CLAIM NO. E712614
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 3, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE J. LESLIE EVITTS, III, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE PHILLIP CUFFMAN, 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 November 12, 1998. The administrative law judge found that the claimant’s need for treatment for temporomandibular joint syndrome, headaches, and cervical problems is a compensable consequence of surgery for her compensable injury. The administrative law judge found that the respondents should pay for the cost of the claimant’s medical treatment for her compensable injury, as well as for the treatment for her cervical problems, headaches, and temporomandibular joint syndrome. The administrative law judge found that the claimant is entitled to temporary total disability benefits from January 28, 1998 to a date to be determined. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge. [3] The parties stipulated that the claimant, age 46, sustained a compensable low back injury on July 23, 1997. The claimant, a salesperson, testified that she hurt her back while squatting to pick up catalogs. Dr. Richard Dotson, the claimant’s family physician, treated the claimant before referring her to a neurosurgeon, Dr. J. Michael Standefer, in August, 1997. Dr. Standefer initially treated the claimant conservatively for complaints of pain in her low back, right hip and leg, and occasionally left leg. The claimant’s treatment included physical therapy. On October 2, 1997, Dr. Standefer performed a right L5-S1 hemilaminotomy, L5 diskectomy, and complete decompression right S1 root including foraminotomy. Dr. Standefer operated using general endotracheal anesthesia. The claimant complained of neck pain and headaches following surgery and returned to Dr. Dotson. Dr. Standefer also noted that the claimant had suffered “spinal headaches” following the first operation. Dr. Standefer again operated on the claimant on October 9, 1997, repairing a linear dural defect, inspection of L5 disk, and complete decompression of right S1 root and dural tube. After awakening from this surgery, claimant testified, her symptoms worsened. She suffered a stiff neck, jaw pain, and a sore throat. [4] Dr. Dotson corresponded on October 27, 1997:
[5] Dr. Cyril Raben, an orthopaedic surgeon, examined the claimant on November 18, 1997, for her complaints of neck pain, headaches, right arm pain and low back and right lower extremity pain. Dr. Raben wished to refer the claimant for an evaluation and treatment for temporomandibular joint (TMJ) dysfunction, headaches, and additional physical therapy. On December 15, 1997, Dr. Raben noted that the carrier had denied his referrals for TMJ dysfunction and headaches. Dr. R. Kendall Roberts, a dental surgeon, wrote on January 6, 1998:It is my opinion at this time that she may conceivably have a bulging or herniated disc in the lower cervical spine which may have occurred at the time she herniated the disc in her low back and manifesting symptoms only after having undergone general anesthesia on two occasions within approximately one week. The anesthesia requires hyperextension of the neck for intubation. This hyperextension may have caused the possible disc bulge or rupture to manifest with pain.
Dr. Dotson referred the claimant for a cervical spine MRI, taken on October 27, 1997. The resulting impression was “very small right sided disc protrusion/herniation at C3-4 and C5-6; minimal central disc protrusion or herniation C4-5.” Dr. Standefer interpreted the results of the cervical MRI as “basically normal.”
[6] dentist with specialty in TMJ treatment.I have been treating Marcia Barnes for her dental needs over the past ten years. During this time we have seen her on a regular basis. The majority of the treatment has been general dentistry. Over these past nine years there has been no evidence of TMJ symptoms. She has informed me that she has developed TMJ symptoms since her back surgery done in October, 1997. I am recommending that she see Dr. Steven Kilpatrick, a general
[7] all probability, Ms. Barnes had dislocated temporomandibular discs prior to the surgery, and the condition was aggravated and made very symptomatic by the procedure. [8] Dr. Dotson corresponded on February 13, 1998:The claimant returned to Dr. Standefer’s clinic on January 28, 1998. Dr. Standefer advised the claimant that he did not believe her symptoms were referable to the lumbar surgery he performed or to patient positioning during said surgery. Dr. Standefer released the claimant with a 15% anatomical impairment rating, which the respondents accepted and began paying. Dr. Steven Kilpatrick, a dental surgeon, evaluated the claimant on January 29, 1998, pursuant to Dr. Roberts’ referral, and he noted that the claimant’s jaws “pop and click.” Dr. Kilpatrick diagnosed trauma due to intubation, trauma to the TM joints, dislocated TM discs, degenerative joint disease in the temporomandibular joints, and myofascial pain. On February 2, 1998, Dr. Dotson directed that the claimant remain off work until further notice. Dr. Kilpatrick wrote the following on February 5, 1998:
My evaluation of Marcia Barnes reveals that she has degenerative joint disease in both right and left temporomandibular joints with dislocated temporomandibular discs. Her painful episodes are due to posterior capsulitis and myofacial (sic) pain. Based on her history, it appears her problem is a result of her surgical experience, probably by intubation during general anesthesia. In
[9] Upon awakening from surgery on 10-09-97 she was in severe pain of the head, neck, shoulders and upper extremities. She has also had blurred vision, dizziness, and initial difficulty swallowing which improved and now has worsened again. All of the above problems which began after her second surgery. . . . She had never been treated by me for this problem before this second surgery. [10] It is my opinion that her difficulties are due to anesthesia, specifically, intubation, which required hyperextension of the head/neck for a prolonged period of time with the placement of an intubation tube into the airway. [11] It is also my opinion that she is not ready to return to work even though Dr. Standfer (sic), who is not her primary care physician, feels she should go back to work. Her dizziness, pain and blurred vision makes it hazardous for her to be driving. As her primary care physician, it is my responsibility to determine when Mrs. Barnes is ready to return to work. [12] With the above continuing symptoms, I have arrived at the unavoidable conclusion that Mrs. Barnes is at this time unable to return to work safely. She needs to remain off work and be treated for this problem as soon as possible.Marcia Barnes underwent lumbar spine surgery on 10-09-97. This was the second of two recent surgeries which required intubation.
[13] Dr. Dotson referred the claimant to University of California at Los Angeles (UCLA) Medical Center, where she received a neurological services consultation with Dr. Louis Rosner on April 6, 1998. Dr. Rosner’s impression was muscle spasms in neck, jaw and scalp muscles as the cause of headache, neck pain and dizziness; residual of right S1 nerve root damage; and functional overlay. Dr. Rosner treated the claimant with amitriptyline and a bite plate to be made for temporomandibular joint syndrome, return in two weeks. On April 21, 1998, Dr. Rosner’s impression was cervical muscle spasm, muscle contraction headaches, and temporomandibular joint syndrome. Dr. Rosner adjusted the claimant’s medication and ordered physical therapy for the claimant’s neck. The claimant began receiving physical therapy at Eisenhower Medical Center, Rancho Mirage, California. [14] Dr. Joel Secarz, Assistant Professor of Surgery at UCLA, examined the claimant and corresponded with Dr. Rosner on May 22, 1998:Nevertheless, Dr. Standefer released the claimant with no restrictions following March 1, 1998. Dr. Standefer was somewhat perplexed by the claimant’s continued “constellation” of symptoms, as well as the fact that she had been referred to Dr. Raben. On March 25, 1998, a physical therapist palpated muscle spasm in the lumbar, thoracic, and cervical paravertebral regions, as well as in the facial muscles of mastication (chewing).
[15] The claimant was next seen by a California neurologist, Dr. Scott Ferer. On June 26, 1998, Dr. Ferer stated that the main problem appeared to be intermittent numbness in the upper limbs and hands. Dr. Ferer’s impression was neck pain with component of cervical radiculitis, muscle contraction headache, history of L5-S1 herniated nucleus pulposus status post laminectomy, and postoperative spinal leak — status post surgical correction. The claimant sat for an otolaryngology consultation on July 6, 1998. The claimant told Dr. Robert Gebhart that “surgery was done in Arkansas and they had trouble intubating her.” Dr. Gebhart’s impressions included “right 1 cm. posterior thyroid nodule, non-palpable but identified on MR.” Dr. Gebhart performed a right thyroid lobectomy on July 28, 1998. On August 21, 1998, Dr. Roland Reinhart administered cervical epidural steroid injection, lumbar epidural steroid injection, and bilateral trigger points, trapezius muscle. [16] After the carrier controverted additional treatment, the employee filed a claim for additional benefits. As a direct result of the second surgical procedure, the claimant contended, she developed headaches, blurred vision, TMJ, and neck pain, and was entitled to additional medical expenses. The claimant also asserted entitlement to additional temporary total disability benefits from January 28, 1998 until a date yet to be determined. The respondents contended that they have paid and continued to pay all benefits to which the claimant is entitled. Hearing was held September 17, 1998. The administrative law judge found that the claimant has proven that her headaches, TMJ, and cervical problems are a compensable consequence of her surgeries. The administrative law judge stated that the claimant has cervical degeneration and is predisposed to TMJ, “but neither of these problems were symptomatic or causing her disability of any kind prior to her surgery.” The administrative law judge also found that the claimant had been temporarily totally disabled from January 28, 1998 until a date yet to be determined. Respondents appeal the order directing them to pay additional medical and temporary total disability benefits. [17] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1997). Injured employees have the burden of proving, however, that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beattyv. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (D612291). When an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). The claimant remains responsible for showing, by a preponderance of the evidence, that there is a causal relationship between the compensable injury and subsequent complications. [18] After de novo review, the Full Commission affirms the administrative law judge’s finding that the claimant’s need for treatment for temporomandibular joint (TMJ) syndrome, headaches, and cervical dysfunction is a compensable consequence of surgery for the compensable injury. Following the employee’s compensable low back injury, Dr. Michael Standefer performed a right L5-S1 hemilaminotomy, L5 diskectomy, and complete decompression right S1 root including foraminotomy. The claimant informed her primary physician, Dr. Richard Dotson, following surgery that she was experiencing neck pain and headaches. Dr. Standefer also noted that the claimant had suffered spinal headaches following the first operation. Dr. Standefer found it necessary to re-operate on the claimant just seven days after the original surgery, repairing a linear dural defect, inspection of L5 disk, and complete decompression of right S1 root and dural tube. [19] The claimant’s pain symptoms worsened after her second surgical procedure at the hands of Dr. Standefer. Dr. Dotson subsequently opined that the claimant could have a bulging or herniated cervical disc, which manifested symptoms after the claimant’s neck was hyperextended for anesthesia twice within seven days. Cervical MRI taken on October 27, 1997 confirmed Dr. Dotson’s concerns, showing protrusion/herniation at C3-4, C4-5, C5-6. Dr. Kendall Roberts, a dental surgeon, wrote in January, 1998 that he had provided general dental treatment to the claimant during the past decade, and that there had been no evidence of TMJ symptoms prior to her back surgery in October, 1997. Another dental surgeon, Dr. Steven Kilpatrick, diagnosed trauma due to Dr. Standefer’s intubation, trauma to the TM joints, dislocated TM discs, degenerative joint disease in the temporomandibular joints, and myofascial pain. Dr. Kilpatrick reaffirmed his expert medical opinion in February, 1998, stating that in all probability, the claimant had dislocated temporomandibular discs prior to the surgery, and the condition was aggravated and made very symptomatic by the procedure. Dr. Dotson confirmed that he had never treated the claimant for head, neck, and jaw problems prior to her second surgery. [20] A neurologist, Dr. Louis Rosner, examined the claimant in April, 1998 and reported muscle spasms in the neck, jaw, and scalp muscles as the cause of headaches and neck pain, in addition to residual of right S1 nerve root damage. Dr. Rosner’s treatment included fitting of a bite plate for temporomandibular joint syndrome and physical therapy for the claimant’s neck. Dr. Joel Secarz, a professor of surgery, examined the claimant in May, 1998 and found a laceration to her tonsil which occurred during Dr. Standefer’s surgical procedure. Dr. Rosner found it necessary to refer the claimant to pain management for cervical muscle spasm and muscle contraction headaches, temporomandibular joint syndrome, and residual of right S1 nerve root damage from the lumbosacral disc disease and surgery. [21] Dr. David Wilgarde, an orthopedist, examined the claimant in June, 1998 and diagnosed intermittent dysphagia following the tracheal intubation performed by Dr. Standefer, in addition to chronic right leg pain following two lumbar spine surgeries. Subsequent EMG and nerve conduction studies gave the impression of chronic bilateral C7, C8, and T1 radiculitis. A neurologist, Dr. Scott Ferer, also reported cervical radiculitis and muscle contraction headaches. Finally, an otolaryngologist, Dr. Robert Gebhart, took a history in July, 1998 that intubation during surgery had gone awry, and he identified a right one centimeter posterior thyroid nodule. Dr. Gebhart performed a right thyroid lobectomy on July 28, 1998. [22] It is clear from our de novo review of the entire record that only one treating physician, Dr. Standefer, has opined that the claimant’s symptoms were not referable to the procedure he performed. Contrary opinions have been expressed by the claimant’s primary physician, who is an osteopathic physician, two dental surgeons, two neurologists, an orthopedist, a professor of surgery, a pain management specialist, and an otolaryngologist. The Workers’ Compensation Commission is authorized to accept or reject medical opinion, and we are authorized to determine its medical soundness and probative force. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). We find that the claimant has proven, by a preponderance of the evidence, that the medical treatment she has received pursuant to the referrals by Dr. Dotson is reasonably necessary for treating the compensable consequences of her compensable injury. We thus affirm the findings of the administrative law judge in this regard. [23] Temporary total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Stafford v. Arkmo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996). The administrative law judge found that the record is clear that the claimant remains temporarily totally disabled as a result of the compensable consequences of her compensable injury; therefore, that the respondents should pay temporary total disability from the date of the claimant’s impairment rating, January 28, 1998, to a date to be determined. After de novoMs. Barnes indeed seems to have had a laceration to the tonsil during the recent spine surgery. I do not believe that this is a serious issue, however. If her swallowing difficulties continue, I would consider a modified barium swallow to exclude an unlikely serious esophageal problem. Further radiologic evaluation can wait because of her benign examination.
Dr. Rosner thereafter referred the claimant to a pain management specialist for her cervical muscle spasm and muscle contraction headaches, temporomandibular joint syndrome, and residual of right S1 nerve root damage from lumbosacral disc disease and surgery. An MRI of the neck was taken in June, 1998, with the impression of mass right aspect of the neck projecting in the inferior right aspect of the right thyroid gland. Dr. David S. Wilgarde performed an orthopedic examination on June 19, 1998. Dr. Wilgarde’s impression was cervical myofascial dysfunction; possible cervical radiculopathy versus ulnar entrapment neuropathy; intermittent dysphagia following tracheal intubation; visual dysfunction; and chronic right leg pain following two lumbar spine surgeries. Dr. Wilgarde administered EMG and nerve conduction studies on June 19, 1998, with the resulting impression of electrodiagnostic evidence suggestive of chronic bilateral C7, C8, and T1 radiculitis, and no evidence of peripheral entrapment syndrome. EMG/NCS of the lower extremities revealed no electrodiagnostic evidence of chronic bilateral L5 and right S1 radiculopathy, and no evidence of peripheral neuropathy.
review, we affirm. The respondents accepted the claimant’s low back injury of July 23, 1997 as compensable and began paying temporary total disability. The respondents paid temporary disability until January 28, 1998, the date Dr. Standefer assigned an impairment rating and attempted to release the claimant from further treatment. The claimant attempted to return to work on February 2, 1998, but her primary physician, Dr. Dotson, directed that date that the claimant remain off work until further notice. Dr. Dotson reported that the claimant had constant neck pain, blurred vision, and right leg pain. The claimant subsequently began treating for headaches, TMJ symptoms, and cervical dysfunction, all of which we have determined supra to be compensable consequences of the claimant’s surgery. We thus find that the claimant remained within her healing period and totally incapacitated from earning wages from January 28, 1998 until a date yet to be determined. [24] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant’s need for treatment for temporomandibular joint syndrome, headaches, and cervical problems are a compensable consequence of surgery for her compensable injury. We find that the respondents should pay for the cost of the claimant’s medical treatment for her compensable injury, as well as treatment for her cervical problems, headaches, and TMJ syndrome. We find that the claimant is entitled to additional temporary total disability benefits from January 28, 1998 until a date yet to be determined. We thus affirm the opinion of the administrative law judge in all respects. [25] 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). [26] 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). [27] IT IS SO ORDERED. [28] ________________________________
ELDON F. COFFMAN, Chairman ________________________________ PAT WEST HUMPHREY, Commissioner [29] Commissioner Wilson dissents.