BLAKE v. RICKETTS TRUCKING, 1995 AWCC 157

CLAIM NO. E007238

MORRIS LEE BLAKE, EMPLOYEE, CLAIMANT v. RICKETTS TRUCKING, EMPLOYER, RESPONDENT and WAUSAU INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 27, 1995

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

Claimant represented by the HONORABLE DONALD P. CHANEY, JR., Attorney at Law, Arkadelphia, Arkansas.

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

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals opinions and orders filed by the administrative law judge on January 21, 1994 and on November 7, 1994. In those opinions and orders, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that fusion surgery recommended by Dr. Edward Saer is reasonably necessary for treatment of his compensable injury. After conducting a denovo review of the entire record, we find that the administrative law judge’s decision must be affirmed.

[3] The claimant was employed by the respondent employer as a truck driver. On April 12, 1990, he sustained an admittedly compensable injury to his low back. According to his testimony, he was stepping down to the ground from his truck when he stepped on a rock, causing him to twist his body and fall to his knees. He immediately experienced low back pain, and he has complained of severe low back pain since that time.

[4] He was initially treated for this problem by Dr. Judson Hout, a general practitioner. A CT scan ordered by Dr. Hout showed some straightening of the lumbar spine, indicating spasm, but no other abnormality was revealed. Therefore, Dr. Hout treated the claimant conservatively. However, when Dr. Hout’s conservative care did not improve his complaints, Dr. Hout referred him to Dr. Ronald Williams, a neurosurgeon.

[5] Dr. Williams first examined the claimant on May 29, 1990. His physical examination revealed limited range of motion, but no other abnormal results were suggested. However, due to the persistence of the claimant’s complaints, Dr. Williams ordered a MRI which showed a small left paracentral disc herniation at L4-5. Likewise, a myelogram performed by Dr. Williams with a post-myelogram CT scan showed a disc protrusion and possible rupture at L4-5. However, since the claimant complained of only occasional radiation into his lower extremity, Dr. Williams has concluded that surgery is not indicated from a neurosurgical standpoint. Instead, Dr. Williams has opined that the claimant’s pain comes from a musculoligamentous injury to the back.

[6] Based on his diagnosis of a musculoligamentous injury to the back, Dr. Williams referred the claimant to a rheumatologist, Dr. Robert Brewer. After examining the claimant on November 21, 1990, Dr. Brewer concluded that the claimant was suffering from mechanical low back pain with degenerative disc disease, and he recommended conservative treatment with medication and a regimen of exercises. However, the claimant did not respond to this conservative care, and Dr. Brewer questioned whether the lack of improvement was due to a mechanical problem or to psychological overlay. In June of 1991, Dr. Brewer ordered another MRI, but the results of this study were consistent with the previous studies. Although Dr. Brewer continued to follow the claimant, his reports indicate that his conservative treatment provided little relief for the claimant’s complaints of severe pain. However, although Dr. Brewer indicated that the claimant appeared to be in severe pain during his examinations, these examinations revealed virtually no objective findings to substantiate the extent of pain described by the claimant. While his examinations revealed range of motion limitations, no muscle spasms were revealed, and only diffuse tenderness was revealed.

[7] Nevertheless, due to the duration of the claimant’s complaints, Dr. Brewer referred the claimant back to Dr. Williams for another neurosurgical evaluation. After examining the claimant on March 17, 1992, Dr. Williams again concluded that the claimant was not a good candidate for a discectomy. However, Dr. Williams did speculate that a fusion should be considered, and he referred the claimant to Dr. David Arnold, an orthopedic surgeon, for consideration of that possibility. For some reason, the claimant was never able to see Dr. Arnold, and he continued to see Dr. Brewer. Dr. Brewer concurred with Dr. Williams’ suggestion for an orthopedic evaluation to consider a fusion. However, in a May 20, 1992, report, Dr. Brewer made the following comments with regard to the possibility of surgery:

I believe there is significant emotional overlay with regard to the patient’s symptoms and thus would be somewhat dubious about performing lumbar surgery on Mr. Blake.

[8] Nevertheless, Dr. Brewer continued to recommend a orthopedic evaluation as “a reasonable next step in someone with chronic pain that cannot be helped with medical therapy.”

[9] Ultimately, on January 26, 1993, the claimant was evaluated by Dr. Edward Saer, an orthopedic surgeon. Dr. Saer’s examination also revealed essentially only range of motion restrictions with otherwise negative results. Therefore, like Dr. Brewer, he concluded that the claimant’s symptoms were “somewhat mechanical and may well be related to the discal problem.” Dr. Saer caused a discogram to be performed. This study showed a normal disc at L5-S1, but it showed “an annular tear and similar pain reproduction with injection at L4-5, and to a lesser extent, at L3-4.” Likewise, another MRI ordered by Dr. Saer revealed degenerative disc disease at L2-3, L3-4, and L4-5. On March 18, 1993, Dr. Saer advised the claimant that he might be a candidate for a lumbar fusion, but the claimant delayed making a decision at that time. However, the claimant returned to Dr. Saer on November 24, 1993, and Dr. Saer again considered the possibility of a lumbar fusion. In this regard, Dr. Saer made the following comments:

He presents a difficult problem because I don’t think that there is a good answer for three level disc disease. The L4-5 seems to be his most symptomatic level and surgery at that level may relieve the majority of his complaints. I explained to him that I did not think that I could relieve all of his pain with surgery. . . . I do think surgery stands a reasonably good chance of making him better, but probably not “perfect.” He’s going to think things over and let us know how he wants to proceed.

[10] In deposition testimony, Dr. Saer opined that the claimant was probably experiencing pain from the disk, but he testified that the claimant did not have the typical herniated or ruptured disk that was pressing on a nerve, which would indicate neurosurgical intervention. Dr. Saer also testified that the goal of the surgery would be to eliminate as much of the claimant’s pain as possible, and he testified that he “felt like that the surgery may relieve the majority of his complaints of pain.” Likewise, he testified that he felt that “it is reasonable for Mr. Blake to have this surgery.” However, Dr. Saer admitted that his contact with the claimant has been limited, so he did not have a good feel for the claimant’s psychological motivation. In addition, Dr. Saer’s testimony indicates that his recommendation for surgery is based primarily on the persistence of the claimant’s complaints, although there is some evidence of an abnormality. Dr. Saer testified that he would rate the claimant’s permanent physical impairment at 5%-10% without the surgery and at 15% to 20% with the surgery.

[11] The claimant has also undergone two independent neurosurgical examinations at the request of the respondents. He was examined by Dr. Jim Moore on January 7, 1991, and Dr. Moore suggested further studies and conservative treatment at that time. He was also examined by Dr. Steven Cathey on May 25, 1993, and Dr. Cathey concurred with Dr. William’s conclusion that neurosurgery was not indicated. A psychological evaluation was also performed on November 23, 1993, by Dr. Robert Doyle, a psychologist, and Dr. Doyle made the following comments with regard to the claimant’s psychological profile:

These patients usually respond poorly to elective surgery. Their recovery is usually slow and difficult, and the outcome is often unsatisfactory.

[12] 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 (Claim No. D612291). 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 (Claim No. D511255).

[13] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that the fusion surgery proposed by Dr. Saer is reasonably necessary for treatment of the compensable injury. Although Dr. Williams and Dr. Brewer suggested consideration of a fusion, their records indicate that these suggestions were based solely on the failure of their conservative treatment to alleviate the claimant’s complaints and on their lack of any other recommendation for treatment of these complaints. Likewise, even though the diagnostic tests do show some evidence of abnormality, Dr. Saer’s recommendation for surgery appears to be based on the persistence and nature of the claimant’s complaints. Furthermore, Dr. Saer’s reports and testimony are rather equivocal regarding the potential for a successful result and regarding the extent of relief that can be expected even if the surgery were successful. Moreover, the claimant’s psychological profile raises substantial questions regarding the potential for a successful result. Likewise, although Dr. Brewer indicated that he would defer to Dr. Saer’s opinion, he has seriously questioned the potential for success on numerous occasions, and Dr. Brewer has had the most contact with the claimant of any of his physicians. For example, in a report dated June 7, 1993, Dr. Brewer made the following comments:

I have some concerns that patient may have quite a bit of emotional overlay relating to surgery and that pains seem to be somewhat out of proportion to what might be expected for his current problems. Thus, even though lumbar surgery would be a reasonable undertaking, I have concerns that he may not respond as well as one might anticipate from a spinal fusion.

[14] Dr. Brewer also made the following comments in a report dated September 13, 1993:

I would like to think that the patient would benefit from surgical intervention, but due to the chronic nature of the patient’s symptoms, and the severity of symptoms, I am somewhat doubtful that back surgery will end up curing the patient’s problems.

[15] In short, the evidence indicates that Dr. Saer’s recommendation for surgery is based on the persistence and severity of the claimant’s complaints. However, while the medical evidence does show some degenerative changes and abnormalities, this evidence also indicates that the claimant’s complaints of severe pain are drastically out of proportion with the nature and extent of these findings. In addition, the medical evidence indicates that the potential for a successful surgery is questionable. The evidence also shows that Dr. Saer’s recommendation is aimed solely at symptomatic relief, and the evidence indicates that the relief which can be anticipated from the surgery is also subject to question. Moreover, we note that other, conservative means of pain management have not been attempted.

[16] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that the surgery recommended by Dr. Saer is reasonably necessary for treatment of the compensable injury. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed. This claim is denied and dismissed.

[17] IT IS SO ORDERED.

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

[18] Commissioner Humphrey dissents.