CLAIM NO. E216726
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 26, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by BRADY PADDOCK and DAVID FOLSOM, Attorneys at Law, Texarkana, Arkansas.
Respondents represented by MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Respondents appeal an opinion of the Administrative Law Judge filed on May 25, 1994 finding that a proposed surgical procedure is reasonable and necessary.
(1984). After our de novo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge. [4] The parties agreed that a hearing was unnecessary in this case. Consequently, the record consists of the parties’ prehearing questionnaires and the documentary evidence submitted therewith, as well as Dr. Ayaz H. Malik’s April 12, 1994 report submitted by claimant’s attorney by letter dated April 18, 1994. [5] On or about September 30, 1992, claimant sustained an admittedly compensable injury to his neck when he fell from a truck. An MRI scan was interpreted as revealing a herniated nucleus pulposus at C5-6 and protruding osteophytes at C4-5. On October 2, 1992, claimant underwent an anterior cervical diskectomy and fusion at C5-6. Upon discharge from the hospital, claimant’s care was transferred to Dr. Malik. Claimant continued to be symptomatic and Dr. Malik has recommended additional surgery to decompress claimant’s spinal cord. When claimant and Dr. Malik sought preauthorization for the surgery, respondents had claimant examined by Dr. Gary Hutchison, who opined that additional surgery would be of no benefit to claimant. [6] Approximately one month after claimant’s surgery, Dr. Malik ordered another MRI scan due to the persistence of symptoms. This MRI scan revealed spondylosis with encroachment upon the thecal sac at C4-5. The C5-6 area “looked fairly clean.” A subsequent myelogram suggested spinal stenosis at C4-5. [7] Respondent argues that claimant’s condition is not causally related to the compensable injury. There is no evidence that claimant was symptomatic prior to the compensable injury. The symptoms of cervical radiculapathy, myelopathy and dysesthesia arose immediately after the injury and persisted in spite of the surgery at C5-6. There is absolutely no evidence of an independent intervening cause. Therefore, based on the above evidence, we find that claimant’s condition remains causally connected to the compensable injury. [8] Dr. Malik is claimant’s treating physician. Dr. Hutchison examined claimant one time at the request of respondent. We find that the opinion of Dr. Malik is entitled to more weight. Due to a persistence of symptoms, Dr. Malik suggested decompression surgery “as a prophylaxis again further neurological damage.” Therefore, we find that the additional surgical procedure is reasonable and necessary. [9] Respondent contends that it did not controvert claimant’s entitlement to the additional surgical procedure. Respondent argues that Arkansas Law prohibits respondents from preauthorizing any health care service. Respondent relies on Commission Rule 30 (G)(2), which provides that “[a] carrier shall not make a payment for a service unless all required review activities pertaining to that service are completed.” [10] Respondent’s argument is without merit. Commission Rule 30 (G)(2) does not apply to the determination as to whether a particular service is initially reasonable and necessary and related to the compensable injury. This section simply states respondent’s duty to conduct a utilization review of the itemized bill prior to payment for the services. Respondent clearly owes a controverted attorney’s fee in this case. [11] For the foregoing reasons, we find that claimant has proven by a preponderance of the evidence that the additional surgical procedure recommended by his treating physician is reasonably necessary and causally related to the compensable injury. Further, we find that respondent has controverted claimant’s entitlement to the surgical procedure and any additional compensation benefits to which claimant may be entitled as a result of the surgery. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [12] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[13] Commissioner Tatum dissents.[14] DISSENTING OPINION
[15] I respectfully dissent from the majority’s opinion finding that claimant has proven by a preponderance of the credible evidence that additional surgery recommended by Dr. Malik is reasonable and necessary.