Opinion
CLAIM NO. E802168
ORDER FILED DECEMBER 9, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD C. PULLEN, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on June 10, 1999. In that opinion and order, the administrative law judge found that the claimant has shown by a preponderance of the evidence that his physical problems after February 9, 1998, were directly and causally related to his February 5, 1998, motor vehicle accident. The administrative law judge also found that the claimant was temporarily totally disabled for the period beginning February 6, 1998, through March 13, 1998, and again beginning March 23, 1998, and continuing through an undetermined date.
After conducting a de novo review of the entire record, we find that the claimant has proven by a preponderance of the evidence that his physical problems at issue after February 9, 1998, were directly and causally related to the February 5, 1998, motor vehicle accident. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. We also find that the claimant's healing period for his compensable neck injury ended on December 15, 1998. Therefore, we find that the administrative law judge's award of temporary disability compensation after that date must be reversed.
Background
At the time of his injury, the claimant was employed as a paramedic. He testified that he began working for respondent-employer in 1987. On February 5, 1998, the claimant was involved in a motor vehicle accident. The claimant was working on a patient in the rear of the ambulance. The ambulance was struck by a speeding car, and this caused the claimant to fall into the wheel-well. The claimant testified that he sustained multiple injuries as a result of the accident, which included injuries to his head, knee, back and neck injuries.
Following the accident the claimant was immediately transported to respondent-employer's hospital. After receiving treatment in the emergency room, the claimant was followed by Dr. Michael Garrett, a physician within respondent-employer's clinic. His first clinic visit was February 9, 1998. In a chart note documenting that visit, Dr. Garrett stated that the claimant reported no extremity weakness, pain or numbness. He noted that x-rays of the claimant's cervical spine were normal, and he observed no evidence of a disc herniation. Dr. Garrett diagnosed a cervical strain, and released the claimant to return to work. As a result of Dr. Garrett's recommendation, the claimant received chiropractic treatment from Dr. Brian D. Reilly. The claimant's symptoms continued, and Dr. Garrett referred the claimant to Dr. James Arthur. On August 4, 1998, Dr. Arthur performed surgery for a disc herniation at the C5-6 level of the cervical spine.
Prior to his initial visit with Dr. Arthur, the claimant learned that the respondents were controverting his claim. After completing an application, the claimant received long-term disability income.
The respondents paid medical benefits through February 9, 1998. It is their position that treatment rendered after that date is unrelated to the claimant's compensable injury. On the other hand, the claimant contends that he is entitled to additional medical treatment, and temporary total disability benefits for the period beginning February 6, 1998, and continuing through March 13, 1998, and from March 23, 1998, until a date yet to be determined.
Issue 1: Causal Connection.
The respondents rely primarily on Dr. Anthony Russell's April 17, 1998 independent medical evaluation results and subsequent deposition testimony in support of their argument that the neck abnormality which Dr. Arthur treated with surgery at the C5-6 level of the spine on August 8, 1996, was degenerative in nature, and therefore was not causally related to the incident that occurred on February 5, 1998. In this regard, Dr. Russell testified in part:
Q. You ordered a second MRI?
A. That's correct.
Q. And I believe that was done at Riverside Imaging Center in July of `98?
A. Yes.
Q. And how did you interpret that MRI, sir?
A. It essentially confirmed my suspicion from the initial MRI scan that there were no surgical lesions present, number one. I saw no evidence of a disk herniation compressing any nerve roots. And, finally, that that gray area that I was concerned about was indeed bone spur rather than disk herniation.
Q. You are aware that Mr. Tadlock did return to Dr. Arthur after the MRI and ultimately underwent surgery at C5-C6.
A. I learned of that later, yeah.
Q. I think I made you aware of it. I sent you some records regarding that, sir.
A. Yes.
Q. In your review of that and based on your examination of Mr. Tadlock and your review of the records, can you objectively relate the surgery to any one specific incident?
A. No, not to a specific incident that led directly to that surgery, no.
Q. What would you relate it to?
A. In other words — and I wasn't there when Dr. Arthur re-examined him so, you know, I can't say what he found at the time. But if you look at the studies that were done at the time of the accident and shortly afterwards, then I can't connect anything that the accident was responsible for to the surgery, other than the subjective pain. And I felt like if he did the surgery or when he did the surgery, most likely [sic] concentrating on the degenerative changes that were already present.
Q. I think the operative report makes reference to an osteophyte formation in the spur at C5-C6?
A. Yeah. When I read through the report he mentions spondylosis, bone spur and removing the bone spur to decompress the nerves, which really proves the point that it was not a disk protrusion, but rather bone spurring.
Q. Would you then, Doctor, relate the — if I understand you correctly, the problems Mr. Tadlock experienced after you saw him, to a degenerative condition?
A. Yes.
[R. Ex. 2, pgs. 10 — 11].
The problem with Dr. Russell's conclusions is that his premise is inaccurate. Although Dr. Russell may have concluded that the only abnormality on MRI was a degenerative bone spur, not disk material, Dr. Arthur, who performed the surgery, made clear in his deposition, as discussed below, that he did, in fact, find and remove left-sided disk material during surgery, which by history, Dr. Arthur has attributed to the claimant's automobile accident. Under these circumstances, we accord much greater weight to the surgical observations and medical opinions of the claimant's treating surgeon than the weight to be accorded the opinions of a physician who has mis-diagnosed the nature of abnormality at issue based on pre-surgical diagnostic studies. As regards the ambiguity in interpreting the claimant's pre-surgical diagnostic testing, Dr. Arthur explained that the problem with the claimant's pre-surgical diagnostic test results is based on the fact that the claimant had a 21-inch neck and weighed 300 pounds when he underwent diagnostic testing. According to Dr. Arthur, it is very difficult to get a good diagnostic test on someone this size. [Jt. Ex. B, pg. 17].
Clearly, there was a great deal of discrepancy between how Dr. Russell interpreted the claimant's pre-surgical diagnostic tests, how the radiologists interpreted the tests, and how Dr. Arthur interpreted the tests. Dr. Arthur was apparently the only physician to interpret the tests as indicating a herniated C5-6 disk on the left. Again, when Dr. Arthur performed surgery at C5-6 on the left, he did, in fact, find and remove disk material, which by history, Dr. Arthur has attributed to the claimant's ambulance accident.
Dr. Arthur testified on the causation issue in part as follows:
Q. And in respect, I think that defense counsel asked you about the major cause of your treatment, and in your opinion, within a reasonable medical certainty, the major cause of the treatment for which you treated him, the HMP [sic], which you've diagnosed at C5-6, in your opinion, was the major cause of the trauma in the accident or the pre-existing [sic] osteophytes and the degenerative conditions that he had had in existence prior to the automobile collision?
A. I think the ruptured disk or the bulging disk — disk protrusion — was the reason why he ended up having to have surgery, and I would relate that just historically to the accident in the ambulance.
Q. And I believe that you said this was all of the diagnostic tools that you had, this was all confirmed at your surgery, exactly what you had diagnosed, and in your opinion, that was confirmed at surgery?
A. That's correct.
[Jt. Ex. B, pgs. 32 — 33].
* * *
Q. Do you know whether or not Mr. Tadlock had the left arm pain immediately following the accident or during the course — or the initial course of Dr. Garrett's treatment?
A. I don't know exactly when that came on because I wasn't treating him during that period of time.
Q. Is that type of complaint consistent with the ongoing degenerative process?
A. It can be. On the other hand, you can see somebody with a neck injury that doesn't develop the extremity pain for weeks or even months after an accident, and then it comes on and it's still as a result of the accident, even though the onset is delayed.
Q. Would that be an aggravation of the degenerative condition that would lead to that type of complaint?
A. I've seen an aggravation of a degenerative condition cause radicular problems if it squashes the disk — if the accident squashes the disk, then it's going to narrow the neuroforamen, and the nerve's still pinched even though it's bony encroachment rather than the disk itself. But he did have a disk sticking out there, too.
Q. Right. Wouldn't you expect, though, Doctor, for these type [sic] of symptoms to develop within a short period of time after a motor vehicle accident?
A. I think most people develop the symptoms within, like I said, three or four weeks, but I've seen a delay.
[Jt. Ex. B, pgs. 21-22].
Based on Dr. Arthur's surgical observations and deposition testimony, we find that the claimant has established by a preponderance of the credible evidence that the claimant did, in fact, have a left side C5-6 disk injury, that the claimant's C5-6 herniated disk was directly and causally related to the claimant's February 5, 1998 accident, and that the accident-related injury caused his need for surgery. While Dr. Arthur did observe and remove a pre-existing osteophyte during surgery, in addition to finding and removing disk material, Dr. Arthur has credibly testified that the disk [i.e., not the pre-existing osteophyte] was the reason why the claimant ended up having to have surgery. [Jt. Ex. B, pgs. 32 — 33]. While Dr. Arthur testified that degenerative changes/bone spurs/osteophytescan cause the type of symptoms the claimant experienced, as indicated above, Dr. Arthur explained that the claimant had disk material going past the osteophytes, and that surgery was required for neural compression at the C5-6 level. [Id., and Jt. Ex. B, pgs. 21 — 22]. As regards the potential significance of the degenerative changes, Dr. Arthur noted that the claimant had similar spurs on both sides at C5-6, but the claimant's right side was asymptomatic, while the claimant's left side (which also had the disk material) was symptomatic and required surgery. [Jt. Ex. B, pg. 30]. Under these circumstances, we find that the claimant has proven by a preponderance of the credible evidence that the symptoms that required surgery were caused by accident-related disk material causing neural compression, and not by his pre-existing bone spurs/osteophytes on the left at C5-6.
In reaching this conclusion, we note that the respondents assert on appeal that the claimant has failed to establish a causal connection because neither Dr. Russell or Dr. Arthur could "objectively relate" the claimant's surgery to the ambulance incident. We take this opportunity to point out that the Arkansas Supreme Court has stated in no uncertain terms that a claimant is not required to establish causation by "objective" medical findings. See, Wal-Mart Stores, Inc. v. Van Wagner, 337 Ark. 443, 990 S.W.2d 552 (1999). Likewise, in a case involving a herniated cervical disk, essentially identical to the present case, the Arkansas Court of Appeals has noted that "we know of no type of medical examination or test that would result in objective findings to show exactly where and when an injury was incurred. . ."See, Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). In light of how the Arkansas Court of Appeals and the Arkansas Supreme Court have decided the issue, we see no significance, and very little relevance, that neither Dr. Russell or Dr. Arthur could "objectively relate" the claimant's surgery to the ambulance incident. If there does exist some medical test by which to "objectively relate" a herniated cervical disk to an incident identifiable by time and place of occurrence, the respondents in the present case have failed to present any evidence to indicate what that test might be.
Issue 2: Temporary Total Disability.
Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (13) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present case, Dr. Arthur testified as follows in his November 18, 1998 deposition:
Q. Doctor, let me ask you: Is Mr. Tadlock still in his healing period from the surgery, or had he —
A. Yes. Well, in November he's almost out of his healing period. He still has some myofascial pain on assessment, and I put him on a declining course of physical therapy for that. He should be over this in about a month.
Q. [sic] Healing period should end at some point in December of 1998?
A. Yes, sir.
Q. Do you anticipate an impairment rating relative to the surgery?
A. I would assess a 10 percent PPI.
Q. And would December 15, 1998, be a fair statement for the anticipated end of the healing period?
A. Yes, sir.
[Jt. Ex. B, pgs. 6 — 7].
We find that the greater weight of the credible evidence establishes that the claimant's healing period ended on December 15, 1998. In reaching this conclusion, we note that on March 31, 1999, Dr. Arthur diagnosed the claimant with chronic cervical myofascial pain and depression, and indicated that the claimant would be evaluated at a pain clinic. In this regard, the claimant testified at the April 16, 1999 hearing that he had been prescribed pain medication by Dr. Abraham through a pain clinic. We also note that Dr. Abraham checked "no" under the return to work section of his March 31, 1999 report.
We find that Dr. Arthur's referral to a pain clinic is reasonably necessary medical treatment, particularly in light of Dr. Arthur's diagnosis of chronic cervical myofascial pain, and we find that Dr. Arthur's March 31, 1999 office note establishes that the claimant remained disabled during all relevant time periods through at least March 31, 1999. However, we find that the claimant's referral to a pain clinic, and his prescription for pain medication, is insufficient in the present case to find that his healing period extended beyond December 15, 1998. Specifically, we find a lack of evidence to support a conclusion that the claimant's referral to a pain management clinic was intended to improve his underlying injury, instead of simply to treat persistent pain symptoms. Therefore, we find that the greater weight of the evidence establishes that the claimant's healing period ended on December 15, 1998.
Issue III: Applicability of Ark. Code Ann. § 11-9-411.
The record indicates that the claimant has received benefits from a third-party as a result of his injury which would be subject to the provisions of Ark. Code Ann. § 11-9-411. The administrative law judge refused to consider the relevance of Ark. Code Ann. § 11-9-411 to this claim on the grounds that the respondents did not raise this issue at the hearing. The claimant requests that the administrative law judge's decision in this regard be affirmed.
We point out, however, that Ark. Code Ann. § 11-9-411 was clearly enacted in part to protect the interests of the third-party payer who is not normally a party to the hearing, and not solely to protect the interests of the claimant or respondentwho are parties to the hearing. We have previously found that respondents are not required to affirmatively plead this issue for the provisions of Ark. Code Ann. § 11-9-411 to apply. See, Turner v. Trane Unitary Products, Full Workers' Compensation, Opinion filed June 17, 1998 ( E616700); Wilkins v. Van Buren School Dist. #42, Full Workers' Compensation Commission, Opinion filed February 7, 1999 ( E510091). Therefore, the respondent is directed to hold in reserve for a period of five years a sum equal to the potential subrogation claims for any benefits described in Ark. Code Ann. § 11-9-411(a). The respondent is entitled to a dollar-for-dollar offset on those benefits described in Ark. Code Ann. § 11-9-411(a).
Therefore, after conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be, and hereby is, affirmed in part and reversed 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 (Repl. 1996).
IT IS SO ORDERED.
_____________________________ ELDON F. COFFMAN, Chairman
CONCURRING AND DISSENTING OPINION
I concur in part and respectfully dissent in part from the majority's opinion in this case. That is, I concur in the finding that claimant proved the requisite causal connection between the motor vehicle accident of February 5, 1998, and his disc herniation at C5-6. Moreover, I agree that respondents are entitled to an offset. However, I am the opinion that claimant's healing period did not end on December 15, 1998.
The evidence shows that claimant remained symptomatic after December 15, 1998. On March 31, 1999, Dr. Arthur referred claimant to a pain clinic for an evaluation. At the hearing, claimant testified that the evaluation resulted in new medication for the treatment of his compensable injury. He stated that his condition has deteriorated. Thus, I would affirm the Administrative Law Judge's award of temporary total disability benefits in this case.
Based on the foregoing, I concur in part, and respectfully dissent in part from the majority opinion.
_______________________________ PAT WEST HUMPHREY, Commissioner
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority's opinion. Specifically I concur in the majority's finding that the respondents are entitled to a dollar for dollar offset pursuant to Ark. Code Ann. § 11-9-411(a). However, in my opinion the claimant has failed to prove by a preponderance of the evidence that his present condition is a result of the February 5, 1998, accident. Accordingly, I must dissent from the majority's opinion. Although I find that the claimant has failed to prove a causal connection between his present condition and the February 5, 1998, accident, if I were to find that there was a causal connection, I would find that the claimant's healing period ended on December 15, 1998.
On April 5, 1998, the claimant was involved in a motor vehicle accident while working as a paramedic for the respondent employer. The claimant was seen in the St. Joseph's Emergency Room and was diagnosed with a neck sprain. On February 9, 1998, the claimant sought treatment from Dr. Michael Garrett. X-rays revealed old degenerative changes but no evidence of a fracture, dislocation, or herniation. The claimant was diagnosed with a cervical strain and over-the-counter medication and stretching were recommended. An MRI was performed on the claimant in order to rule out a possible herniation. The MRI revealed degenerative disc changes with a slight disc bulge at C5-6. On March 11, 1998, Dr. Garrett released the claimant from his care.
The claimant was subsequently referred to Dr. James Arthur, a neurosurgeon. Dr. Arthur ultimately performed surgery on the claimant on August 4, 1998. Prior to his surgery, the claimant was sent to Dr. Anthony Russell for an independent medical evaluation.
The claimant contends that his present condition is a result of the February 5, 1998, accident. The respondents contend that the claimant has been paid all appropriate benefits and that the physical problems that he had after February 9, 1998, were unrelated to his injury.
When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary total disability benefits. Ark. Code Ann. § 11-9-102(5)(F)(i) (Supp. 1997). Benefits are not payable for a condition which results from a non-work-related independent intervening cause following a compensable injury which causes or prolongs disability or need for treatment Ark. Code Ann. § 11-9-102(5)(F)(iii) (Supp. 1997). "The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause." Georgia Pacific Corp. V. Carter, 62 Ark. App. 162 969 S.W.2d 677 (1998). Whether there is a causal connection between an injury and a disability and whether there is an independent intervening cause are questions of fact for the Commission to determine. Oak Grove Lumber Co. V. Highfill, 62 Ark. App. 42 968 S.W.2d 637 (1998). Except in the most obvious cases, the existence of a causal relationship must be established by expert medical evidence. Cotton v. Ball Prier, Full Workers' Compensation Commission, September 23, 1997 ( E512437). In my opinion, the claimant has failed to prove that there is any relationship between his current problems and the February 5, 1998, compensable incident.
The record reflects that the claimant has sustained at least two prior spinal injuries. One of these injuries was a work-related injury to the claimant's neck while lifting a patient in September of 1992. The claimant had a cervical strain at C3 in 1992, a cervical strain with palpable instability at C5 in May of 1993, and a lumbar strain at L2 in August of 1993.
It is also important that the claimant's x-rays, which were performed on February 9, 1998, at the direction of Dr. Garrett, revealed old degenerative changes at C4 and C5. The February 18, 1998, MRI confirmed that the claimant had degenerative changes at C5-6. Further, after the claimant came under the care of Dr. Arthur, a CT scan was performed on May 22, 1998. The CT scan revealed bony spurs at C4-C6 as well as a minimal bulge at C4. The claimant underwent another MRI on July 1, 1998, that revealed degenerative changes at C5-6 associated with hypertrophic spurring anteriorly and posteriorly. The radiologists impressions were that of degenerative disease at C5-6 with a posterior bony bar at C5-6.
Ultimately, in August of 1998, Dr. Arthur performed surgery on the claimant. Dr. Arthur was unable to relate the claimant's condition to any specific event. In his deposition, Dr. Arthur testified as follows:
Q. Can you objectively relate the surgery to any specific isolated incident or trauma in a need for surgery?
A. Well, historically, according to what the patient tells me, which is what I have to depend on in answer to your question, he believes that his neck problems — his recent neck problems arose out of the ambulance accident that he was involved in.
Q. Excluding what Mr. Tadlock says to you or has told you, there's no way for you to objectively relate this surgery?
A. No.
A medical opinion based solely upon claimant's history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence.Brewer v. Paragould Housing Authority, Full Commission Opinion filed Jan. 22, 1996 ( E417617). Further, the Commission is not bound by a doctor's opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant's claim. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).
On April 17, 1998, Dr. Anthony Russell completed an independent medical evaluation of the claimant. Dr. Russell reviewed the claimant's diagnostic studies, x-rays, MRI's and CT scan and agreed that the claimant's complaints could not be related to any specific incident. Dr. Russell stated:
Q. And you reviewed Dr. Arthur's reports where he also released Mr. Tadlock in June of `98 to return to work with no restrictions?
A. Yes. And I agree with both recommendations.
Q. You ordered a second MRI?
A. That's correct.
Q. And I believe that was done at Riverside Imaging Center in July of `98?
A. Yes.
Q. And how did you interpret that MRI, sir?
A. It essentially confirmed my suspicion from the initial MRI scan that there were no surgical lesions present, number one. I saw no evidence of a disk herniation compression any nerve roots. And, finally, that that gray area that I was concerned about was indeed bone spur rather than disk herniation.
Q. You are aware that Mr. Tadlock did return to Dr. Arthur after the MRI and ultimately underwent surgery at C5-C6.
A. I learned of that later, yeah.
Q. I think I made you aware of it. I sent you some records regarding that, sir.
A. Yes.
Q. In your review of that and based on your examination of Mr. Tadlock and your review of the records, can you objectively relate the surgery to any one specific incident?
A. No, not to a specific incident that led directly to that surgery, no.
Q. What would you relate it to?
A. In other words — and I wasn't there when Dr. Arthur re-examined him so, you know, I can't say what he found at the time. But if you look at the studies that were done at the time of the accident and shortly afterwards, then I can't connect anything that the accident was responsible for to the surgery, other than the subjective pain. And I felt like if he did the surgery or when he did the surgery, most likely concentrating on the degenerative changes that were already present.
Q. I think the operative report makes reference to an osteophyte formation in the spur at C5-C6?
A. Yeah. When I read through the report he mentions spondylosis, bone spur and removing the bone spur to decompress the nerves, which really proves the point that it was not a disk protrusion, but rather bone spurring.
Q. Would you then, Doctor, relate the — if I understand you correctly, the problems Mr. Tadlock experienced after you saw him, to a degenerative condition?
A. Yes.
The medical evidence shows that the claimant had a long history of prior back problems and significant degenerative disk disease which predated the February 5, 1998, incident. Accordingly, I would reverse the decision of the Administrative Law Judge. Therefore, I must dissent from that part of the majority's opinion awarding the claimant additional benefits.
______________________________ MIKE WILSON, Commissioner