CLAIM NO. E803345
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 7, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE EDDIE WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by HONORABLE MATTHEW MAULDIN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an Administrative Law Judge’s decision filed November 8, 2001, awarding claimant a home whirlpool to treat his compensable injuries. Upon our de novo review of the record, we affirm the opinion of the Administrative Law Judge.
Claimant suffered admittedly extensive compensable injuries in 1998 while working for the county sheriff’s department. Respondents denied benefits for a home whirlpool that claimant argues is reasonably necessary to treat his compensable injuries. Respondents argue that the whirlpool is not reasonably necessary and that any benefits claimant receives from such therapy is short lived. They also contend that claimant allows his wife, son, and daughter-in-law to use the home whirlpool, and they are not in agreement with this practice.
The Administrative Law Judge noted:
The testimony of the claimant and his wife, as well as the medical records of Dr. Patterson, show that this treatment modality was, in fact, successful in reducing the magnitude of the claimant’s chronic complaints. As a result of the success of this treatment modality, Dr. Patterson recommended that the claimant obtain a whirlpool for his home in order to allow easier and more frequent access to this type of treatment.
Employers must promptly provide services which are reasonably necessary for the treatment of compensable injuries. Ark. Code Ann. §11-9-508(a). Injured employees have the burden of proving, by a preponderance of the evidence, that medical treatment is reasonably necessary for the treatment of the compensable injury. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 1996); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonably necessary medical treatment is a question of fact for the Commission.Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996); AirCompressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).
Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857
(1998).
Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Tina Haskins v. TEC, Full Workers’ Compensation Commission, Opinion filed July 14, 1993 (E107391); Billy Chronister v. Lavaca Vault, Full Workers’ Compensation Commission, Opinion filed June 20, 1991 (D704562). An employer may also remain liable for medical treatment reasonably necessary to maintain a claimant’s condition after the healing period ends. Artex Hydrophonics,Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
Dr. Smeltz calculated claimant with a 34% impairment rating to the body as a whole according to the AMA Guides to the Evaluation of PermanentImpairment, 4th Edition, for, “mild cauda equina syndrome, with mild bilateral lower extremity weakness, mild loss of bowel and bladder function, mild loss of sexual function, spinal fracture and leg length discrepancy secondary to sequalae of lower extremity fractures.”
On February 11, 2000, Dr. Patterson, claimant’s treating physician, opined that claimant should obtain a whirlpool for treatment:
Mr. Beavers has traumatic arthritis with loss of joint space of L2-L3, L3-L4, and L4-L5 with spinal stenosis at L2-L3, L3-L4, and L4-L5 and a compression fracture at T-11. This occurred as a result of an incident on the job. He is presently on nonsteroidals, pain medication, and tricyclic antidepressants for his chronic pain, and he still has a lot of pain. He does get relief with moist heat, and this works very well. He has to take less pain medicine when he has moist heat. For this reason, I think it is medically indicated that he have a whirlpool at his home.
This letter, along with estimates, was forwarded to respondents by claimant’s attorney on March 30, 2000. Respondents denied this benefit.
Dr. Michael Acuff of the University of Missouri Hospital, in response to respondents’ question, “Given the findings documented in claimant’s prior diagnostic exams, and considering his comments to Dr. Smeltz on 10-7-99, is it your opinion that a home whirlpool is reasonably necessary?”, opined that a home whirlpool was not reasonably necessary. (Respondents Ex. p. 16).
The Administrative Law Judge apparently gave little weight to this opinion, referring instead to that of claimant’s treating physician who opined that a home whirlpool is reasonably necessary to treat claimant’s compensable injury.
Based on the evidence in record, we affirm the Administrative Law Judge’s decision to award claimant costs for a home whirlpool. 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
(Repl. 1996).
IT IS SO ORDERED.
______________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
JOE E. YATES, Commissioner
I concur in the principal opinion’s award of benefits. As I understand Dr. Patterson’s February 11, 2000 comments, Dr. Patterson prescribed whirlpool treatment precisely to provide the claimant temporary pain relief in lieu of some additional pain medication. The dissent seems to suggest that whirlpool treatment which is intended to provide temporary symptom relief cannot be reasonably necessary for treatment of a work-related injury. The dissent has failed to cite any authority, and I am certainly not aware of any authority, to support the dissent’s suggestion that whirlpool treatment, pain medication, and other forms of pain management which provide temporary relief of symptoms, cannot be reasonably necessary for treatment of an injury based solely on the fact that the modality provides only temporary relief from symptoms and will not improve the underlying condition of the compensable injury. Under the dissent’s argument, it would appear that only spinal fusion, intradiscal electrothermal treatment (IDET), and other forms of permanent pain relief would be reasonably necessary for treatment of work-related injuries. Again, I am aware of no authority which would suggest that only spinal fusion, IDET treatment, and similar permanent pain treatment procedures are the only forms of pain management which can be reasonably necessary for treatment of persistent work-related injuries. Because the whirlpool treatment prescribed by Dr. Patterson would appear to be a beneficial form of pain management in lieu of some pain medication, I concur in the award of the treatment at issue.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Yates dissents.
DISSENTING OPINION
COMMISSIONER
I respectfully dissent from the majority opinion finding that the claimant is entitled to benefits for a home whirlpool. Based upon my denovo review of the record,
I find that claimant failed to prove by a preponderance evidence that the home whirlpool is reasonably necessary for the treatment of his compensable injury, and I would therefore reverse the opinion of the Administrative Law Judge.
I am persuaded by the opinion of Dr. Michael Acuff who reviewed the claimant’s condition as well as his records and arrived at the opinion that a home whirlpool was not reasonably necessary for the treatment of the claimant’s injuries. The Commission has the duty of weighing the medical evidence as it does any other evidence, and the resolution of any conflicting medical evidence is a question of fact for the Commission to resolve. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941
(1993).
In addition to the opinion of Dr. Acuff, the testimony of the claimant and his wife demonstrates that the home whirlpool is not reasonably necessary medical treatment. The claimant’s wife testified that the claimant’s condition had deteriorated and that the pain in his back has grown worse in the eighteen months since he purchased the whirlpool. While she did state that he was not taking as much strong pain medication, she described the whirlpool as being a quick fix which only makes him better for a short period of time after he uses it. The claimant testified that the whirlpool helps considerably “at the time I’m using it . . . [and] makes me feel good for, you know, three to four hours. . .” But he also stated that his pain was worse than it was eighteen months ago, and attributes this increase in pain to increases in his level of activity.
Based on this evidence that the claimant’s condition has worsened overall since he has had the home whirlpool, and that the whirlpool is only a quick fix for the pain, I conclude that the claimant failed to prove by a preponderance of the evidence that the home whirlpool is reasonably necessary for the treatment of his compensable injury, and find that opinion of the Administrative Law Judge should be reversed. Therefore, I respectfully dissent from the majority opinion.
_____________________________ JOE E. YATES, Commissioner