Opinion
CLAIM NO. E612908
OPINION FILED MAY 20, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BENNETT NOLAN, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE RANDY MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed in part and reversed in part.
OPINION AND ORDER
[2] The respondents appeal an administrative law judge's opinion filed July 24, 1998. The administrative law judge found that surgical removal of the claimant's toe is a compensable consequence of his work-related injury, and that the respondents should pay permanent partial disability benefits for loss of the toe. The administrative law judge found that the claimant has proven that a myoelectric prosthesis is both reasonable and necessary, in order for the claimant's right hand to function more adequately. The administrative law judge found that the respondents should reimburse the claimant for the cost of his travel to and from classes at Arkansas Tech University, and that they should pay in the future for the claimant's travel to and from college classes during his rehabilitation. The Full Commission has reviewed the case de novo. We affirm the finding that surgical removal of the claimant's toe is a compensable consequence of his work-related injury, and that the respondents should pay permanent partial disability benefits for loss of the toe. We affirm the finding that the claimant has proven that a myoelectric prosthesis is reasonable and necessary in order to assure more adequate functioning of the claimant's right hand. We reverse the finding that the respondents should reimburse the claimant for the cost of his travel to and from classes at Arkansas Tech.The claimant, age 39, has a high school diploma and associate's degree in diesel and heavy equipment. The parties stipulated that the claimant sustained a compensable injury on September 20, 1996. The claimant testified that a piston cut off his right hand at the wrist; the claimant's right hand was his dominant and coordinated hand. A plastic reconstructive hand surgeon, Dr. James Kelly, performed emergency surgery on the day of injury. The claimant stated that the doctor cut a slice in his groin, attached the stump of the wrist in this incision and sewed it in, in order to build more tissue for reconstruction of the hand. After 23 days, testified the claimant, physicians removed his wrist from the groin area and sewed a piece of flesh to the underside of his palm skin; this was done so that the claimant would have some sort of fist so that the doctors would have something to work with for future reconstruction. The claimant testified that after about one month surgery was performed in order to improve the appearance of the stub. The claimant testified to, and it was viewed by the Commission, what appeared to be a portion of a fist with no knuckles, thumb, or fingers, and about one-half the size of a normal fist.
After extensive physical therapy, Dr. Kelly attempted to implant flexors, or digits, on the claimant's hand. This was done by surgery, a left second-toe transfer to the right hand. The claimant testified that the initial plan was to remove a toe from each foot and attach the toes to the stump, in order to give the claimant functional flexors or grippers. Dr. Kelly testified that this surgery had a high success rate and would have precluded the need for a prosthetic device. The claimant stated that approximately four days after the toe transplant, however, it became evident that no blood circulation was developing, and the transplanted toe "died." The doctors removed the toe, and a second transplant was not attempted. The respondents accepted responsibility for this surgery.
The claimant stated that he has looked into prosthetic devices; that the most useful, less obtrusive, and more natural device is a myoelectric device. The claimant said this prosthetic operates from the electrical impulses triggered by movement of the ligaments in the forearm, much as the ligaments trigger the movement of natural fingers in the human hand. The claimant stated that the conventional "hook-type" prosthetic offered by the respondents is very limited in its usefulness. The conventional "hook" is self-powered, with a harness strapping over each shoulder and a cable running down the underside. The cable attaches to the hook, which operates continually open or continually closed, depending on the setting of the mechanism. The claimant said that this device operates on the ability to shrug the shoulders, limiting his ability to use it in many different body positions, such as behind the back. The claimant stated that the myoelectric prosthetic would enable him to hold more delicate items and would be more functional: "I can use it over my head, behind me, actually behind my back to reach behind my back and take something out of a pocket, but it gives you that much flexibility. You can reach behind you and pick something up off the floor that you don't have the flexibility with the conventional hook. It gives you more dexterity to be able to work in any position." The claimant testified that he had tried out a myoelectric device and found it to be very functional.
Counsel deposed Dr. Kelly, the claimant's surgeon and primary treating physician, in May, 1998. Dr. Kelly testified that he was aware of the claimant's plans to become a school teacher. Dr. Kelly stated that a myoelectric prosthesis had a more advantageous "dexterity function" than a conventional prosthesis. Dr. Kelly testified that he considered the claimant to be a "viable candidate" for a myoelectric device. Frank Snell, a prosthetist orthotist, testified in a deposition in June, 1998. Mr. Snell testified that the hook prosthesis was manipulated by a harness and "gross body movements." Snell described the myoelectric prosthesis as being self-suspended, and not requiring a body-type harness. The myoelectric device picks up fine electronic signals from muscle sites on the forearm, which then trigger the mechanical hand to open or close. This aid is more sophisticated and would allow the claimant more functionality and mobility.
Subsequent to the compensable injury, the claimant began attending Arkansas Tech University and studying mathematics. The claimant stated that he is pursuing a degree in secondary education, with a certification in math, so that he can teach and support his family. The claimant testified that he had a grade point average of 3.7, but that he was not attending school in the summer of 1998, because the respondents would not pay for his summer classes. The claimant testified that the respondents had not paid his travel expenses for going to college. The claimant testified that throughout the fall semester of 1997 and part of the spring semester of 1998, he drove 53 miles one way, three days weekly, to Arkansas Tech from Paris, Arkansas. After March 5, 1998, the claimant drove 47 miles one way, daily, from Ozark, Arkansas.
When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury.McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). The basic test is whether vel non there is a causal connection between the two episodes.Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). As a general matter, the determination of whether there is a causal connection between the injury and the disability is a question of fact for the Commission to determine.Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986). In the within matter, the claimant sustained a compensable injury on September 20, 1996, for which he ultimately lost his right hand. After several surgeries and extensive physical therapy, Dr. Kelly attempted to attach digits to the claimant's hand. He attempted to do so by removing the second toe from the claimant's left foot and transplanting it to his stump. Dr. Kelly's plan for treatment was to remove a toe from each foot and then attach the toes to the claimant's wrist, in order to give the claimant functional flexor/grippers, or digits. The respondents accepted responsibility for this surgery, which had a high success rate (90-95%) and would have fundamentally mitigated the respondents' financial liability. In this regard, a successful outcome would have made consideration of a prothesis unnecessary. Dr. Kelly opined that a successful outcome would have given the claimant 30% use of his injured hand and would have precluded the need for a prosthesis. Approximately four days after this toe transplant surgery, it became evident that no blood circulation was developing. The surgery was therefore unsuccessful, and the transplanted toe "died." Under these circumstances, we affirm the administrative law judge's finding that surgical removal of the claimant's toe was a compensable consequence of his work-related injury. Citing Ark. Code Ann. § 11-9-521(a)(13) (Repl. 1997), the administrative law judge found that the respondents should pay partial disability benefits to the claimant for an eleven week period for the loss of his toe. We affirm this finding.
The administrative law judge found that the claimant has proven that a myoelectric prosthesis is both reasonable and necessary in order for the claimant's right hand to function more adequately. We affirm this finding. Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1997). Injured employees bear the burden of proving, by a preponderance of the evidence, that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers' Compensation Commission, Feb. 17, 1989 ( D612291). What constitutes reasonable and necessary treatment is a question of fact for the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996).
In the present matter, the claimant lost his right hand, his dominant hand, in a traumatic, accidental workplace injury. This injury effectively prevented the claimant from ever returning to manual labor. The claimant has therefore been forced to seek alternative career goals, and has chosen to become a teacher of mathematics. Educationally, the claimant has done quite well in pursuing his new vocation. The claimant now seeks a modicum of physical wholeness through attachment of a myoelectric prosthetic. In assessing whether provision of a myoelectric prosthesis constitutes reasonable and necessary medical treatment for the claimant, we find the case of Crain Burton Ford Co. V. Rogers, 12 Ark. App. 246, 674 S.W.2d (1984) to be helpful. (The Concurring and Dissenting Opinion incorrectly states that we rely on Crain in finding that loss of the claimant's toe is a compensable consequence of his compensable injury.) In Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984), the Court of Appeals found that there was a causal connection between the claimant's impotence and a compensable injury he had sustained. Regarding whether a penile implant was reasonably necessary to treat the compensable injury, the Court found that there "seem to be three schools of thought in regard to the issue before us." One line of cases allowed medical treatment that would help restore the claimant's earning power. A second line of cases required the carrier to continue to pay for custodial care required as a result of the compensable injury, even if no further improvement in the claimant's condition was expected. A third line of cases allowed compensation for measures that are "merely palliative." The Court found:
Under the provisions of the act involved in this case the appellee was entitled to such medical and surgical services as "may be necessary." The administrative law judge found that the surgical procedure in question was "necessary" to restore claimant, as far as practicable, to the physical condition he enjoyed immediately preceding this injury. That finding was adopted by the Commission. Applying a liberal construction in claimant's favor, we cannot say the finding was wrong. We hold that the decision appealed from is supported by substantial evidence and within the proper exercise of the Commission's jurisdiction.
We recognize that Act 796 of 1993 applies to this claim, and that we are to strictly construe the provisions of Act 796, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704(c)(3)(4) (Supp. 1997). Therefore, we are aware that the Court of Appeals in Crain liberally construed the workers' compensation act in effect at the time in the claimant's favor. However, we note that the Crain Court interpreted Ark. Stat. Ann. § 81-1311 (Repl. 1960), which provided in pertinent part:
The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during the period of six (6) months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require.
In the present matter, we are called upon to apply Ark. Code Ann. § 11-9-508(a) (Repl. 1997), the provisions of which are essentially the same as Ark. Stat. Ann. § 81-1311 (Repl. 1960). Likewise, Ark. Stat. Ann. § 81-1311, Ark. Code Ann. § 11-9-508(a) provides that the employer shall provide such medical services as are reasonably necessary to treat the compensable injury, including artificial limbs or any other apparatus which may be reasonably necessary. Act 796 of 1993 did not change the general law in this regard. Turner v. Trane Unitary Products, Full Workers' Compensation Commission, opinion filed June 17, 1998 ( E616700). Further, the dissent maintains that the myoelectric prosthetic will cost $30,487, and that the conventional hook would cost only $9,601. However, Frank Snell, upon whose testimony the dissent relies in arguing that the myoelectric prosthetic is neither reasonable nor necessary, testified regarding the cost of the myoelectric device:
The real world of prosthetics, and most of health care, is not based upon private fee schedules, it's based on negotiated claims through case managers with third-party payers practicing managed care.
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Arkansas is in Region C and the fee schedules for this particular list of L codes (myoelectric prosthetics), which is the real world reimbursement that I could expect as a prosthetic practitioner and businessman, would be approximately $18,428.
After de novo review, we find that the claimant is entitled to a myoelectric prosthesis, in order to restore him, as far as practicable to the physical condition he enjoyed immediately preceding his compensable injury. The preponderance of evidence shows that the myoelectric prosthesis will allow better functioning of the claimant's right arm, which will assist in his duties as an educator. Dr. Kelly, the claimant's primary treating physician, believes that the claimant should be fitted with this prosthesis, as it is "best suited for his future needs."
In August, 1997, the claimant and carrier entered into an Individual Written Rehabilitation Plan, where it was indicated that the claimant would participate in a Bachelor's Degree program at Arkansas Tech University. The plan was contingent on the claimant's ability to secure funding for training beyond the first two semesters of study. The terms of the plan did not provide for mileage reimbursement; however, reimbursement for mileage and meals was available through Arkansas State Vocational Rehabilitation. Ignoring this voluntary agreement between the parties, the administrative law judge found that the respondents should reimburse the claimant for the cost of travel to and from classes at Arkansas Tech, and that the respondents should pay future travel costs during the claimant's rehabilitation. We reverse this finding.
The record shows that this intelligent claimant freely and voluntarily entered into an agreement with the respondents wherein two semesters of college study would be paid for, but the claimant would bear his own mileage expense. In seeking to overturn this agreement, the claimant cites Ark. Code Ann. § 11-9-108(a) (Repl. 1996), which provides:
No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation, or device whatsoever shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this chapter, except as specifically provided elsewhere in this chapter.
This statutory section was designed to protect employees against the practice of unscrupulous employers to avoid compensation liability by having employees sign a contract waiving all their rights to compensation in consideration of being employed. See, Bryan v. Ford, Bacon Davis, 246 Ark. 327, 438 S.W.2d 472 (1969), citing Griffiths v. Earl of Dudley, 9 Q.B.D. 357 (1882).
Under these circumstances, we reverse the administrative law judge's finding that the respondents are liable to the claimant for travel costs. In reaching that decision, we are particularly persuaded by the facts that the claimant has already received the benefit of the educational opportunities agreed to by the parties and by the fact that travel costs were available through an alternative source. Likewise, both parties entered into the agreement without seeking Commission intervention as to whether the agreement as to a proposed program of two semesters at Arkansas Tech was reasonable in relation to the claimant's disability. We see no basis on this record to disturb the terms of the vocational rehabilitation program agreed to by the parties.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we affirm the finding that loss of the claimant's toe, next to his big toe, is a compensable consequence of his compensable injury, and that the respondents should pay permanent partial disability benefits pursuant to Ark. Code Ann. § 11-9-521(a)(13). We affirm the finding that a myoelectric prosthesis is both reasonable and necessary in order for the claimant's right hand to function more adequately, and that the respondents should pay for the cost of same. We reverse the finding that the respondents should reimburse the claimant for the cost of present and future travel to and from Arkansas Tech University. We thus affirm the administrative law judge in part and reverse in part.
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 in part 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(b) (Repl. 1996).
IT IS SO ORDERED. ________________________________
CONCURRING AND DISSENTING OPINION
[22] I concur in part and respectfully dissent in part from the majority opinion. I concur in the findings that the loss of claimant's toe is compensable consequence of his work-related injury and that respondents are liable for eleven weeks of permanent partial disability benefits. Moreover, I concur in the finding that the myoelectric prosthetic device is reasonable and necessary for the treatment of claimant's compensable injury. However, I must respectfully dissent from the finding that respondents are not liable for reimbursement of claimant's travel expenses.In my view, claimant may never waive his right to compensation. Ark. Code Ann. § 11-9-108. Although the Legislature may have crafted this provision to prevent unscrupulous employers from forcing employees to sign a waiver as a condition precedent to employment, the statutory language does not preclude its operation in this instance.
Here, respondent carrier knew that claimant was entitled to mileage reimbursement. Nevertheless, an agreement was crafted which specifically excludes payment of this expense. I recognize that claimant is an intelligent man; however, he did not have the benefit of legal counsel when the parties agreed to these terms. Enforcement of this agreement would set a dangerous precedent. Therefore, I would find that claimant is entitled to an award for mileage reimbursement.
Based on the foregoing, I concur in part and respectfully dissent in part.
______________________________ PAT WEST HUMPHREY, Commissioner
CONCURRING DISSENTING OPINION
[29] I must respectfully dissent in part and concur in part with the majority opinion. Specifically, I must dissent from the findings that claimant has proven entitlement to permanent partial disability benefits for the loss of his toes and to the myoelectric prosthetic device. However, I concur with the finding that claimant is not entitled to mileage reimbursement for his travel to college. First, with regard to claimant's contention that he is entitled to permanent partial disability benefits for the loss of his toe during the elective procedure, I find that claimant has failed to prove by a preponderance of the evidence entitlement to such benefits. Ark. Code Ann. § 11-9-521(a) states:
An employee who sustains a permanent compensable injury scheduled in this section shall receive . . . weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period of time set out in the following schedule: . . ."
In finding that claimant is entitled to permanent partial disability benefits for the loss of his toe, the majority found that the loss was a compensable consequence of claimant's compensable injury.
In a recent opinion, this Commission has upheld an award of permanent partial disability benefits for an injury to the cervical spine, which resulted from an injury sustained during a medically prescribed work-hardening program. See,Joseph Driver v. Jackson County Sheriff's Department, Full Commission Opinion, May 12, 1998, ( E509771). The evidence in Driver revealed that the claimant had been hospitalized for an extensive period of physical therapy which had been prescribed as curative, remedial treatment for claimant's compensable lower back injury. Accordingly, there is authority to support an award for permanent benefits for an injury to a separate portion of the body for injuries to the body as a whole which arises out of a compensable consequence from remedial or corrective medical treatment. However, I find that this claim for a scheduled injury arising from elective, reconstructive, non-medically necessary surgery is not compensable.
Ark. Code Ann. § 11-9-704(c)(3) states:
Administrative Law Judges, the Commission and any reviewing courts shall construe the provisions of this chapter strictly.
A strict interpretation of Ark. Code Ann. § 11-9-521(a) provides for permanent partial disability benefits only as a result of the actual injury resulting from the compensable event. In a very similar case, the Michigan Appellate Court held that it was improper to award benefits for the loss of a finger transplanted to the base of an injured claimant's thumb, holding that such an award is improper when that finger was not damaged in the accident. See, Swoffer v. Marmac Industries, Inc., 43 Mich. App. 543, 204 N.W.2d 344 (1973). Likewise, in the case presently before this Commission, it is obvious that claimant did not lose his toe during the compensable event when the air compressor blew. Claimant's toe was removed and transplanted onto his right upper extremity in an elective rehabilitative medical procedure. It was not medically necessary for claimant to undergo this procedure since the prosthetic devices are available. In my opinion, an elective rehabilitative plastic surgery is not akin to such medically necessary curative treatment as physical therapy or even bone graft for spinal fusions. Injuries sustained during curative or remedial medical treatment may well be a natural and probable result of claimant's compensable injury and are clearly distinguishable from injuries sustained through elective reconstructive medicine.
The issue before this Commission is not whether the attempted toe-to-hand transfer was reasonable and necessary medical treatment in connection with claimant's compensable injury, as respondent voluntarily paid for this elective, reconstructive procedure. Rather, the issue is, now that the procedure has taken place, is respondent responsible for the loss of claimant's toe in the form of permanent partial disability benefits.
The Act provides for permanent partial disability benefits "attributable" to the injury. Webster's Ninth New Collegiate Dictionary defines the verb attribute as: "to reckon as made or originated in an indicated fashion."
Utilizing this definition, an employee who sustains a permanent compensable injury scheduled under the Act shall receive weekly benefits in the amount of the permanent partial disability rate which originated from the injury. The only scheduled injury originating from the compensable event is the scheduled injury to claimant's upper extremity. The loss of claimant's toe did not originate from this injury, but rather occurred from a conscious decision on claimant's part to remove the toe in hopes of successful rehabilitative, plastic surgery. In my opinion the loss of claimant's toe from this conscious decision was not a natural and probable result of claimant's compensable injury, as claimant did not have to undergo this procedure in order to effectuate a cure.
In awarding claimant benefits for the loss of his toes, the majority has relied upon a 1984 Arkansas Court of Appeals opinion wherein the Court found that a penile implant was reasonably necessary medical treatment to restore the claimant as far as practicable, to his physical condition immediately preceding the injury. See Crain burton Ford Co. V. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984). However, it is noted that the Court made specific reference to the old law which required liberal construction of the workers' compensation statutes in favor of the claimant. Pursuant to changes implemented by Act 796 of 1993, Ark. Code Ann. § 11-9-704(c)(3) provides that provisions of the workers' compensation chapter are no longer afforded liberal construction but must be construed strictly. Moreover, with changes implemented in 1987, claimant's are no longer given the benefit of the doubt. See Ark. Code Ann. § 11-9-704(c)(4). Accordingly, it is my opinion that the Court of Appeals holding in Crain Burton Ford Co. V. Rogers, supra is not dispositive of the issues in this claim.
With regard to the second issue, whether claimant is entitled to a myoelectric prosthesis as opposed to a conventional prosthesis, I find that claimant has failed to prove by a preponderance of the evidence entitlement to the myoelectric prosthetic device. In this regard, Ark. Code Ann. § 11-9-508(a) states:
The employer shall properly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eye glasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.
The record reflects that respondent has offered to provide claimant with a conventional prosthetic arm. However, claimant has refused to accept respondent's offer and has insisted that respondent provide claimant with a myoelectric prosthetic device. Claimant described the difference between the two devices as follows:
The conventional hook is a more of a self powered mechanical device that has got a harness that straps over each shoulder with a cable that runs down along the underside and attaches to the hook, which is actually looks like a hook ad it is operated, as it is set to operate where it is normally closed in a relaxed manner or normally opened in a relaxed manner and it actually takes movement of the shoulders together, shrugging the shoulders together to either open it or close it, depending on how it is set up . . .
* * * *
Mio-electric is actually it attaches just below the elbow and all it is just a cuff that goes down and attaches with a hand on the end of it, but it has sensors in it that lay on the muscles that I used to work this hand, to open and close it, the same muscles I used to open and close this one before I lost my hand. It operates on those muscles, it senses the movement I used to make to open them, I used to make to open these fingers. When it senses that, it sends an electronic message to the motor which actually opens the hand up. If I flex the muscles to close it that I would normally flex to close it, it actually closes the hand at whatever speed I want to close it, however hard I want to close it, light or hard.
When asked to explain why he wanted the myoelectric device as opposed to the conventional device, claimant stated:
One of the goals that I have in teaching of my students, and I would like to be able to provide a distraction free classroom, something where they are focused on their learning, not on some oddity. I want to be able to completely do my classrooms however I need to do them, I want to be able to work overhead at a chalkboard, I would like to be able to point at a chalkboard and be able to turn and talk to my students at the same time rather than having to put something on the board and then turn around and talk to them, I would like to be able to, you know, it would be so much — to be able to have that direct eye contact with your students . . .
* * * *
I am an avid guitar player, everything, bass, 6-string, 12-string, I love to play the guitars, and the conventional hook would not allow me to be able to play my guitars again from what I have seen, but actually operating the mio-electric prosthesis it is very evident that I will be able to use as far as I would be able to play my guitars again. I love to play golf. With the mio-electric that is something that is possible. With the conventional prosthesis it is not very possible.
As noted by the majority, claimant further explained that the advantages of a myoelectric device would allow him to reach over his head or behind his back with his right arm and use the hand, while a conventional device cannot be opened in those positions.
The case law with regard to prosthetic devices is limited. The leading case in Arkansas is Crain Burton Ford Company v. Rogers, 12 Ark. App. 246, 674 S.W.2d, 944 (1984). InCrain Burton Ford Company v. Rogers, the claimant requested a penile implant to address his impotence which was a direct result from his compensable back injury. In awarding claimant the surgery, the Court of Appeals determined that the prosthetic device was necessary to restore the claimant as far as practicable to his condition prior to the injury. For those reasons expressed above, it is my opinion that the changes in the workers' compensation law which now prohibit giving a claimant the benefit of the doubt and which now require a strict interpretation of the workers' compensation chapter no longer make Crain Burton Ford Co. V. Rogers, dispositive of these issues. Moreover, it is my opinion that this case is readily distinguishable from Crain Burton Ford Company v. Rogers in that respondent has not refused to provide claimant with a prosthetic device, as was the case in Crain Burton Ford. In Crain Burton Ford, the claimant had to prove that the penile implant was reasonable and necessary medical treatment related to the compensable injury. Likewise, in the case currently before the Commission, it is claimant's burden to prove that the myoelectric prosthesis is reasonable and necessary medical treatment as opposed to the conventional device which has been offered by respondent. It is noteworthy that claimant has gone two years without a prosthetic device because he has refused to accept the conventional device offered by respondent. The record reflects that either device would allow claimant the opportunity to work in his chosen field as a secondary school teacher once claimant finishes his education. As explained by Dr. Frank Snell, a Prosthetic Orthotist, whose deposition was introduced into evidence, both devices will allow claimant to work as a teacher, to reach out and grab textbooks, paper, or other objects from his students, and would allow claimant to hold a pen or pencil for writing. Dr. Snell explained that, with the conventional device, the claimant could write on paper or on a chalkboard just as he could with the myoelectric prosthesis. Dr. Snell specifically stated:
The hand — either hand will hold a piece of chalk, or pen, or pencil. But the attributes of the prosthesis, either prosthesis, are not going to have an impact on how the patient writes.
The myoelectric device, which claimant wants, is not the only option. The evidence reflects that a conventional device will restore claimant to his pre-injury condition. The claimant will have the benefits of an artificial limb which will allow him to grasp objects with his dominant arm, write either on paper or on a chalkboard, and carry on his present lifestyle. The myoelectric device only provides the added ability to lift or grasp more delicate objects such as a potato chip or a styrofoam cup, the ability to control the strength of the grasp or grip, whereas the conventional device would not, and the ability to utilize the hand of the prosthesis in positions other than directly in front of the body. In my opinion these advantages are limited and are not sufficient to justify the myoelectrical device over the conventional one. As I review the evidence, claimant has failed to demonstrate a sufficient necessity for the limited additional benefits offered by the myoelectric device. When the cost of this device ($30,487 or $18,428 if the fee schedule is honored) is considered against the cost of the conventional device ($9,601 and possibly less under the fee schedule), in addition to the limited benefits of the electric high tech device verses the conventional mechanical device, I cannot find that claimant has demonstrated by a preponderance of the evidence that the myoelectric device is more reasonable and necessary than the conventional device. Therefore, I must dissent on this issue.
As for claimant's claim for mileage reimbursement, I concur with the majority. _________________________ MIKE WILSON, Commissioner