COOK v. PENTAIR, INC., 1997 AWCC 351

CLAIM NO. E417041

JEFFREY F. COOK, EMPLOYEE, CLAIMANT v. PENTAIR, INC., EMPLOYER, RESPONDENT and GALLAGHER BASSETT SERVICES, INC., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 2, 1997

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by BILL STANLEY, Attorney at Law, Jonesboro, Arkansas.

Respondents represented by RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] In an opinion filed January 9, 1997, the Administrative Law Judge found that the claimant’s treatment by Dr. Mark Hackbarth and Dr. Thomas M. Hart subsequent to February 13, 1996, was reasonably necessary in connection with his compensable injury. The Administrative Law Judge also found that the claimant failed to prove his evaluation by Dr. Edward H. Saer, III, was reasonably necessary in connection with his compensable injury. Based upon our de novo review of the record, we find that the claimant met his burden of proof, and we affirm the Administrative Law Judge’s decision.

[3] It was stipulated below that the claimant sustained a compensable injury to his lower back on September 13, 1994, and that the employer/employee relationship existed on that date. The testimony indicated that the claimant injured his lower back in a lifting incident. The respondent paid the claimant all of the appropriate benefits including temporary total disability benefits, permanent partial, and medical benefits, which included disc surgery by Dr. Rebecca Barrett-Tuck.

[4] After the claimant’s disc surgery in late November 1994, the claimant continued to suffer back pain and tingling in his leg. Two post surgery MRI’s revealed some scar tissue but failed to reveal any nerve root compression. After returning to see Dr. Tuck several times in the spring and summer of 1995, Dr. Tuck referred the claimant to Dr. Hackbarth, a pain specialist, who began treating the claimant with injection therapy on August 16, 1995. The claimant continued his treatment with Dr. Hackbarth through February 1996, at which time the respondent requested that the claimant undergo an independent medical evaluation with Dr. Reginald Rutherford. Dr. Rutherford opined that the injection therapy performed by Dr. Hackbarth was no longer of benefit to the claimant, and further opined that branch blocks performed by Dr. Hart were not known to provide any relief to a person with the claimant’s condition. After receiving Dr. Rutherford’s opinion, in February 1996 the respondent controverted any additional medical treatment rendered by Dr. Hackbarth, Dr. Hart, and all referrals therefrom.

[5] The respondent contends on appeal, as they did below, that any treatment after February 13, 1996, was not reasonably necessary in relation to his compensable injury, denying further responsibility. The claimant contends that the medical services rendered by Dr. Hackbarth and Dr. Hart were reasonably necessary and that the respondents are liable for the treatments received. We agree with the claimant.

[6] Pursuant to Ark. Code Ann. § 11-9-508(a) (Repl. 1996), an employer is liable for all reasonably necessary medical services in connection with the compensable injury. That subsection provides:

The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.

[7] As the Arkansas Supreme Court and the Arkansas Court of Appeals have repeatedly stated, what constitutes reasonably necessary medical treatment under this subsection is a question of fact for the Commission to resolve. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996); Arkansas Dep’t of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994). The Court has also held that medical treatments which are required so as to stabilize or maintain an injured worker’s status are the responsibility of the employer. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). It is the Commission’s duty to resolve any conflict when the testimony or the medical evidence is conflicting. Haney v. Smith, Doyle, and Winters, 46 Ark. App. 212, 878 S.W.2d 775 (1994).

[8] We find that the claimant was an extremely credible witness, as did the respondent’s own witness, Dr. Rutherford. The respondent’s expert, Dr. Rutherford, testified in his deposition that he “did not believe [the claimant] was malingering.” He went on to testify that:

I think what’s even more important is, he was still working. In my experience, people who continue to work in the context of a work injury, that negates any of the negative connotations that are often thought of in the work comp setting. [sic]

[9] The claimant in this case gave extensive testimony as to the relief he received as a result of the medical treatment in question. He testified that the injections given by both Dr. Hackbarth and Dr. Hart did give him some relief from pain. The claimant testified that the treatments he received from Drs. Hackbarth and Hart, after the respondent controverted the claim in February, were helpful to him. In contradiction to the respondent’s brief, the claimant testified: “I’m a lot better right now than I was six months ago. . . .”, six months prior being February 1996, when the respondent denied further coverage.

[10] Although the doctors’ reports in this case obviously do not show the treatments cured all of the claimant’s pain, the medical reports clearly indicate that the claimant was receiving pain relief from his compensable injury as a result of Dr. Hackbarth’s and Dr. Hart’s injections. Dr. Hackbarth stated in a report dated January 4, 1996, that the claimant “has shown some improvement although it has been gradual in coming.” On February 21, 1996, just days after the respondent denied further coverage, Dr. Hackbarth stated, “Mr. Cook states that facet joint injections have helped him more than anything else. These injections seem to significantly make him pain free for a few days.” March medical reports indicated that the claimant stated he was still improving, he was sleeping good, and he had very little leg pain. In a letter dated July 1, 1996, Dr. Hackbarth opined that the claimant’s treatments were reasonably necessary and related to his compensable injury. Dr. Hackbarth stated:

In regards to the patient, Frank Cook, in my medical opinion, his treatment has been reasonable and necessary and that according to the patient he had no previous problems until his hurting himself at work in November of 1994. Therefore, I feel that his pain symptoms are related to this are the major cause for his pain and requiring treatment. I last saw Mr. Cook on 04/16/96, at which time I referred him to another pain clinic in Little Rock for some additional treatment that we do not perform here in Jonesboro. At that time, Dr. Thomas Hart M.D. saw him. I feel that it is reasonable that he has further treatment.

[11] In a letter dated August 30, 1996, Dr. Hackbarth opined that the claimant’s pain was due to his injury and not due to degenerative disc disease as the respondent so contends.

[12] In a report dated May 15, 1996, Dr. Hart recommended further treatment in the form of a different type of injection that he opined could provide long term relief from his compensable injury. On July 6, 1996, Dr. Hart was still recommending further treatment in the form of selective nerve root block. In his deposition, Dr. Rutherford (respondent’s expert) testified that he believed Dr. Hart’s nerve block treatments could be beneficial to the claimant if you are trying to locate the source of pain.

[13] We find that the claimant proved that the treatments he received from Dr. Hackbarth and Dr. Hart were reasonably necessary in relation to his compensable injury. Dr. Hackbarth and Dr. Hart were the claimant’s authorized treating physicians, and we find their testimony is credible and entitled to more weight than the opinion of Dr. Rutherford, who was hired by the respondent. Accordingly, we affirm the Administrative Law Judge’s opinion in all respects.

[14] 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).

[15] For prevailing on this appeal before the Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).

[16] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[17] Commissioner Wilson dissents.

[18] DISSENTING OPINION
[19] I respectfully dissent from the majority’s opinion finding that the medical treatment rendered by Dr. Mark Hackbarth and Dr. Thomas Hart subsequent to February 1996 was reasonably necessary in connection with 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.

[20] Claimant was originally treated with conservative medical treatment by Dr. Darrell Ragland. When claimant’s symptoms failed to appreciably improve, Dr. Ragland referred claimant to Dr. Rebecca Barrett-Tuck, a neurosurgeon. Claimant eventually underwent disc surgery on November 30, 1994, performed by Dr. Tuck. After surgery, claimant’s leg pain was noted to have improved, however claimant still suffered from back pain. Claimant underwent two post surgery MRI’s which revealed scar tissue but no nerve root compression. Claimant was assigned a fifteen percent (15%) anatomical impairment rating to the body as a whole and was released to return to medium-duty work on February 28, 1995. Claimant returned to Dr. Tuck in March 1995 and July 1995. On each return visit Dr. Tuck noted that claimant was never pain free. Dr. Tuck referred claimant for a consultation to Dr. Mark Hackbarth a pain specialist. Dr. Hackbarth began treating claimant on August 16, 1995. After six months of treatment which failed to reveal any long-term successful results, respondent sent claimant to Dr. Reginald Rutherford for a second opinion. Dr. Rutherford testified in his deposition that the injection therapy performed by Dr. Hackbarth would not benefit a person with claimant’s condition. Dr. Rutherford testified that claimant suffered from multi-level degenerative disc disease and injection therapy has not been known to provide any long-term relief for such condition. In addition, Dr. Rutherford testified that the branch blocks performed by Dr. Hart were not known to provide any relief for claimant’s condition. Dr. Rutherford specifically testified that while the branch blocks work well in selected situations, “shot gun approach to a common problem,” such as blocks have a poor track record. It was Dr. Rutherford’s opinion after examining the claimant and after having claimant undergo formal limb length measurement and electrodiagnostic testing that the only further treatment claimant should undergo is the use of a heel lift.

[21] In the present claim, I find that claimant failed to prove by a preponderance of the evidence that the additional treatment performed by Dr. Hackbarth and Dr. Hart after Dr. Rutherford’s examination is reasonably necessary for the treatment of claimant’s compensable injury. The evidence clearly shows that the treatment provided by Dr. Hackbarth and Dr. Hart produced no successful long-term results. While it may have been reasonable to attempt the treatment, after six months of treatment without any long-term benefit to claimant I find that the treatment was no longer reasonable and necessary for the treatment of claimant’s compensable injury. Although prolonged treatment may be required for certain injuries before success is obtained, there comes a point when continuing treatment without any benefit becomes useless.

[22] In this case, Dr. Hackbarth treated claimant for six months without any appreciable benefits. When the treatment failed to produce any long-term results, respondent requested and obtained a second opinion from Dr. Rutherford. After examining the claimant and reviewing claimant’s medical records, Dr. Rutherford was of the opinion that continued treatment would no longer benefit claimant. Dr. Rutherford’s opinion regarding additional injections was based upon the unsuccessful treatments to date as well as the nature of claimant’s condition. The record clearly shows that Dr. Rutherford was correct when he opined that claimant’s condition was such that it would not respond or improve with any additional injections or blocks provided by Dr. Hackbarth or Dr. Hart. Accordingly, I find that as of February 13, 1996, after claimant underwent the independent medical evaluation by Dr. Rutherford all further treatment of Dr. Hackbarth and Dr. Hart were no longer reasonably necessary for claimant’s compensable injury.

[23] Therefore, I respectfully dissent from the majority opinion.

[24] MIKE WILSON, Commissioner