which additional diagnostic testing has been proposed by Dr. Collins and Dr. Johnston is causally related to the claimant's 1998 injury. In addition, there appears to be no dispute that the proposed diagnostic testing is reasonably necessary to determine whether the claimant's current symptoms are caused by thoracic outlet syndrome, as suspected by Dr. Collins and Dr. Johnston.
Consequently, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the administrative law judge's award of additional treatment must be, and hereby 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 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
I respectfully dissent from the majority's opinion finding that the claimant proved by a preponderance of the evidence that he was entitled to ongoing medical treatment as prescribed by Dr. Greg Johnston. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
In my opinion, Dr. Collins' evaluation and opinion are much more credible than that of Dr. Johnston. Dr. Johnston has been the claimant's family physician for eight years. He is not an orthopaedic specialist, and he is not the physician that treated the claimant's injury or performed surgery on the claimant's shoulder. Dr. Collins is an orthopaedic surgeon and performed the surgery on the claimant's shoulder in 1998. The Commission has the duty of weighing the medical evidence as it does any other evidence, and the resolution of any conflicting medical evidence is a question of fact for the Commission to resolve. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993).
The medical records also indicate that as far back as May 4, 1995, the claimant had similar problems with numbness in his left arm. On August 18, 1995, the claimant sought medical treatment for a "history of numbness in his left arm." The report states:
He came in today with a history of numbness in his left arm. He states that if he tries to use the left arm for any extended period, he gets a sensation that the arm starts hurting badly and he just has to drop what he is doing. He has dropped coffee, he has dropped his machine that he uses with his left arm twice this week. He states that his arm just goes numb and it takes about 30 minutes for the feeling to come back. He stated that he was having that sensation at this time.
Dr. Johnston noted that the claimant had normal deep tendon reflexes, normal sensation in the extremity, and excellent pulses. Dr. Johnston noted:
Degenerative-like pain in the left shoulder with subjective numbness and a history of dropping objects. The possibilities include neuoropathy from the cervical disc disease or a pinched nerve in the arm or just simple inflammatory disease in the shoulder. He does have a history of an injury in the past where he really hit his shoulder bad when he was coming in to base and thought he had dislocated it.
It is of note, that when the claimant sought treatment on May 4, 1995, that he was having swelling and pain in both upper extremities from the elbows down to the hands on the left greater than right. The claimant had been using IV crystal amphetamine. He also thought that he might have gotten electrocuted.
When you consider the evidence of the claimant having prior problems with the arm tingling and numbness and the fact that it was seven months between when the claimant was released without restrictions from Dr. Collins until the time that he sought treatment from Dr. Johnston, it cannot be found that the additional treatment and diagnostic tests are reasonable and necessary medical treatment. The records show that the claimant received treatment for his left shoulder injury by two specialists and did well for about a year. It was only after an incident in the shower in July of 1999 that the claimant began to seek additional treatment.
Therefore, for the reasons set forth herein, I respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner