CLAIM NOS. E803608 E813869
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 27, 2000.
Upon review before the FULL COMMISSION, in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FLOYD M. THOMAS, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part, reversed in part.
OPINION AND ORDER
Both parties appeal an opinion and order filed by the administrative law judge on April 19, 2000. In that opinion and order, the administrative law judge found that claimant is entitled to an open-ended award of temporary total disability benefits commencing on November 1, 1998. Moreover, it was determined that claimant proved entitlement to a referral to Dr. Wilson. Claimant’s request for an IDET procedure at Dr. Hart’s direction was denied. Following our de novo review of the entire record, we find that claimant is entitled to an open-ended award of temporary total disability benefits, as well as a referral to Dr. Wilson. Further, we find that claimant proved that the IDET procedure proposed by Dr. Hart is reasonably necessary for the treatment of her compensable back injury. Accordingly, we find that the administrative law judge’s decision must be affirmed in part and reversed in part.
Claimant worked in housekeeping for respondents. She sustained an admittedly compensable injury to her back on March 24, 1998. Claimant testified that the injury occurred when she moved a chair onto a bed in order to wax the floor. Upon lifting the chair and placing it on the bed, she experienced a stabbing sensation in her low back. Claimant resumed her duties, but the following day she had difficulty ambulating. She stated that respondent employer sent her to Dr. Hugh Nutt, a general practitioner, for treatment. Dr. Nutt’s treatment of claimant included hospitalization. Further, he made several referrals, resulting in treatment by Drs. Simpson, Safman, Peek and Hart. Claimant was also examined by Dr. Lipke. However, it appears that respondents may have scheduled the evaluation. Dr. Nutt’s initial chart note was not introduced. The medical evidence begins with the results of a CT scan dated March 30, 1998. That test, which Dr. Nutt ordered, showed “[s]pinal stenosis L4-5 with mild posterior disc herniation, more marked on the left side and ligamentum flavum hypertrophy.” Also, a bulging disc at L5-S1 was present, but deemed insignificant. On April 1, 1998, claimant was admitted to Jefferson Regional Medical Center. She was treated by Dr. P.B. Simpson, and he ordered a MRI. That test, which was performed on the date of claimant’s admission, demonstrated no abnormalities. Following her discharge, Dr. Simpson prescribed physical therapy, which was ineffective. He ordered a myelogram and post-myelogram CT scan. These tests were performed on May 12, 1998, and revealed a “mild symmetrical bulging of the L4 disc with a component extending into the foramen on the left.” Dr. Simpson released claimant to the care of Dr. Nutt on May 18, 1998.
Claimant was scheduled to see a specialist, but her back pain intensified. On July 28, 1998, Dr. Nutt determined that she should be hospitalized. He indicated that she had “severe back pain” that could not be controlled with medication. He also stated she had a “partially ruptured disc.” He ordered a CT scan, which showed “mild bulging annulus” at levels L3-4, L4-5 and L5-S1.
Dr. Richard Peek examined claimant on August 4, 1998. He recommended conservative treatment in the form of physical therapy, lumbar epidural steroid injections, and oral medication. He made the following diagnoses:
1. Lumbar annular tear.
2. Left-sided sciatica
3. Bulging disc, L4-5, left.
Claimant was examined by Dr. Bruce Safman on September 19, 1998, and she reported no improvement. The previously administered injection was ineffective, prompting claimant to present to the emergency room for treatment. Dr. Safman changed claimant’s medication, prescribing Prozac for pain. On September 28, 1998, claimant reported another visit to the emergency room. After informing Dr. Safman that she developed headaches, a medication adjustment was made. On November 2, 1998, claimant reported that she visited the emergency room on two occasions. Nevertheless, Dr. Safman determined that claimant had reached maximum medical improvement and she was released without restrictions.
After presenting to the emergency room on November 4, 1998, claimant was admitted to the hospital for treatment of her back pain. Following conservative treatment, she was discharged on November 8, 1998.
On March 30, 1999, Dr. Jay Lipke examined claimant. He reported his findings in a letter to respondent carrier. He stated that the CT scan showed “a left sided herniation at 4-5.” Dr. Lipke indicated that the test also demonstrated spinal stenosis, which he characterized as mild. Since conservative treatment failed to improve claimant’s condition, he referred claimant to Dr. Wilson for further evaluation. According to claimant’s testimony, respondents approved the referral; however, an appointment was never scheduled.
Dr. Thomas Hart evaluated claimant on July 7, 1999. Claimant testified that respondents paid for one visit with Dr. Hart, and some medication. He noted that past treatment measures were ineffective. Dr. Hart recommended discography to ascertain the source of claimant’s pain, and to determine whether there was internal disc disruption (IDD). Depending on the outcome of the discography, Dr. Hart indicated that claimant could be a candidate for intradiscal electro thermal therapy (IDET). His chart note described the IDET procedure:
This is a new technology which is nonsurgical. This is a minor outpatient procedure, which requires no hospitalization, in which one places a spinal catheter intradiscally. By heating the disc, this causes `closure of the hole’ and also new collagen growth over a 3-4 month period of time. In all reality, it actually heals the disc. . . .
A chart note dated October 1, 1999, indicated that on September 9, 1999, Dr. Hart performed a “provocative discography.” Based on the test results, Dr. Hart recommended IDET. Although a procedure note was not introduced, he described the results of the discography in a clinic note dated October 1, 1999:
Not only did we reproduce [claimant’s] subjective concordant back and buttock complaints, which she said she has had ever since an on the job injury, we also clearly demonstrated with objective information that the L5-S1 level and the L4-5 levels, that at twice the normal volume, she had markedly low abnormal pressures. We clearly demonstrated that she had significant abnormal disruption of the disc at L4-5 and L5-S1 with large posterior tears. The L3-4 disc appeared to be perfectly normal. . . . Post CT imaging . . . also demonstrated at L4-5 and L5-S1 levels “disc degeneration with posterior annular tears. A small central herniation at both levels, for L4-5 and L5-S1. A normal appearing L3-4 disc.”
Dr. Thomas Hart and Dr. P.B. Simpson, Jr. were deposed on March 22, 2000, and March 27, 2000, respectively. The transcripts were unavailable until after the hearing. It is apparent from his opinion that the administrative law judge considered the deposition testimony of Drs. Hart and Simpson.
Dr. Simpson’s deposed testimony revealed that he has not examined claimant since May 18, 1998. He characterized discography as virtually “worthless.” Dr. Simpson stated that he uses the test only to determine the existence of a foraminal disc herniation. With respect to IDET, Dr. Simpson stated that it sounded like “hocus-pocus.” Thus, he has refused to perform the procedure. Dr. Simpson opined that claimant is not a surgical candidate, and IDET would be of no value. He stated that until and unless IDET is proven successful, preferably by neurosurgeons, he will not perform the procedure.
Dr. Hart’s testimony included a description of provocative discography. He stated that in order to visualize the disc, a fluroscope or CT is used. Thus, it is not done blindly. After proper placement has been confirmed, dye is injected into the disc. Dr. Hart stated that the subjective component of the test is the patient’s pain response upon injection. He explained that injecting a normal disc may cause pressure, but will not produce pain. An example of an objective finding would be an annular tear, which is observable. Also, pressure volumes are measurable with an antelesis manometer. Dr. Hart stated that the dye causes the pressure. If a tear exists, the pressure volume will be abnormally low because the dye leaks out. He explained that a healthy disc will achieve and maintain a normal pressure level.
With respect to IDET, Dr. Hart indicated that the AMA has approved the procedure as well as the FDA. He testified that IDET is not experimental. He stated that some insurance carriers have approved the procedure. Others, however, have labeled it “investigational.” Dr. Hart testified that the basis for this characterization is that those carriers wish to have peer review literature and additional information regarding outcomes before accepting liability for the procedure. He stated that the February 2000 issue of Spine Magazine, which is a publication recognized by neurosurgeons, included a peer-reviewed article.
Dr. Hart testified that he has performed about eighty IDET procedures in the past year. He noted that there is a success rate in excess of 70% for this procedure. Dr. Hart stated that the recuperative period for IDET is contingent upon the nature of the job performed by the patient. If it is sedentary work, an individual may be able to return to her job within one or two weeks of the IDET procedure. However, if heavy lifting is an employment requirement, the recovery period may be nine to twelve weeks.
Dr. Hart discussed the specifics of claimant’s case, stating that she has discogenic pain. He explained that there are pain receptors in the “outer one-third (1/3) of the annulus fibrosis.” Dr. Hart explained that claimant’s disc has “some circumferential disruption.” He stated that this increases the complexity of the procedure. However, Dr. Hart opined that there is a good chance of success. He testified that the success rate of the procedure is lower in patients with a history of back surgery. However, Dr. Hart noted that claimant had no back problems at all prior to her work-related injury. Given claimant’s difficulties, Dr. Hart stated that she could live with the pain, submit to surgery, or pursue IDET. He pointed out that claimant’s attempts to live with the pain have been unsuccessful.
The administrative law judge denied claimant’s request for the IDET procedure, reasoning that:
In the instant case, this examiner finds that the claimant should pursue a more conventional regimen of treatment for her low back difficulties (the referral from Dr. Lipke to Dr. Wilson) rather than a proposed procedure that has not yet gained widespread acceptance in the orthopedic or neurosurgical community.
It appears that the administrative law judge’s lack of familiarity with the IDET procedure may have been outcome determinative. However, the Full Commission is aware of this procedure. Although it is relatively new, the procedure is not experimental. In Denise Galloway v.White Consolidated Industries, Full Workers Compensation Commission Opinion filed Aug. 3, 2000 (D908862 E706902), we determined that claimant proved the reasonableness and necessity of IDET.
Determining whether a given medical procedure constitutes reasonably necessary medical treatment is a fact question for our resolution. AirCompressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1(2000). In this case, we find that the IDET procedure recommended by Dr. Hart is reasonable and necessary for the treatment of claimant’s compensable back injury. We afford great weight to Dr. Hart’s opinion. He has performed eighty IDET procedures. Dr. Hart articulated sound bases for his recommendation. He determined claimant’s candidacy for IDET after diagnostic testing. Moreover, he considered claimant’s lengthy course of ineffective conservative treatment as well as her inability to tolerate the persistent pain. Dr. Hart opined that the chances of a successful outcome in claimant’s case were good.
In reaching our decision, we recognize that Dr. Simpson offered conflicting testimony. Our duty to resolve evidentiary conflicts extends to medical testimony. Maverick Transportation v. Buzzard, 69 Ark. App. 128, ___ S.W.3d ___ (2000). We find that Dr. Simpson’s opinion is entitled to little weight. It seems to be based on a limited amount of information. For example, he is apparently unaware of the IDET article in Spine Magazine. Also, Dr. Simpson testified that he has not attended a conference within the past year. This is significant since the IDET procedure is just two years old. Moreover, Dr. Simpson’s statement that he would accept only the opinion of neurosurgeons regarding this procedure reflects a rather narrow perspective.
Claimant requested a reinstatement of temporary total disability benefits, which respondents paid through October 31, 1998. Since claimant’s injury is unscheduled, the two-prong Breshears test is applicable.
Since the suspension of claimant’s temporary total disability benefits, she has been diagnosed with two annular tears and at least one disc herniation. Dr. Lipke noted in his March 30, 1999, report that claimant has been unable to work since the injury. There is no evidence that he released claimant to return to work. To the contrary, Dr. Lipke noted the failure of conservative measures and recommended an evaluation by Dr. Wilson, and perhaps additional medical treatment. Only Dr. Safman determined that claimant has reached maximum medical improvement. We accord no weight to his opinion. On November 2, 1998, claimant reported the persistence of pain but Dr. Safman determined that she had reached maximum medical improvement. However, two days later, she was admitted to the hospital for treatment.
Claimant testified that she has low back pain, which radiates into her left leg. She stated that she attempted to return to work twice. Although claimant was able to perform some of her duties, she could not mop floors. Therefore, she was sent home. Claimant stated that she has been unable to work based on the persistence of her symptoms. Since respondents have refused to pay for additional treatment, claimant must pay in advance for Dr. Hart’s services. She testified that she consults Dr. Hart when the household budget permits.
We specifically find that claimant has satisfied the Breshears test. In our opinion, claimant’s credible testimony and the medical evidence support an open-ended award of temporary total disability benefits commencing on November 1, 1998.
Based on our de novo review of the record, and for the reasons stated herein, we find that a preponderance of the credible evidence establishes that claimant is entitled to an open-ended award of temporary total disability benefits commencing on November 1, 1998, a referral to Dr. Wilson, and the IDET procedure at the direction of Dr. Hart. Therefore, we find that the administrative law judge’s decision must be affirmed in part and reversed in part.
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.