CLAIM NO. E219256
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 15, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE GAIL MATTHEWS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER[2] The respondents appeal an administrative law judge’s opinion filed July 9, 1998. The administrative law judge found that the medical evidence demonstrates that by August 21, 1995, the claimant had reached maximal medical improvement from the December, 1991 aggravation of his pre-existing degenerative disc disease; that the claimant sustained a re-aggravation of his degenerative disc disease on March 13, 1996, as a result of a specific incident, which combined with the claimant’s underlying condition to produce a disability and need for medical care; and that the medical evidence further shows that the aggravating re-injury is supported by objective medical evidence of muscle spasm. The administrative law judge further found that the claimant has shown that the work-related injury aggravated, accelerated and combined with the pre-existing disease to produce the claimant’s current need for medical care, and that the claimant has shown, by a preponderance of the evidence, that a discogram performed on October 22, 1997 was reasonable, necessary, and related to the compensable injury of March 13, 1996. Finally, the administrative law judge found that the failure to establish pre-certification pursuant to a managed care contract does not relieve respondent of liability in the absence of evidence demonstrating notice to claimant or the effective date of the contract, as required by Arkansas Workers’ Compensation Commission Rule 33. [3] The Full Commission has reviewed the entire record de novo. We affirm the finding that the claimant reached maximal medical improvement from the December, 1991 aggravation of his pre-existing degenerative disc disease by August 21, 1995. We reverse the finding that the claimant re-aggravated his degenerative condition as a result of a specific incident; rather we find that the claimant sustained a recurrence, for which the respondents remain liable. We reverse the finding that the claimant has shown that the diskogram is reasonable, necessary, and related to the compensable injury, and we reverse the finding that the respondents are not relieved of liability pursuant to the provisions of Commission Rule 33. [4] The claimant, age 60, sustained a compensable injury in December, 1991. The claimant testified that, as he was lifting a 40-60 pound truck, in the rain, “my foot slipped and when it did my back popped. And that started my back problem.” A lumbar spine x-ray was taken on December 27, 1991: [5] There is mild spurring noted extending anteriorly from the L2 through L5 vertebral bodies. There is evidence of increased density involving the posterior elements of L4 through L5. There has been no significant change in the appearance of the spine when compared to the previous study of May, 1990. [6] OPINION: MILD HYPERTROPHIC CHANGES LUMBAR SPINE WITH EVIDENCE OF DEGENERATIVE JOINT DISEASE INVOLVING THE LOWER LUMBAR SPINE. [7] Dr. James Pennington initially treated the claimant and diagnosed lumbar strain, before referring him to a neurosurgeon, Dr. James Adametz, in January, 1992. Dr. Adametz reported that an MRI scan showed a mild bulging disc at L4-5, which did not appear to impinge on the nerve roots. The MRI also showed disc dessication at L3-4 and L4-5. Dr. Adametz thought that the claimant primarily had a lumbar strain, but that the claimant did not have “a serious problem in his lumbar spine.” In March, 1992, Dr. Adametz said that the claimant had “a degenerative condition which was aggravated by his injury.” Dr. Adametz essentially stated the same opinion in July, 1993, viz., that the claimant had an underlying condition which was aggravated by his workplace injury. The claimant returned to Dr. Adametz in July, 1994, complaining of pain going down the left leg to the foot. After a lumbar myelogram taken in July, 1994, Dr. Adametz opined that the claimant “has severe facet disease and significant abnormalities in the spine but I really did not see a significant surgical lesion.” On August 21, 1995, Dr. Adametz wrote:
[8] As far as permanent impairment, Mr. Boyette is somewhat complicated. For his neck he previously has been given a permanent impairment rating of 15%. For his lumbar spine for the bulging disc and spondylolisthesis he has I would give him a 5% permanent impairment rating.I have not seen Mr. Boyette in over a year now. I do feel like he has reached maximum medical benefit.
The claimant contended that he re-injured his back at work in March, 1996: “I had bent over to pick up a shovel full of — what it is wet sticks, sawdust, and so forth. And I turned it in. . . . Yes, I felt something pull in my back. I sure did.” The record contains a Report of Occupational Injury or Illness, dated March 13, 1996. Dr. Pennington diagnosed “acute lumbar strain; exacerbation of old injury from 1991.” Dr. Pennington arranged a lumbosacral x-ray, taken March 13, 1996. The conclusion was mild-appearing spondylosis (endplate spurring) with posterior narrowing of the L3-4 and L4-5 disc spaces; otherwise normal lumbosacral spine. There were no objective findings or neurological changes, and Dr. Pennington treated the claimant conservatively. In July, 1996, Dr. Pennington noted that the claimant’s back pain persisted, with radiation into the left leg — “It has been that way since March.” Stating that “this goes back to an injury from several years ago,” Dr. Pennington referred the claimant back to Dr. Adametz. In August, 1996, Dr. Adametz stated that the claimant had chronic back trouble with a radicular component; from the record, however, the claimant did not report to Dr. Adametz a work-related incident. Dr. Adametz wrote that “his history and exam is unchanged from his previous work-ups. . . . At this point I know he has a fairly significant amount of degenerative disc disease and some facet hypertrophy.”
Dr. Adametz reported on August 26, 1996:
[9] I had a new MRI scan performed on him and this actually looks like the same old thing. He has a lot of degenerative changes and bilateral L5 spondylolysis. He has quite a bit of facet disease but he does not have a significant disc herniation or anything really new since his previous exams.Mr. Carrold Boyette came back to the office again on August 26, 1996. He says he continues to hurt across his back and into his left hip and leg. He also has a little bit of pain down his right leg.
[10] As I discussed with Mr. Boyette and his wife, with his history of low back complaints and looking at his imaging studies, it is obvious that he does have several degenerative changes at multiple levels not only the discs but also the joints, spondylolysis as explained to him can cause a tension pressure/pain on the facet joints themselves like any other joint in the body. . . . [11] We will schedule him for a diagnostic facet injection.Dr. Adametz continued conservative treatment measures. In addition, Dr. Pennington continued to periodically treat the claimant for back pain and to prescribe medication. Dr. Adametz eventually referred the claimant to a pain management specialist, Dr. Thomas Hart, who examined the claimant on November 14, 1996. The claimant reported a three-year history of low back complaints, but he did not relate to Dr. Hart the March, 1996 incident:
Examination of his lower back both in the sitting and standing position demonstrated he had some significant spasms in the area of the left psoas and quadratus lumborum muscles. . . .
[12] In January, 1997, Dr. Hart reported that the claimant “was doing quite well” after radiofrequency denervation. Dr. Hart said that the claimant had no complaints of leg or buttock pain. Dr. Hart encouraged the claimant to walk and exercise. However, the claimant returned to Dr. Pennington in February, 1997, complaining of back and left leg pain, no improvement. Dr. Pennington assessed “DJD” of the lumbar spine and continued conservative treatment. In March, 1997, Dr. Hart reported that the claimant had some “waxing and waning of his lower back complaints.” In his assessment, Dr. Hart opined that no procedures were indicated at that point. Overall, the claimant was doing well, except for the occasional radicular component of his pain. Dr. Hart continued prescription medications through August, 1997. [13] Dr. Hart corresponded with Dr. Adametz, Dr. Pennington, and the carrier in a clinic note dated October 7, 1997:On November 20, 1996, Dr. Hart performed painful injections at L3-4, L4-5, and L5-S1. Afterward, Dr. Hart reported “significant improvement in his lower back complaints. By no means was he pain-free.” Yet, on December 3, 1996, Dr. Pennington reported “no improvement” from Dr. Hart’s injections of the claimant. In December, 1996, Dr. Hart noted that the claimant’s right side was “much improved.” Dr. Hart opined that the claimant had lumbar degenerative disc disease, and he wrote that the claimant was “a legitimate candidate for radio frequency denervation to provide more long-term benefit to the lower back,” which procedure was carried out. Dr. Hart noted that the claimant was having some lower back spasms, but that the claimant continued to work. Dr. Hart opined, “by no means will he be 100% pain-free because of the multiple levels of degeneration both disc and joint.” Also in December, 1996, the claimant told Dr. Adametz that he had “made a little progress” after treating with Dr. Hart.
[14] L5, it makes one also quite concerned that he may have internal disc disruption at the L5 level as well as a possible leaking disc. As I indicated to them, many times, imaging studies do not show where you hurt or how much you hurt. Also imaging studies many times, especially MRI’s, do not show disruption of the disc and only through provocative discography, i.e., putting a dye material into the nucleus pulposus and seeing it leak out of the nucleus into the annulus fibrosis or outside into the epidural space or beyond, i.e., a herniated disc, can truly give you an idea as to what is going on with the disc.Because he continues to have waxing and waning of his lower back complaints, also his previous imaging studies showed multi-level bulging discs, 2-3, 3-4 and 4-5 as well as spondylosis at the
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[15] I think at this time it is very justifiable and well warranted to perform provocative discography as I have explained above. Again there is no way, you can “fake a bad disc”. . . .
[16] On January 27, 1998, Dr. Adametz responded to a query by the claimant’s counsel:The record contains a Fax Cover Sheet, dated October 15, 1997, addressed to Dr. Hart from Ms. Glenda Clark, Vice President Claims, Management Claims Service, Inc.:
This is to advise that we are unable to authorize the “discography” scheduled for Mr. Boyette on 11-7-97 until after the utilization review we have ordered has been completed. If the discography is deemed appropriate and medically necessary, you will need to pre-cert with National Comp Care. You will be advised accordingly.
Our review of the record indicates that this letter represents the first controversion in this claim. Dr. Hart performed the discography, though, and a lumbar CT scan was taken, both on October 22, 1997. The radiologist’s impression of the CT scan was degenerative changes in the intervertebral discs at the L4-5 level, predominantly, with lesser changes at the L2-3 and the L3-4 interspaces. No definable extravasation of contrast material outside the disc annulus was seen.
[17] Unfortunately, there was some miscommunication between the business side and the nursing side, but the procedure was performed.I have, indeed, followed Mr. Boyette with problems with his low back as well as his neck for a long period of time. I initially saw him for his neck, but then I first saw him for his low back in January, 1992, when he described a work related injury from December 1991. I have continued to treat him intermittently for the same problems and symptoms since that time.
A subsequent Clinic Note from Dr. Hart, dated February 2, 1998, states:
The patient’s last presentation was back on October 22, 1997. At that time, we very selectively under direct fluoroscopic visualization performed provocative discography. We clearly demonstrated that he had a very painful disc with circumferential disruption outside the annulus fibrosis, i.e., the definition of internal disc disruption, at the 2-3, 3-4, 4-5 levels. . . . Unfortunately, the problem with the discography, as I learned later, and I also have a written letter to Glenda S. Clark at Management Claims Services, is that it had been “turned down.”
[18] Counsel deposed Dr. Hart on February 25, 1998. Dr. Hart testified that he considered discography to be a valuable diagnostic tool. In an April 6, 1998 deposition, Dr. Adametz testified that he did not find discograms to be very helpful in most cases, although he agreed that they could be a valuable tool. Dr. Adametz opined that the claimant’s degenerative condition had not significantly changed from 1992 through 1998. Dr. Adametz agreed that normal activities such as standing and sitting could aggravate a degenerative condition. [19] The parties submitted a record to the administrative law judge on April 14, 1998, who filed an opinion on July 9, 1998. The administrative law judge found that the claimant reached maximal medical improvement from the December, 1991 compensable aggravation by August 21, 1995, and that the claimant’s underlying condition again required regular medical care, following a specific incident occurring on March 13, 1996. This aggravating incident produced “a second acute phase,” accelerating and aggravating the claimant’s symptoms of low back pain and left leg numbness. The administrative law judge determined that Dr. Hart’s November, 1996 finding of muscle spasm was the objective basis for the claimant’s March, 1996 specific incident. [20] Regarding the unauthorized discogram performed in October, 1997, the administrative law judge found that this procedure was reasonable, necessary and related to treatment of the claimant’s chronic symptoms that were produced and aggravated by the specific injury of March 13, 1996. The administrative law judge cited AWCC Rule 33, which governs the administration of managed care organizations, and the administrative law judge found no evidence that the claimant received the required notification, nor that there was evidence identifying the date any MCO contract became effective. In view of this, found the administrative law judge, the failure to obtain pre-certification does not relieve the respondents from liability for the discography. [21] After reviewing the entire record de novo, we affirm the finding that the claimant reached maximal medical improvement from the December, 1991 “aggravation” by August 21, 1995. The determination of when the healing period has ended is a factual determination and is to be made by the Commission.Johnson v. Rapid Dye Molding, 46 Ark. App. 244, 878 S.W.2d 790 (1994). In the present matter, the claimant was diagnosed with a lumbar strain in December, 1991. Dr. Adametz subsequently opined that the claimant had a degenerative condition which had been aggravated by the injury. Over three years after the lumbar strain/aggravation, on August 21, 1995, Dr. Adametz felt like the claimant had reached “maximum medical benefit.” There is no treatment of record for seven months after Dr. Adametz’ finding of maximum medical benefit. We find these facts to constitute a preponderance of the evidence that the claimant’s healing period for his 1991 compensable injury ended by August 21, 1995. [22] The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause.Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). If there is a causal connection between the primary and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. Guidry v. J R Eads Constr.Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). An aggravation is a new injury resulting from an independent incident. Pinkston v. General Tire Rubber, 30 Ark. App. 46, 782 S.W.2d 375 (1990). [23] In the present matter, the administrative law judge found that the claimant “sustained a re-aggravation of his degenerative disc disease on March 13, 1996, as a result of a specific incident, which combined with the claimant’s underlying condition to produce a disability and need for medical care. . . . The medical evidence further shows that the aggravating re-injury is supported by objective medical findings.” We reverse this finding by the administrative law judge. As mentione supra, the claimant sustained a compensable injury in December 1991, which was diagnosed as a lumbar strain. In March, 1992, Dr. Adametz said that the claimant had a degenerative condition which was aggravated by his injury. By August, 1995, Dr. Adametz felt that the claimant had reached maximum medical benefit. Dr. Adametz had not treated the claimant in over one year, and the record shows that the claimant did not seek further medical treatment for at least seven months. [24] The claimant contended that he re-injured his back at work in March, 1996, while bending over to pick up a shovel. The claimant reported this incident on March 13, 1996, and Dr. Pennington diagnosed “acute lumbar strain; exacerbation of old injury from 1991.” The administrative law judge described this event as an “aggravating re-injury” which is “supported by objective medical evidence of spasm.” After de novoThe claimant filed a claim for additional workers’ compensation benefits. The claimant contended that Dr. Hart’s treatment related to the treatment previously provided by Dr. Adametz, which was for the aggravation of a pre-existing condition. The respondents now controverted the claim, although they originally accepted the claim as compensable. The respondents contended that the claimant’s present problems are not work-related, and that they did not authorize the discogram.
review, we must reverse this finding. The “objective medical evidence” of spasm relied upon by the administrative law judge is Dr. Hart’s report of same in November, 1996. First, this finding of spasm was made approximately eight months after the March, 1996 incident; neither treating physician had previously entered such a finding. Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship. Osmose Wood Preservingv. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). We are unable to establish a causal connection between Dr. Hart’s report of spasm in November, 1996 and the claimant’s workplace incident in March, 1996. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 05 (1998). In any event, the claimant did not report the 1996 incident to Dr. Hart; Dr. Hart simply noted a history of low back complaints and degenerative changes. [25] Rather, our review of the record indicates that the March, 1996 incident was a recurrence, for which the respondents remain liable. It is well-documented that the claimant suffers from degenerative disc disease. The claimant credibly testified that his back problem started after the 1991 compensable injury, which clearly aggravated the claimant’s underlying condition. The preponderance of evidence shows that the claimant indeed experienced another work-related incident in March, 1996, which Dr. Pennington described as an “exacerbation” of the claimant’s initial injury. The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of law.Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). It is apparent that the respondents initially accepted this incident as compensable and continuing paying medical benefits. In August, 1996, Dr. Adametz stated that the claimant had chronic back trouble, but no additional work-related incident was reported. The respondents continued providing conservative treatment until October, 1997. [26] We find the facts of this case similar to those ofWeldon v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179 (1996). In that case, the claimant suffered compensable injuries in August, 1989, for which he underwent lumbar surgery and received an anatomical impairment rating. The claimant suffered a second back injury while working for another respondent in 1991. The Court of Appeals affirmed our finding that the 1991 incident was a recurrence of the claimant’s 1989 injury. The Court noted that the claimant had been neither pain free nor without back difficulties after the original accident, and held that substantial evidence supported the Commission’s finding that the 1991 incident was a recurrence of the 1989 injury rather than an aggravation. Likewise, we find that the preponderance of evidence in the instant matter indicates that the claimant has never been completely pain-free after his first compensable injury in 1991. Dr. Adametz wrote that he had treated the claimant intermittently for low back problems from 1992 through 1998. In applying the law to the facts in this case, we find that the claimant sustained a recurrence of his 1991 compensable injury in 1996, for which the respondents remain liable. [27] 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 (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 (D511255). The administrative law judge in the instant matter found that the claimant has shown, by a preponderance of the evidence, that the diskogram is reasonable, necessary, and related to the compensable injury of March 13, 1996. The administrative law judge correctly stated that Dr. Adametz referred the claimant to Dr. Hart for pain management. The administrative law judge found that the diskogram administered by Dr. Hart accurately identified three specific discs with significant internal disruption. Therefore, the administrative law judge determined, the diskogram added to the objective medical findings, which will play a significant role in developing future treatment options. The administrative law judge thus found that the diskogram was reasonable, necessary, and related to the treatment of the claimant’s chronic symptoms, which were produced and aggravated by the “specific injury” of March 13, 1996. After de novo review, we reverse this finding. [28] On October 7, 1997, Dr. Hart acknowledged that “previous imaging studies showed multi-level bulging discs, 2-3, 3-4 and 4-5 as well as spondylosis at the L5, it makes one also quite concerned that he may have internal disc disruption at the L5 level as well as a possible leaking disc.” On October 15, 1997, the carrier advised Dr. Hart, in writing, that it would not authorize discography until the carrier deemed same appropriate and medically necessary. The letter indicates that the carrier thought that Dr. Hart had scheduled this procedure for November 7, 1997. Yet, Dr. Hart performed the discography on October 22, 1997. On February 2, 1998, Dr. Hart wrote that “provocative discography . . . clearly demonstrated that he had a very painful disc with circumferential disruption outside the annulus fibrosis, i.e., the definition of internal disc disruption, at the 2-3, 3-4, 4-5 levels.” In this correspondence, Dr. Hart said that he had learned after the fact that the carrier refused this treatment. [29] In finding that the discogram performed by Dr. Hart was not reasonable and necessary medical treatment, we note that several diagnostic tests, taken from 1991-1998, already showed bulging lumbar discs. No treating physician has recommended surgery, even if there really is “internal disc disruption.” The carrier clearly asked Dr. Hart not to perform the discogram until a review could be completed. The record indicates that Dr. Hart had scheduled this procedure for November 7, 1997. After the respondents objected in writing, the procedure was moved up to October 22, 1997. We therefore reverse the finding that the discogram was reasonable, necessary, and related to the work-related incident of 1996. [30] Arkansas Workers’ Compensation Commission Rule 33 was implemented in order to establish a voluntary managed care program. Rule 33 provides for certification, administration, evaluation, and enforcement of managed care organizations (MCO) and internal managed care systems (IMCS). The administrative law judge determined that Dr. Hart’s failure to obtain pre-certification pursuant to a managed care contract does not relieve the respondents of liability, in the absence of evidence demonstrating notice to the claimant or the effective date of the contract, as required by Rule 33. The respondents assert that the administrative law judge’s application of Rule 33 raised issues not argued by the claimant and on which the respondents had no notice or knowledge. We agree. The applicability of Rule 33 to this matter was not an issue and was not developed at hearing. The Full Commission will not consider this issue on appeal. Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983). [31] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we affirm the administrative law judge’s finding that the claimant reached maximum medical improvement from the December, 1991 aggravation of his pre-existing condition by August, 1995. We reverse the finding that the claimant re-aggravated his degenerative condition as a result of a specific incident in March, 1996; instead, we find that the claimant sustained a recurrence of his compensable injury, for which the respondents remain liable. We reverse the finding that the claimant has shown that the discogram is reasonable, necessary, and related to the compensable injury. Finally, we reverse the finding that the respondents are not relieved of liability for the discogram pursuant to Arkansas Workers’ Compensation Rule 33, because the applicability of same was not properly raised as an issue and developed at hearing. We thus affirm the administrative law judge in part and reverse in part. [32] 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). [33] For prevailing in part 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). [34] IT IS SO ORDERED.
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ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner