CLAIM NO. E502446
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 4, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE J. ROBIN NIX, II, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE DAVID WILSON, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed in part, affirmed as modified in part and reversed in part.
[1] OPINION AND ORDER[2] The respondents appeal and the claimant cross-appeals an administrative law judge’s opinion filed January 12, 1998. The administrative law judge found that the claimant has shown entitlement to additional temporary total disability benefits, extending from June 18, 1995, through January 9, 1996; that the medical treatment provided by Dr. Ungerank through December, 1996, was authorized and was reasonable and necessary; that the evidence demonstrates that the claimant’s current condition is the natural and probable consequence of the compensable injury, and that claimant’s current disability was neither caused nor prolonged by a non-work related independent intervening event. The administrative law judge found that the claimant has failed to demonstrate that the respondents controverted Dr. Ricca’s medical treatment after December 13, 1995. [3] The Full Commission has reviewed the entire record de novo. We find that the claimant has shown entitlement to additional temporary total disability benefits from April 1, 1995 through January 29, 1996, but that the respondents are entitled to a credit against liability for those days that the claimant worked during the period. We find that the medical treatment provided by Dr. Ungerank through December, 1996 was reasonable, necessary, and authorized. We find that the preponderance of evidence shows that the claimant’s current condition is not the natural and probable consequence of his compensable injury. Finally, we find that the claimant has failed to demonstrate that the respondents controverted Dr. Ricca’s treatment after December 13, 1995. We thus affirm the administrative law judge’s findings in part, affirm as modified in part and reversed in part. [4] The parties stipulated that the claimant, age 49, sustained a compensable injury on February 4, 1995, when a robotic arm “hit me on the top of the head and jammed my neck up.” The claimant presented on his own to Dr. Greg Ungerank, a chiropractor, on February 4, 1995. The respondents paid for the initial visit to Dr. Ungerank and began paying temporary total disability benefits on February 5, 1995. The respondents sent the claimant to Dr. Collins, who referred the claimant to Dr. Alan Nadel. Dr. Nadel saw the claimant on February 10, 1995. Dr. Nadel thought that the claimant had suffered widespread musculoskeletal injury and strain with headache, but he saw nothing to suggest any significant neurologic injury. Dr. Nadel thought that the claimant would quickly and fully recover. The claimant returned to Dr. Nadel on February 20, 1995. The claimant was still having a significant amount of trouble in his neck and back, but Dr. Nadel still did not think the claimant had sustained a significant neurologic injury or trauma and was concerned about the claimant’s slow recovery. Dr. Nadel arranged for a CAT scan and cervical MRI. On March 27, 1995, Dr. Nadel said that the MRI scan showed “small cervical discs at C5-6 and C6-7, but I really don’t see any clinical evidence that these are causing radiculopathy.” Dr. Kraus examined the claimant on March 3, 1995. His impression was degenerative arthritis of the cervical spine with superimposed acute cervical thoracic strain secondary to trauma; low back pain with bilateral leg pain. Dr. Kraus administered an epidural cervical steroid injection. [5] The respondents stopped paying temporary total disability on April 1, 1995, when the claimant attempted to return to light-duty work, but the claimant said that “my problems never ceased.” The claimant testified that the respondents’ “light duty” entailed carrying large, heavy tool trays, which the claimant said made his problems worse. Dr. Nadel referred the claimant to a neurosurgeon, Dr. Anthony Segal, who examined the claimant on April 3, 1995:
[6] Basically, he is a patient who has had mild degenerative changes without symptoms. His neck has been jammed, and he has neck pain now, and we know that patients who have this sort of injury hurt more if they have degenerative changes and bony spurs. There is certainly no surgical lesion here, and there is no evidence of cord or nerve root compression. The problem seems to be confused by the fact that Mr. Burmingham was told on the first day that he had a ruptured disc and had to come to Memphis as an emergency. I wish [7] I had this same plain x-ray that the doctor in Wynne has because, if he can diagnose ruptured discs on this plain x-ray, then we wouldn’t need to spend all this time and money on MRIs, myelograms and CAT scans. Basically, I think Mr. Burmingham needs anti-inflammatory medication, a muscle relaxer and a physical therapy program. I am going to see what is available near where he lives, and then I will check him back after he has been in therapy a couple of weeks. He is not yet able to return to work.MRIs, myelogram, and post-myelogram CT show degenerative spurs at C5-6 and C6-7. The myelogram itself shows that the root sleeves fill out well without any sign of nerve root compression. The post-myelogram CT showed mild to moderate osteophytes at these levels and with minimal disc bulging.
[8] The neurological exam was normal. There is no point in continuing with physical therapy on Mr. Burmingham. He hurt himself four months ago, and his studies have been fairly normal. His exam is functional now, and he may make a decision that he cannot work, but that is his decision. There is certainly no reason why he cannot do the same light duty full time.On May 17, 1995, Dr. Segal wrote that he had seen the claimant on May 11, 1995, at which time the claimant had been working on light duty for the last three weeks. Dr. Segal stated that the claimant “has some functional overlay and fairly normal studies,” and that the claimant could continue working seven hours a day, with restrictions. The claimant returned to Dr. Segal on June 1, 1995:
[9] On July 10, 1995, Dr. Segal stated that the claimant had not kept his previous appointment, and opined that the claimant could perform light work duty. Dr. Segal opined that the claimant should reach maximal medical improvement after continuing working for a couple of months with restrictions, “and as those restrictions are lifted he would get back to this regular job without difficulty. He may have a small PPI rating in the range of 3 to 5% of the body as a whole, but it is difficult to be sure because he is not working now.” The claimant returned to Dr. Ungerank on his own in August, 1995. The claimant testified that the respondents had “pulled me off work for the third time” and “told me that I needed to go back and get some kind of help.” Dr. Ungerank referred the claimant to Dr. Gregory Ricca. Dr. Ricca, a neurosurgeon, gave the following impression in an August 15, 1995 letter to Dr. Ungerank:However, the record indicates that the claimant has not worked since June 18, 1995. The claimant testified that the respondent-employer sent him home because of his pain complaints on at least three occasions.
[10] The abnormalities seen at C6-7 cannot possibly account for this patient’s symptoms and I do not think that this accounts for any of his symptoms as his upper extremity symptoms are bilateral. [11] I do not feel that this patient has any neurosurgical pathology and there is nothing further that I can offer him. He has already had an extensive work ups and treatments in the past. I have recommended that Mr. Birmingham (sic) see you for treatment. He saw you once after the accident but he says that his insurance company would not allow him to continue seeing you. I told him that I feel that you can offer him help with your treatments. I also feel that they are medically indicated and I am making the recommendation that he work with you further. [12] I will not see Mr. Burmingham in follow up as there is nothing further that I can do for him.1. Multiple complaints including headaches, dizziness, neck pain, shoulder pain, bilateral upper extremity pain, pain going into the fingertips, weak grip, low back pain, bilateral lower extremity pain, right lower extremity giving out on him.
2. Osteophytosis at C6-7 on the left with compression of the spinal cord and left C7 nerve root.
[13] The respondents reinstated temporary total disability benefits on January 29, 1996, on which date Dr. Ricca performed an anterior cervical diskectomy and fusion at C6-7. The claimant testified that surgery initially improved his condition, but that his previous problems returned, i.e., neck pain, severe headaches, pain across the shoulder and down the left arm. The carrier corresponded with the Commission on February 20, 1996:Nevertheless, the carrier controverted any further treatment from Dr. Ungerank, and Dr. Ricca stated on November 8, 1995, “Unfortunately, it is beginning to appear that the patient may need decompression and fusion at C6-7.”
The claim for Mr. Birmingham (sic) has been accepted under Workmen’s Comp, and temporary total benefits are currently being issued to him.
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[14] Mr. Birmingham continued to have problems and returned to his primary treating physician, Dr. Ungerank who subsequently referred him to Dr. Gregory Ricca, and that treatment has been accepted under his workmen’s comp claim.
[15] Dr. Segal corresponded with the respondents in April, 1996 and opined that chiropractic treatment for the claimant was not a reasonable and necessary medical expense. The claimant continued to complain of significant pain, and by July, 1996, Dr. Ricca was concerned about “secondary gain.” A cervical myelogram was taken on August 27, 1996. Dr. Ricca reviewed the myelogram findings and gave the following impression:The claimant underwent surgery by Dr. Ricca, and temporary total benefits have been reinstated since his surgery date.
Neck and left upper extremity pain. Large herniated nucleus pulposus, C5-6, which is broad-based involving the spinal cord and both nerve roots. Osteophytosis with foraminal encroachment bilaterally at C5-6.
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[16] If his symptoms should become intolerable, then I would strongly consider an ACDF of C5-6. In fact, I feel that this patient is a good candidate for ACDF at C5-6.
[17] According to the administrative law judge, the evidence shows that the claimant had not reached the end of his healing period in April, 1995, and that the claimant’s condition required ongoing medical care to alleviate his disabling symptoms. The administrative law judge found that the claimant was incapable of earning wages during this time and has shown entitlement to temporary total disability benefits extending from June 18, 1995 through January 9, 1996. The administrative law judge found that the claimant’s complaints and symptoms have remained the same since the February, 1995 workplace accident. The administrative law judge determined that the progression of claimant’s symptoms, as well as his underlying condition, was the natural and probable consequence of the aggravating work-related event. [18] A. TEMPORARY TOTAL DISABILITY APRIL 1, 1995 — JANUARYThis proposed surgery has not been performed, and Dr. Ricca has since vacillated on whether surgery was needed. The respondents ceased paying temporary total disability on September 16, 1996, after Dr. Ricca assigned the claimant a 9% partial permanent impairment rating with no restrictions. Other than Dr. Ricca’s impairment rating, the respondents have paid no further workers’ compensation benefits beyond September 16, 1996.
29, 1996 [19] Temporary disability is determined by the extent to which a compensable injury as affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Departmentv. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Ark. Code Ann. § 11-9-102(13) (Repl. 1997) defines “healing period” as the period necessary for healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. [20] In the present case, the respondents terminated the claimant’s initial period of temporary total disability compensation on April 1, 1995, and reinstated compensation as of January 29, 1996, when Dr. Ricca performed surgery on the claimant’s admittedly compensable C6-7 disk injury. The claimant contends that he remained within his healing period and incapacitated to earn during the intervening period from April 1, 1995 to January 29, 1996. On this record, we agree. [21] The respondents assert that the claimant is not entitled to temporary total disability benefits after April 1, 1995, because the claimant had been released to return to work and was allegedly capable of earning a meaningful wage. The claimant was released to return to light duty work by Dr. Nadel in March, 1995, and Dixie Foods purportedly did everything it could to accommodate the claimant’s restrictions. [22] In considering the claimant’s entitlement to temporary disability benefits, we note that when the claimant returned to work sometime in April, 1995, he was only released to lightduty work. The claimant attempted to perform this work, but the respondent-employer sent him home on at least three occasions. Dr. Segal suggested in July, 1995 that the claimant would reach maximum medical improvement after a couple more months of light duty restrictions, and the claimant did try light duty again for a short period in October, 1995. However, Dr. Ricca observed moderate cervical and trapezius muscle spasm on November 2, 1995, with decreased range of motion of the neck in all directions. On November 8, 1995, Dr. Ricca indicated that the claimant still appeared to be in discomfort with rather marked cervical and trapezius muscle spasm. On December 13, 1995, Dr. Ricca scheduled surgery in light of the claimant’s failed conservative treatment and his “severely limited ability to function.” [23] In reaching our decision that the claimant proved by a preponderance of the evidence that he both remained within his healing period and totally incapacitated from earning from April 1, 1995 through January 29, 1996, we recognize that there are no “off work” slips from Dr. Segal or any other medical practitioner in the record after April 3, 1995. Nevertheless, a claimant’s entitlement to temporary disability benefits is not dependent upon off work slips from his physician. Charles DavidReynolds v. Osage Products, Inc., Full Workers’ Compensation Commission, opinion filed August 12, 1996 (E204137). Further, the Commission has the authority to accept or reject medical opinion and determine its medical soundness and probative force.McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). We find that Dr. Segal erred in opining that the claimant could return to light duty work in April 1995, and likewise we note that Dr. Segal was incorrect when he opined in July, 1995 that the claimant’s problem would resolve in two months with continued light duty restrictions. On this record, it appears that Dr. Nagel, Dr. Segal and the claimant’s other physicians were simply unable to confirm through diagnostic evaluation, the full extent of the claimant’s subjective complaints throughout most of 1995. However, we note that the claimant’s ongoing subjective complaints were
corroborated by objective clinical observations of muscle spasm. In this regard, we point out that Dr. Segal observed muscle spasm on April 3, 1995, May 17, 1995, and June 2, 1995, and Dr. Ricca observed muscle spasm on November 2, 1995, November 8, 1995, December 12, 1995, and January 22, 1996. We also find from the claimant’s credible testimony that the claimant attempted, in good faith, to return to work on more than one occasion during the period but was simply unable to do so. We find, from the preponderance of evidence, that the claimant remained incapacitated to earn wages and within his healing period for his admittedly compensable injury at C6-7 from April 1, 1995, and continuing through January 29, 1996, when the respondents reinstated the claimant’s temporary disability compensation. However, we also find that the respondents are entitled to a credit against temporary disability liability for those days during the period that the claimant reported to work. [24] B. DR. UNGERANK’S CHIROPRACTIC CARE [25] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1997). However, injured employees bear the burden of proving, by a preponderance of evidence, that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. BenPearson, Inc., Full Workers’ Compensation Commission, February 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, December 13, 1989 (D511255). [26] The administrative law judge found that the care provided by Dr. Ungerank through December, 1996 was reasonable, necessary, and authorized. We agree. It appears from the record that the chiropractic treatment at issue involves approximately 39 sessions between August and December of 1995. The claimant correctly states on appeal that the respondents paid for the initial treatment by Dr. Ungerank and later recognized him as the primary treating physician. The respondents state that the claimant is not entitled to additional medical benefits arising out of Dr. Ungerank’s chiropractic treatment, arguing that this treatment is not reasonably necessary in connection with the claimant’s compensable neck injury. The respondents argue that the claimant did not benefit from Dr. Ungerank’s treatment. [27] We find that the chiropractic treatment at issue was reasonably necessary to treat the claimant’s injury. As noted above, after performing a neurosurgical evaluation in August of 1995, the claimant’s treating neurosurgeon, Dr. Ricca, recommended chiropractic treatment and felt that chiropractic treatment was medically indicated. Although chiropractic treatment did not ultimately resolve the claimant’s neck problems, so that surgery at C6-7 was indicated in January of 1996, we find that chiropractic treatment through December was an appropriate and reasonably necessary form of conservative care in the present case, particularly where, as here, the claimant’s treating neurosurgeon recommended the treatment after evaluation. To the extent that Dr. Segal has expressed a contrary opinion on this issue, we again note that Dr. Segal’s diagnosis and predictions for the claimant’s condition when he saw the claimant in July of 1995 were ultimately incorrect we accord greater weight to the recommendations of Dr. Ricca who treated the claimant after Dr. Segal. We thus affirm the administrative law judge’s finding in this regard. [28] C. COMPENSABILITY OF C5-6 DISK INJURY [29] When an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury.Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). When subsequent complications are the natural and probable result of the original injury, the employer remains liable. On the other hand, if the subsequent complications result from an independent intervening cause, the employer is relieved of liability for workers’ compensation benefits. However, the intervening incident must independently contribute to the claimant’s condition before the employer is relieved of liability. [30] On appeal, the claimant contends that the administrative law judge correctly found that the claimant proved by a preponderance of the evidence that his C6-7 disk problem identified in 1996 is a natural and probable consequence of his 1995 neck injury. The respondents assert that the claimant’s current condition does not arise out of his compensable neck injury, and that the respondents are therefore not liable for the medical treatment necessitated by the claimant’s current condition or disability. The respondents argue that the claimant failed to prove that his current problems at C5-6 are a natural and probable result of his “compensable injury at C6-7.” After de novo review, we reverse the finding of the administrative law judge that the claimant’s current condition at C5-6 is the natural and probable consequence of his compensable injury. [31] The earliest diagnostic testing following the compensable injury revealed degenerative spurs at C5-6 and C6-7. Dr. Ricca began treating the claimant in August, 1995 but did not recommend treatment at C5-6. Dr. Ricca reviewed a post-myelogram taken in 1995, and he opined that the post-myelogram did not show a C5-6 disc herniation in 1995. Of course, Dr. Ricca eventually performed surgery at C6-7. At deposition, Dr. Ricca opined that the earlier findings concerning degenerative spurs at C5-6 were essentially normal. Dr. Ricca testified that the claimant’s problems at C6-7 were more severe than at C5-6, and that the compensable injury caused the symptoms leading to the need for surgery at C6-7. In this regard, Dr. Ricca testified:
Q. Okay. And you already stated earlier during your examination, if I understood your testimony correctly, that the herniation at C5-6 represents a new injury in your opinion?
A. I think it is a new problem. I do not think that a disc rupture at C5-6 was present on the old studies or previously when I first met him.
Q. Okay. You also stated that it is possible that the herniation at C5-6 arose out of the natural progression of the degenerative conditions and/or an intervening event?
A. Yes.
Q. Can you state with a reasonable degree of medical certainty that the herniation at C5-6 arose out of the fusion surgery as opposed to an independent intervening event or something that would have ultimately happened anyway or is that purely speculation?
A. No, that’s speculation.
[32] The administrative law judge found that the claimant has failed to demonstrate that the respondents controverted Dr. Ricca’s medical treatment after December 13, 1995. We affirm this finding. The preponderance of evidence shows that the respondents accepted Dr. Ricca’s care and surgery within a reasonable period of time after being notified that the claimant was treating with Dr. Ricca, and after being advised of Dr. Ricca’s proposed surgery. [33] Based on our de novo review of the entire record, and for the reasons discussed herein, we affirm as modified the administrative law judge’s finding that the claimant has shown entitlement to additional temporary total disability benefits, and we award same from April 1, 1995 through January 29, 1996, with the credit to the respondent noted herein. We affirm the finding that the medical treatment provided by Dr. Ungerank was reasonable, necessary, and authorized. We reverse the finding that the claimant’s current condition is the natural and probable consequence of the compensable injury, and we affirm the finding that the claimant has failed to demonstrate that the respondents controverted Dr. Ricca’s medical treatment after December 13, 1995. [34] 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). [35] 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). [36] IT IS SO ORDERED. ________________________________As we interpret the administrative law judge’s analysis, she seems to suggest that the respondents must prove that the claimant’s 1996 C5-6 disc herniation is attributable to a specific independent intervening cause, even though the diagnostic studies indicated that the claimant did not have a C5-6 disc herniation shortly after his 1995 cervical injury. Arkansas Workers’ Compensation Law provides that the claimant bears the burden of proving that his new injury at C5-6 is causally related to his 1995 neck injury. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). In this case, we find that the claimant has failed to meet his burden of proof. We find persuasive Dr. Ricca’s testimony that a C5-6 disk rupture was not present when he began treating the claimant and we find persuasive Dr. Ricca’s testimony that it would require speculation to conclude that the C5-6 herniation arose out of the fusion surgery that Dr. Ricca performed. Therefore, we reverse the administrative law judge’s finding that the claimant has proved that his current condition is the natural and probable consequence of his compensable injury. D. CONTROVERSION OF DR. RICCA’S C6-7 SURGERY
ELDON F. COFFMAN, Chairman ________________________________ MIKE WILSON, Commissioner [37] Commissioner Humphrey concurs.