CLAIM NO. E901490
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 23, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE HOWARD J. GOODE, Attorney at Law, Texarkana, Texas.
Respondents represented by the HONORABLE JOSEPH E. KILPATRICK, JR., 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 was entitled to additional medical treatment and that his treatment for back pain was related to the injury of January 5, 1999. Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge.
The claimant sustained an admittedly compensable injury to his low back on January 5, 1999. The claimant was initially seen at the emergency room and ultimately came under the care of Dr. Rodney Chandler. Dr. Chandler treated the claimant with medication and massage therapy. The claimant was referred by Dr. Chandler to Dr. Richard Hilborn, an orthopaedic surgeon, who treated the claimant with medication and physical therapy. Additionally, Dr. Chandler prescribed a work hardening program.
Dr. Hilborn released the claimant to return to work on June 3, 1999, and the claimant returned to work on or about June 12, 1999. The claimant worked for the respondent-employer until August of 1999, when the claimant went to work for Contract Flooring. Contract Flooring is a floor covering and carpet-laying company.
The claimant was seen by Dr. Barry Green in December of 1999, for an evaluation of permanent impairment. Dr. Green assigned the claimant a five percent (5%) permanent impairment rating to the body as a whole, which was accepted and paid by the respondents.
The claimant sought additional medical treatment on February 25, 2000, from Dr. Hilborn for low back pain. Dr. Hilborn reported:
Since his last visit here, the patient has had an MRI of his lumbar spine. The MRI was reviewed today with the MRI demonstrating no evidence of disc herniation causing nerve root impingement.
The claimant returned to Dr. Hilborn in April, 2000. The claimant continued to work laying carpet but was having pain which he felt limited the amount of time he could work some weeks. Dr. Hilborn noted that the claimant’s motor and sensory examination of the claimant’s lower extremities were intact. In June of 2000, the claimant told Dr. Hilborn that he continued to lay carpet and have pain when laying carpet. The claimant had negative straight leg raising tests and his motor and sensory examination of his lower extremities were intact. In his June 8 report, Dr. Hilborn stated:
Discussion was held with patient regarding symptomatology. It may be that with his back condition that carpet laying simply is not an appropriate job for him. He appears to understand this, but states that really carpet laying is the only thing he knows. I do not feel the patient is a candidate for any surgical intervention, and the patient does not think physical therapy has helped him in the past.
Dr. Chandler stated in his deposition:
There are no MRI’s or nerve conduction studies or EMG’s or anything like that that show he has any radiculopathy, are there?
Not that I know of, no, sir.
So you’re basically treating his subjective pain symptoms?
That’s correct.
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/her 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).
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. ParagouldHousing Authority, Full Commission Opinion filed Jan. 22, 1996 (E417617). 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).
In the present case, however, we find Dr. Chandler’s opinion credible and we find that claimant has proven by a preponderance of the credible evidence that continued medical treatment is reasonable and necessary and related to the original compensable injury. There is no evidence that claimant has ever suffered any prior significant problems with his back or received any type of treatment for back problems before his injury at work. He suffered a compensable injury to his lower back and has experienced symptomatology continuously since that injury. Further, Dr. Chandler was the only doctor to testify or render a medical opinion in this case, and he testified that the claimant’s problems in 2000 are causally related to his work-related injury in 1999, apparently based on the claimant’s persistent complaints of pain. Likewise, the Administrative Law Judge also impliedly found credible the claimant’s account that he has experienced persistent pain complaints during all relevant periods.
Respondent seeks to attribute claimant’s current condition to his subsequent job in laying carpet. The respondents’ brief on appeal and the dissent both assert that the claimant did not seek any additional medical treatment from June of 1999 until February of 2000. On that basis, the respondents and the dissent suggest that the claimant’s low back injury actually resolved, and that his current low back problems have been caused by his new job of laying carpet which he began on September 1, 1999.
There are several problems with this theory. First, as indicated above, Dr. Chandler was the only physician to testify. Dr. Chandler has treated the claimant for a period in 1999 and for a period in 2000, and Dr. Chandler has opined that the claimant’s 2000 problems are causally related to the 1999 injury. Second, although the medical record before us appears to be incomplete, there are physicians’ notes before us indicating that the claimant was actually seen by Dr. Hilburn for follow-up during the June 1999 through February 2000 period during which the respondent now asserts that the claimant received no medical treatment. In this regard, a history of the claimant’s medical filled out on December 1, 1999 indicates that the claimant was actually seen by Dr. Hilburn for follow-up on November 11, 1999, and that during the November 11, 1999 follow-up, the claimant stated that he continued to have low back pain. Notably, Dr. Hilburn apparently scheduled the claimant for an impairment rating at that time, and at the time of the December 1, 1999 impairment rating, the claimant’s chief complaint was that he still had shooting pain in his lower lumbar spine bilaterally.
In summary, the claimant presented credible testimony that he does not lift the carpet or the heavy tools. Claimant explained that his pain generally comes from any activity involving bending at the waist. There is simply insufficient evidence that claimant has suffered a new injury at Contract Flooring or that his job duties there represent an independent intervening cause of his condition. Claimant has continuing symptomatology with occasional flare-ups requiring medical treatment. Therefore, these episodes represent a mere recurrence rather than any sort of aggravation. Accordingly, respondent remains liable for compensation benefits.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the credible evidence that he is entitled to the additional benefits at issue.
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, the 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.
DISSENTING OPINION
MIKE WILSON, Commissioner
I respectfully dissent from the majority opinion finding that the claimant was entitled to additional medical treatment and that his treatment for back pain was related to the injury of January 5, 1999. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
The evidence shows that the claimant was able to work from June, 1999, through February, 2000, without any treatment at all for his lower back. It was only after the claimant had worked laying carpet for six months that he required treatment for his low back.
The claimant returned to Dr. Chandler, who stated in his deposition:
There are no MRI’s or nerve conduction studies or EMG’s or anything like that that show he has any radiculopathy, are there?
Not that I know of, no, sir.
So you’re basically treating his subjective pain symptoms?
That’s correct.
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/her 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).
In my opinion, the claimant has failed to prove by a preponderance of the evidence that he is entitled to any further medical treatment. The claimant did not seek medical treatment until after he had been working for another employer for six months laying carpet. The claimant was released to return to work and was assessed with a five percent (5%) permanent impairment rating which the respondents accepted and paid. It appears that Dr. Chandler’s statement that the claimant’s problems were related to his injury in January of 1999 was based upon what the claimant told him. 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. ParagouldHousing Authority, Full Commission Opinion filed Jan. 22, 1996 (E417617). In addition, 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).
Further, the physical findings on all of the physical examinations of the claimant have been normal. The first time any spasms were indicated was when Dr. Chandler found them in November, 2000, almost two years after the injury. Even Dr. Chandler admitted that there was no way to tell whether those spasms were related to an injury two years earlier. Therefore, based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof. Therefore, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner