CLAIM NO. E702191
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 7, 2003
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JIM R. BURTON, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by HONORABLE WENDY S. WOOD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he was entitled to additional medical treatment for his compensable neck injury. Based upon our de novo review of the record, we reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent-employer as a night stocker in 1997. In addition to stocking, the claimant would sometimes work as cashier, bagger, or just helping people with their groceries. On February 1, 1997, the claimant was stocking, using a platform ladder when the ladder fell and the claimant landed backwards on his head and neck. The claimant immediately went to the emergency room and began seeing his family doctor, Dr. Scott Hoke. The employer sent the claimant to their doctor, Dr. Terence Braden, and Dr. Braden performed some diagnostic tests, to include tests for mobility and reflexes. Dr. Braden administered steroid injections and sent the claimant for physical therapy. X-rays and an MRI were also performed at Dr. Braden’s request.
The claimant testified that after Dr. Braden’s third steroid injection, he was unable to return to work and was experiencing debilitating headaches where he could not function. The claimant testified that he returned to Dr. Braden and Dr. Braden did not have anything further to offer him even though the headaches were worsening. The claimant next went to his family doctor, Dr. Scott Hoke, to get treatment, and on Christmas Eve, 1997, the claimant went to the emergency room where he received an injection of a combination of medications. According to the claimant, he slept for 21 hours and then had to return to the emergency room, where he received a CAT scan. The CAT scan revealed a subdural hematoma and later another hematoma was identified. Dr. Kenneth Tonymon performed two surgeries to remove the hematomas. The hematoma condition was litigated and was found not to be related to the claimant’s compensable injury.
The claimant testified further that once his headaches subsided, the neck pain became worse. According to the claimant, he was experiencing numbness, tingling, and muscle spasms, and he contends his condition has worsened to the point where he has whole body seizures. In November, 2000, the claimant returned to work, but had been able to draw social security disability from Ireland while he was not working. The claimant worked for Global Computer Associates in Kansas City, where he was a project manager facilitator/consultant. According to the claimant, he left in March, 2001, due to his taking off too much going to the doctor, economic slowdown, and his temper would flare up due to pain. The claimant saw Dr. Laverne Lovell, a neurosurgeon, in May, 2001, and a MRI was ordered. The MRI revealed a C5-C6 disc herniation with some abutment into the cord and some distortion of the spinal cord at that level. Dr. Lovell discussed an anterior cervical discectomy; however, the claimant’s COBRA insurance would not pay for the surgery. The claimant testified that his neck pain has increased and he has severe neck pain almost daily which has caused him to increase his pain medication.
Under cross-examination, the claimant confirmed that he had seen two neurologists, Dr. Kenneth Chan in May of 1997, and Dr. South in May of 1999. The claimant testified that he complained of headaches with neck pain, although both physician’s medical reports only reflect neck pain. The claimant confirmed under cross-examination that the only reason he knew that he was fired from Global Computer Associates was because of some friction between him and another employee.
The claimant confirmed that he has had from 25 to 30 seizures where his whole body shakes and he has fallen back or sat back on the bed or couch. The claimant testified that he has lost consciousness with the seizures. The claimant requests additional medical benefits to treat his cervical condition and a change of physician from the original treating physician to a neurologist/neurosurgeon.
The respondents first assert that the Administrative Law Judge erred in her finding that the statute of limitations is not a bar to the present claim for additional benefits. The respondents acknowledge that the claimant filed a timely prior claim for additional benefits for his hematomas. The respondents acknowledge that the prior claim was not finally decided by the Court of Appeals until June 7, 2000. The respondents acknowledge that the present claim for additional benefits was filed less than one year later on August 31, 2000. The respondents also acknowledge that the filing of a claim for additional benefits tolls the statute of limitations until the claim is decided. See Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 675 S.W.2d 849 (1984); Arkansas Power Light Co. v. Giles, 20 Ark. App. 154, 725 S.W.2d 583 (1987) Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986). Although the Arkansas Courts have never fully addressed the issue in published opinion, the Commission has previously found on several occasions that the statute of limitations does not commence to run again until there is a final order ending the litigation or adjudication of the claim for additional benefits, and the claimant then has one year in which to file another claim for additional benefits. See Shelly S. Cooper v. Cleo, Inc., Full Workers’ Compensation Commission, Opinion filed March 29, 2000 (E518275); Michelle T. Underwood v. TEC, Full Workers’ Compensation Commission, Opinion filed April 15, 1992 (D708150); Bernie Barker v. National Transportation, Full Workers’ Compensation Commission, Opinion filed August 19, 1993 (D803687).
The respondents assert that the facts in the present case are unique, however, based on their contention that the present claim in this case is “separate and distinct” from the prior claim ultimately decided by the Court of Appeals on June 7, 2000, and based on a contention that the claim decided by the Court of Appeals was not “directly related” to the claimant’s work injury. Nevertheless, both claims have involved a request for additional benefits for conditions allegedly related to the February 1, 1997 injury at work. Under these circumstances, we see no merit in the respondents’ suggestion that the litigation of the prior claim was insufficient to toll the running of the statute of limitations until June 7, 2001. We therefore conclude that the present claim was timely filed on August 31, 2000.
Although we find that the statute of limitations does not bar the claimant’s claim for benefits, we do find that additional treatment for the claimant’s neck injury is not reasonable and necessary treatment. Therefore, the claimant’s claim must be denied and dismissed.
The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 (D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 (D703346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees’ injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In workers’ compensation cases, the burden rests upon the claimant to establish his/her claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 (D512553).
There are many facts supporting a finding that additional medical treatment for the claimant’s neck injury is not reasonable and necessary. From a review of the evidence in the record, it appears that this claim is another attempt by the claimant to obtain medical treatment for his headaches which he has suffered from since April of 1997. The claimant filed the first workers’ compensation claim seeking benefits for his subdural hematomas and headaches and he was denied benefit. See Herbert Brake v. Kroger Company, Full Workers’ Compensation Commission, August 25, 1999 (Claim No. E702191) affirming the Administrative Law Judge’s Opinion of February 17, 1999. The Court of Appeals affirmed the Commission in an unpublished opinion on June 7, 2000. The claimant then filed a civil medical malpractice lawsuit thereafter seeking damages for the subdural hematomas and headaches. He lost that as well. Now, the claimant is trying a third time to obtain benefits for his headaches. The claimant now has changed his theory and claims that his headaches are caused by his neck pain. This is pretty convenient since he suffered a compensable neck injury in 1997. However, it has already been adjudicated that there is no known cause of the claimant’s headaches and subdural hematomas and they are most certainly not related to the claimant’s compensable neck injury.
The medical evidence also clearly does not support the claimant’s contention that he has suffered from neck pain continuously since April of 1997. In contrast, the medical evidence demonstrates that the claimant has suffered from headaches since that time. The claimant admitted during the hearing that he has suffered from headaches since April of 1997. He testified that the headaches peaked when he was diagnosed with two subdural hematomas in December of 1997. He admitted that during that time, he did not have neck pain. He claims, however, that he did complain of neck pain after the December, 1997, surgeries. The medical evidence simply does not support his claim. He testified that he saw Dr. Hoke for neck pain after December, 1997. Dr. Hoke’s records do not reflect that the claimant complained of neck pain. The claimant saw Dr. Hoke more than 20 times from March of 1998 to May of 2001, and not once does Dr. Hoke’s records reflect that the claimant complained of neck pain. These records do, however, show that he complained of headaches. The claimant also complained of chest pain, hand problems, knee pain, rashes, ear pain, but no neck pain.
The claimant saw a neurologist, Dr. Ken Chan, in May of 1997. This visit was just a few months after his injury at the respondent-employer. Dr. Chan’s records reflect that the claimant only complained of headaches. Dr. Chan diagnosed the claimant with “chronic daily headache.”
The claimant saw another neurologist, Dr. Spanos, in May of 1999. Dr. Spanos’ records do not reflect that the claimant ever complained of neck pain. His records do reflect that the claimant complained of headaches and the claimant was ultimately diagnosed with “common migraine headaches.”
The claimant saw Dr. Stidman in May of 2001. While he complained of headaches to Dr. Stidman, he did not complain of neck pain. The claimant testified he went to the hospital in Kansas City for his neck pain. However, the record fails to contain any medical records to support this.
Clearly, the medical evidence does not support the claimant’s contention that he has suffered from neck pain continuously since April of 1997. Between the dates of April, 1997, and May of 2001, the claimant sought medical treatment from many physicians. A review of the medical records demonstrate that the claimant did not complain of neck pain. What he did complain about were headaches which he originally argued were related to the subdural hematomas which were found not to be related to his neck injury. Now the claimant claims those headaches were caused by neck pain. The first medical record that indicates that the claimant complained of neck pain is dated May, 2001, which was after he filed the present claim for additional medical treatment for his neck.
The medical evidence demonstrates that there were new findings on the claimant’s June, 2001, MRI. Back in February of 1997, Dr. Braden ordered an MRI which showed: “central right paramedian HNP C5-6 . . . No cord abnormalities identified.” At that time, surgery was not recommended. The June, 2001, MRI, ordered by Dr. Lovell, showed a: “right paracentral C5-6 disc herniation with some abutment into the cord and a little bit of distortion of the spinal cord at that level.” This is clearly a new finding which was confirmed by Dr. Braden. Dr. Braden testified in his deposition that the abutment into the cord and the distortion of the spinal cord were new findings since the 1997 injury. Dr. Braden also testified that he could not say with medical certainty what caused the new findings since there was a period of four years between the MRI that he ordered and the MRI ordered by Dr. Lovell. He testified further that most likely the new changes were not due to degeneration, but more likely a “further injury” or defect in the disc.
The record is replete with evidence to support Dr. Braden’s theory that “further injury” occurred which caused the new findings on the MRI. Since working for the respondent-employer in April of 1997, the claimant has been very busy and active and many things could have happened to cause the new findings on his MRI. The claimant is able to do his household chores and mow his grass. He is able to go to Tunica to gamble. He was able to finish the construction on his new house where he acted as the general contractor. He also did the electrical wiring himself. In addition, the claimant was in a motor vehicle accident in October of 1997.
In November of 2000, the claimant moved to Kansas City, Missouri, for a new job with Global Computer Associates where he worked in computers as a project manager/facilitator. The claimant worked there up until March 15, 2001. While the claimant claims he left this job because of his neck pain and he had to miss work to go to the doctor, the employment records from Global Computer Associates tell a completely different story. These records, which were mostly prepared by the claimant himself, reflect that he did his job well and, other than some conflicts with another employee, he was unsure why he was being terminated. These records never mention anything about the claimant’s neck pain. The claimant admitted at the hearing that nowhere in the post-employment document that he prepared did he mention anything about his neck pain being a factor in performing his job. After his termination at Global Associates, he moved back to Jonesboro.
Therefore, after conducting a de novo review of the record, we find that there is no evidence to support a finding that the new findings on the June, 2001, MRI were related to the claimant’s original injury. Due to the lengthy period of time between the two MRI’s, it is pure speculation to link the new findings to the claimant’s February, 1997, injury. Dr. Braden testified that he could not link the two. Conjecture and speculation, even if plausible, cannot take the place of proof Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692
(1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155
(1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that additional medical treatment is reasonable and necessary for his 1997 compensable neck injury reverse the decision of the Administrative Law Judge. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I must respectfully dissent from the majority opinion, which reverses the decision of the Administrative Law Judge that the claimant proved by a preponderance of the evidence that he is entitled to additional reasonably necessary medical treatment for his compensable 1997 neck injury.
In support of their decision to reverse the Administrative Law Judge’s decision, the majority states that “there are many facts supporting a finding that additional medical treatment for the claimant’s neck injury is not reasonable and necessary.” In support, the majority first states that “it appears that this claim is another attempt by the claimant to obtain medical treatment for his headaches which he has suffered from since April of 1997.” The majority correctly observes that claimant has previously filed an action to obtain medical treatment for headaches and subdural hematomas, and that the Full Commission determined in 1999 that claimant failed to prove that his headaches and subdural hematomas experienced at that time are causally related to his compensable injury. The majority also correctly observes that the claimant filed a civil medical malpractice suit seeking to recover damages for his subdural hematomas and headaches. However, I must respectfully disagree with the reasoning of the majority that because claimant has previously failed to establish a causal connection between subdural hematomas and headaches that he experienced in 1999 and the compensable injury, he therefore has failed to establish a causal connection between his current problems and the compensable injury. Initially, I would point out that while the majority apparently concludes that claimant is actually attempting to obtain treatment for headaches instead of neck pain, the majority fails to point to any indication in the record that the claimant is currently seeking to obtain medical treatment for headaches. Therefore, I must respectfully disagree with the majority’s statements that “[n]ow, the claimant is trying a third time to obtain benefits for his headaches,” and “the claimant now has changed his theory and claims that his headaches are caused by his neck pain.”
Incidentally, while it is clear that the claimant is not currently attempting to obtain benefits for headaches, it would seem that such a claim would not necessarily be barred by the doctrine of res judicata. The doctrine of res judicata does not operate to preclude a claim for benefits where there has been a change in condition since the prior proceeding. See Cariker v. Ozark Opportunities, 65 Ark. App. 60, 987 S.W.2d 736 (1999). Therefore, the prior determination that the claimant’s 1999 headaches were not causally related to the compensable injury does not translate into a determination that any and all headaches he may experience in the future cannot be causally related to the compensable injury. Therefore, it is legally possible that any headaches claimant currently suffers from could indeed be causally related to the compensable injury because they have an etiology that is different from the etiology of his headaches back in 1999. For instance, if claimant’s current headaches are related to neck symptoms that he was not experiencing in 1999, and his headaches in 1999 were not found to be related to any neck symptoms, medical treatment for claimant’s current headaches would not be barred by the doctrine of res judicata, since they are attributable to a change in condition.
In light of the fact that claimant is not currently seeking to obtain benefits for headaches or hematomas, as well as the fact that in any event such a claim would not necessarily be barred by res judicata, I must respectfully question the reasoning of the majority that claimant’s claim should fail because he is attempting to “change his theory” or otherwise somehow re-litigate his prior claim. In any event, however, even if these assertions were accurate, it would still be the task of the Full Commission to examine the substantive evidence in the record and determine whether claimant met his burden of proof. If claimant’s current claim is not barred by the doctrine of res judicata, then the only pertinent question is whether claimant produced sufficient evidence to establish a causal relation between his current neck symptoms and the compensable injury, irrespective of any considerations of the claimant’s tactical motivations. See Guidry v. J R Eads Contsr. Co., 11 Ark. App. 219, 449 S.W.2d 483 [669 S.W.2d 483] (1984).
The majority also asserts that the medical evidence does not support claimant’s contention that he has suffered from neck pain continuously since April of 1997, but that rather the medical evidence establishes that he has only suffered from headaches since that time. My review of the medical evidence indicates otherwise. First, Dr. Braden, who initially treated claimant on February 21, 1997, testified that claimant’s “presenting symptoms” were “neck pain on the right side of his neck and at the base of his neck, in the back part of the neck itself.”See Deposition of Dr. Braden, page 5. Dr. Braden indicated that claimant continually treated with him thereafter, as well as undergoing a physical therapy regimen. He testified that claimant again reported “symptomatic neck pain and pain in between the shoulder blades” on May 16, 1997. See Deposition of Dr. Braden, page 10; Respondents’ Exhibit One, page 15. Dr. Braden further testified that he felt it was likely that claimant’s symptoms would recur at some time in the future. See Hearing Transcript, pages 13-14.
In light of Dr. Braden’s deposition testimony, even if it is conceded for purpose of argument that claimant did not mention neck pain to any of his treating physicians from 1997-2001, I cannot conclude that such fact warrants a finding that claimant’s current neck pain is not causally related to the 1997 compensable injury. Dr. Braden unequivocally testified that he felt it likely that claimant’s neck pain would recur at some time in the future. He further testified that he could not say with certainty that claimant would have experienced continuous neck pain sufficient to cause him to seek constant treatment. See Deposition of Dr. Braden, page 33-34. Additionally, he opined within a reasonable degree of medical certainty that the claimant’s current neck pain correlates with the claimant’s herniated nucleus pulposa. See Deposition of Dr. Braden, page 38.
The majority also points to the fact that an MRI performed in June 2001 showed incremental findings from the MRI performed in February 1997. While I agree with the majority that this is a “new finding,” I cannot conclude, as they do, that such finding indicates that claimant’s current neck pain is not attributable to his 1997 compensable injury. They correctly indicate that Dr. Braden testified that he could not say with medical certainty what could have caused this incremental finding. He also stated that the most likely cause of the incremental finding was “a further injury or defect in the disc itself. . . .” See Deposition of Dr. Braden, page 28. However, unlike the majority, I do not find these statements by Dr. Braden to in any way indicate that in his opinion, claimant’s current problems are not related to the 1997 compensable injury. Notably, I see nothing in Dr. Braden’s testimony or elsewhere in the record which would indicate that the claimant’s current neck pain symptoms are entirely or even primarily attributable to the incremental findings on the 2001 MRI. To the contrary, Dr. Braden testified that he is not surprised that claimant’s neck pain experienced in 1997 has recurred. Therefore, I do not find the fact that incremental findings existed on the 2001 MRI from the 1997 MRI to in any way indicate that claimant’s current neck pain is attributable to something other than the 1997 compensable injury. First, there is insufficient evidence to support a conclusion that the claimant’s current neck pain symptoms are entirely attributable to the incremental findings. Second, there is insufficient evidence to support a conclusion that the 1997 compensable injury did not cause the incremental findings even if there was sufficient evidence on the first point. Thus, I do not find the fact that incremental findings existed on the 2001 MRI to favor a finding that claimant’s current neck pain is not attributable to the 1997 compensable injury.
Additionally, I must respectfully disagree with the majority’s interpretation of Dr. Braden’s statement that the new finding was most likely due to “further injury” in the disc. I find that Dr. Braden was using the term “injury” not necessarily indicating some external traumatic incident that claimant experienced, but only to some further compromise to the disc’s structural integrity. I find it significant that Dr. Braden stated that the finding was due to some “further injury or
defect.”
In summary, I find that the claimant has proven by a preponderance of the evidence that his current symptoms are causally related to his 1997 compensable injury. Dr. Braden testified that claimant’s current problems are consistent with the findings he initially made when he treated claimant in 1997. There is insufficient evidence in the record to indicate that claimant’s current problems are attributable to something other than the 1997 compensable injury.
For these reasons, I respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner