CLAIM NO. E314768
RODNEY A. BRYANT, EMPLOYEE, CLAIMANT v. MARCHANT LUMBER, EMPLOYER, RESPONDENT and FEDERATED MUTUAL INSURANCE CO., INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 4, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by the HONORABLE CONSTANCE G. CLARK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed in part and vacated in part.
[1] OPINION AND ORDER
[2] The claimant has appealed an administrative law judge’s decision finding that requested surgical treatment of the claimant was not reasonable or necessary and that the claimant did not suffer any wage loss disability. Based upon our de novo review of the record, we find that the administrative law judge’s decision must be reversed in part and vacated in part.
[3] The claimant suffered an admittedly compensable injury to his back on August 20, 1993. At the time of his injury, the claimant was employed by the respondents as a delivery man for various construction products. The claimant testified that while delivering a load of sheet rock to one of the respondents’ customers, he felt a pop in is his back while unloading the sheet rock. The claimant promptly reported his injury to the respondents, who transported the claimant to Dr. Lance Lincoln, a general practitioner in Mountain Home, Arkansas, for treatment.
[4] Dr. Lincoln eventually referred the claimant to Dr. Douglas Foster, an orthopedic surgeon in Mountain Home, Arkansas. Various MRIs, CT scans, and other diagnostic testing revealed that the claimant was suffering from a large herniated disc at L4, L5, and that the herniation was causing nerve root impingement. Since Dr. Foster was reluctant to recommend surgery in the absence of a second opinion, he referred the claimant to Dr. John F. Ferguson of Springfield, Missouri, for a consultative examination. In a report dated November 23, 1993, Dr. Ferguson stated that continued conservative treatment should result in significant improvement in the claimant’s condition. He went on to state that if the claimant had not improved in two to three months, reconsideration of surgery would be appropriate. However, Dr. Ferguson noted that if there was no thecal sac nerve root compression, continued conservative treatment would be preferable to surgery. He concluded his report by stating that there was an excellent possibility that the claimant would recover from his disc problems without surgical intervention. Dr. Foster concurred with Dr. Ferguson’s opinion and referred the claimant to physical therapy and other nonsurgical treatments of his injury. However, in a progress note dated February 15, 1994, Dr. Foster noted that the claimant had not significantly improved in spite of a sincere effort at physical therapy and related treatment. Dr. Foster noted in his progress notes that the therapist agreed with his assessment of the claimant’s physical therapy treatment. Dr. Foster indicated that he was going to refer the claimant to the Arkansas Spine Center for a second opinion regarding whether a discectomy or fusion would benefit the claimant. Dr. Foster did state that he believed that such surgery would improve the claimant’s radicular complaints but he was uncertain if his pain would be substantially improved by the fusion.
[5] The claimant was seen by Dr. Edward Saer, a Little Rock neurosurgeon, in April 1994. In a letter dated April 5, 1994, Dr. Saer indicated that he was of the opinion that the claimant was exaggerating his pain symptoms. Consequently, Dr. Saer recommended the claimant undergo additional diagnostic testing. After reviewing the claimant’s discograms, MRI’s, CT scans, and related tests, Dr. Saer indicated in a letter dated June 21, 1994, that the claimant was suffering from a posterior annular tear, central and to the left side of the claimant’s L4, L5 disc. In that letter, Dr. Saer also stated that he had discussed the possibility of back surgery with the claimant. However, Dr. Saer echoed Dr. Foster’s concerns that surgery would probably improve the claimant’s radicular pain symptoms but might not entirely alleviate his back pain problems. Dr. Saer stated in his letter that surgeries to repair the claimant’s condition had a success rate in the 75% to 80% range.
[6] In November 1994, the respondents referred the claimant to Reginald Rutherford, a neurologist in Little Rock, Arkansas, for another consultative examination. Dr. Rutherford was of the opinion that the claimant was exaggerating his pain symptoms and that “Mr. Bryant’s contemporary examination is devoid of objective abnormality. . . .” Dr. Rutherford also opined that the claimant would be a poor surgical candidate and that surgery would not be appropriate in his case. In conclusion, Dr. Rutherford indicated that it was his opinion that the claimant was at the end of his healing period and was entitled to an impairment rating of 5% to the body as a whole. Dr. Rutherford also referred the claimant to Dr. Winston Wilson, a clinical psychologist for an evaluation. Dr. Wilson stated that the claimant was malingering and that he should return to work as soon as possible. At this same time, a functional capacity examination was performed on the claimant. In a report dated November 22, 1994, the physical therapist performing the assessment indicated that the claimant had given submaximal effort and that the results of the functional capacity assessment could not be considered a reliable indicator of the claimant’s current physical status.
[7] The claimant was apparently not under active medical treatment for a significant period of time following the examinations of Dr. Rutherford and Dr. Wilson. The claimant stated that during this time, he was seen occasionally by his family physician and possibly other practitioners from whom he occasionally obtained pain medication. However, the claimant apparently returned to see Dr. Saer in late 1995 or early 1996. Dr. Saer scheduled the claimant for a discectomy and fusion in February 1996. However, shortly before the surgery was to be performed, the respondents contacted Dr. Saer’s office and advised that they would not agree to pay for the surgical procedure and the surgery was canceled. The claimant was eventually seen again by Dr. Foster in September 1996. In a progress note dated September 10, 1996, Dr. Foster stated that a lumbar fusion would not be an unreasonable procedure to perform on the claimant but that he was personally uncomfortable in performing it. Dr. Foster also stated that, in the absence of surgery, the claimant would have reached his point of maximum medical improvement and would be entitled to a 7% impairment to his body as a whole. In a letter dated September 13, 1996, Dr. Foster stated that surgical intervention could be performed on the claimant and that such would not be unreasonable and although he would not perform the surgery, an anterior lumbar fusion might be beneficial to the claimant in the long run.
[8] The claimant contends that the surgical procedure discussed by Dr. Foster and Dr. Saer is reasonable and necessary treatment for his condition, and that the respondents should be ordered to provide such treatment to him as soon as possible. Alternatively, the claimant contends that he is permanently and totally disabled as a result of the effects of his compensable injury. The claimant also stated that in the event the Commission found that he was not permanently and totally disabled, that he was entitled to anatomical impairment benefits in an amount equal to 7% to the body as a whole plus a substantial amount of wage loss disability benefits. The respondents contend that the claimant has reached the end of his healing period and that further medical treatment, specifically including the surgery to repair his disc herniation, is not reasonable or necessary. They also contend that the claimant is entitled to a 5% impairment rating to the body as a whole for his anatomical impairment, and that he is not entitled to any additional disability benefits.
[9] The administrative law judge held that the surgical treatment requested by the claimant was not reasonable or necessary. The administrative law judge also found that the claimant was entitled to anatomical impairment benefits in an amount equal to 7% to the body as a whole but that he was not entitled to any permanent disability benefits in excess of that rating.
[10] After carefully reviewing all of the medical records contained in the file, as well as reviewing the testimony from the hearing, it is our opinion that the claimant has established by a preponderance of the credible evidence that the requested surgical treatment is reasonable and necessary. The claimant is hereby authorized to seek such treatment for this condition from either Dr. Saer or Dr. Foster, and such treatment is to be provided to him at the expense of the respondents.
[11] In reaching that conclusion, we note that Dr. Foster in progress notes or medical reports dated February 15, 1994, September 10, 1996, and September 13, 1996, stated that he was of the opinion that the claimant would benefit from back surgery. While Dr. Foster indicated a reluctance to perform the surgery himself, he did refer the claimant to an appropriate neurosurgeon to perform the surgery. Presumably, Dr. Saer was also of the opinion that the surgery was appropriate since he had at one time scheduled the claimant for the surgery. In refusing to authorize the surgery, the respondents are relying primarily upon the opinions of Dr. Ferguson and Dr. Rutherford. However, we note that Dr. Ferguson in his opinion dated November 23, 1993, stated that if the claimant had not improved after two to three months of conservative treatment, the question of surgical intervention should be reinvestigated. It was apparently the claimant’s lack of progress that led Dr. Foster to change his opinion in regard to the benefits of the surgery. Therefore, we do not believe that Dr. Ferguson’s opinion in November of 1993 can be construed as an unqualified statement that the surgery should not be performed at some time in the future. Also, even though Dr. Rutherford was of the opinion that the surgery was not appropriate, we note that he is a neurologist and not a surgeon. In fact, Dr. Rutherford holds himself out to be a specialist in pain management, not surgical treatment of injuries. It is also significant that Dr. Rutherford only saw the claimant on one occasion and is certainly not as familiar with the claimant’s physical condition as either Dr. Foster or Dr. Saer. Consequently, we find that the greater weight of the evidence in this case indicates that surgery is reasonably necessary for treatment of the claimant’s compensable injury.
[12] Since we find that the claimant proved by a preponderance of the evidence that he is entitled to surgery, we also find that the any determination as to the extent of the claimant’s permanent disability at this time would be premature. Therefore, we vacate the administrative law judge’s decision in this regard.
[13] The respondents are hereby directed to provide to the claimant all reasonable and necessary medical care prescribed by Dr. Foster or Dr. Saer, including the surgery previously recommended by them, as well as any other benefits which the claimant may become entitled to, including follow-up medical care, temporary disability benefits, and any other benefits provided under the Act. The claimant’s attorney is hereby awarded an attorney’s fee in the maximum amount provided by A.C.A. §
11-9-715
on all medical expenses awarded herein. For prevailing upon this appeal, the claimant’s attorney is also awarded an additional fee of $250.00.
[14] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[15] Commissioner Wilson dissents.
[16] DISSENTING OPINION
[17] I must respectfully dissent from the majority opinion finding that the surgery prescribed Dr. Saer is reasonable and necessary medical treatment of claimant’s compensable injury. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof. Dr. John Ferguson stated as early as November 23, 1993, that claimant’s condition was one that had an excellent possibility of recovering without surgical intervention. Claimant’s treating orthopedic physician, Dr. Robert Foster initially agreed with Dr. Ferguson’s opinion. Dr. Foster further stated that even if claimant eventually underwent surgery, the surgery would more than likely only improve claimant’s radicular complaints but did not know how much of the pain would be eliminated. Dr. Edward Saer, a Little Rock neurosurgeon examined the claimant for a third opinion in April of 1994. Dr. Saer has recommended surgery but, like Dr. Foster expressed his concern that the surgery would not eliminate claimant’s back pain problems. A fourth opinion was obtained from Dr. Reginald Rutherford, a neurologist. Dr. Rutherford believed claimant was exaggerating his pain symptoms and is of the opinion that surgery would not benefit the claimant.
[18] After receiving the opinion from Dr. Saer recommending surgery, Dr. Foster did change his previous opinion and conclude that surgery was not an “unreasonable procedure” to consider for this claimant. However, while Dr. Foster is an orthopedic surgeon, it is very interesting to note that Dr. Foster has stated that he will not perform the surgery on claimant. Dr. Foster’s reluctance to perform the surgery, in my opinion, speaks directly to the reasonableness of the surgery for this particular claimant. Why would a highly qualified specialist who has been the claimant’s treating physician refuse to perform surgery on one of his own patients unless he is personally of the belief that the surgery will not benefit the claimant? The answer to this question goes directly to the issue of whether the treatment is reasonable and necessary. In my opinion Dr. Foster’s actions carry greater weight than his words. I cannot place as much weight on Dr. Foster’s change in his opinion with regard to surgery as the majority has. In my opinion, the overwhelming medical evidence of record clearly preponderates in favor of a finding that the surgery is not reasonable and necessary for this particular claimant. Accordingly, I must respectfully dissent from the majority opinion.
[19] MIKE WILSON, Commissioner
