CLAIM NO. F303964
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 5, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Kristofer E. Richardson, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the Honorable Betty J. Demory, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed January 3, 2005. The administrative law judge found that the claimant was temporarily totally disabled beginning April 13, 2003 until a date to be determined. The administrative law judge found that the claimant was entitled to medical treatment and referrals from Dr. Corey L. Diamond subsequent to August 19, 2003. After reviewing the entire record de novo, the Full Commission affirms as modified the opinion of the administrative law judge. The Full Commission finds that the claimant proved she was entitled to temporary total disability compensation from April 21, 2003 through January 27, 2004. We find that the claimant proved she was entitled to reasonably necessary medical treatment until January 27, 2004.
I. HISTORY
Christina Holt Bost, age 40, testified that she sustained “two thoracic back ruptures” in March 1997. An MRI of the claimant’s thoracic spine was taken in April 1997, with the following conclusion:
1. Small herniation on the right side, T6-7, compressing the right side of the cord to a mild degree.
2. Smaller hard disc herniation is midline at T8-9 and causing slightly less effacement of the cord. None of the other levels show any significant findings and these findings are relatively mild.
In August 1997, Dr. Gregory F. Ricca performed a “transpedicular and extracavity thoracic diskectomy at T6-7 right, and transpedicular and extracavity thoracic diskectomy, T8-9 right, with use of microscope.” The claimant testified that she developed reflex sympathetic dystrophy as a result of the March 1997 injury and subsequent surgery.
The record indicates that the claimant began treating with Dr. Corey Diamond for various and extensive complaints beginning in October 1998. The record indicates that Dr. Kenneth Tonymon performed an L3-4 discectomy in February 2002. In May 2002, Dr. Tonymon performed a right carpal tunnel release and external neurolysis of the claimant’s median nerve.
The parties stipulated that the claimant sustained a compensable injury to her back on April 2, 2003. The claimant testified that while assisting a patient, “he grabbed me by my hands and pulled on me and I was hyper-extended and twisted across his bed. . . . and when I stood back up I thought, I’ve pulled a muscle.” The claimant filled out a Form AR-N, Employee’s Notice Of Injury, on April 3, 2003. The claimant wrote that she had injured her thoracic spine while attempting to assist a patient.
The record indicates that Dr. Michael D. Lack assessed “T-Spine Strain” on April 3, 2003. A thoracic spine MRI without contrast was taken on April 5, 2003, with the following conclusion:
1. There is mild degenerative disc disease manifested by disc bulging and osteophytes at T6-T7 and T8-T9. This, however, appears to be to the right of midline, and apparently the patient reports left side pain. Thus, this may be of no clinical significance.
2. There is also mild facet arthropathy seen at T9-T10 that slightly deforms the contour of the thecal sac, but does not appear to result in any significant neural compromise.
Dr. Lack stated that the claimant could return to work on April 7, 2003 with restrictions of “No heavy manual labor, No stooping crawling or bending, Not to lift/push or pull 5 lbs”. The claimant agreed on cross-examination that the respondent-employer subsequently provided light work duty. The claimant agreed that she was working as a secretary for the respondents. However, the claimant testified that she was not able to work after April 13, 2003.
Another MRI of the claimant’s thoracic spine without contrast was taken on April 18, 2003:
This patient has chronic disc herniations on the right at T6-T7 and T8-T9. At T6-T7, the disc material is down the disc space with a mild effacement and mild distortion on the right side of the cord. No edema is seen in the cord.
T8-T9 shows a disc herniation just at and above the disc space, causing mild effacement of the cord. No nerve root compression is seen at either level. No new disc herniation is seen. No new fracture is present. No masses in the canal. No evidence of other significant lesions seen.
Sagittal images do suggest some possible increased signal intensity within the cord, but on the axial images, this appears to be partial volume effect.
CONCLUSION: No change in the thoracic disc herniations. These are causing some mild deformity of the cord.
On April 21, 2003, an APN with Internal Medicine Associates, P.A. took the claimant off work “until seen by Dr. Ricca on 4/29/03.”
Dr. Ricca examined the claimant on April 28, 2003 and gave the following impression:
1. Right paramedian and thoracic pain, primarily around the T10-T11 region with numbness primarily in this area but also some symptoms in the mid thoracic region on the right as well.
2. Low back pain, bilateral posterior lower extremity pain worse on right than left.
3. Numbness in the lateral aspect of the right foot.
4. Post-op at T6-7 right and T8-9 right with small spurs and possibly small recurrent HNP’s with mild effacement of the thecal sac and spinal cord.
5. No muscle spasms on exam.
I do not see a clear structural cause of Christina’s symptoms. Her symptoms are primarily in the T10 and T11 area on the right based on her description and location of the pain, where she pointed during her exam, and the area of greatest decreased pinprick testing of the back. I feel it is reasonable to pursue further investigation into her low back pain and bilateral lower extremity pain. I also feel we should treat her thoracic symptoms symptomatically.
Dr. Ricca planned further conservative treatment and diagnostic testing. Dr. Ricca also took the claimant off work “until further notice.”
A thoracic myelogram was taken on May 9, 2003:
There is questionable mild anterior thecal sac indentation at the T7-T8 as well as T8-T9 vertebral disc spaces suspicious for very minimal bulging discs versus less likely HNP. Otherwise, thoracic myelogram is unremarkable. Recommend CT correlation which is a more sensitive exam. Incidental note is made of irregular-shaped calcification in the region of the right kidney suspicious for renal calculus in this area which measures 7 × 5 mm.
Dr. Ricca’s impression on May 9, 2003 was “1. Right-sided thoracic back pain. 2. Small recurrent herniated nucleus pulposus T6-T7 right. I reviewed the options with Ms. Bost and I recommended against surgical intervention. I recommended that she proceed with thoracic injection by Dr. Savu.”
The impression from a lumbar spine CT without contrast on May 13, 2003 was “Mild posterior disc bulge at L5-S1 as above; otherwise, unremarkable lumbar spine CT.”
Pursuant to a request from Dr. Ricca, the claimant consulted with a pain manager, Dr. Sunil Gera, on May 19, 2003. Dr. Gera assessed “1. Low back pain in the chest region. 2. Thoracic bulge. 3. Post laminectomy, thoracic region.” Dr. Gera’s treatment plan included the following: “4. I am going to schedule her for thoracic epidural steroid injection sometime this week. Depending on the results, further modalities will be decided. 5. I did tell her that in my opinion, down the road she should be able to start on light duty after one injection.”
Dr. Gera administered a thoracic epidural steroid injection on May 22, 2003.
Dr. Gera stated on June 2, 2003 that he could not explain the claimant’s exaggerated pain response with mild touch, and that he could find no muscle spasm. Dr. Gera stated, “I am going to send her to light duty, which includes not lifting more than 20 pounds and not pulling or pushing more than 20 pounds. The rest of the things she can do. It was explained to her that with this pain, I cannot keep her off work. Gradually, gradually she has to go to work.”
Dr. Gera signed a Work Release Form, indicated that the claimant could return to restricted work on June 3, 2003. The claimant described Dr. Gera as “very conservative, unwilling to address the problems I was having.” The claimant agreed on cross-examination that she did not return to work at this time but instead took a leave of absence. The claimant sought emergency medical treatment on June 2, 2003.
Dr. Gera performed another thoracic epidural steroid injection on June 12, 2003.
Dr. Diamond referred the claimant to Dr. Reza Shahim. Dr. Shahim examined the claimant on June 26, 2003, recommended additional conservative treatment, and stated, “I would expect her to be able to return to work after one month.” The claimant testified that she was not happy with Dr. Shahim’s treatment.
Dr. Diamond stated on August 8, 2003, “Ms. Christina Bost continues to suffer from severe back pain due to thoracic disk disease; she is currently undergoing physical therapy but is making slow improvement; she needs continued work release for another 30 days, beginning 7/24/03.” The respondents apparently controverted additional medical treatment after August 18, 2003.
Dr. Rodney G. Olinger, a neurological surgeon, examined the claimant on September 4, 2003 and essentially opined that the claimant was not a surgical candidate.
Dr. A. Roy Tyrer, Jr. provided a neurosurgical consultation for the respondent-carrier on September 11, 2003. Dr. Tyrer gave the following impression:
Post operative status mid dorsal discectomy, right, remote, aggravated by current thoracic musculoskeletal strain, accentuated by functional factors.
Where as, this lady apparently has been taking pain medications pretty regularly since her April 2003 injury, I can’t definitely establish the extent to which she may be pain medication dependent. I urged her to avoid the use of prescription narcotics and try and get by with over the counter medicines. I told the patient I saw no indication suggesting need for further thoracic spine surgery, nor do I think further surgery per se, would improve her present symptoms, in fact I would be concerned that it might have an adverse effect. I encouraged the patient to increase her physical activities, but avoid excessive physical effort including heavy lifting. I also told her I saw no reason why she should not be able to get back to her former physical state and return to regular light duty nursing, but I feel she should always be protected of her back. At this time it has been only a little more than five months since her injury. I do not think she has yet reached maximum medical improvement, and I would give her at least another three months. I encouraged her to use local moist heat to the back when discomfort was present. A limited amount of additional physical therapy might be helpful, such as once weekly. I think she might also benefit by water aerobics on a regular basis at least twice weekly. I do not think she has had an Isotope bone scan since her present injury, and I think it would be desirable to have, but it was not ordered. . . .
On September 12, 2003, Dr. Diamond asked that the claimant be kept off work “for another 30 days.”
Dr. Olinger reported on November 5, 2003 that the claimant’s symptoms were worsening. Dr. Olinger stated, “I think she need (sic) to reconsider further diagnostic testing and possibly some type of transthoracic approach with possibly fusion.”
Another neurological surgeon, Dr. Kenan Arnautovic, examined the claimant on November 12, 2003 and noted:
I have reviewed the studies from April. I do see a T6-7 and T8-9 right-sided small herniated thoracic disc. I don’t see any significant indentation of the thecal sac on thoracic myelography.
I don’t believe that surgery would be indicated in this particular situation. I don’t believe that her pain symptoms would improve and I don’t see any significant weakness in her lower extremities. I recommended she consider another neurosurgical opinion if that is what the patient would opt for. I will also talk to Dr. Olinger personally regarding my evaluation and opinion.
Dr. Diamond wrote on December 3, 2003, “Ms. Christina Bost has been unable to work due to thoracic disk disease with myelopathy; she is limited by her back and leg pain; she is currently undergoing evaluation for possible surgical intervention; she has been unable to work since 10/12/03 (date of end of last work release) until the present, and it is unlikely she will be able to work for the next several months while her neurosurgical evaluation is completed.”
A nerve conduction study was performed on January 9, 2004, with the conclusion, “1. The nerve conduction studies of both lower extremities were normal with the exception of a slightly prolonged distal latency on the right peroneal nerve. This by itself has no clinical significance in my opinion. Thus, the studies appear normal overall.”
Dr. Terence P. Braden, III, D.O., examined the claimant on January 27, 2004 and reported:
Ms. Christina Bost is a 38-year-old white female who has a known history of chronic pain who reports to have sustained an injury to her thoracic spine on 4/2/03.
She reports to have continued symptomatology in her midthoracic area, requiring medication adjustments. She has participated in Physical Therapy and thoracic epidural steroid injections which have not given her marked improvement. She takes pain medications which give her moderate improvement in her symptoms.
Ms. Bost appears to have reached maximum medical improvement from the injury that she reports to have sustained.
Her impairment, based upon the AMA Guides to the Evaluation of Permanent Impairment IV Edition is a 0% impairment to the whole person.
The findings that have been presented from an objective nature were present previously in 1997 and there is nothing new that seems to be discovered as the cause of her ongoing symptomatology and subjective complaints of pain. She has had surgery in the past and if an impairment has not been given for the surgical intervention, I will be happy to render an opinion based upon reasonable medical certainty for that surgical intervention but I think that has already been done.
Again, for her current reported injury and subjective complaints of pain, there is a 0% impairment to the whole person based upon the AMA Guides to the Evaluation of Permanent Impairment IV Edition.
The claimant continued to follow up for treatment with Dr. Diamond.
Another thoracic spine MRI without contrast was taken on February 3, 2004, with the following conclusion:
1. Small to moderate-sized central and right paracentral HNPs at T6-T7 and T8-T9. There is some impression and compression of the spinal cord at those levels due to the HNPs. There may have been previous hemilaminectomy at T8-T9 on the right.
2. Mild degenerative discovertebral disease lower thoracic spine.
The claimant was seen by a rheumatologist, Dr. Beata Majewski, on February 6, 2004.
Dr. F. Richard Jordan, a neurological surgeon, examined the claimant on February 20, 2004 and informed Dr. Diamond, “We reviewed her MRI which shows an HNP at T6/7 and T8/9 with cord compression. We reviewed our evaluation and the films with the patient and have decided to proceed with a thoracic laminectomy at T6/7 and T8/9. We have scheduled this for March 25, 2004 at BHMC-NLR.”
Dr. Jordan performed a “thoracic laminectomy and diskectomy at T6-T7 and T8-T9” on March 25, 2004.
Dr. Jordan wrote on May 17, 2004, “The surgery done 3/25/04 for Thoracic HNP T6-7 T8-9 was for treatment related to injury on 4/2/03.”
Dr. Jordan wrote to Dr. Diamond on May 18, 2004:
We saw Christina back in the office today for follow-up from her thoracic laminectomy done March 25, 2004. She reports several areas of improvement. She reports improvement in her gait and she is not having as much as pain (sic) in her right thigh. Unfortunately, she is still having some of the back and leg pain.
We know that she has RSD and discussed epidural stimulation in the past. She wants to try the stimulator so that she can one day be off so many medications. She is off the Oxycontin now but is still taking Tylox and Zanaflex.
She plans to obtain a psychological evaluation to preclude any reason why she would not be a good candidate for an implantable device. We will tentatively schedule a trial with stimulation with placement of the electrode on June 18, 2004 at BHMC-NLR.
After diagnosing “reflex sympathetic dystrophy and post laminectomy syndrome,” Dr. Jordan performed a “thoracic laminotomy for implantation of epidural electrode” on June 18, 2004, and a “second stage implantation of spinal cord stimulator” on June 23, 2004.
A pre-hearing order was filed on July 27, 2004. The claimant contended that she was within her healing period and totally unable to earn wages, and that the respondents were wrongfully withholding temporary total disability compensation. The claimant contended that she was entitled to temporary total disability from April 13, 2003 through a date to be determined.
In a pre-hearing questionnaire, the respondents contended that they paid medical and indemnity benefits until August 2003. The respondents contended that the claimant had been paid all appropriate benefits to which she was entitled. The respondents contended that the additional benefits sought by the claimant were neither reasonably necessary nor causally related to the April 2003 work-related injury.
A hearing was held on October 1, 2004. The claimant testified that she had not worked since April 13, 2003. The claimant testified that the symptoms she experienced after the 2003 injury were more severe than the 1997 injury, including numbness in her right leg and inability to lift her arms above her head. The claimant testified with regard to the surgeries performed by Dr. Jordan, “I would say the largest benefit I’ve had from the laminectomies is the very sharp, intense, heavy pain that goes — that was down my right leg has improved. Although the other results of the myelopathy are still there. I don’t have that really intense, sharp, radiating pain pressure.”
The respondents’ attorney cross-examined the claimant:
Q. As we sit here today your condition has not changed since April of 2003, has it?
A. Yes, it has changed.
Q. Has it gotten worse?
A. Quite a bit.
The administrative law judge found, in pertinent part:
4. On April 2, 2003, the claimant sustained an injury arising out of and in the course of her employment.
5. The claimant was temporarily totally disabled for the period April 13, 2003, continuing through the end of her healing period, a date to be determined.
6. The evidence preponderates that medical treatment rendered to the claimant subsequent to August 19, 2003, under the care and at the direction of Dr. Corey L. Diamond, to include referrals therefrom, was reasonably necessary and related to the treatment of claimant’s April 2, 2003, compensable injury.
7. The respondent shall pay all reasonable hospital and medical expenses arising out of the compensable injury of April 2, 2003.
The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Ark. Code Ann. § 11-9-102(12) defines “healing period” as “that period for healing of an injury resulting from an accident.”
In the present matter, the Full Commission finds that the claimant proved she was entitled to temporary total disability compensation from April 21, 2003 through January 27, 2004. An MRI of the claimant’s thoracic spine taken in April 1997 showed herniations at T6-7 and T8-9. The claimant underwent surgery from Dr. Ricca at T6-7 and T8-9 in August 1997. The parties stipulated that the claimant sustained a compensable injury on April 2, 2003. The claimant testified that she was “hyper-extended” after a hospital patient pulled on her.
Dr. Lack assessed thoracic-spine strain on April 3, 2003. The evidence of record before the Commission demonstrates that the nature of the claimant’s injury was a thoracic strain; the record does not indicate that the claimant sustained any sort of bony or acute disc injury as a result of her April 3, 2003 compensable injury. A thoracic spine MRI on April 5, 2003 showed “mild degenerative disc disease manifested by disc bulging and osteophytes at T6-T7 and T8-T9.” The evidence simply does not demonstrate that the claimant sustained a thoracic disc herniation on April 3, 2003. Dr. Lack returned the claimant to work on April 7, 2003. The record indicates that secretarial work was provided for the claimant, but the claimant testified that she was unable to function as a secretary after April 13, 2003. The medical evidence before the Commission does not corroborate the claimant’s testimony in this regard. A thoracic MRI on April 18, 2003 showed “chronic disc herniations” at T6-T7 and T8-T9. Again, the record does not show that these chronic herniations were caused by the April 3, 2003 thoracic strain.
At any rate, we note that the claimant was taken off work on April 21, 2003, until the claimant could be seen by Dr. Ricca. The Full Commission therefore finds that the claimant was within a healing period for her thoracic strain and was totally incapacitated to earn wages beginning April 21, 2003. Dr. Ricca examined the claimant on April 28, 2003. Although he was unable to see “a clear structural cause” of the claimant’s symptoms, Dr. Ricca kept the claimant off work and planned additional conservative treatment and testing. After reviewing a thoracic myelogram which was taken on May 9, 2003, Dr. Ricca recommended against surgical intervention. Dr. Ricca referred the claimant to Dr. Gera for additional conservative treatment.
The Full Commission notes Dr. Gera’s opinion on May 19, 2003 that the claimant should be able to resume light work duty after receiving injection treatment. Dr. Gera indicated in June 2003 that the claimant’s pain was exaggerated, and Dr. Gera stated that the claimant would gradually need to return to work. Dr. Gera attempted to return the claimant to work after June 2, 2003, but the claimant instead sought emergency medical treatment the same date and took a leave of absence from work. Nevertheless, since Dr. Gera continued to treat the claimant, we find that she remained within a healing period at this time and was totally incapacitated to earn wages. Dr. Shahim opined on June 26, 2003 that the claimant should be able to return to work after one month. However, Dr. Diamond kept the claimant off work for another 30 days beginning August 8, 2003.
In September 2003, Dr. Olinger opined that the claimant was not a candidate for surgery. Dr. Tyrer subsequently agreed that surgery would not improve the claimant’s symptoms, but Dr. Tyrer opined on September 11, 2003 that the claimant had not yet reached maximum medical improvement. Dr. Olinger considered the possibility of surgery for the claimant in November 2003, but an associate of Dr. Olinger, Dr. Arnautovic, stated on November 12, 2003, “I don’t believe that surgery would be indicated in this particular situation. Dr. Olinger did not issue a subsequent contradictory opinion.
Finally, the Full Commission notes the January 27, 2004 opinion of Dr. Braden, at which time Dr. Braden assessed maximum medical improvement. Dr. Braden also assessed a zero percent anatomical impairment. Permanent impairment, which is a medical condition, is any permanent functional or anatomical loss remaining after the healing period has ended. Johnson v. General Dynamics,46 Ark. App. 188, 878 S.W.2d 411 (1994). Additionally, Dr. Braden’s assessment of maximum medical improvement on January 27, 2004 was sufficient to find that the claimant reached the end of her healing period no later than that date. See, Emerson Electricv. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). The claimant is not entitled to temporary total disability compensation after the end of her healing period. Breshears, supra. The Full Commission finds that the claimant proved she was entitled to temporary total disability compensation from April 21, 2003 through January 27, 2004.
B. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). The claimant must prove by a preponderance of the evidence that she is entitled to additional medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission.Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
The administrative law judge found in the present matter, “The evidence preponderates that medical treatment rendered to the claimant subsequent to August 19, 2003, under the care and at the direction of Dr. Corey L. Diamond, to include referrals therefrom, was reasonably necessary and related to the treatment of claimant’s April 2, 2003, compensable injury.” The Full Commission affirms as modified this finding. We find that the claimant proved she was entitled to additional reasonably necessary medical treatment from the time of controversion in August 2003 until Dr. Braden’s assessment of maximum medical improvement on January 27, 2004.
The claimant sustained a compensable injury in the form of a strain to her thoracic spine on April 2, 2003. As the Full Commission has determined supra, the preponderance of evidence does not demonstrate that the claimant sustained an acute injury to a thoracic disc as a result of the compensable thoracic strain. Dr. Ricca recommended against surgical intervention in May 2003. Dr. Gera treated the claimant conservatively beginning in May 2003. Dr. Diamond referred the claimant to Dr. Shahim, but Dr. Shahim did not recommend surgery. Dr. Olinger and Dr. Tyrer both opined in September 2003 that the claimant was not a surgical candidate. Dr. Arnautovic also agreed in November 2003 that surgery was not required for the claimant’s condition. In December 2003, Dr. Diamond attributed the claimant’s inability to work and need for treatment to “thoracic disk disease with myelopathy.” The evidence does not indicate that his condition assessed by Dr. Diamond was a result of the claimant’s April 2003 thoracic strain. As we have also noted supra, Dr. Braden assessed maximum medical improvement for the claimant’s condition on January 27, 2004.
The claimant began treating with Dr. Jordan in February 2004. Dr. Jordan performed surgery at T6-7 and T8-T9 on March 25, 2004. In June 2004, Dr. Jordan performed additional surgeries for implantation of a spinal cord stimulator. The Full Commission finds that the claimant did not prove treatment from Dr. Jordan was reasonably necessary in connection with the claimant’s compensable injury. We are aware of one line in a note written by Dr. Jordan on May 17, 2004, to wit: “The surgery done 3/25/04 for Thoracic HNP T6-7 T8-9 was for treatment related to injury on 4/2/03.” The Commission is entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and medical evidence. Maverick Transp. v. Buzzard,69 Ark. App. 128, 10 S.W.3d 467 (2000). The Full Commission in the present matter finds that the note written by Dr. Jordan on May 17, 2004 does not outweigh the opinions of Dr. Ricca, Dr. Gera, Dr. Shahim, Dr. Olinger, Dr. Tyrer, or Dr. Arnautovic. None of these examining physicians opined that the claimant needed surgery as a result of the April 2003 thoracic strain. Dr. Braden’s finding of maximum medical improvement merely confirmed and corroborated the opinions of those six treating physicians. The record also does not demonstrate that Dr. Jordan’s surgeries could be construed as compensable pain management treatment pursuant to Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
The respondents cite Winslow v. D B Mech. Contrs., 69 Ark. App. 285, 13 S.W.3d 180 (2000); the respondents assert that Dr. Jordan’s treatment was not reasonably necessary, because the claimant did not report post-surgical improvement following her treatment from Dr. Jordan. The Full Commission agrees with the respondents in this case. We recognize that Dr. Jordan noted “several areas of improvement” for the claimant in May 2004 following surgery. The claimant testified at hearing that the pain in her leg had improved. Nevertheless, the claimant also expressly testified that her physical condition had worsened “quite a bit” following surgery. The claimant testified, “I have very little feeling in my last three toes. The entire right side of my leg is numb. I have some weakness, I’ve had some falls. I cannot rely on my right leg because it will go out from underneath me. It’s more difficult to — it’s a challenge to take a shower and hold my arms over my head and get my hair washed. It’s very painful. I do not have, my range of motion has changed drastically to the point that I no longer drive unless I have no other choice. We are in the process of getting rid of vehicles because I do not feel safe driving. I cannot do, you know, the range of motion. I don’t feel safe.” The claimant testified that she lived with chronic pain, and that she could not write or hold onto objects. The Full Commission is unable to determine, based on the record as a whole and the claimant’s testimony, that the claimant has experienced significant post-surgical improvement as a result of treatment rendered by Dr. Jordan.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved she was entitled to temporary total disability compensation from April 21, 2003 through January 27, 2004. The claimant proved that she was entitled to reasonably necessary medical treatment until the finding of maximum medical improvement by Dr. Braden on January 27, 2004. The claimant did not prove she was entitled to additional temporary total disability or additional medical treatment after the finding of maximum medical improvement on January 27, 2004. The claimant did not prove that treatment provided by Dr. Diamond or Dr. Jordan after January 27, 2004 was reasonably necessary in connection with the claimant’s April 2, 2003 compensable thoracic strain. The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. §11-9-715(a) (Repl. 2002). For prevailing in part on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(1) (Repl. 2002).
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner.
I concur in the Majority’s decision to award the claimant medical and temporary total disability benefits through January 27, 2004. However, because I believe the claimant’s need for medical treatment of her compensable injury is still ongoing and that she is still within her healing period, I must dissent from the Majority’s denial of benefits beyond that date.
The Majority’s result is based almost entirely on the opinion of Dr. Terence Braden, a rehabilitation specialist, from Jonesboro, Arkansas. Dr. Braden saw the claimant on one occasion and generated a report based upon his examination of her and his review of her medical records. In his report, dated January 27, 2004, Dr. Braden states, “Ms. Bost appears to have reached maximum medical improvement from the injuries she reports to have sustained.” He goes on to opine that she has not sustained any impairment because of her injury. Dr. Braden is apparently basing that conclusion upon his belief the claimant’s admittedly compensable accident of April 2, 2003 did not cause any change in her previous condition.
My concern in placing so much reliance on Dr. Braden’s opinion is two-fold. First, the claimant has a neurological defect in her thoracic spine and has been treated extensively by several different neurosurgeons who have, at times, referred to her as having a complicated situation. However, Dr. Braden is not a specialist in either neurology or neurosurgery and does not appear to have any particular expertise in these areas. His speciality is in rehabilitative medicine, an area which deals primarily with an individual’s functional ability and management of chronic conditions. His opinions might be helpful if we were considering the claimant’s vocational abilities and her need for medical maintenance. But, I do not believe that his opinion as to the claimant’s neurological condition should be given any weight, especially when she was still undergoing active treatment by neurosurgical specialists.
It also appears that Dr. Braden did not have complete access to several relevant medical reports and documents related to the claimant’s condition. For example, Dr. Rodney Olinger, a Memphis neurosurgeon, had seen the claimant on November 6, 2003. In his report of that date, he made the following comment about the claimant’s condition:
I am really worried that she may be developing a myelopathy and this completely changes what her situation is. I think she needs to reconsider further diagnostic testing and possibly some type of transthoracic approach with possibly fusion. She told me that basically she started having deterioration of her gait some time after she saw Dr. Tyrer. She tells me that she did have evidence of myelopathy before her first surgery with Dr. Rikka as well. I would like to go ahead and set her up with one of our complex spine surgeons, as I do not usually do these procedures and she will need their expert evaluation.
While Dr. Braden does have reports from Dr. Olinger, he did not reference this particular report. Also, while he does refer to the report from Dr. Kenan Arnautovic, a neurosurgeon affiliated with Dr. Olinger who saw the claimant on November 12, 2003, Dr. Braden apparently overlooked or did not consider Dr. Arnautovic’s conclusion that the claimant was exhibiting signs of lumbar radiculopathy and his recommendation that he seek another neurosurgical opinion.
Lastly, Dr. Braden did not have benefit of the MRI performed on the claimant on February 3, 2004. The results of that MRI are significant when compared to the MRI of April 5, 2003. The earlier MRI was performed only two days after the claimant’s injury and demonstrated that there was a “small right posteriolateral disc bulge at T6-T7 and a small posterior disc protrusion-osteophyte at T8-T9. Only the T8-T9 defect was noted to indent the thecal sac. However, the later MRI refers to the claimant as having a moderate sized central and right paracentral herniated disc at T6-T7 and T8-T9 with compression of the spinal cord at both of those levels. Clearly, the claimant’s condition has been deteriorating since the original injury. This condition is clearly in line with the increasing symptoms the claimant has reported throughout her medical treatment.
Other significant medical reports which Dr. Braden did not have in his possession were those generated by Dr. Richard Jordan, a North Little Rock neurosurgeon who began seeing the claimant in February 2004 and later performed a laminectomy on her on March 25, 2004. His operative note of that date specifically records the presence of a recurrent disc herniation at T6-T7 and T8-T9. Additionally, in a handwritten report of May 17, 2004, Dr. Jordan essentially stated that the surgery performed on March 25, 2004 was for treatment related to the claimant’s injury of April 2, 2003.
The Majority asserts that the treatment the claimant received did not result in any benefit to her. That point is supported by the Majority’s references to the claimant’s testimony that she was still having problems with her leg and that she had lost some range of motion and did not feel safe driving. However, they have ignored her testimony in which she states that, following Dr. Jordan’s surgery, her pain situation improved significantly, and the sharp, intense pains she was experiencing were almost totally alleviated by the surgery.
Also, the problems in her legs, according to Dr. Arnautovic, were because of a lumbar problem. Presumably, this would be the disc defect previously noted at L5-S1. The surgical treatment performed by Dr. Jordan was not at that level and would not have had any bearing on this problem. Also, it is not surprising the claimant has suffered some loss of range of motion since she now has had two surgical procedures performed in the thoracic area of her spine.
My review of the claimant’s testimony indicates that while her condition did significantly improve following the surgery, unfortunately, it did not resolve all of her problems. However, it is not expected that the surgery would restore the claimant to her pre-injury status, merely that it would improve her condition and improve her quality of life. Further, Dr. Jordan continued to treat the claimant by inserting a spinal cord stimulator with the intent of further reducing her pain problem. In my opinion, this procedure is also reasonable and necessary and should be the liability of the respondent.
For the reasons set out above, I believe that the Administrative Law Judge’s decision is entirely correct and should be affirmed without modification. For that reason, I respectfully dissent from the Majority’s denial of medical or temporary total disability benefits to the claimant after January 27, 2004.
________________________________ SHELBY W. TURNER, Commissioner