CLAIM NO. D714485
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 17, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of administrative law judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed September 1, 1999. The administrative law judge found that the claimant has shown that a recommended test for a spinal cord stimulator, as recommended by Dr. Fisher, is reasonable and necessary for treatment of the claimant’s compensable injury. The administrative law judge found that the claimant is entitled to a reimbursement for any pharmacy or prescriptions which he has paid for medication recommended by Dr. Fisher for the compensable injury, and that the claimant’s attorney is entitled to the maximum statutory fee, which “shall also include an attorney’s fee on any unpaid medical which this claimant has incurred for his compensable injury.” After de novo review of the entire record, the Full Commission affirms the administrative law judge’s finding that the claimant has shown that the recommended test for a spinal cord stimulator is reasonable and necessary; however, we find that the claimant is entitled to an attorney’s fee only on this controverted medical procedure, not unpaid medical. We therefore affirm, as modified, the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that the claimant, age 40, sustained an injury arising out of and in the course of his employment on September 24, 1987. The claimant said that his left wrist was caught between two large barrels, and that to keep from falling into a cyanide pit, he “jerked his whole body and in the process sprained his neck.” X-ray showed that the cervical vertebrae and joint spaces were intact; x-ray of the left wrist showed no fractures or other abnormalities. Dr. A.B. Hathcock, an orthopaedist, suspected that “this will go ahead and clear in time.” The claimant was given a soft collar to wear as necessary. He continued to complain of “chronic sprain symptoms in the mid line of the cervical spine,” however, and in November, 1987 Dr. Hathcock sent him “to physiotherapy for a work simulator treatment of the left upper limb, galvanic stimulation (therapeutic use of direct electric current), massage and heat to the neck.” In December, 1987, the claimant said that he could not sleep because of headache, and that his neck felt like it “has got a crick in it.” Dr. Hathcock prescribed a TENS unit to help the claimant sleep, but the claimant testified that this treatment was not beneficial. The claimant began treating with a chiropractor in January, 1988, which treatment the claimant said at the time did “more for him than anything.”
The parties stipulated that the claimant sustained another injury arising out of and in the course of his employment on April 11, 1989 (rotator cuff tear), which injury led to a right shoulder arthropathy. The claimant began treating with Dr. R.A. Dotson, an osteopathic physician, in February, 1990: “Pt is in as a new pt with history of injury about 1 yr ago when a 55 gallon drum fell and hit him between the shoulder blades broke his left wrist and hurt left shoulder. Neck hurt at the time but was no (sic) evaluated. . . .X-ray from chiropractor shows some joint fusing on the left side. X-ray at clinic done today show the same thing with possible encroachment at C2-3-4.” Dr. Dotson’s impression was “possible cervical nerve route radiculopathy.” However, an x-ray of the cervical spine taken February 2, 1990 was “negative except for limited demonstration of odontoid.” Dr. Dotson treated the claimant conservatively, which included prescription medication.
Dr. Michael Standefer, a neurosurgeon, examined the claimant in April, 1990, and reported:
Examination of the patient’s MR scan conducted 2-21-90 discloses no evidence of any overt abnormality. There is a mild bulge of the disc at C3-4, however, I suspect this is nothing more than an anatomic variant. There is no evidence of encroachment on the spinal cord or nerve roots.
IMPRESSION: Chronic neck, shoulder, upper extremity, low back and lower extremity pain secondary to job related mishap.
There is certainly nothing on this patient’s exam to indicate an obvious underlying surgical cause and I suspect the etiology of his symptoms is nothing more than an acute and chronic soft tissue injury in the form of musculoskeletal strain.
I have advised the patient of this. Realistically, at this state, it is unlikely that he will ever resume his previous employment. Likewise, it is remarkably likely that he will continue with at least intermittent discomfort as he has had such for a lengthy period of time. I have advised him that he should treat this with non-narcotic analgesic medication and muscle relaxants, and recognize that he will have some discomfort on a daily basis. Otherwise, he may persue (sic) his normal level of activities. He is released from clinic as of today.
The claimant began treating with another osteopathic physician, Dr. Mary D. Holt, for allergy symptoms beginning in July, 1990. The claimant said that he was again having trouble with his neck in April, 1991. In June, 1991, Dr. Holt assessed cervical disk with neuropathy and “secondary myocitis.” A course of intermittent “trigger point” injections were begun and administered by various osteopathic physicians from 1991 through approximately March, 1994.
In an opinion filed June 3, 1992, the Full Workers’ Compensation Commission reversed a decision of an administrative law judge, and found that the statute of limitations did not bar compensation attributable to the September, 1987 compensable injury (the respondents conceded that the statute of limitations did not bar compensation associated with the 1989 injury). In an unpublished opinion delivered December 22, 1993 (CA 92-1036), the Arkansas Court of Appeals affirmed the Full Commission’s finding that the claim was not barred by the statute of limitations.
Dr. Greg T. Jones, an orthopaedist, evaluated the claimant in May, 1994 and assessed chronic cervically-based pain, left radicular symptoms and paresthesias, by patient’s history and review of medical records, related to a 1987 industrial accident. Dr. Luis G. Cesar, a neurosurgeon, examined the claimant in August, 1994 and reported than an MRI scan was “mostly normal.” Dr. Cesar’s impression was “neck pain most likely myofascial.” Dr. Cesar did not think there was any surgical pathology, and he believed the claimant “should pursue fitness and work.”
Dr. Jim J. Moore, a neurological surgeon, conducted an independent medical evaluation on December 14, 1994:
I do not find a great deal, if anything, of significance on examination today. He does have some sensory depression which does not follow a specific dermatome pattern, and in my mind would be more suggestive of a functional response. At this time, I would like to review the cervical spine films that have raised Dr. Jones’ suspicions. It may well be that some repeat series, perhaps with different angulations, might be necessary. Indeed, bony changes are not as well demonstrated on an MR as they are on plain radiographs, or even cervical CT’s. It would be felt that if anything further investigatively were considered, it should be an EMG-NCV of the left upper extremity, and perhaps even more remotely, a cervical myelographic survey with contrasted CT. At this point, I do not find much, if anything, on examination that would suggest, in my mind, a cervical disease, foraminal or otherwise, that would warrant aggressive considerations.
The additional diagnostic testing recommended by Dr. Moore was never carried out. In April, 1995, Dr. Jones stated that the claimant’s symptoms were “fairly quiescent. There is nothing that would require injection. . . .I really have nothing further to offer this man.” On May 31, 1995, Dr. Jones said there was nothing else he could do for the claimant from an orthopedic standpoint, and “we are into a pain management situation.” Dr. Jones indicated that he would refer the claimant to Dr. Robert D. Fisher to see what his thoughts were regarding chronic pain management, which treatment Dr. Fisher began in July, 1995.
In an opinion filed March 5, 1996, the administrative law judge found that the respondents had accepted an 8% impairment rating to the body as a whole, and that the claimant had proven entitlement to wage loss in the amount of 6%, for a total disability rating of 14%. The administrative law judge found that the claimant was entitled to payment for the medical treatment he received at Eastern Oklahoma Medical Plaza, as well as cost of travel to and from that treatment. (No appeal was taken from this decision.) In May, 1996, Dr. Fisher reported that the claimant “no longer has such pain in his neck per se. He does have some occipital headache. . . .” Dr. Fisher diagnosed “degenerative cervical spine disease with occipital cephalgia.”
In an opinion filed November 6, 1997, the administrative law judge found that “the claimant has proven that he is entitled to additional medical treatment as prescribed by Dr. Jones, as referred to by Dr. Fisher and as being carried out by Dr. Fisher for the treatment of his chronic symptoms relating to his compensable injury. Dr. Jones as well as Dr. Fisher have indicated that this claimant has and will continue to have some degree of need for pain management and that this management should be carried out through a pain clinic so that it can be monitored.” The respondents did not appeal the administrative law judge’s order that they should pay for the cost of the claimant’s additional medical treatment for his compensable injury. Dr. Fisher began a series of “rhizotomies;” he described this treatment as “a procedure where the little sensory nerve that goes through to joint is coagulated with a device that looks like this, and it is done with radiofrequency current.” Dr. Fisher agreed that this procedure actually “burned the nerve” in order to temporarily reduce the amount of pain sensation.
On January 5, 1998, Dr. Fisher wrote, “Mr. Box returns because of recurrent pain in his left neck. He has gotten excellent relief from the rhizotomies that we did and he has had some recurrence of pain, particularly on the left. Rather than re-inject him, we are simply going to schedule him for limited cervical rhizotomy at these painful areas in the near future.” Dr. Fisher diagnosed “cervical facet syndrome, post trauma.” On January 9, 1998, Dr. Fisher diagnosed “cervical facet syndrome” and administered a rhizotomy at C3-4 and C4-5. Following the procedure, Dr. Fisher discharged the claimant to resume normal activity, prescribed medication, and instructed the claimant to return in six months for additional pain management.
The claimant returned to Dr. Fisher on February 26, 1998, “because of severe pain he says in the left neck and in the right occiput (base of the skull). He does not feel like the rhizotomies that we did in January were as beneficial as they had been in the past. He has three exquisitely sensitive trigger points in the left trapezius, as it ascends the neck and one in the right occiput.” Dr. Fisher diagnosed “myofascitis” and injected medication into the “trigger points.” Dr. Fisher again diagnosed “cervical facet syndrome” on July 8, 1998 and performed another injection. On October 6, 1998, Dr. Fisher diagnosed “cervical facet syndrome with occipital neuritis” and injected medication into the left greater occipital area. Dr. Fisher wrote on November 16, 1998:
He comes in today with occipital headache which he has had for some time and for which we have been treating him in the pain clinic. All of this, I think, is related to an injury he sustained in September 1987.
His first day here in the pain clinic was 7/26/95, and we have always treated him for pain in his neck. In recent time, we have done cervical facet rhizotomies which have given him some relief, but he has had recurrence of the pain. After some discussion, I think Eugene would be an excellent candidate for placement of a percutaneous stimulating electrode across the origins of the occipital nerves and at least a test of this device which we propose to do on an outpatient basis over at least a one-week time. We will request permission for this from Eugene’s workmen’s comp. carrier.
Dr. Fisher diagnosed “chronic occipital neuritis and cervical facet syndrome” and injected a small amount of medication into the “areas of maximum tenderness.” Pat Woods, a claims representative for Cigna Property Casualty, wrote to Dr. Fisher on November 27, 1998:
I received your letter of 11/16/98. If you are talking about a spinal cord stimulator, our company does not authorize these, as they are experimental in nature and are known not to provide good results.
If you are talking about another system, please furnish me the exact name of it so I will know if we would authorize it. I will need to know approximate cost for all of this, also.
Upon your response, I will contact you regarding any authorization.
Following the respondents’ refusal to authorize the recommended “percutaneous stimulating electrode,” the claimant filed another claim for additional worker’s compensation. In a pre-hearing conference held May 27, 1999, the parties stipulated that all prior Commission opinions are res judicata and the law of the case. The parties agreed to litigate and resolve the issues of additional medical and attorney’s fees. The claimant contended that although the Commission had ordered the respondents to pay for treatment by or at the direction of Dr. Fisher, the respondents had refused to authorize additional treatment that Dr. Fisher recommended. The claimant contended that his attorney is entitled to an appropriate attorney’s fee “on all medical benefits not previously provided.” The respondents contended that they have complied with the Commission’s November 6, 1997 order and have paid all expenses for medical treatment by Dr. Fisher. The respondents contended, “In November of 1998, Dr. Fisher advised the carrier of a medical procedure he wished to have authorized. The adjuster, Ms. Woods, wrote a letter dated November 27, 1998, to Dr. Fisher inquiring about the procedure and the approximate cost. Respondents will not voluntarily pay for the implantation of a spinal cord stimulator as they contend that is not reasonably necessary treatment. However, respondents are unsure what procedure Dr. Fisher proposes as he never responded to the November 27, 1998, letter.”
Dr. Moore corresponded with the carrier on June 23, 1999:
This is a 39 year 11 month right handed white male seen today for Neurosurgical Evaluation. There have been a number of medical records provided and I have reviewed those records from December, 1994. I saw this patient on December 19, 1994 for an Independent Medical Evaluation and made some recommendations which the best I can tell were ignored. This included obtaining an EMG/NCV and quite possibly a cervical myelogram. In review of the records, I get the idea that Dr. Jones who had been actively treating him made several requests to get the information that I had provided but failed. In any event and in view of this, Dr. Jones did not feel anything further would be appropriate and he apparently released the patient. As best I can tell, he gave him a rating. I have information from Dr. Jones dated 4-28-95 in which he states that he would be appropriately provided a 6% PPD. He indicated that the patient returned for conservative measures as needed. This is confirmed in a letter dated 5-9-95 which includes restrictions of no over head work, repetitive extension of the neck and a 40 lb weight restriction of lifting. Apparently then Dr. Jones referred him on to see Dr. Fisher for pain management. Dr. Fisher has successfully benefitted the patient with a series of ongoing injections and also some facet rhizotomies that he states gave him quite a bit of benefit. He tells me that he did use a TENS device but quite some many months ago. His current problem now is primarily that of recurrent headaches which are benefitted by injections and apparently Dr. Fisher is now thinking in terms of an electrode implant at the base of the occiput to see if this would offer more ongoing relief. The patient tells me also that he continues on a program of medication specifically Lorcet and Norflex. The Lorcet is being taken in ever increasing amounts. As many a (sic) four or five are required now. He also takes occasionally Ultram, all of this being prescribed by Dr. Fisher. The patient tells me he has also had Amitriptyline in the past which gave him a degree of oversedation.
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I think there are several factors of a problem here. I do not approve of the electrode placement. I think that he would benefit from a TENS unit and if he does receive benefit from the TENS, then this would be appropriate to continue. I also think that by definition in view of the
medication he is currently taking that he is going to have to be withdrawn from it. He has found this out himself in that if he will withhold the Lorcet for a week or so that only one will give him much more excellent relief than the multiple amounts that he is taking. The x-ray dossier did not include anything later than 1994 and these were some bending films of the cervical spine.
I would agree with Dr. Jones’ opinions and rating although it is unfortunate that we were unable to be in better communication with this patient in years past when I saw him initially. I also suggested to the patient that he would be appropriately best served by resuming medication to improve the brain seratonin such as Amitriptyline. I believe that the patient’s problems are probably related to the industrial injury in 1987. I do think, however, that
treatment would be best limited to injection therapy and medication as well as use of a TENS unit.
Hearing was held before the Commission on July 1, 1999, at which time the parties agreed that the only issue for consideration was the claimant’s entitlement to have a spinal cord stimulator implantation as recommended by Dr. Fisher. The claimant testified that Dr. Fisher’s previous treatment gave him “more relief than any doctor I’ve ever seen.” The claimant testified:
Q. Dr. Fisher’s report indicates that he wants to try a spinal cord stimulator?
A. Yeah.
Q. Are you going to agree to a permanent placement if the temporary trial doesn’t provide you any substantial relief?
A. No way.
Q. What are you wanting approved at this point?
A. Just to let Dr. Fisher treat me like he has been and give me a little quality of life back.
Q. Are you requesting the Commission to authorize Dr. Fisher to do a trial stimulator test?
A. Yeah, that’s what he suggested.
Q. And if the trial doesn’t work, what are you going to do?
A. I’m going to let him continue to treat me like he has before.
The claimant asserted, however, that the respondents never paid for any of the medication prescribed to him by Dr. Fisher. “I bought all of it,” he said. The claimant further testified that Dr. Fisher’s office notified him in November or December, 1998, that the carrier would no longer pay for Dr. Fisher’s treatment. Counsel for the respondents queried the claimant:
Q. Do you have anything in writing from Dr. Fisher or from the insurance company where it said the insurance company is refusing to pay for Dr. Fisher’s injections and rhizotomies should he continue to desire to perform those?
A. No.
Q. Do you have anything from the pharmacy or from the insurance company that reflects in writing that the insurance company has refused to pay for your medication?
A. Just over the phone.
Q. Do you have anything in writing? That’s my question.
A. No.
Q. Okay, and have you personally submitted any medication bills to your attorney or to the insurance company for payment by the insurance company?
A. No.
Counsel for the claimant interjected that “for the record, I just discovered yesterday that there were apparently some pharmacy bills that had not been paid. But they had not been submitted. And I requested Mr. Box to get that information for me, and I intend in turn to submit it to the respondents. But I did not make that an issue today because I didn’t anticipate it being an issue. The only issue is the stimulator.”
The administrative law judge filed an opinion on September 1, 1999, and found that:
(T)he testing for a spinal cord stimulator as recommended by Dr. Fisher for this claimant’s ongoing complaints resulting from his compensable injury is reasonable and necessary. The medical records as well as the testimony of the claimant clearly set forth that this claimant has had an extensive pain management program which has varied greatly in nature. Although he has benefitted from the rhizotomies administered by Dr. Fisher, these have had limited and varied long term results. All of the claimant’s treating physicians or physicians who have evaluated this claimant have indicated that he is in need of ongoing pain management and this claimant has undergone trigger point injections, rhizotomies, medication and used a TENS unit for hopeful control of his discomfort. Dr. Moore recommends ongoing pain management suggesting that the claimant use a TENS unit and/or Amitriptyline. Both of these treatments have already been tried by the claimant with no or detrimental results. I, therefore, find it very reasonable for this claimant to be tested for a spinal cord stimulator in hopes of finding a more long term and more beneficial way to address his chronic pain.
The administrative law judge ordered that the respondents “should pay for the cost of the testing of this claimant for a spinal cord stimulator and if the test is beneficial to the claimant then the respondents shall also pay for the cost of the implantation of the spinal cord stimulator.” The administrative law judge also ordered that the respondents “should reimburse the claimant for any prescription medications which he has paid for and were recommended by Dr. Fisher for the treatment of his compensable injury.” Respondents appeal to the Full Commission.
II. ADJUDICATION A. Reasonably necessary medical treatment.
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (1987). 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 (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 Jonesv. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (D511255). What constitutes reasonable and necessary medical treatment is a fact question for the Commission. Gansky v.Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996).
In the present matter, the claimant sustained an admittedly-compensable injury to his neck in 1987. He was treated conservatively with galvanic stimulation and a TENS unit, with no permanent relief. The claimant began having headaches related to his compensable injury in December, 1987, and conservative treatment modalities continued. Dr. Standefer, a neurosurgeon, examined the claimant in 1990 and diagnosed chronic neck pain secondary to a job-related mishap. The claimant underwent painful injection treatment for his work-related condition beginning in 1991. Dr. Jones, an orthopaedist, began treating the claimant in 1994 and assessed chronic cervically-based pain related to the 1987 industrial injury.
The claimant began pain management for his compensable injury with Dr. Robert Fisher in 1995, and the claimant received a 14% disability rating in 1996, which the respondents accepted and paid. Dr. Fisher recognized in May, 1996 that the claimant had occipital headache, which the claimant first reported in December, 1987 following the compensable injury.
As mentioned supra, the administrative law judge found in November, 1997 that the claimant had proven that he was entitled to additional medical treatment as prescribed by Dr. Jones, as referred to by Dr. Fisher, and as being carried out by Dr. Fisher for treatment of chronic symptoms related to the compensable injury. The respondents did not appeal the administrative law judge’s determination that the claimant would need continuing pain management, and the parties agree that the administrative law judge’s decision is now res judicata. Dr. Fisher began a series of rhizotomy treatment which only provided temporary relief for the claimant’s recurring cervical pain.
In November, 1998, Dr. Fisher reported that the claimant had occipital headache which was related to the compensable injury, in addition to occipital neuritis and cervical facet syndrome. Dr. Fisher thought at that point that the claimant would be a good candidate for a “percutaneous stimulating electrode,” or spinal cord stimulator. Nevertheless, the respondents deemed this recommended treatment by the primary physician to be “experimental,” and they refused to authorize continued conservative treatment in the form of a spinal cord stimulator.
The Full Commission affirms the administrative law judge’s finding that the claimant has proven entitlement to a trial implantation of the spinal cord stimulator. We recognize that Dr. Moore has opined that treatment for the claimant’s compensable injury should be limited to injection therapy, medication, and use of a TENS unit. Nevertheless, trial implantation of a spinal stimulator has been recommended by the authorized and primary treating physician, Dr. Fisher, who the Full Commission deems to be in a better position than Dr. Moore in recommending treatment alternatives. The claimant has already tried the alternatives recommended by Dr. Moore, without beneficial results. Further, the claimant testified that he would discontinue Dr. Fisher’s recommended treatment if it was not beneficial. The respondents do not otherwise controvert continued conservative treatment by Dr. Fisher, and they have indicated their intent to continue providing medical benefits. Treatment intended to reduce or enable a claimant to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Billy Chronister v. Lavaca Vault, Full Workers’ Compensation Commission, June 20, 1991 (D704562). In the instant matter, the Full Commission affirms the opinion of the administrative law judge regarding reasonable and necessary medical treatment.
B. Attorney’s fees.
The administrative law judge found that the claimant’s attorney is entitled to the maximum statutory attorney’s fee based on “any unpaid medical which this claimant has incurred for his compensable injury.” The Full Commission does not affirm this finding. Controversion is a question of fact, to be determined by the circumstances of each particular case. New Hampshire Ins. Co.v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984). In November, 1998, the carrier denied authorization for placement of a spinal cord stimulator. The parties subsequently agreed to litigate and resolve the issues of additional medical (the stimulator) and attorney’s fees.
At the full hearing on July 1, 1999, the parties agreed that the only issue to consider was the claimant’s entitlement to have a spinal cord stimulator implantation as recommended by Dr. Fisher. The claimant asserted at hearing that the respondents refused to provide Dr. Fisher’s medication, which medication the respondents have agreed they are liable for. Yet, the claimant conceded that he had not presented any bills to the insurance company for payment. The claimant’s attorney stated on the record, “I just discovered yesterday that there were apparently some pharmacy bills that had not been paid. But they had not been submitted. And I requested Mr. Box to get that information for me, and I intend in turn to submit it to the respondents. But I did not make that an issue today because I didn’t anticipate it being an issue. The only issue is the stimulator.” Therefore, the Full Commission finds that the administrative law judge’s opinion should be modified to reflect that the claimant is only entitled to an award of attorney’s fees on the controverted implantation procedure, which clearly was the only issue in dispute at hearing before the Commission.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant proved by a preponderance of the evidence that a recommended test for a spinal cord stimulator, as recommended by Dr. Fisher, is reasonable and necessary for treatment of the claimant’s compensable injury. We find that the claimant is entitled to reimbursement for any payments for medication prescribed by Dr. Fisher. Finally, we find that the claimant is only entitled to an award of attorney’s fees on the controverted implantation procedure, not unsubmitted medical or pharmacy bills. The Full Commission thus affirms, as modified, the opinion of the administrative law judge.
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(b) (Repl. 1996).
IT IS SO ORDERED.
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ELDON F. COFFMAN, Commissioner
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PAT WEST HUMPHREY, Commissioner
Commissioner Wilson concurs and dissents.
CONCURRING AND DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant proved by a preponderance of the evidence that he is entitled to a trial implementation of a spinal cord stimulator. I concur with the majority opinion’s reversal of the award of attorneys’ fees and the limitation of the award of fees.
_____________________________ MIKE WILSON, Commissioner