CLAIM NO. F201034
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 28, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Nelson V. Shaw, Attorney at Law, Texarkana, Texas.
Respondents represented by the Honorable Betty J. Demory, Attorney at Law, Little Rock, Arkansas.
Decision of the administrative law judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals and the respondent cross-appeals from an administrative law judge’s opinion filed January 31, 2005. The administrative law judge found, “The claimant has proven by a preponderance of the evidence her entitlement to additional medical treatment. The respondents are ordered to provide medical benefits for treatment received by the claimant concerning her compensable injury and further related treatment. The claimant has failed to prove by a preponderance of the evidence her entitlement to temporary total disability benefits thereby making the issue of attorney fees moot.”
After reviewing the entire record de novo, the Full Commission affirms in part, and reverses in part the opinion of the administrative law judge. The Full Commission finds that the claimant has proven by a preponderance of the evidence her entitlement to additional medical treatment. The respondents are therefore ordered to provide medical benefits for treatment received by the claimant concerning her compensable injury and further related treatment. In addition, the Full Commission finds that the claimant has proven by a preponderance of the evidence her entitlement to temporary total disability compensation from November 18, 2003, to a date yet to be determined.
I. HISTORY
The claimant, age 55 (6/15/55), sustained two admittedly compensable injuries while working for the respondent, both of which were to her lower back. The claimant’s initial injury to the lower back occurred on January 7, 2002, and her second injury occurred on June 4, 2003. Although the respondent paid prior appropriate benefits for these injuries, it has subsequently resisted payment for additional medical and temporary total disability (TTD) compensation. Therefore, the claimant filed this claim asserting her rights to additional benefits pursuant to her most recent back injury of June 4, 2003.
Specifically, the claimant first sought treatment for her compensable injury on June 4, 2003, at Christus St. Michael Health System emergency room due to complaints of pain between the shoulder blade and mid-back radiating to the rectum and left leg. The claimant was treated and discharged home, as she was given pain medication, muscle spasm medication, and directed to refrain from working during the next two days.
On June 10, 2003, the claimant sought treatment from her family physician, Dr. Sherri Diamond, due to continued complaints of back pain. Dr. Diamond assessed the claimant as having back pain/contusion, and directed her to remain off work until July 1, 2003.
The claimant was next seen by Dr. Diamond on June 17, 2003 for follow-up care of her back injury. The claimant had continued complaints of back pain and Dr. Diamond noted that she was currently undergoing treatment with Dr. Reza Shahim, a neurosurgeon, as a result of a January 2002 work-related fall. Therefore, Dr. Diamond directed the claimant to follow-up with her after her appointment with Dr. Shahim. On June 30, 2003, Dr. Shahim reported he was seeing the claimant for follow-up care. The claimant had continued complaints of pain radiating to both hips and the posterior aspect of both legs as well as some pressure sensation in her rectum. However, the majority of her symptoms were in the posterior lumbar spine. Dr. Shahim reported he had reviewed the claimant’s prior MRI, but he noted it to be of a very poor quality. As a result, he ordered a repeat MRI of the claimant’s lumbar spine and directed her to remain off work during the next three weeks.
An MRI of the lumbar spine was taken on July 28, 2003, with the following impression:
1. Minimal right posterolateral annular disc bulges at L3-4, L4-5, and L5-S1 levels of doubtful significance.
2. Mild internal desiccation of the L3-4 disc.
3. Otherwise, negative MR lumbar spine.
On August 4, 2003, Dr. Shahim reported he had reviewed the MRI of the claimant’s lumbar spine, which revealed disc disease at L4-5 and also at L5-S1. He further reported that there was evidence of lateral recess stenosis, particularly at L4-5 due to disc protrusion. Since the claimant had failed the lumbar epidural steroid injection and physical therapy treatment, and because she had significant radiculopathy in the left leg associated with left leg numbness and pain, Dr. Shahim decided to obtain a CT lumbar myelogram. According to Dr. Shahim, he suspected that the claimant’s lumbar radiculopathy was due to lumbar disc herniation, which was not clearly identified on the MRI. In addition, Dr. Shahim returned the claimant to light duty work, which included no lifting over 30 pounds, and no bending and stooping until her physical therapy treatment was complete.
Although the respondent accepted the claimant’s back injury as a compensable claim, as of September 18, 2003, it ceased payment of temporary total disability compensation and controverted the claim in its entirety. However, the claimant continued to seek treatment for her compensable back injury, as her pain and related symptoms continued to worsen.
A lumbar myelogram was taken on September 22, 2003, which rendered the following impression:
1. Mild anterior indentation on the thecal sac at L4-5 probably due to small annular bulge.
2. Mild anterior bulge at L5-S1 probably secondary to annular bulge. A post myelogram CT will be performed and will be reported separately.
A post myelogram CT of the lumbar spine was in fact taken on September 22, 2003, with the following impression:
1. There was a right posterior disc bulge at L5-S1 which extended into the neural foramen and most likely encroached on the nerve root. There was posterior displacement of the nerve root in the central canal.
2. There was annular bulging at L3-4 and L4-5 which slightly effaced the thecal sac, but did not cause significant canal or foraminal stenosis.
On September 30, 2003, Dr. Shahim reported he had reviewed the claimant’s myelogram with her, which revealed disc herniation at L5-S1 on the right that had resulted in nerve root compression. He further reported that there was evidence of lateral recess stenosis bilaterally along with disc disease at L3-L4 and 4-5 without any clear stenosis. Although the claimant had continued complaints of bilateral leg pain and numbness along with rectal pain associated with her back pain, Dr. Shahim did believe the rectal pain could be explained based on the disc herniation in the spine. Therefore, Dr. Shahim recommended that the claimant be evaluated by a gastroenterologist with a colonoscopy, and for her back-related symptoms, he gave her the option of a lumbar discectomy at L5-S1. However, he advised of the chance of a recurrent disc herniation requiring further surgery or a redo discectomy. Dr. Shahim also advised the claimant of her non-surgical options, which included a percutaneous discectomy at L5-S1, an IDET procedure, or intradiscal steroid injection.
The claimant was seen by Dr. Diamond on October 31, 2004 for recheck of her back pain, and she requested an increase in her pain medication. The claimant also requested a referral for a second opinion concerning Dr. Shahim’s recommendation for surgery. As a result, Dr. Diamond referred the claimant to a neurosurgeon, Dr. Buono.
In a letter dated November 18, 2004, Dr. Diamond wrote:
To whom it may concern:
Ms. Brewer has a potentially debilitating back problem that requires surgery. This surgery is pending at this time so to prevent worsening of her symptoms, I am recommending that she be off work pending this treatment. It is uncertain the exact date of surgery or time required for recovery at this time. If you need any further information feel free to contact me at this Lewisville Family Practice Center.
Also on November 18, 2004, the claimant was seen by Dr. Diamond for follow-up care of continued complaints of back pain. At that time, the claimant reported that she had been experiencing falls wherein her “legs were coming from under her.” As a result, Dr. Diamond took the claimant off work until she could obtain further treatment for her back as outlined above.
In a statement December 8, 2003, Dr. Shahim released the claimant back to the care of her primary care physician, Dr. Diamond, effective as of October 21, 2003.
The claimant underwent initial evaluation with Dr. Lee Buono, a neurosurgeon, on January 14, 2004 due to continued complaints of low back pain that radiated into both of her legs. After physically examining the claimant and reviewing her MRI and CT/myelogram, Dr. Buono prescribed a TENS unit for relief of her muscle spasms. Specifically, Dr. Buono wrote:
. . . It is my experience that over 90% of patients with low back pain and muscle spasm have an excellent response to a tens [sic] unit. Due to the fact that Minnie has no neurological deficits I believe that further conservative therapy is indicated and not surgical decompression.
I explained to Mrs. Brewer that surgical decompression may help her back and leg pain, however, eighty-six percent of disk herniations resolve on their own without medical or surgical therapy. In addition, due to the fact that both her CT/myelogram and MRI show a paucity of findings I doubt that surgical decompression would completely resolve her whole dilemma. Therefore, we will continue with conservative therapy by prescribing her a tens [sic] and follow-up with her in the office in 1 month.
In a medical questionnaire from the claimant’s attorney dated March 29, 2004, Dr. Diamond stated that the claimant’s injuries were consistent with her on-the-job injury. She also stated that the claimant remained within her healing period, but she would not assign an impairment rating at that time. Dr. Diamond also stated that in her medical opinion based on the objective findings contained therein, the claimant should continue with the following treatment: A TENS unit; physical therapy (at least); and a referral to the spine clinic in Little Rock for further evaluation and treatment or re-evaluation by the initial neurosurgeon at UAMS. Dr. Diamond stated that all of her opinions expressed in this report were consistent within a reasonable degree of medical certainty.
On April 27, 2004, the claimant was seen by Dr. Shahim for consultation. At that time, Dr. Shahim reported that the claimant’s symptoms were very chronic, for which he recommended a Rx medical muscle stimulator for treatment of her back pain. Although Dr. Shahim did not release the claimant to return to work, he wrote, “If she returns to work, she should avoid lifting greater than 50 lbs.”
An MRI of the lumbar spine was taken on May 7, 2004, pursuant to orders from Dr. Shahim. On May 10, 2004, Dr. Shahim reported:
MRI of the lumbar spine reveals that Ms. Brewer does have a broad disc protrusion at L5-S1.
I believe there is a focal herniation on the side with a small annular tear at L5-S1.
I do think this is contributing to her symptoms.
On May 17, 2004, the claimant was seen by Dr. Shahim for follow-up care. The claimant had continued complaints of bilateral hip pain, and significant pain radiating into the posterior aspect of the left leg and to the left ankle and left foot. Therefore, Shahim recommended that the claimant be evaluated for L5-S1 IDET procedure by pain management.
Therefore, on August 23, 2004, the claimant underwent initial evaluation with Dr. Sunder Krishnan, a pain specialist. Dr. Krishnan assessed the claimant as having, multilevel lumbar disc bulging and persistent pain complaints, for which he recommended that the claimant undergo provocative lumbar discography to ascertain if her pain has a discogenic etiology and if so whether her symptoms may be amenable to one of the minimally invasive spine procedures such as IDET or percutaneous diskectomy.
On October 27, 2004, the claimant was seen by Dr. Diamond for follow-up care of her back symptoms. Dr. Diamond continued the claimant’s pain medication and anti-inflammatories (which were of her choice), and directed her to follow-up with Dr. Shahim and Dr. Krishnan. In addition, she also directed the claimant to return to her office in three months for her next routine follow-up visit.
A hearing was held in this matter on December 10, 2004. During the hearing, the claimant gave testimony. According to the claimant, she worked for the respondent as a janitor. The claimant admitted to having sustained two injuries while working for the respondent. The claimant testified that her first injury occurred on January 7, 2002, and the last one occurred on June 4, 2003. The claimant testified:
Q. Describe what you were doing and, again, refer to the 2003 incident. What were you doing at that particular time leading up to the injury.
A. At that particular time we had moved the furniture out of the science room and we had stripped the floor. We have to let it dry and then we have to sweep it real good and — buff it and then sweep it. Then after we sweep it we have to mop it. I was pouring wax on the floor and as we back up, we have to back up and wax so when I was pouring the wax, it was behind me and so I stepped in it and slipped and fell backwards.
Q. What part of your body was injured as a result of that fall?
A. My back, legs. I fell on my back, my head didn’t hit the floor.
Q. What part of your back was hurt?
A. The lower part of my back.
Q. And what did you feel when you hit the floor?
A. Pain.
Q. Where? Where was it?
A. In my back, down my left leg.
Q. Had you ever experienced anything like that before.
A. Never, Never.
According to the claimant, she was taken by ambulance to the emergency room of Wadley Hospital, where she was treated and released. According to the claimant, as of the date of the hearing, she continues under treatment with Dr. Diamond and has been set up for an appointment to see a neurologist. However, she denied having ever been hospitalized or scheduled for surgery due to her injury. The claimant testified that following her injury in June of 2003, she stayed off a week and then went back to work and continued working until she stopped. Although the claimant initially testified that she stopped working for the respondent on September 17, 2003, she later clarified this and testified that her last day of work for the respondent was November 17, 2003. She denied having worked for anyone else since this time. The claimant essentially testified that this was her last day of work for the respondent because when she went for a follow-up visit with Dr. Diamond on November 18th, she took her off work. According to the claimant, she quit work because she needed medical help. The claimant denied having any prior difficulties with her back. According to the claimant, she is unable to lift more than seven to 10 pounds and she is not able to bend or stoop for very long.
On cross-examination, the claimant testified that her most recent injury is a continuation of her first injury. The claimant admitted that she is able to cook, grocery shop and do her housework. The claimant also admitted that she declined to undergo surgery, which had been indicated by Dr. Shahim. The claimant further testified that a TENS unit has been recommended as a form of treatment for her back injury.
On redirect examination, the claimant testified that she decided not to have surgery due to the risks involved. However, the claimant essentially testified that she has now changed her opinion and will have the surgery if necessary because she is tired of hurting. According to the claimant, she does not have the TENS unit because it was denied by the respondent’s insurance carrier.
A prehearing conference was conducted in this claim on September 29, 2004, from which a Prehearing Order was filed on that same day. The parties agreed to the following stipulations:
1. There was an employer-employee relationship on June 4, 2003.
2. The respondent accepted the claim as a compensable injury.
3. The respondent paid medical and TTD benefits for a period of time.
4. The compensation rate will be agreed to before the hearing.
At the hearing, the parties agreed/stipulated that the claimant’s monthly income was $748.00. The parties further stipulated that the Workers’ Compensation Commission has jurisdiction of the claim and that the respondent has controverted this claim in its entirety since September 18, 2003.
The parties agreed to litigate the following issues:
1. Additional medical benefits.
2. TTD compensation.
3. Attorney’s fees.
The claimant contended that she sustained a compensable slip and fall injury on or about June 4, 2003. The claimant further contended that she is entitled to additional medical benefits and TTD benefits from September 18, 2003, to a date to be determined. The claimant also contended that she is entitled to attorney’s fees.
In contrast, the respondent contended that the claim was accepted as compensable and appropriate medical and TTD benefits were paid. The respondent further contended that the claim was controverted in September 2003, and that the medical treatment of Dr. Diamond has also been controverted. After a hearing before the Commission, the administrative law judge found, “The claimant has proven by a preponderance of the evidence her entitlement to additional medical treatment. The respondents are ordered to provide medical benefits for treatment received by the claimant concerning her compensable injury and further related treatment. The claimant has failed to prove by a preponderance of the evidence her entitlement to temporary total disability benefits thereby making the issue of attorney fees moot.”
The claimant appeals and the respondent cross-appeals to the Full Commission. Specifically, the claimant filed an appeal of the denial of temporary total disability compensation, and the respondent filed a cross-appeal of the award of additional medical treatment.
II. ADJUDICATION
A. Medical treatment
An employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. §11-9-508 (a). The claimant must prove by a preponderance of the evidence that she is entitled to additional medical treatment.Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. WrightContracting Co. v. Randall, 12 Ark. App. 358, 676 S.W 2d 750
(1984).
In the present matter, the Full Commission affirms the administrative law judge’s findings wherein he found that the claimant has proven by a preponderance of the evidence her entitlement to additional medical treatment, and that the respondent is ordered to provide medical benefits for treatment received by the claimant concerning her compensable injury and future related treatment. The parties stipulated that the claimant sustained a compensable back injury on June 4, 2003, for which the respondent paid medical and temporary total disability benefits for a period of time, thereby controverting the claim as of September 18, 2003. The claimant subsequently sought treatment from Drs. Diamond, Buono, Shahim and Krishnan. The Full Commission finds that there is not any scintilla of evidence in the reports of Drs. Diamond, Buono, Sharim and Krishnan to suggest that the treatment received to date from these doctors has been unreasonable or to otherwise contradict the recommendations made them. Therefore, given this lack of contradictory evidence or any indication that the treatment being rendered by them has been unreasonable and/or unnecessary, we find that the claimant has proven by a preponderance of the evidence that the medical treatment she has received for her back to date from these doctors has been reasonably necessary in connection with her compensable back injury, pursuant to Ark. Code Ann. § 11-9-508. As to the TENS unit, we find that the TENS unit prescribed by Dr. Buono, is medical treatment reasonably necessary in connection with the injury received by the claimant considering that Drs. Buono, Shahim and Diamond have recommended this unit as a form of treatment and given the fact that this treatment modality is commonly prescribed for treatment of back injuries. We further find that the provocative lumbar discography and possible follow-up procedure such as an IDET or percutaneous discectomy are medical treatments reasonably necessary in connection with the claimant’s back injury based on the recommendations from Dr. Shahim and Dr. Krishnan. Specifically, although Dr. Shahim initially recommended the IDET procedure or surgery, after obtaining a second opinion from Dr. Buono, he limited his recommendation to the IDET and referred the claimant to Dr. Krishnan for this procedure. However, after reviewing diagnostic testings and examining the claimant, Dr. Krishnan recommended that the claimant undergo provocative lumbar discography to ascertain if her pain has a discogenic etiology and if so whether her symptoms may be amenable to one of the minimally invasive spine procedures such as an IDET or percutaneous discectomy. Based on these two expert opinions, the Full Commission finds that the administrative law judge was correct in finding it reasonably necessary for the claimant to proceed with the medical treatment recommended by Dr. Krishnan and Dr. Shahim. Accordingly, due to all of the foregoing, we affirm the administrative law judge’s finding wherein he ordered the respondent to provide medical benefits for the treatment received to date by the claimant concerning her compensable injury and future related treatment.
B. Temporary total disability
An injured employee is entitled to temporary total disability compensation during the time that she is within her healing period and totally incapacitated to earn wages. Arkansas StateHighway and Transportation Department v. Breshears,272 Ark. 244, 613 S.W.2d 392 (1981).
The administrative law judge found in the present matter that the claimant has failed to prove by a preponderance of the evidence her entitlement to temporary total disability benefits. The Full Commission reverses this finding. We find that the claimant proved by a preponderance that she was entitled to temporary total disability compensation from November 18, 2003, to a date yet to be determined. In the present matter, the preponderance of the evidence shows that the claimant has remained within her healing period beginning on the date of her compensable injury. Specifically, the evidence shows that the claimant has remained under active medical treatment for her compensable injury since June 4, 2003, and continued under such treatment as of the date of the hearing with recommendations from treating physicians for additional reasonably necessary treatment in connection with her back injury. However, the claimant essentially testified that after her injury she stayed off work for one week and then went back to work for the respondent and continued working until she stopped, which was on November 17, 2003. On November 18, 2003, Dr. Diamond issued a statement directing the claimant to refrain from working until she could receive treatment for her back. There is no evidence that the claimant has been directed to return to work by any doctor after being taken completely off work by Dr. Diamond on November 18, 2003, and the claimant remains in need of the additional treatment for her compensable injury, as outlined above. Hence, the preponderance of the evidence shows that the claimant did not become totally incapacitated to earn wages until November 18, 2003. Based on all of the foregoing, we find that the claimant has proven her entitlement to additional temporary total disability compensation from November 18, 2003, and continuing through a date yet to be determined. Therefore, we reverse the administrative law judge’s denial of temporary total disability compensation.
III. Conclusion
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge’s finding that the claimant has proven by a preponderance of the evidence her entitlement to additional medical treatment. The respondent is therefore ordered to provide medical benefits for treatment received by the claimant concerning her compensable injury and future related treatment. However, the Full Commission reverses the administrative law judge’s finding that the claimant has failed to prove by a preponderance of the evidence that she is entitled to temporary total disability benefits. Rather, we find that the claimant proved she is entitled to temporary total disability compensation from November 18, 2003, to a date yet to be determined, thereby entitling the claimant’s attorney to maximum fees for legal services as provided by Ark. Code Ann. §11-9-715 (Repl. 2002). For prevailing on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500.00), pursuant to Ark. Code Ann. § 11-9-715 (Rep. 2002).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.