CLAIM NO. E714420
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 4, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE JOHN DAVIS, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
[1] OPINION AND ORDER[2] The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed June 2, 1999. The administrative law judge found that the claimant sustained a compensable injury to her back on November 17, 1997, and that she is entitled to ongoing reasonable and necessary medical treatment required to restore her to maximum healing. After de novo review, the Full Commission affirms the opinion of the administrative law judge. [3] The sole issues before the Full Commission are compensability and reasonable and necessary medical treatment. Issues pertaining to temporary total disability compensation, permanent impairment, and entitlement to chiropractic treatment are reserved by the parties. The claimant, age 38, suffered a previous lumbar strain in 1993, from which she fully recovered. The claimant was employed at Arkansas Waffles, d/b/a Waffle House, on or about November 17, 1997, when she allegedly injured her back at work. The claimant testified:
[4] Dr. Bell wrote to the carrier on January 6, 1998, described the history of injury, and said, “X-rays revealed a strain and sprain of the left iliosacral joint with effusion and subluxation associated with pelvic structure.” On January 14, 1998, Dr. Bell said the claimant could return to work on that date, but “only to cashier.” Dr. Bell reported joint swelling and muscle spasm on January 16, 1998 and swelling on January 23, 1998. Dr. Bell eventually referred the claimant to an orthopaedic surgeon, Dr. Thomas Rooney, who saw the claimant on April 1, 1998 and recommended an MRI scan to rule out a herniated disc. MR of the lumbar spine was done April 2, 1998, with the resulting impression:I was going to change out the coke machine and the supplies were in the back room, it was on the bottom shelf, and I went to pick it up, and when I started to stand up, I almost dropped it and it just kinda made me fall forward.
The claimant testified that she promptly reported this specific incident to the respondent-employer, and that her manager sent her to Concentra Health Centers. According to the history given at Concentra on November 24, 1997, the claimant said she was carrying a five gallon box of coke to the front of the store on November 17, 1997, and almost dropped it, causing pain to her low back. Physical examination revealed left lumbar/sacroiliac tenderness, and the physician diagnosed lumbar pain and prescribed medication. The respondents initially paid for the claimant’s medical treatment. The follow-up diagnosis on November 25, 1997 was lumbago/low back pain, and physical therapy was ordered. In addition to physical therapy, the claimant presented on her own to Bell Chiropractic Clinic on November 26, 1997, reporting the same history of injury and complaining of burning lower back pain extending down the left leg. Dr. Bell initiated a regular series of treatments occurring approximately every 2-3 days.
1. L5-S1 degenerative disc disease with associated end plate spondylosis.
2. Otherwise, normal MR of the lumbar spine.
[5] there’s no way to prove that there was anything other than a temporary aggravation of her pre-existing problem.Dr. Rooney decided to refer the claimant to Dr. Robert Valentine for pain management, and Dr. Rooney wrote on April 8, 1998 that the claimant “will be unable to do her regular waitress job until release by Dr. Valentine.” Interestingly, the record includes what could be termed an independent chiropractic evaluation by a Dr. Mark Niemchak, D.C., dated April 28, 1998. Dr. Niemchak in a nutshell contended that Dr. Bell’s treatment was excessive and not medically necessary. Dr. Rooney corresponded with the carrier on June 5, 1998:
All of the objective findings, which are those of x-ray and MRI, show degenerative changes which pre-existed her injury, and
The respondents cut off further medical benefits at this time and controverted the claim. Meanwhile, Dr. Valentine arranged a post-diskogram CT of the lumbar spine, performed June 29, 1998 with the following impression:
1. Normal L4-5 disc.
2. Marked degeneration of the L5-S1 disc with question of contrast extravasation in a left lateral position.
3. We will have the patient return after the contrast material has resorbed to determine if the increased density seen in the left paracentral and lateral position at L5-S1 represents a contrast extravasation or bone spur formation. The appearance of the increased attenuation and left lateral canal stenosis on the post diskogram images are greater compared to the right side, and do not correlate well with the patient’s right leg symptoms.
Dr. Valentine reviewed these results and wrote:
I think it is certainly reasonable to state that this lady does, in fact, have discogenic pain reproduced at low pressures which
certainly would be compatible with her ongoing complaints. I also feel it is only reasonable to presume that this is compatible with her reported mechanism of injury while lifting heavy objects. I have explained to Ms. Armstrong that, although the degenerative disc disease itself is a chronic problem, the apparent annular tear and possible posterior extrusion is certainly compatible with her reported injury.
Dr. Valentine referred the claimant to Dr. Richard Peek, who examined the claimant on or about October 6, 1996 and diagnosed degenerative disc disease, lumbar and cervical, L5-S1, and annular tear, lumbar, L5-S1. Dr. Peek explained to the claimant the risks and purported benefits of a laparoscopic fusion. Dr. Valentine opined on March 19, 1999 that “the actual tear within the disc was the result of the described work-related injury.”
The absent employee filed a claim for workers’ compensation, contending that she had sustained a compensable injury and was entitled to continued medical care and treatment by Dr. Peek. The respondents contended that the claimant’s current problems did not relate to “whatever incident she had at Arkansas Waffles.” If the Commission found the claim to be compensable, the respondents contended that Dr. Bell’s chiropractic treatment was neither reasonable nor necessary. The issue of temporary disability was reserved, and the claimant wished to hold in abeyance the issue of her entitlement to Dr. Bell’s treatment. Hearing before the Commission was held in May, 1999, and the administrative law judge filed an opinion on June 2, 1999. In addition to finding compensability, the administrative law judge found, “The claimant is entitled to all on-going reasonable and necessary medical treatment required to restore her to maximum healing period.”
The administrative law judge concluded that it first appeared that the claimant suffered from pre-existing degenerative disc disease, which was “merely aggravated by the incident of November 17, 1997,” but that Dr. Peek and Dr. Valentine diagnosed a work-related annular tear of the disc. The claimant’s low back complaints have been consistent and continuous since the workplace accident. The administrative law judge noted that the claimant had complained of pain in the left leg, then pain in the right leg; however, the claimant explained that the pain was in the middle of her back and alternated from left to right. The administrative law judge found that the claimant had met her burden of proof and awarded her reasonable and necessary medical treatment. The respondents appeal to the Full Commission.
The claimant contends that she sustained a compensable injury while working for the respondent-employer. A claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that it caused internal or external physical injury to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. StephensTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
After de novo review, we affirm the administrative law judge’s finding that the claimant sustained an injury at work on November 17, 1997. The claimant has credibly and consistently described an accidental workplace injury on that date, which specific incident occurred when the claimant picked up a large beverage container and injured her back. The respondents at first paid for the claimant’s medical treatment. In January, 1998, Dr. Bell interpreted an x-ray to reveal “subluxation,” viz., “dislocation,” associated with the claimant’s pelvic structure. Dr. Bell subsequently reported swelling and muscle spasm on several occasions. A chiropractor’s report of spasm may constitute an objective medical finding. Kirsch v. Pulaski CountySpecial School District, Full Workers’ Compensation Commission, opinion filed March 5, 1998 (E516059). We recognize that MRI conducted at Dr. Rooney’s recommendation showed only degeneration and no herniated discs. Nevertheless, Dr. Valentine and Dr. Peek reviewed the results of a June, 1998 CT of the lumbar spine and reported an annular tear at L5-S1. In March, 1999, Dr. Valentine opined that “the actual tear within the disc was the result of the described work-related injury.” The determination of whether a causal connection exists is a question of fact for the Commission to determine. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). We find that the objective medical reports of swelling, spasm, and annular tear are causally connected to the claimant’s November 17, 1997 accidental injury.
The respondents note that when the claimant was examined on November 24, 1997, she complained of left lumbar tenderness, and that all of her symptoms over the next several weeks and months were related to her left side. In February, 1998, the claimant began complaining of symptoms on her right side. The respondents aver that the claimant did not adequately explain why her symptoms “changed” from the left to the right side. Under examination from the administrative law judge, however, the claimant testified that her pain was:
Across the center of my lower back, and it’s not always the left or the right leg that hurts. I guess it depends on what I’m doing,
whether I’m, you know. But I’ve told the doctors throughout the entire thing, you know, that sometimes it’s down my left leg that it hurts and sometimes it’s on the right. It’s — It’s not consistent.
We find that claimant to be credible in describing the history of her pain. In addition, the respondents bring up a twisted ankle by the claimant and former beatings at the hands of an abusive ex-spouse, both of dubious probative value. The decision of the administrative law judge is affirmed.
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a)(1987). However, injured employees have 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 (D612391). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy.Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (D511255).
In the instant matter, the respondents provided conservative medical treatment for the claimant at Concentra Health Centers following the November, 1997 workplace incident. This treatment included physical therapy. The claimant presented on her own to Bell Chiropractic Clinic on November 26, 1997 and began receiving a regular series of chiropractic adjustments. Dr. Bell referred the claimant to an orthopaedic surgeon, Dr. Thomas Rooney, who ultimately referred the claimant to Dr. Robert Valentine for pain management. On June 30, 1998, Dr. Valentine recognized that the claimant had pre-existing degenerative disc disease, but that diagnostic testing also revealed an annular tear at L5-S1 which was compatible with the claimant’s compensable injury. Dr. Valentine referred the claimant for consultation with an orthopedic spine surgeon.
On July 22, 1998, Dr. Valentine wrote, “At this time, the primary question is whether Ms. Armstrong is a candidate for a lumbar fusion. This is certainly a very serious procedure to consider and is generally avoided if at all possible, particularly in individuals in her age group.” Dr. Richard Peek, an orthopedic spine surgeon, examined the claimant on October 6, 1998 and concluded:
I have discussed with her that fusion is a very difficult procedure for the patient but has a good chance of success. I have discussed the associated risks and benefits of surgical intervention, including the risks of infection, bleeding, residual pain, non-union. Since there is not a lot of nerve impingement, we could do this anteriorly
with a laparoscope. This procedure cuts down on hospitalization with usually just an overnight stay. However, the procedure is still the same and requires a period of approximately one year for recovery. . . . I have also discussed with her that she has the option of having prolonged nonoperative treatment, and that hopefully with time this might fuse itself, or that it may not.
At hearing, the claimant requested continued medical care and treatment from Dr. Valentine, so that she did not have to undergo surgery at the hands of Dr. Peek. We therefore find that continued conservative treatment from Dr. Valentine is reasonable, necessary, and related to the compensable injury, as well as the responsibility of the respondents.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved that she sustained a compensable injury on November 17, 1997, pursuant to Act 796 of 1993. We find that the claimant has proven entitlement to reasonable and necessary medical treatment from Dr. Valentine as required to restore her to maximum medical improvement from the compensable injury. We thus affirm the opinion of the administrative law judge.
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, 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.
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ELDON F. COFFMAN, Chairman
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PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.