CLAIM NO. E815048
Before the Arkansas Workers’ Compensation Commission
ORDER FILED DECEMBER 8, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed and remanded.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on February 16, 2000. In that opinion and order, the administrative law judge denied the claimant’s request for a change of physician, or in the alternative, an independent medical evaluation. After conducting a de novo review of the entire record, we reverse the administrative law judge’s decision and remand this case to the administrative law judge to order an independent medical evaluation.
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 (D703346). 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 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. MeadContainer 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). Under Ark. Code Ann. § 11-9-511 (Repl. 1996), the Commission has the authority to order independent medical evaluations, if reasonable and necessary.
In the present case, the claimant was examined at the emergency room on December 11, 1998, and saw Dr. Riley Jones on December 15, 1998. He gave a history of an injury on December 11, 1998. The claimant told Dr. Jones he was lifting boxes which caused pain in his left shoulder and back. He was diagnosed with biceps tendinitis and a lumbosacral strain. Dr. Jones recommended light duty and physical therapy.
An MRI scan taken on January 5, 1999, revealed multi-level degenerative disc disease at L1, L4, and L5 and also disc protrusions affecting the right L5 and S1 nerves. An MRI of the left shoulder was normal. Dr. Jones referred the claimant to Dr. Gary Kellett, an orthopaedic surgeon.
On February 5, 1999, Dr. Kellett performed surgery on the claimant for a herniated disc at L4-L5 on the right. In a report dated March 25, 1999, he prescribed physical therapy and work hardening. Despite continued complaints, Dr. Kellett released the claimant to full duty on April 22, 1999. X-rays, lab work and examinations performed on the claimant had produced normal results.
In an undated document entitled “Physician’s Statement”, Dr. Kellett assessed the end of the claimant’s healing period as April 26, 1999, released the claimant to full duty with no restrictions, and opined that he suffered a 9% permanent impairment rating. The claimant did not return to Dr. Kellett again until November, 1999. He explained that he waited seven months for “nature to take its’ course”, but when he did not improve, he returned to the doctor. A repeat MRI scan showed post-operative changes at the surgical site with scarring but there was no evidence of a recurrent HNP. Dr. Kellett prescribed physical therapy but the claimant found it too painful to complete. The physical therapist noted “exaggerated pain behaviors”, and the claimant quit therapy after three days.
Dr. Jones’ report dated December 15, 1999, mentions the claimant worked as an order filler and was required to lift stock. If Dr. Kellett was aware of the claimant’s job duties or Dr. Jones’ report, it is not apparent from the medical records. Under questioning by the Commission, the claimant testified he did, in fact, speak with Dr. Kellett about his job duties.
The dissent argues that the claimant has received all of the medical care to which he is entitled for his admittedly compensable injury, back surgery and impaired condition. The dissent relies on (1) tests and examinations producing “normal” results, (2) notations of a physical therapist of purportedly exaggerated pain behavior, and (3) the fact that approximately seven months elapsed between Dr. Kellett’s examinations in April and November of 1998. We are not persuaded by these arguments for the following reasons.
First, although the claimant did not seek additional medical treatment until November 30, 1999, the claimant explained that he was unable to work during this period of time and was trying “to allow nature to take its course.” Further, Dr. Kellett had given the claimant a prescription for a year’s worth of anti-inflammatories. Significantly, in November 1999, Dr. Kellett reported that “[t]he patient’s symptomatology and examination findings do suggest a fairly intense radiculopathy on the right, although I don’t see any clear neurological deficit.” [Emphasis added]
Second, we note that Dr. Kellett ordered an additional MRI scan, which was interpreted in the following manner:
. . .There appear to be postoperative changes at the L4-L5 level on the right side as well. Moderate epidural enhancement laterally which does extend into the interspace. The adjacent bony structure does not show any significant abnormal signal or enhancement. Findings may represent a component of diskitis. A definite recurrent HNP is not demonstrated.
Dr. Kellett prescribed physical therapy, which claimant was only able to attend three days due to pain.
The claimant testified that he returned to Dr. Kellett in February 2000, and was referred to a Dr. Green for an injection. The claimant stated that this treatment offered him a few hours of relief and then “it wore off.”
The claimant has not returned to work since being released in April 1999. The claimant testified that his symptomatology or condition is about the same now as it was in April of 1999.
After considering the nature of the claimant’s injury and surgery, his rated anatomical impairment, his post-surgical examinations and treatment, his reported ongoing symptomatology, the notations of the physical therapist, and all other evidence in the record, we find that an independent medical evaluation is appropriate. We therefore remand this matter to the administrative law judge to select a physician to perform an independent medical evaluation.
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). For prevailing 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 (Repl. 1996).
IT IS SO ORDERED.
__________________________________ ELDON F. COFFMAN, Chairman
__________________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.
I respectfully dissent from the majority’s opinion reversing the Administrative Law Judge’s decision and remanding this case to the Administrative Law Judge to order an independent medical evaluation. Based upon my de novo review of the record, I would affirm the decision of the Administrative Law Judge.
After considering all the evidence, I find that the claimant has failed to prove that he is entitled to any additional medical treatment. The evidence shows that the claimant has had x-rays, lab work, and examinations, all of which have produced normal results. In addition, the physical therapist noted exaggerated pain behaviors during the 3 days the claimant underwent therapy, quitting after finding it too painful. Further, after Dr. Kellett released the claimant to full duty in April, 1999, the claimant did not return for 7 months. In my opinion, the claimant has received all the medical care to which he is entitled.
Therefore, for all the reasons set forth herein, I would affirm the decision of the Administrative Law Judge finding that the claimant is not entitled to a change of physician or an independent medical evaluation.
Therefore, I respectfully dissent from the majority opinion remanding this case to the Administrative Law Judge to order an independent medical evaluation.
______________________________ MIKE WILSON, Commissioner