BOLEN v. INTERNATIONAL PAPER COMPANY, 1996 AWCC 97

CLAIM NO. E018690

PEGGY BOLEN, EMPLOYEE, CLAIMANT v. INTERNATIONAL PAPER COMPANY, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 20, 1996

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

Claimant appears pro se on appeal.

Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on August 29, 1995. In that opinion and order, the administrative law judge found that the respondent is required to pay the cost of an additional surgery as reasonably necessary medical treatment for the claimant.

[3] After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be reversed. We find that the claimant failed to prove by a preponderance of the evidence that the surgery recommended by Dr. Adametz is reasonably necessary medical treatment for the claimant’s compensable injury.

[4] The claimant is 30 years old, with a high school education. She has been employed by respondent for approximately eight years. She currently works as a lab technician, which she has done since December 16, 1992, the date of her return to work following the September 24, 1990, compensable injury.

[5] The claimant sustained an admittedly compensable injury to her lower back on September 24, 1990, while working for the respondent. The evidence reflects that at the time of the injury, the claimant was working on a winder when she was caught between two rolls of paper, each weighing approximately three thousand pounds. The claimant sought medical attention at Jefferson Regional Medical Center following the injury. She then received treatment from her family physician, Dr. Bryan Perry.

[6] After being treated with anti-inflammatory medication by Dr. Perry, the claimant testified that her condition did not improve. She was then referred to a neurologist, Dr. Jacquelyn Sue Frigon, who advised a course of physical therapy for the claimant. At the respondent’s request, the claimant agreed to see Dr. P. B. Simpson, a neurosurgeon, who indicated in a note of January 7, 1991, that he could not find any evidence of any neurological deficit.

[7] The evidence reflects that the claimant later saw Dr. James R. Adametz, a neurosurgeon, who was referred by Dr. Perry. After the claimant underwent various treatment modalities and diagnostic evaluations, Dr. Adametz indicated a small disc abnormality at L5-S1, and noted that usually when a disc protrusion is small, the patient can get over it without surgical intervention. The record indicates that Dr. Adametz requested that the claimant see an orthopedic surgeon to evaluate the stability of the spine and to consider doing a percutaneous diskectomy before a determination could be made as to whether the claimant had reached final healing. Dr. Adametz noted that if the orthopedic surgeon did not think that the claimant needed any additional treatment, he would agree that she had reached final healing.

[8] In the interim, the claimant underwent a psychological evaluation by Dr. Winston T. Wilson, who diagnosed the claimant with hypochondriasis. While remaining under the care of Dr. Adametz, the claimant was then referred to Dr. S. Berry Thompson, an orthopedic surgeon. After seeing the claimant initially on October 7, 1991, Dr. Thompson indicated that there was no neurological deficit, and that there were some findings to suggest magnification of symptoms.

[9] The claimant continued to see Dr. Thompson for several months. During this time, the claimant underwent physical therapy and work hardening. After obtaining an discography of the L4-5 and L5-S1 levels that showed an abnormal disc at L5-S1, Dr. Thompson performed an automated percutaneous lumbar diskectomy at the L5-S1 level on November 14, 1991. The evidence indicates that claimant had no relief of pain, however, and Dr. Thompson recommended a rehabilitation program. The claimant continued on a plan of conservative treatment, and in the interim, she underwent physical therapy and was given trigger point injections at the Pain Center at Doctors Hospital.

[10] At the request of Dr. Thompson, on October 28, 1992, the claimant saw Dr. John C. Lytle, an orthopedic surgeon, who recommended continued conservative treatment for the claimant. After noting that he saw no indication for surgery, Dr. Lytle subsequently assessed the extent of the claimant’s permanent impairment at 10% to the body as a whole. This was based on the surgically treated disc lesion with residual symptoms of the lumbar spine. Dr. Thompson, in a letter of November 18, 1992, also rated the permanent impairment at 10% to the body as whole.

[11] The claimant returned to work for the respondent on December 16, 1992, as a lab technician. Her last visit to Dr. Thompson was March 16, 1994, at which time he recommended a short course of physical therapy. Dr. Thompson also indicated that therapy was “about all the treatment he had to render for her.”

[12] On July 27, 1994, the claimant again saw Dr. Adametz, who indicated that if the claimant did not improve, he would consider a diskectomy. He noted to the claimant, however, that because it was such a small disc herniation, he did not think the results would be as good as if it were a large abnormality. At the respondent’s request, Dr. Adametz referred the claimant to Dr. Thomas M. Fletcher, a specialist in neurological surgery, who agreed that although the claimant had some neurotic and hypochondriacal tendencies in the past, he thought that surgery was indicated.

[13] Dr. Adametz performed a right L5-S1 hemilaminectomy and diskectomy on the claimant on September 8, 1994. The evidence indicates that following the surgery, the claimant experienced a marked improvement for a period of time. In an October 11, 1994, letter to Dr. Thompson, Dr. Adametz observed that the claimant “is now about a month out from surgery. She says that she has gotten complete relief of her hip and leg pain.” However, in a progress note of February 6, 1995, Dr. Adametz observed the following:

Ms. Bolen returned to the office on February 3, 1995. She says she has been doing very well since her surgery until about two weeks ago when she actually started getting a little pain across her low back and into her left hip. Her pain was previously on her right side and this seems to be somewhat different, although it does go down the leg some like a radicular pain.

[14] The claimant continued to have complaints of this nature, and in an April 5, 1995, report, Dr. Adametz indicated that the claimant had a small recurrent disc herniation in the right paracentral location at L5-S1.

[15] At the request of the respondent, the claimant saw Dr. Reginald J. Rutherford on April 14, 1995. The evidence reflects that Dr. Rutherford provided a thorough and detailed evaluation, making the following observations in a progress letter of April 24, 1995:

The clinical picture is most in keeping with a conversion reaction which is considered supported by Mrs. Bolen’s prior psychological testing which has proven abnormal, Dr. Wilson expressing an opinion of hypochondriasis and Dr. Doyle’s somatization disorder and passive dependent personality disorder. Mrs. Bolen’s transient clinical improvement following her surgical discectomy in September of 1994 is not considered to substantiate an objective or neuroanatomical/neurophysiological basis for her complaints in that this may merely reflect placebo response or alternatively be representative of stress induced analgesia which in my experience is a commonly observed phenomenon following spinal surgery irrespective of the underlying etiology. Mrs. Bolen is considered a poor candidate for further surgical intervention which I would not endorse or recommend. Mrs. Bolen does appear to favor further surgical intervention and it is the impression of this examiner that she may loosely fall into the category of Munchausen’s syndrome. If surgical intervention is further considered, I would strongly recommend that this be preceded by further testing, comprising an EMG nerve conduction study, the recommended electromyographer being Dr. David Miles, a differential spinal which has previously been recommended by Dr. Valentine, contemporary psychological testing and a orthopedic IME with Dr. Earl Peeples. I would also advise that Mrs. Bolen is not considered a suitable candidate for interventional pain management, specifically I would not recommend or endorse a spinal cord stimulator or Morphine pump. The principle treatment recommendation offered is that Mrs. Bolen work with a clinical psychologist interested in the treatment of chronic pain for behaviorally based treatment with pharmacological treatment restricted to the use of an anti-depressant possible choices comprising Prozac, Paxil, Zoloft or Effexor.

[16] The claimant also was evaluated by Dr. Earl Peeples on May 16, 1995, at the request of respondent. In his June 2, 1995, report, Dr. Peeples found the following:

I am very concerned, because her MMPI test by Dr. Wilson indicates hypochondriasis and because many features of her record and many features of her pain diagram and exam, I think both presently and previously, are consistent with hypochondriasis. The possibility of a placebo effect or other nonphysical response to the previous temporarily
“successful” laminectomy must be considered. . . I am not convinced that the amount of abnormality on the current MRI would account for this patient’s symptoms. I am inclined to believe that this patient’s symptoms are predominately psychological in nature and not related to these minimal disc abnormalities which are known to exist in a significant percentage of the asymptomatic population. Despite my high regards for Dr. Adametz’s expertise, I do not find indication defining enough evidence at present for me to concur with the surgical recommendation. I think the patient has been treated with basically every known modality and, yet, continues to have this same level of pain. I am not convinced that this patient can indeed be cured and raise the question of whether further medical treatment at this point is indeed appropriate. It could also be argued that the patient has little to risk from a technically well performed, repeat laminectomy of which Dr. Adametz is capable. Nevertheless, the track record at this point of continued pain over a number of years with minimal physical findings and clear identification psychologically of hypochondriasis lead me to predict that long-term the patient will not be improved by surgical intervention.

[17] Dr. Peeples indicated that he would recommend no specific medical treatment, as he was not convinced that the claimant’s pain was due to the abnormality seen on the previous and current MRI scans.

[18] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (Michie 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). Whether the medical treatment is reasonably necessary for treatment of the compensable injury is a question of fact for the Commission to determine. Arkansas Dept. ofCorrection v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994);Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). 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).

[19] After reviewing the entire record de novo, we find that the claimant failed to prove by a preponderance of the evidence that the surgery recommended by Dr. Adametz is reasonably necessary for treatment of her compensable injury. The evidence in the record reflects that the claimant has seen Dr. Adametz numerous times during a four-year period. In his first report of January 9, 1991, his impression was that the disc abnormality at L5-S1 was small, and that usually when that is the case, patients can get over this without surgical intervention. His opinion on June 25, 1991, was expressed in letter to Dr. Virgil Perry:

Mrs. Peggy Bolen has continued to have problems and did not finish her exercise program due to increased pain. I have repeated her MRI scan and it does show a small disc abnormality, but has not changed any.

[20] Although the claimant’s pain increased each time she saw Dr. Adametz, his opinion as to the disc abnormality did not change throughout the course of his treatment of the claimant.

[21] Although the evidence reflects a complete absence of neurological deficit, the record indicates a willingness of the claimant to favor surgical intervention over other more conservative treatment methods. In this regard, the diagnosis of hypochondriasis and the findings of Dr. Wilson indicate the possibility, as noted by Dr. Rutherford, that the claimant may loosely fall into the category of Munchausen’s syndrome. As Dr. Rutherford and Dr. Peeples both noted, these findings may also explain the claimant’s lack of pain after the 1994 surgery.

[22] The record indicates that throughout Dr. Adametz’s reports, he expresses a desire to continue on a plan of conservative treatment. Only after his continued treatment of the claimant did he advocate surgical intervention. In addition, both Dr. Rutherford and Dr. Peeples express the likelihood that further surgical intervention would produce no positive effects at best. These findings support the proposition that the further surgical intervention is not reasonably necessary medical treatment as required by the statute.

[23] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the administrative law judge’s finding that the surgery recommended by Dr. Adametz is reasonably necessary medical treatment must be reversed. We note, however, that respondent remains liable for any reasonably necessary medical treatment for the maintenance of the claimant’s condition. This claim is denied and dismissed.

[24] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[25] Commissioner Humphrey dissents.