CLAIM NO. E615026
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 13, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CLAUDELL WOODS, Attorney at Law, Magnolia, Arkansas.
Respondents represented by the HONORABLE GILL A. ROGERS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on July 22, 1997. In that opinion and order, the administrative law judge found that the claimant sustained an accidental injury arising out of and in the course of his employment on September 24, 1996. In addition, the administrative law judge found that as a result of that injury, the claimant was temporarily totally disabled from September 25, 1996 through February 24, 1997. The administrative law judge also found that the respondents are liable for reasonable and related medical benefits including the surgery performed by Dr. Dewayne Daniels. After conducting a de novo review of the entire record, we find that the claimant failed to prove that any of the medical treatment which he received in excess of the initial treatment accepted and paid for by the respondents was reasonably necessary for treatment of the admittedly compensable injury that he sustained on September 24, 1996. In addition, we find that the claimant failed to prove that he was ever incapacitated to work as a result of the admittedly compensable injury that he sustained on September 24, 1996. Therefore, we find that the administrative law judge’s decision in these regards must be reversed. [3] The claimant was employed by the respondents as a machine operator when, on September 24, 1996, the claimant sustained an admittedly compensable injury to his left foot when a metal rack weighing some 400 pounds rolled over his left foot which was in a steel toed boot. After the incident, the claimant went to the foreman’s office and was told that he could go to the emergency room or sit around the rest of the shift and see Dr. Alexander the following day. The claimant elected to present to Dr. Alexander the following day and at that time the claimant was experiencing a swollen PIP in the second toe on his left foot. The claimant testified that Dr. Alexander removed approximately 2 cc’s of fluid out of the swelling at that time. Dr. Alexander released the claimant to return to work the following day with limited walking and standing. [4] The medical record establishes that the claimant experiences a congenital abnormality known as hallux valgus (hammer toe or claw-toe) of the second toe in each foot. This condition is characterized by angulation of the toe from the midline of the body so that it overlaps the big toe. Stiffness and loss of function of the involved toe also accompanies this condition. [5] The claimant testified that he attempted to return to work on two occassions during the two-week period at some point after his release to return to work by Dr. Alexander on September 26, 1996, but according to the claimant, he could not tolerate walking and movement of the left foot. [6] The claimant subsequently obtained a referral to Dr. Dewayne Daniels, an orthopedic surgeon, on October 21, 1996, who discussed various treatment options with the claimant at that time for his hammer-toe deformity. According to the medical record, the claimant elected to proceed with a left hammer-toe procedure to correct the deformity which was scheduled for October 29, 1996. The respondents advised the claimant that they would not accept liability for this proposed procedure. Dr. Daniels’ October 29, 1996, report indicates that he admitted the claimant for out-patient surgery on that date for a hammer-toe procedure on the left second toe, although neither this or any other report in the record indicates the nature of the surgical procedure that was performed on that date. Notably, Dr. Daniels’ admission report from October 29, 1996, indicates that the claimant presented at that time with a hammer-toe on the left toe with a large dorsal PIP callus but makes no notation of any continued swelling as originally observed by Dr. Alexander following the claimant’s admittedly compensable incident at work. [7] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that the surgical procedure performed on the claimant’s left hammer-toe abnormality by Dr. Daniels on October 29, 1996, was reasonably necessary for treatment of the compensable swelling injury that he sustained on September 24, 1996. In reaching that decision, we note that no physician has ever noted swelling in the claimant’s left toe following Dr. Alexander’s removal of fluid from that swelling on September 25, 1996, and his immediate release of the claimant to return to work at that time. [8] In reaching our decision, we note that Dr. Daniels initially indicated to the claimant in his clinical evaluation on September 21, 1996, that the claimant had available “various treatment options” and that the claimant elected to proceed with a left hammer toe surgery. We also note that, in rendering a second opinion, Dr. Norris C. Knight indicated in his opinion the claimant had available options of either (1) using a boxy type safety shoe with appropriate inserts, or (2) reconstruction. We note that Dr. Knight apparently advised the claimant that surgery on his left foot hammer-toe abnormality was “inevitable”, and that it seemed clear that the claimant would require this surgery “sooner or later” as a result of his underlying hammer-toe abnormality. [9] We also find persuasive on this issue Dr. Daniels’ February 20, 1997, letter to the respondents’ attorney wherein he indicated the following:
[10] Finally, we note that in his initial evaluation on October 21, 1996, Dr. Daniels indicated the following with regard to the claimant’s hammer-toe abnormality:My concern was that his foot was not adequately protected by the steel-toe on his boot because of his foot abnormality. My feeling was that if this deformity was corrected, his foot would fit into the protective shoe properly and he would be less predisposed to recurrent injuries on his job on those occasions when his foot is struck by heavy objects.
[11] As we interpret the multiple opinions of Dr. Daniels and Dr. Knight, the claimant had available multiple treatment options to address his underlying hammer-toe abnormality, including but not limited to either wearing a more “boxy” steel-toe shoe or undergoing surgery to the underlying abnormality itself. Apparently, the claimant elected to pursue surgery instead of the alternative option of wearing a more “boxy” steel-toe shoe and apparently the claimant’s treating physician, Dr. Daniels, agreed with this treatment option on the assumption that the claimant was likely to experience additional “recurrent” problems with his hammer-toe abnormality unless the claimant underwent surgery to address the underlying abnormality. However, in light of the lack of evidence that the claimant’s swelling injury at work on September 24, 1996, persisted beyond the treatment provided by Dr. Alexander on September 25, 1996, we find that the claimant failed to prove by a preponderance of the evidence that surgical treatment of his underlying abnormality was reasonably necessary for treatment of the injury sustained on September 24, 1996, particularly in light of the evidence that a more boxy steel-toed shoe was a reasonable alternative to the course of surgery which the claimant elected to undergo for treatment of the underlying abnormality. [12] In assessing the weight to be accorded the claimant’s testimony that both his left side hammer-toe abnormality and his right side hammer-toe abnormality were asymptomatic prior to the work-related incident, and that the work-related incident caused a degree of symptoms that required surgery (as opposed to alternative treatment options), we note that Dr. Knight’s November 21, 1996, letter indicates that the claimant’s right foot at that time was “relatively asymptomatic”, and that his left foot was “much more severely involved”. In addition, we note that Dr. Knight’s October 28, 1996, letter states that “by history the second toe is much worse following trauma”. As we interpret these letters, it appears that the claimant reported to Dr. Knight symptomatic problems with both his left foot and right foot which apparently preexisted the incident that occurred on September 24, 1996. We accord these medical reports substantial weight on the issue as to whether or not the claimant did in fact experience recurrent symptoms in the left and right foot from his hammer-toe abnormalities prior to the incident on September 24, 1996. [13] Moreover, in light of the evidence that the claimant had available treatment options including simply using a more boxy-toed safety boot as opposed to undergoing surgery for treatment of his underlying hammer-toe abnormality, the evidence that the claimant elected not to pursue this course of action and instead elected to undergo surgical treatment of his underlying hammer-toe abnormality, and the evidence that his treating physicians concurred in this course of treatment on the grounds that the claimant was likely to experience recurrent symptoms associated with his underlying hammer-toe abnormality until he underwent surgery for that underlying abnormality, we find that the claimant failed to establish that the course of treatment that he pursued under Dr. Daniels was reasonably necessary for what we understand to have been a relatively minor exacerbation of the preexisting congenital abnormality that he experienced on September 24, 1996. In light of the evidence establishing that Dr. Alexander relieved the claimant’s swelling from his admittedly compensable injury on September 25, 1996, that Dr. Alexander released the claimant to return to work on September 25, 1996, and that the claimant thereafter only returned to work provided by the respondents for two days prior to seeking treatment for his underlying hammer-toe abnormality from Dr. Daniels thereafter, we find that the claimant failed to establish that he was disabled by his work-related injury from returning to work as scheduled by Dr. Alexander after September 25, 1996. Therefore, for the reasons discussed herein, we find that the administrative law judge’s award of temporary total disability compensation to the claimant, and his award of medical benefits in addition to those benefits provided by the respondents from Dr. Alexander, must be reversed. [14] IT IS SO ORDERED.Mr. Curry has a second-toe hammer-toe deformity that will predispose him to recurrent injuries of this region of his foot.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents. [16] DISSENTING OPINION[17] I must respectfully dissent from the majority opinion in this case. Based on my de novo review of the record, I would find that the medical care rendered, including the surgical procedure performed by Dr. Daniels, was reasonably necessary for the treatment of claimant’s work-related injury. Moreover, claimant was temporarily totally disabled from September 25, 1996, through February 24, 1997. Therefore, I would affirm the decision of the Administrative Law Judge. [18] On September 24, 1996, claimant sustained an admittedly compensable injury when a metal rack weighing approximately 400 pounds rolled over his left foot. Following his initial treatment, claimant obtained a referral to Dr. C. Dewayne Daniels, an orthopedist. Claimant has a hammer toe deformity, which is congenital. Dr. Daniels recommended and ultimately performed a left second toe hammer toe procedure. First, however, an independent medical examination was performed by Dr. Norris C. Knight. In a report dated October 28, 1996, Dr. Knight opined that surgical intervention was “inevitable.” [19] The law with respect to pre-existing conditions has not changed with the passage of Act 796. The Court of Appeals has stated that respondent employer “takes the employee as he finds him.” Moreover, an injury is compensable if the employment aggravates, accelerates, or combines with the pre-existing disease or infirmity. (St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996) citing Public Employee Claims Divisionv. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992)). [20] In my opinion, claimant’s pre-existing congenital abnormality was exacerbated by the accidental injury that occurred on September 24, 1996. The medical treatment claimant received following his initial evaluation, including surgical intervention was reasonably necessary. Moreover, I am satisfied that claimant was temporarily totally disabled as a result of this injury until February 24, 1997, when Dr. Daniels released him to return to full duty. [21] As set out above, I respectfully dissent from the majority opinion. [22] PAT WEST HUMPHREY, Commissioner