BIRCHELL v. M. C. ENTERPRISES, 1994 AWCC 100

CLAIM NO. D607858

CODY BIRCHELL (DEC’D.), EMPLOYEE, CLAIMANT v. M. C. ENTERPRISES, EMPLOYER, RESPONDENT and WAUSAU INSURANCE COMPANIES, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 18, 1994

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE W. HUNTER WILLIAMS, JR., Attorney at Law, Osceola, Arkansas.

Respondents represented by the HONORABLE JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] The claimant and the respondents appeal an opinion and order filed by the administrative law judge on November 1, 1993. The claim has previously been before the Full Commission, and in an opinion and order filed December 13, 1990, we found, inter alia, that treatment provided by and at the direction of Dr. Sumner Cullom was excessive. Consequently, we reversed the administrative law judge’s decision and remanded the claim with instructions for the administrative law judge to conduct an immediate hearing to determine how much, if any, of Dr. Cullom’s treatment was actually reasonably necessary for treatment of the compensable injury. In the opinion and order filed November 1, 1993, a different administrative law judge found that some, but not all, of the treatment provided by Dr. Cullom was reasonably necessary.

[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that any of Dr. Collum’s treatment was reasonably necessary for treatment of the compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed to the extent it finds any treatment to be reasonably necessary.

[4] The claimant was employed by the respondent employer as a long haul truck driver. He sustained an admittedly compensable injury on May 25, 1986, when the truck he was driving dropped off of the pavement approximately six inches, jarring the claimant. The claimant was not required to stop the vehicle. He began to develop neck and shoulder pain, and he sought treatment on June 2, 1986, at St. Alphonsus Hospital in Boisie, Idaho, where he was examined by Dr. John F. Rinke. Dr. Rinke diagnosed a cervical strain with underlying degenerative disease at C6-7. The claimant eventually returned to Osceola, Arkansas, and he came under the care of his personal physician, Dr. Sumner Cullom, on June 9, 1986. Dr. Cullom diagnosed a cervical strain, and he continued to treat the claimant until his death from unrelated causes in September of 1990. Dr. Cullom saw the claimant two to three times each week, and, during each of these visits, the claimant received injections and sonulator treatments. In this regard, injections of narcotics were administered two to three times each week for four years and four months, and steroid injections were administered weekly for three years. The claimant was also given injections of muscle relaxers. Dr. Cullom also prescribed medications which included pain medication, analgesics, diuretics, breathing medication, high blood pressure medication, gastric medication, tranquilizers, and antidepressants. According to Dr. Cullom, his extensive use of injections and medication was due to the severity of the pain experienced by the claimant, and Dr. Cullom testified that this treatment was provided solely as symptom relief.

[5] On August 26, 1986, the claimant received an orthopedic evaluation at the Campbell Clinic in Memphis. The report of that evaluation indicates that the claimant had full range of motion of the cervical spine with “excellent flexion/extension, side to side bending, and rotation,” although some discomfort on hypertension. The report also noted that there was full range of motion of both shoulders. The examination revealed some hypesthesia in the left index finger and some mild muscular tenderness over the scapula, but, otherwise the report was normal. Based on these findings, a cervical sprain was diagnosed.

[6] The claimant was also evaluated on September 22, 1986, by Dr. Jim Moore, a neurosurgeon. Dr. Moore’s report does indicate that his examination revealed some neck range of motion limitations, and he diagnosed a cervical sprain. A MRI was subsequently performed, and Dr. Moore’s February 19, 1987, report indicates that this MRI revealed degenerative disc disease at C6-7 with a minimal anterior extradural defect at C6-7. Dr. Moore opined that this could represent a “disc, spur, or a combination.” Dr. Moore’s February 19, 1987, examination revealed cervical and lumbar muscle spasms and continued range of motion restrictions due to pain. Dr. Moore assigned a 15% impairment rating at that time.

[7] The claimant has also been evaluated by Dr. Allen S. Boyd Jr., a neurosurgeon. Dr. Allen’s April 27, 1987, report indicates that his examination revealed some range of motion limitations in the claimant’s neck and shoulders and that it revealed some hypalgesia of the left thumb and index finger. Otherwise, his examination of the claimant’s neck and shoulders was essentially normal, and he opined that the claimant’s complaints were caused by a cervical sprain/strain. The claimant returned to Dr. Allen on May 25, 1987, and on June 22, 1987, and Dr. Allen’s findings on both of those occasions were essentially the same as in April. Dr. Allen opined that the claimant would not be precluded from returning to work as a result of his neck and shoulder problems, although the claimant suffered from multiple medical problems which Dr. Allen stated affected his ability to work. Dr. Allen again examined the claimant on August 31, 1987, and, again, he noted some range of motion limitations.

[8] In addition, the claimant was examined by Dr. Randy Roberts, a rheumatologist, on June 13, 1988. Dr. Roberts’ examination revealed “paracervical trigger areas, some milder tenderness in the midline, loss of 10-15 degrees rotation and lateral motion.” Dr. Roberts also noted full range of motion in the shoulders, although he noted some trigger areas over the scapula bilaterally. Otherwise, the examination was essentially normal, and Dr. Roberts diagnosed cervical myofascitis and mild cervical osteoarthritis.

[9] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (1987). In addition, the Commission has the authority to find that a medical service provider’s charge for services is unreasonable, and we may reduce the amount which respondents are liable to pay. Ark. Code Ann. § 11-9-513 (1987); Hulveyv. Kellwood Co., 262 Ark. 564, 559 S.W.2d 153 (1977);Tracor/MBA v. Baptist Medical Center, 29 Ark. App. 198, 780 S.W.2d 26 (1989); Savage v. General Industries, 23 Ark. App. 188, 745 S.W.2d 644 (1988). However, injured employees and medical service providers have the burden of proving by a preponderance of the evidence that medical treatment and associated charges are reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc.,
Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the procedure and the condition it is utilized to remedy. Deborah Jones v. Seba,Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No. D511255). Also, respondents are only responsible for medical services which are causally related to the compensable injury.

[10] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence the extent of reasonably necessary medical treatment provided to the claimant as a result of his compensable injury. In our first opinion, we characterized the frequency of Dr. Collum’s treatment as “seemingly impossible,” and we found that the frequency of Dr. Cullom’s treatment clearly was not reasonably necessary for treatment of the compensable injury. In addition, we made the following finding:

In short, the record in this case reveals an individual who has sustained some type of cervical strain, and the claimant’s treating physician has ministered to him for more than three years giving claimant treatment every few days and weekly injections without any improvement in the claimant’s overall condition. We simply cannot, and indeed we do not find that all of Dr. Cullom’s treatment is reasonable and necessary. Here, the claimant received treatment approximately every two or three days over the course of three years at the cost of approximately $23,000 and has shown little or no improvement.

[11] Consequently, we remanded the claim “for purposes of conducting an immediate hearing to determine how much of Dr. Cullom’s treatment was actually reasonable and necessary and if the Administrative Law Judge finds that any of Dr. Cullom’s treatment was excessive then it will not be the responsibility of the respondent.”

[12] Therefore, on remand, the claimant bore the duty to prove by a preponderance of the evidence the extent to which the services provided by Dr. Cullom were reasonably necessary for treatment of the compensable injury. We find that he failed to meet his burden of proof. Dr. Collum and Jimmy Lynch, the pharmacist who filled the claimant’s prescriptions, testified at the hearing on remand. Dr. Cullom’s testimony indicates that he was unable to do anything for the claimant other than to provide symptomatic relief. In this regard, Dr. Collum provided the following testimony:

In this whole thing, all we did for Cody was try to make life more unsufferable (sic), if there is such a term. That’s all we did the whole time in this thing. Two times a week, three times a week, and I don’t know where all this goes except that’s all I know to say. If we stay up here three hours, that’s all I know to say.

[13] Nevertheless, the claimant and Dr. Collum both admitted that this treatment gave him relief only for a very short time, and Dr. Roberts’ testimony indicates that the frequency of Dr. Collum’s treatment was not reasonable.

[14] Notably, none of Dr. Collum’s office notes pertaining to these frequent visits were included in the record. Although the evidence indicates that the claimant did sustain a cervical strain or sprain, the evidence also indicates that this strain/sprain was relatively minor in nature. However, Dr. Collum’s testimony and the other medical records indicate that the claimant was also suffering from other, unrelated, conditions, and some medical evidence indicates that these other conditions were the cause of the claimant’s inability to work. For example, Dr. Boyd indicated that the claimant would be able to work if the cervical condition was his only problem.

[15] Furthermore, Dr. Collum apparently determined prior to the injury that the claimant had Reiter’s syndrome. The dominant feature of Reiter’s syndrome is arthritis, and Dr. Collum’s deposition testimony indicates that the claimant’s neck was affected prior to the injury. In fact, Dr. Cullom opined that the claimant’s problems were actually caused because the injury aggravated the preexisting Reiter’s syndrome. However, Dr. Cullom was unable to state whether the continued need for the extensive treatment he provided was made necessary by the injury or by the Reiter’s syndrome. In this regard, Dr. Cullom made the following comments:

I’ve got a man with a hurt neck who had Reiter’s syndrome to begin with. That’s an arthritic condition. Now, with the accident, the condition became worse and got muscle involvement in association with that. Now, at this point in time, a year and a half later, any cervical strain should be over. Now, we’ve got an underlying neck problem, whether it’s Reiter’s syndrome in association with a severe injury that made it flare up or whether it’s pure Reiter’s syndrome or whether he’d be where he is today without the accident, I don’t know. I’m just telling you he was functioning fine until he had his accident and since the accident he can’t stay out of here, he can’t get out of the house in Osceola, he can’t drive to Memphis to pick up his sister when she comes in. . . . All I want is help trying to get him well and I can’t tell you yet if he’s got Reiter’s syndrome and if he’d of never had the wreck he’d be where he is today and no, I can’t tell you that the injury, 100%, did that to his neck. I’m not capable of making that. I’m stuck with a man that’s in discomfort and can’t function and I’ve done all I know to do. All I have to offer is analgesics.

[16] Consequently, although Dr. Roberts questioned whether the claimant had Reiter’s syndrome, Dr. Collum’s own testimony raises questions about the relationship of the continued extensive treatment he provided to the compensable injury, and those questions are not answered by the medical evidence found in the record.

[17] In short, the evidence establishes that the claimant sustained a cervical strain or sprain, a relatively minor injury which should have resolved within at least one and one half (1 1/2) years. However, from the outset, the nature and the frequency of the treatment provided by Dr. Collum far exceeds that normally provided for such an injury. Furthermore, the claimant was suffering from multiple conditions, and Dr. Collum apparently provided treatment for these unrelated conditions as well. However, other then the computer printout detailing each charge, there is no documentary evidence pertaining to Dr. Collum’s treatment of the compensable injury or any of the other conditions. Moreover, Dr. Collum himself questions the relationship of the treatment to the compensable condition by opining that the need for all or part of the treatment might have been necessitated by the Reiter’s syndrome. While some of his treatment may have been reasonably necessary for the treatment of the compensable injury, the evidence in the record is not sufficient to enable us to make a determination as to what treatment was reasonably necessary or to what extent it was reasonably necessary.

[18] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that Dr. Collum failed to prove by the greater weight of the evidence submitted in the record that any of his treatment was reasonably necessary for treatment of the compensable injury. Therefore, to the extent that the administrative law judge found any treatment to be reasonably necessary, we find that her decision must be reversed. This claim is denied and dismissed.

[19] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[20] Commissioner Humphrey dissents.