Opinion
CLAIM NOS. E206174 E402595
OPINION FILED OCTOBER 13, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by DAVID A. LITTLETON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
In an opinion filed February 24, 1997, the Administrative Law Judge held that the claimant proved that diagnostic testing recommended by Dr. Richard D. Peek is reasonably necessary treatment, that the claimant is entitled to additional temporary total disability benefits for the periods of June 19, 1996, through June 27, 1996, and from August 20, 1996, until a date yet to be determined. The claimant was also ordered to submit to an independent medical evaluation to be performed by Dr. Jim Moore, after the completion of the diagnostic testing performed by Dr. Peek. Based upon our de novo review of the record, we find that the Administrative Law Judge's decision is correct in all respects. Therefore, we affirm the Administrative Law Judge's decision.
The respondent contends on appeal, as they did below, that the claimant has been paid all appropriate benefits to which he is entitled. They further contend that the medical care and treatment recommended by Dr. Peek is not reasonably necessary medical treatment, arguing that Dr. Adametz's opinions support their position. The claimant contends that he is entitled to the additional temporary total disability benefits awarded by the Administrative Law Judge, and that he is entitled to the additional medical treatment recommended by Dr. Peek.
The claimant in this case was employed by the respondent as a heavy industrial mechanic for almost ten years. The evidence in this case indicates that the claimant has undergone three surgeries in the same area of the spine as a result of two work related compensable injuries. The first injury occurred on April 9, 1992, when the claimant sustained a herniated disc, and back surgery was eventually performed at the L4-5 level by Dr. James R. Adametz. The claimant sustained a second compensable injury to his back on January 25, 1994, which affected the same area of his lower back at the L4-5 level. The claimant underwent his second surgery by Dr. Adametz on February 23, 1994. Dr. Adametz indicated in his report of March 3, 1994, that the claimant underwent a diskectomy due to a "recurrent disc herniation which was significantly impinging on the nerve root."
The claimant continued under the treatment of Dr. Adametz over the next two years, and he continually complained of pain in the same area. It was not until a CT scan on September 28, 1994, that Dr. Adametz opined that the claimant had a bulging disc at the L3-4 level, with what appeared to be scar tissue at the old problem area of L4-5. The claimant, who continued to complain of pain, was given more conservative treatment over the next year by various physicians. In his report of September 8, 1995, Dr. Adametz stated that the most recent MRI, performed on September 1, 1995, at the direction of Dr. Ralph Joseph, "reveals what appears to be a free fragment of disc material at L3-4 which has extended down to the L4 vertebral body. There also looks like there is a small recurrent disc herniation at L4-5." In a post-operative report dated September 26, 1995, Dr. Adametz stated that he performed "a lumbar laminectomy and diskectomy at L3-4. A large disc herniation was found with a free fragment that migrated down inferior to the disc space." Dr. Adametz also found a "small disc fragment at [the L4-5] level which may have been causing some of his chronic problem. . . ."
The respondent states that the previous surgeries were successful and that no identifiable problems remained. However, what they fail to point out is the fact that after every surgery prior to 1996, Dr. Adametz stated that the surgery was a success, only to have to repeat the surgery again due to recurrent problems that the claimant continuously complained about. Dr. Adametz obviously did not do the additional surgeries simply because the claimant was complaining. He performed the surgery due to the objective medical evidence clearly indicating that the claimant had significant problems that could only be resolved by surgery. In his report of May 28, 1996, Dr. Adametz stated:
The most recent x-rays of May 10, 1996, show a significant degenerative change at L4-5 that may not be anything significant, but also would be the same changes seen if he had a discitis there. For that reason I have been rather slow to release Mr. Ray. I think he probably is getting close to maximum medical improvement. I think getting him back to any kind of substantial work is going to be near impossible without a significant improvement in his symptoms. I have still not totally ruled out that Mr. Ray will need additional treatment in the form of either additional antibiotics or even possible a lumbar fusion. For that reason I have continued to follow him. As far as work goes I think he will only be able to do sedentary work, but if I can show that he does not have an active process going on in his back then I would be ready to release him to do that in the fairly near future. I think he is going to end up qualifying for about a 15% permanent partial impairment. I would like to wait until his next visit to try to give him a final rating. [Emphasis supplied.]
As one can clearly see from the quoted section above, Dr. Adametz clearly believed that the claimant may need some additional treatment and "even possible a lumbar fusion," the same treatment that Dr. Peek is now exploring by performing the testing in question.
The respondent also points to Dr. Adametz's report of June 27, 1996, and argue that this report indicates that Dr. Adametz was of the opinion that the claimant would not need further medical treatment, and that the claimant's healing period should end on that date. However, in that same report Dr. Adametz discussed that the claimant would be wearing a back brace he prescribed for the claimant, indicating that he was still receiving treatment to help resolve his condition. The respondent also failed to mention Dr. Adametz's letter of September 18, 1996, which clearly supports the claimant's position that he remained within his healing period and that further treatment may be necessary. Dr. Adametz stated:
Unfortunately, he continues to have problems and I am concerned that he may have some instability in his lumbar spine secondary to the previous problems that he has had. For that reason I did recommend that he see Dr. Peek to see if a lumbar fusion would be of benefit to him. Apparently Dr. Peek wants to perform some additional tests to try and determine this and I left that to his discretion.
Dr. Adametz's opinion, as quoted above, is clearly consistent with the recommendations of Dr. Peek, and Dr. Adametz deferred to Dr. Peek's expertise in making such a determination. Therefore, Dr. Adametz and Dr. Peek's opinions are not inconsistent, and the testing and treatment recommended by Dr. Peek is reasonably necessary to help the claimant to be as far restored as the permanent character of his injury will permit. See, Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). While the respondent argues that Dr. Peek's opinion is not entitled to as much weight due to only seeing the claimant for an evaluation, Dr. Adametz deferred to Dr. Peek to make such a determination because of Dr. Adametz's inability to resolve the claimants condition after three surgeries.
Dr. Peek evaluated the claimant on August 20, 1996, and recommended the additional diagnostic testing to determine the need for possible fusion, an option Dr. Adametz also believed may be necessary. Dr. Peek concluded that the claimant may have multi-level instability, an underlying defect at the L4-5 level, or an infection or inflammation at that level. Dr. Peek also opined that the claimant may "have a pars defect [or pars fracture] on the right at L4-5, which may account for his symptoms of instability." It was Dr. Peek's opinion that the additional tests in question were warranted to pinpoint the cause of the claimant's persistent symptoms and to rule out the need for a possible fusion. As the Administrative Law Judge correctly pointed out, "Dr. Adametz clearly agrees with Dr. Peek's analysis regarding the possibility of discitis at the L4-5 level and the possible need for fusion."
Pursuant to Ark. Code Ann. § 11-9-508(a) (Repl. 1996), an employer is liable for all reasonably necessary medical services in connection with the compensable injury. That subsection provides:
The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.
As the Arkansas Supreme Court and the Arkansas Court of Appeals have repeatedly stated, what constitutes reasonably necessary medical treatment under this subsection is a question of fact for the Commission to resolve. Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996); Arkansas Dep't of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994). The Court of Appeals has also held that medical treatments which are required so as to stabilize or maintain an injured worker's status are the responsibility of the employer. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). It is the Commission's duty to resolve any conflict when the testimony or the medical evidence is conflicting. Haney v. Smith, Doyle, and Winters, 46 Ark. App. 212, 878 S.W.2d 775 (1994).
The Arkansas Court of Appeals and this Commission have consistently held that in order to be entitled to temporary total disability benefits the claimant must prove that he remained within his healing period. Palazzolo v. Nelms Chevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994); Larry Graham v. Chamber Door Industries, Inc., Workers' Compensation Commission, Opinion filed January 9, 1997 ( E400258). The "healing period" is defined as that period necessary for the healing of an injury that continues until the employee is as far restored as the permanent character of the injury will permit. Carroll General Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Arkansas Highway Transp. Dep't v. McWilliams, 41 Ark. App. 1, 7, 846 S.W.2d 670, 674 (1993). The Commission has the duty of weighing the medical evidence, and the resolution of any conflict is a question of fact for the Commission. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). The determination of when a claimant's healing period has ended is a factual determination for the Commission to resolve. Carroll General Hosp. v. Green, supra.
The medical evidence in this case is clear that the claimant has had the same problems in the same levels of his spine as he did after suffering the two work related compensable injuries. We would agree that Dr. Adametz has had more contact with the claimant and is in a good position to evaluate the claimant's need for additional treatment. Dr. Adametz is the one who referred the claimant to Dr. Peek, and Dr. Adametz has deferred to Dr. Peek's expertise in determining what further treatment the claimant needs. Dr. Adametz himself has stated that the claimant may need the fusion for which Dr. Peek was performing the additional tests in question. The medical records clearly indicate that the claimant has multi-level instability that Dr. Adametz has been unable to correct after three surgeries. Both doctors agree about the possibility that the claimant may need the fusion to correct the extensive problems that the claimant has been dealing with for over four years. The medical evidence shows that the claimant's condition has not stabilized, and the additional testing and care is warranted before the claimant is as far restored as the permanent character of the injury will permit.
We find that the testing and treatment in question is reasonably necessary to evaluate the claimant's need for further treatment and to stabilize or simply maintain the claimant's status. The medical evidence clearly indicates that the claimant remained within his healing period from June 19, 1996, through June 27, 1996. The medical evidence also indicates that the claimant reentered his healing period when he began his treatment with Dr. Peek on August 20, 1996, and remained within his healing period until a date yet to be determined. Accordingly, we affirm the Administrative Law Judge's decision in all respects.
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 Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the diagnostic tests and further treatment recommended by Dr. Peek is reasonable and necessary for the treatment of claimant's compensable injury; that claimant is entitled to temporary total disability benefits from August 20, 1996, until the need for additional treatment, including surgery, is ruled out; and that claimant shall submit to an independent medical evaluation to be performed by Dr. Jim J. Moore. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof.
Claimant has sustained two compensable injuries to his lumbar spine while employed by respondent. The first injury occurred in the spring of 1992 when he sustained a herniated disk at the L4-5 level. Claimant underwent a laminectomy diskectomy performed by Dr. James Adametz and was eventually released to return to work. On January 24, 1994, claimant sustained a second compensable injury to his lumbar spine. Again, this injury affected the L4-5 disk. Claimant underwent a second surgical procedure performed by Dr. Adametz to again remove a herniated disk at the L4-5 level. Approximately one year after undergoing the second surgical procedure, it was determined that claimant had yet a third herniated disk, this time at the L3-4 level. Dr. Adametz performed a surgical procedure to remove the herniated disk at the L3-4 level and he explored the L4-5 level, discovered a small disk fragment at that time and removed it. As a result of the third surgical procedure, claimant developed a staph infection in his wound site which was treated aggressively with antibiotics. Claimant has undergone numerous post-operative tests, including but not limited to, a CBC, sed-rate test, and MRI's. All post-operative tests revealed that claimant's previous surgeries were successful and no identifiable problems remained. However, claimant continued to complain of lower back pain which at times radiated into his right lower extremity. On May 28, 1996, Dr. Adametz stated in his report:
The most recent x-rays of May 10, 1996, show a significant degenerative change at L4-5 that may not be anything significant, but also would be the same changes seen if he had a discitis there. For that reason I have been rather slow to release Mr. Ray. I think he probably is getting close to maximum medical improvement . . . I think he is going to end up qualifying for about a fifteen percent (15%) permanent partial impairment. I would like to wait until his next visit to try to give him a final rating.
The next medical record in the record authored by Dr. Adametz is dated June 27, 1996. In this report Dr. Adametz did state that there should have been several other letters on claimant since the report of March 26, 1996. If such medical records exist, they were not introduced into evidence. Dr. Adametz further stated in his June 27, 1996, report:
Unfortunately, Mr. Ray has been a very difficult patient. It appears on follow-up scans that his major problem which was the disk herniations have been removed and he should be doing well. However, he continues to have complaints of severe back pain with any kind of activity which is only relieved by rest. I have even tried putting him in a brace recently to see if that would help. I have also had to continue treating him symptomatically with medication. His disability does seem to be stable at this point and so most treatment is going to be aimed toward just symptomatic relief with continuation of medication on a rather indefinite period. (Emphasis added)
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 Workers' Compensation Commission, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Workers' Compensation Commission, Aug. 27, 1993 ( D703346). 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., FC Opinion Dec. 13, 1989 ( D512553).
Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). Id. The determination is to be made by the Commission, and if that determination is supported by substantial evidence, it must be affirmed. Id. The healing period continues until the employee is a far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized.
In my opinion, I find that claimant has failed to prove by a preponderance of the evidence the treatment received by Dr. Richard Peek and the recommended diagnostic testing is reasonable and necessary for the treatment of claimant's compensable injury. As previously noted, the record reveals that claimant has undergone extensive post-operative testing at the recommendation of Dr. Adametz. Dr. Peek now seeks to repeat several of these tests claimant has previously undergone. With the exception of the CT Scan and diskogram, Dr. Peek has not recommended any tests which claimant has not previously received. As I review the medical records, Dr. Peek has not stated that the tests he recommends and the potential fusion surgery are related to claimant's compensable injury at L4-5. The record clearly shows that claimant's third surgical procedure to remove a disk herniation at L3-4 was not related to the treatment of claimant's compensable injury. In his post-operative report of September 9, 1995, Dr. Adametz noted:
You should have a note from me explaining that Mr. Milton Ray had a large L3-4 disk herniation. I felt like that portion of his surgery was probably not related to his previous injury although this makes this rather complicated. He does have a small recurrent disk herniation at the same level where his previous surgery was.
Despite Dr. Adametz's report indicating that the surgery for the removal of the disk herniation at L3-4, respondent paid for the entirety of the third surgical procedure and all follow-up care associated therewith.
Currently, Dr. Peek has diagnosed claimant with degenerative disk disease at three levels, L3-4, L4-5, and L5-S1. It is undisputed that the only level affected as a result of claimant's January 24, 1994, compensable incident was the L4-5 level. Dr. Peek has also diagnosed the claimant with a possible pars fracture at L45. Dr. Peek's one time only evaluation of claimant is the first mention of a possible pars fracture. Dr. Adametz has treated claimant for an extended period of time as a result of his two compensable injuries, has performed three surgical procedures on claimant's spine and has ordered and reviewed numerous objective tests including x-rays and MRI's. At no time, did Dr. Adametz detect or suspect claimant of having a pars fracture at L4-5. Moreover, a thorough review of Dr. Adametz's medical records clearly show that after claimant's last surgical procedure claimant recovered satisfactorily and all test results revealed normal findings for claimant's condition. Despite these normal findings, claimant continued to complain of pain which Dr. Adametz finally characterized as chronic. As of June 27, 1996, Dr. Adametz was clearly of the opinion that claimant's condition had stabilized but would continue to need ongoing treatment for symptomatic relief. Obviously, Dr. Adametz was of the opinion that claimant's condition had stabilized and nothing further in the way of treatment would further improve claimant's condition.
Conversely, Dr. Peek who has only examined claimant on one occasion, now wishes to re-invent the wheel. Dr. Peek has recommended that numerous diagnostic tests be performed to determine the location of claimant's pain. These tests have already been performed by Dr. Adametz. Moreover, there is nothing in the record to indicate that the treatment recommended by Dr. Peek is actually related to claimant's compensable injury, and not the two disk levels immediately above and immediately below the site of claimant's compensable injury. Furthermore, Dr. Peek's recommendation for additional diagnostic testing is inconsistent with Dr. Adametz's previous findings that claimant's condition has stabilized. Accordingly, I cannot find that the treatment recommended by Dr. Peek is reasonable and necessary for the treatment of claimant's compensable injury. Since I find that the treatment recommended by Dr. Peek is not reasonable and necessary, I find that claimant's healing period ended when he reached maximum medical improvement on June 27, 1996, in accordance with Dr. Adametz's report. Therefore, I find that claimant has failed to prove entitlement to additional temporary total disability benefits. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner