CLAIM NO. E800788
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 20, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE PETER O. THOMAS, JR., Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by HONORABLE JUDY W. RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he was entitled to additional temporary total disability benefits from September 26, 2001 through a date to be determined and additional medical treatment. The respondents also seek clarification on the attorney’s fee awarded. Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge.
I. History
Claimant sustained an admittedly compensable injury on December 2, 1997. Respondents have twice before appealed an award of claimant’s benefits for this injury and are for the third time appealing an award to the Full Commission.
On June 15, 1998, the Administrative Law Judge filed an opinion finding that claimant: (1) sustained a compensable injury on December 2, 1997; (2) was entitled to temporary total, permanent partial disability benefits, and medical benefits; and (3) that respondents had controverted the claim in its entirety. The Full Commission affirmed and adopted this opinion on February 19, 1999.
In a second opinion filed on October 12, 1999, the Administrative Law Judge found in part that respondents: (1) failed to make timely payments of the installments comprising and accrued between March 8, 1999, and April 8, 1999, pursuant to an award and, as such, there was added to unpaid installments an amount equal to twenty percent (20%) thereof pursuant to Ark. Code Ann. § 11-9-802(c) as well as interest pursuant to Ark. Code Ann. § 11-9-809, payable to claimant; (2) willfully and intentionally failed to pay temporary total disability and interest subsequent to April 8, 1999 and, as such, a thirty-six percent (36%) penalty payable to the claimant was assessed on all accrued and unpaid benefits pursuant to Ark. Code Ann. § 11-9-802(e); (3) again controverted benefits to claimant; and (4) were held in contempt by the Commission. The Full Commission affirmed and adopted this opinion on April 3, 2000.
Respondents now contend that they are not liable for additional temporary disability benefits or medical benefits for claimant’s compensable injury because the proposed surgery at issue is not reasonably necessary treatment and claimant is now out of his healing period. Alternatively, respondents argue that should claimant be entitled to additional benefits, the Commission should clarify that respondents only controverted in this third claim benefits from September 26, 2000 forward.
Claimant was employed by respondent employer on three separate occasions, each time working as a delivery beer salesman. Claimant suffered a lumbar strain on September 10, 1993, while working for another employer, subsequent to his initial period of employment with respondent employer. He was treated with medication, exercise, and heat therapy and returned to full-duty work. On June 9, 1995, claimant had an MRI that revealed a moderate-sized right central HNP at L4-5, and a moderate-sized central HNP superimposed upon mild diffuse annular bulge at L5-S1. Claimant returned to work for respondent employer sometime after 1995, but later found other employment. Claimant returned to employment with respondent employer again on September 24, 1997.
Claimant sustained a compensable low back injury on December 2, 1997 while lifting cases of beer. He immediately informed his supervisor and filed a workers’ compensation report. Claimant was treated by a physician the same day and underwent a new MRI. A comparison of MRIs revealed:
A previous examination from Baptist Memorial MRI from 6/9/95 has become available for comparison. Compared with the prior examination, there has been no significant interval change in the small right paracentral disc herniation at L4-5. However, there has been some interval increase in the size of the central and right paracentral disc herniation at L5-S1. (emphasis added). (Claimant’s Ex. 1, p. 4).
This finding was confirmed by Dr. Richard Jordan, a neurosurgeon, in January of 1998, and again on May 6, 1998 by Dr. Jim Moore, a Little Rock neurosurgeon, who stated:
The lumbar MRI’s of 1995 and 1997 are available and are reviewed. I would agree that there is quite a bit of disc degeneration and some certain diskal prominence at both L4-5 and L5-S1. The latter seems to be a bit more prominent than the 1996 study. (Respondents’ Ex. 1, p. 8).
Dr. Jordan has recommended a surgical decompression at L4-5 and L5-S1 in the wake of the claimant’s most recent injury. As indicated above, the claimant had back problems prior to the 1997 injury, with documented disk abnormalities at L4-5 and L5-S1 that pre-dated his compensable injury.
The July 24, 1995 office note of Dr. Jordan reflects:
He walked into the office without assistance and sat on the exam table comfortably. He can heel and toe walk without problems. His DTRs are normoactive and symmetrical. He has no consistent sensory deficit with pinprick testing and only mild weakness on the left in the hamstrings. He has a positive SLR at 30x on the left and 45x on the right. A review of his MRI shows an HNP at L4-5 and at L5-S1; however with him not having much leg pain we have decided to pursue conservative treatment before resorting to diskectomy.
Dr. Jordan’s September 27, 2000 notes reflect:
On his examination today he continues to have a positive straight leg raising on the right at 25x and a positive straight leg raising on the left at 35x. He was able to heel and toe walk. His lower extremity strength was grossly preserved. He was quite tender in the lumbar paraspinous muscles and continues to have a great deal of muscle spasms in the paraspinous muscles on the right. He was very tender over the sciatic notch on the right as well.
Between July 24, 1995 and September 27, 2000, Dr. Jim Moore, a neurosurgeon, performed an IME on the claimant on May 6, 1998. Dr. Moore’s notes from that date reflect:
I do not see any evidence of any atrophy, atony, or fasiculations in any muscle groups. Heel and toe gait is well preserved and to direct testing, toe strength is excellent. His reflexes are briskly intact, upper and lower, right and left. His straight leg raising is not restricted while sitting on the side of the examining table. He points to the lumbosacral as his zone of primary pain. He does not appear to have any particular triggers over the sacroiliac. His back range of motion is free without evidence of pain or restriction. Forward bending is carried out to the fingertips, about 6″ from the floor. Jugular compression is negative. There is no tenderness in the sacrosciatic notches. Sensory patterns are intact to various modalities, including light touch, temperature, pin stick, proprioception, and vibration. His calces measure 14″, both on the right and left, 2½ below the fibular heads . . . I would not recommend surgery and that some other conservative measures would be appropriate . . . I think this opinion is even more reinforced now that I have read Dr. Jordan’s report of 01/26/98. He describes significant neurologic deficits with weakness in ankle dorsiflexion on the right, as well as EHL, positive straight leg raising, 27x right and 48x right, sensory depression in both L5 and S1 dermatomes, sluggish right Achilles reflect. All of these would suggest nerve compromise; however, none of this was demonstrated on examination today, which would suggest there has been rather significant improvement in his interim period of time, although the patient continues to exhibit essentially a continued pain component. It is therefore felt that conservative treatment would be appropriate for ongoing management in this patient’s instance.
As a result of Dr. Moore’s evaluation in May, 1998, Dr. Moore deemed surgery inappropriate. One day before his visit to Dr. Jordan on September 27, 2000, the claimant had again presented to Dr. Moore for a re-evaluation. Dr. Moore’s report reflects:
He does not limp. Heel and toe gait is well preserved. Straight leg raising is carried out to 90 degrees. Direct testing motor power is good. Reflexes are symmetrical but rather hyperactive at the patellar levels. Jugular compression is negative. Back range of motion is uncomfortable and restricted about 50% in all modalities. I do not palpate any spasm. Sensation is dull to the pin in the right lower extremity as compared to the left. This does not follow a definite dermatome pattern although there is some sparing of sensation in the medical calf on the right . . . The calves measure 14″, 2½” below the fibular head and this is similar to the measures recorded two years ago. This patient then is in a state of stability. I do not find any neurologic deficit today nor did I find any neurologic deficit 5-6-98.
Dr. Moore concluded that further evaluation should precede any surgical intervention. There is no dispute that Dr. Moore’s findings are substantially different from those of Dr. Jordan just one day later. Dr. Moore discussed these differences during his deposition, and characterized them as follows:
Q. Are there differences between your exam and Dr. Jordan’s?
A. Significant differences.
Q. What are those differences?
A. Well, Dr. Jordan describes a positive straight leg raising on the right at 25 degrees and on the left at 35 degrees. He describes grossly normal muscle power. He describes muscle spasms in these areas and tenderness in the sacrosciatic notch on the right, and I found none of this.
Q. Even if the findings were compatible with this, would you recommend surgery based on the —
A. Not until he had a myelogram.
Q. Would you expect that much difference between an exam by two doctors?
A. It would be awfully surprising.
Dr. Moore also testified that his evaluations of May, 1998 and September, 2000 were essentially the same with the exception of range of motion findings, and that he had found nothing to indicate that the claimant was a candidate for surgery.
Dr. Jordan, when questioned hypothetically about Dr. Moore’s clinical findings of May 6, 1998, denied that such a presentation was that of a surgical candidate:
Q. Let me ask you, if he’s able to — I’m going to ask you to assume this. I know this is not in your records. If he’s able to heel and toe — his heel and toe gait is fine, his toe strength is excellent, his reflex is brisk, his straight leg raising is not restricted, and it’s (sic) primarily point to lumbosacral area as the place of pain, and his back range of motion is free, is that somebody that would be a surgical candidate in your estimation?
A. No.
However, Dr. Jordan indicated in his April 9, 2001, deposition that claimant is still in need of surgical intervention. Dr. Jordan justified his recommendation for surgery with a statement of claimant’s long history with his back injury:
When a complaint is merely pain, we rarely resort to surgery. We try not to. Simplistically put, if people have back pain and you operate on the back, you’re cutting them in a sore place. They feel surgical pain in the place that they hurt to begin with, and it’s hard to make them better. However, when the patten changes such that the leg pain overwhelms the back pain, then things are different. You’re not operating to relieve back pain. You’re dealing with leg pain. And, furthermore, we don’t usually talk about surgery unless we’re showing signs of radiculopathy. (Deposition, p. 13).
He’s gone from `92 to 2000 dealing with this thing and obviously isn’t getting over it. I mean, isn’t eight years of conservative management enough? When do you finally decide to take care of the problem? (Deposition, p. 17).
Dr. Jordan stated that when he last saw claimant in September of 2000, “[h]is strength seemed to be grossly reserved. At this point, he was quite tender in the lumbar paraspinous muscles with a great deal of muscle spasms. He was tender in the sciatic notch on the right.” (Deposition, p. 16).
Additionally, Dr. Jordan assigned claimant with an 8% impairment rating for his compensable injury if claimant is to receive no further treatment or surgery.
According to this Fourth Edition of the AMA Guide to the Evaluation of Permanent Impairment, if you have an unoperated on, stable, with medically documented injury, pain, rigidity, associated with moderate to severe degenerative changes on structural tests, includes unoperated on herniated nucleus pulposus, with or without radiculopathy, lumbar, seven percent for the first one and you add one percent for the second one, so that would be eight. (Deposition, p. 9).
However, Dr. Jordan opined that surgery is appropriate treatment in light of claimant’s continuing symptomology:
Disk herniation is a phenomenon that can be compared to taking a grape and squeezing it until the skin splits and the middle comes out. Can you image trying to put that middle back in? Can you image trying to unbirth a baby after it’s been born? Can you image trying to unrupture a disk after it’s been ruptured? It’s the same. They don’t go back. They simply don’t go back anymore than you can unbirth a baby. It just doesn’t happen. Your symptoms, and in this case, that’s what happened, his symptoms come and go, his symptoms change sides. That’s perfectly acceptable in a central or paracentral disk. They do that because it’s, you know, the middle or just off the middle, it’s not clearly lateralized. And so what happens when they have these little injuries, whatever they are, falls, lifting, whatever, you’ll get some disk material that will bulge one way or another. And then you’ll get maybe some bleeding, maybe some swelling, and they’ll have a worse time. And then the bleeding and swelling will subside and, the underlying problem is still there. And so, again, that’s the reason I didn’t decide to operate on this guy initially. You see? And we didn’t decide to operate on him until years later, but the reason for making the decision is that years have passed and he’s hurting, he having more leg trouble. Now, it’s not urgent nor emergent. We all know that, it’s waited all this time, but here’s a fellow that’s stuck in limbo. And so, you know, my recommendation was to fix it and let him get on with his life instead of wrangling about it for years on end while this guy is stuck, and that’s — but, you know, if you MR him again, no, the disk doesn’t go away. I mean, it’s — the material is there. (Deposition, p. 29-31).
II. Adjudication 1. Surgery
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 Workers’ Compensation Commission, opinion filed February 17, 1989 (WCC No. D612291); B.R.Hollingshead v. Colson Caster, Full Workers’ Compensation Commission, opinion filed August 27, 1993 (WCC No. D7033346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees’ injuries. DeBoard v. ColsonCo., 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. MajesticHotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead ContainerBoard, 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 Workers’ Compensation Commission opinion filed December 13, 1989 (WCC No. D512553).
The dissent and the respondents suggest on appeal that the claimant’s back problems after his 1997 injury are essentially the same problems that the claimant had in 1995. It is true that the claimant’s 1995 MRI indicated herniated disks at the L4-5 and L5-S1 levels. However, we point out that after the 1995 MRI, as the claimant’s brief on appeal notes, the claimant went to work for the respondents driving a truck and performing repetitive manual labor stacking hundreds of cases of beer each day. Now, after the 1997 injury, the claimant’s symptoms flare significantly if he helps his grandmother carry in groceries. The strenuous nature of the claimant’s job duties for the respondents during his employment after the 1995 MRI and before the 1997 injury belies the respondents’ suggestion that the claimant is currently experiencing a continuation of a 1995 injury.
In the alternative, the respondents and the dissent suggest that we should accord greater weight to the recommendations of Dr. Moore than the weight we accord the recommendations of Dr. Jordan. On this point, we note that this case involves a difference of professional opinion between two esteemed surgical specialists. Clearly, the surgical issue depends, at least to some extent, on the severity of the radicular symptoms the claimant experiences, and the physicians involved relate different perceptions of the claimant’s symptoms. The claimant testified regarding his current symptoms in part as follows:
Q. Can you describe to the judge the type of pain or sensations that you have, kind of in an every day experience or a week time or how it goes?
A. Every day it’s a nagging pain. It’s just kind of in about that much area of my small of my back, right above my tail bone. And, then, some days it goes down my right leg. The furthest it goes down is in between my knee and my ankle, that’s on bad days, but every day it hurts. Every single day it hurts.
Q. Some days are worse than others?
A. Some days are worse than others.
Q. Does your pain from you [sic] right hip to your left hip, does it shift around sometimes?
A. Mostly stays towards the right, but I have had pain in my left hip too.
Q. Okay. And, some days it’s going down your leg too?
A. Yes. My right leg feels weaker. I’ve tripped. I’ve stumbled on right foot. Been on my right side every time. My right hip goes down on me. I’ve been stuck and not been able to even walk, because it feels like somebody’s driving a nail down in my hip. I have not had any incident besides. It’s the weight shifting on my back. I mean it’s all shifting to the right side. It’s that simple.
Q. And, have things, from your perception, the pain gotten any better since this accident in December `97?
A. No.
Q. Well, now, where do you live currently?
A. With my grandmother.
Q. And, how old is your grandmother?
A. Seventy-four years old.
Q. Why are you living over there?
A. She provides me with food and everything. I’m not getting any benefits. I can’t survive on my own.
Q. So, luckily you had a grandmother who could take you in?
A. Yes.
Q. And how old did you say she was?
A. Seventy-four.
Q. Well, are there any particular activities that you might do that would cause an exacerbation or your pain increase or last?
A. Any kind of activity causes it. I mean, you can’t ever, you know, bending down to pick up a remote, which I can’t do that. I’ve got to get down on my knees to do that.
Q. By remote, you mean for the television?
A. For the television. You drop it on the floor, a normal person can reach over and bend over and pick it up. I have to go down to my — down to at least one knee to get down there to it and hope that there’s something there beside it that I can push myself back up on. Turn the bath on, the bath water on, it’s the same thing.
Q. You have to go down on your knees just to turn on the spigot?
A. Yes.
Clearly, the Administrative Law Judge, who heard the live testimony and observed the claimant’s demeanor, found credible the claimant’s testimony regarding his present problems. The claimant’s account also appears more consistent with Dr. Jordan’s understanding of the claimant’s condition than with Dr. Moore’s understanding. We are according great weight to the claimant’s testimony and to Dr. Jordan’s opinions on the surgical issue presented. Therefore, we find that the claimant has established by a preponderance of the evidence that surgery proposed by Dr. Jordan is reasonably necessary to treat the claimant’s compensable back injury and radicular symptoms.
2. Temporary Disability Compensation
To be entitled to temporary total disability benefits, claimant must remain in her healing period and be totally unable to earn wages. Ark.State Hwy. Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages.J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51
(1990). The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve the condition, the healing period has ended. Nixv. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).
In the present case, the record is clear, based on the claimant’s testimony quoted above, that the claimant is totally incapacitated from earning wages. The record also establishes that the claimant’s healing period has not yet ended in light of the fact that additional medical treatment in the form of surgery is available to improve the permanent character of the claimant’s injury. Therefore, the claimant has established by a preponderance of the evidence that he is entitled to the period of additional temporary total disability compensation at issue from September 26, 2000 to a date yet to be determined. We note that the respondents do not seek a credit against their temporary total disability compensation liability at issue for the 5% impairment rating which the respondents accepted and paid after September 26, 2000. [See transcript pgs 9-10.]
3. Attorney’s Fees
As a final matter, we note from the respondents’ brief on appeal the following request for clarification:
As a final matter, and in the alterative, the Respondents respectfully assert that the Administrative Law Judge’s Opinion and Order of October 5, 2001, requires clarification with regard to attorney’s fees. Specifically, should the Commission find that the Claimant is entitled to surgical intervention and/or additional temporary total disability benefits, the Respondents assert that they have only controverted additional benefits from September 26, 2000, forward, and that they would only be responsible for a one-half fee on benefits awarded subsequent to that date. However, the award entered by the Administrative Law Judge refers to disability benefits for “the period covering December 3, 1997, and continuing until such time as the Claimant reaches the end of his healing period, a date yet to be determined . . .” (See Opinion and Order at 16) As noted above, the Respondents have not “re-controverted” benefits previously awarded, but only those at issue after September 26, 2000. The Respondents would further assert that the Administrative Law Judge’s Opinion and Order of October 5, 2001, should thus be construed to award attorney’s fees only on benefits payable from September 26, 2000, forward.
By way of clarification, our review of the record from the July 10, 2001 hearing indicates that this (third) claim involved issues of the claimant’s entitlement to temporary total disability benefits beginning September 26, 2000, and the proposed unpaid medical treatment discussed and awarded herein. Therefore, with regard to the present (third) claim, we agree with the respondents that the controverted attorney’s fee awarded is on benefits after September 26, 2000.
The claimant’s attorney is entitled to the maximum statutory fee on the medical benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondents, pursuant to Ark. Code Ann. § 11-9-715(a). See Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990). For prevailing on this appeal before the Full Commission, the 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)(1).
We also note that at the start of the July 10, 2001 hearing, the respondents’ attorney acknowledged that the respondents had previously twice controverted temporary total disability benefits. However, the respondents’ attorney opined that the Administrative Law Judge’s prior order (presumably referring to the October 12, 1999 order from the second claim) lacked guidance on the second attorney’s fee involved. The Administrative Law Judge responded at the start of the third hearing that he would address the second attorney’s fee in his third order (i.e., the order currently on appeal). [See transcript pgs 7-8.]
We fail to see where the Administrative Law Judge has clarified in his third order any specific aspect of the attorney’s fee award contained within his second order. We also fail to see where either party has addressed the second order in their briefs on appeal from the third order, nor are we clear what evidentiary record, if any, might be required to provide guidance on any unresolved attorney’s fees issues arising out of the Administrative Law Judge’s second order. Under these circumstances, we decline to address issues which the parties and the Administrative Law Judge have not developed. If the parties are unable to agree on the proper amount or method of payment from any of the prior controverted attorney’s fees awards made by the Commission, any unresolved attorney’s fees issues may be developed before the Administrative Law Judge at some later date.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, the decision of the Administrative Law Judge is affirmed.
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 (Supp. 2001).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he was entitled to additional temporary total disability benefits from September 26, 2001, through a date to be determined, and additional medical treatment. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
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 (D7033346). 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). Dr. Jordan has recommended a surgical decompression at L4-5 and L5-S1 in the wake of the claimant’s most recent injury. The claimant had back problems which started prior to the 1997 injury and has two recognized disc abnormalities at L4-5 and L5-S1, which pre-dated his compensable injury. Dr. Jordan treated the claimant following his increasing symptoms in 1995. It is of note that Dr. Jordan recommended surgery after he examined the claimant on September 27, 2000, when the claimant had basically identical complaints in July of 1995 and Dr. Jordan failed to recommend surgery at that point.
By the time of Dr. Moore’s evaluation in May, 1998, the claimant had begun to improve in terms of neurological deficits to an extent that Dr. Moore deemed surgery not appropriate. One day before his visit to Dr. Jordan on September 27, 2000, the claimant had again presented to Dr. Moore for a re-evaluation:
He does not limp. Heel and toe gait is well preserved. Straight leg raising is carried out to 90 degrees. Direct testing motor power is good. Reflexes are symmetrical but rather hyperactive at the patellar levels. Jugular compression is negative. Back range of motion is uncomfortable and restricted about 50% in all modalities. I do not palpate any spasm. Sensation is dull to the pin in the right lower extremity as compared to the left. This does not follow a definite dermatome pattern although there is some sparing of sensation in the medical calf on the right . . . The calves measure 14″, 2½” below the fibular head and this is similar to the measures recorded two years ago. This patient then is in a state of stability. I do not find any neurologic deficit today nor did I find any neurologic deficit 5-6-98.
Dr. Moore concluded that further evaluation should precede any surgical intervention. However, Dr. Moore’s observations of September 26, 2000, are especially enlightening due to the absence of any finding of neurologic deficits. His findings are substantially different from those of Dr. Jordan just one day later. Dr. Moore discussed these findings during his deposition, and characterized them as follows:
Q. Are there differences between your exam and Dr. Jordan’s?
A. Significant differences.
Q. What are those differences?
A. Well, Dr. Jordan describes a positive straight leg raising on the right at 25 degrees and on the left at 35 degrees. He describes grossly normal muscle power. He describes muscle spasms in these areas and tenderness in the sacrosciatic notch on the right, and I found none of this.
Q. Even if the findings were compatible with this, would you recommend surgery based on the —
A. Not until he had a myelogram.
Q. Would you expect that much difference between an exam by two doctors?
A. It would be awfully surprising.
Dr. Moore also testified that his evaluations of May, 1998, and September, 2000, were essentially the same with the exception of range of motion findings (which are not objective), and that he had found nothing to indicate that the claimant was a candidate for surgery. Dr. Jordan, when questioned about Dr. Moore’s clinical findings of May 6, 1998, denied that such a presentation was that of a surgical candidate:
Q. Let me ask you, if he’s able to — I’m going to ask you to assume this. I know this is not in your records. If he’s able to heel and toe — his heel and toe gait is fine, his toe strength is excellent, his reflex is brisk, his straight leg raising is not restricted, and it’s (sic) primarily point to lumbosacral area as the place of pain, and his back range of motion is free, is that somebody that would be a surgical candidate in your estimation?
A. No.
My review of the evidence indicates that the claimant is not a candidate for surgery. The evidence shows that the claimant has experienced back pain intermittently for at least the last ten years. Dr. Jordan has followed the claimant since 1995 and did not offer a surgical recommendation until January of 1998, when the claimant presented with additional leg pain, although leg complaints are scarcely mentioned in the medicals after December 2, 1997. The claimant had no atrophy, sensory loss, or foot drop at any of his examinations by either Dr. Jordan or Dr. Moore, which would indicate that there was additional leg pain as well.
It is also of question that Dr. Moore’s clinical examination of the claimant within a short period of time from Dr. Jordan’s medical examination of the claimant indicated contrary findings. As Dr. Moore noted in his deposition, it is unusual for there to be some findings by Dr. Jordan, such as muscle spasms, etc., and Dr. Moore not to be able to observe those problems. It is also of note that the claimant’s clinical presentation in September of 2000 was strikingly similar to his clinical presentation in July of 1995, at which time Dr. Jordan did not make any surgical recommendation. Most of the claimant’s neurological deficits have also been subjective in nature. It is interesting that Dr. Moore was unable to identify any of these deficits in either 1998 or 2000. Accordingly, I find that the claimant has failed to prove by a preponderance of the evidence that surgery is reasonable and necessary medical treatment. Accordingly, I would reverse the decision of the Administrative Law Judge.
The claimant is also not entitled to any additional temporary total disability. In my opinion, the evidence shows that the claimant has reached the end of his healing period and he is not entitled to any additional temporary total disability benefits. Dr. Moore indicated that the claimant had reached a “state of stability” in September of 2000. Dr. Moore commented on February 20, 2001, that the claimant’s case had “dragged on for an interminable amount of time . . .” Dr. Moore also stated that he thought the medical profession had done all they could in the claimant’s instance. It is apparent that the claimant as reached the end of his healing period. It is of note that the claimant is able to perform yard work and repairs underneath his grandmother’s house. Accordingly, I find that the claimant is not entitled to any temporary total disability benefits beyond September 26, 2000.
Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner