CLAIM NO. E305738
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 10, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Reversed.
OPINION AND ORDER
The claimant appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed February 26, 2001. The administrative law judge found that the claimant failed to prove by a preponderance of the evidence that continuing medical treatment was reasonable, necessary, and related to the compensable injury. After reviewing the entire record de novo, the Full Commission reverses the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that Stella M. Daniels, age 54, sustained a compensable back injury on February 2, 1993. A physician diagnosed “acute sacroiliac strain” on February 5, 1993. Ms. Daniels was referred to Dr. P.B. Simpson, Jr., who wrote on February 19, 1993:
Mrs. Daniels has been working at Wal-Mart for five years. On 2-2-93 she was picking up a step-ladder at her place of employment. At this time, she began having some back pain.
Within 24-hours, she began having pain down her right leg. . . .
I had seen this lady in 1979. She had a ruptured disc at L4-5 on the right side. Following her surgery, she has done well and has never had any problems from her back until February of 1993. . . .
IMPRESSION — Lumbar radiculopathy, right side.
The following impression resulted from a lumbar MRI taken February 19, 1993:
Diffusely bulging annulus at L4-5, there is no lateralizing disc protrusion identified. There may have been a laminectomy at L4-5 on the right. Facet arthrosis at L3-4 and L4-5.
Dr. Simpson wrote on February 23, 1993:
Her MRI of her lumbar spine area was completely negative. No evidence of any disc herniation. She is not having as much leg pain as she was so she appears to be improving clinically. Straight leg raising test is negative to 90 degrees. She has excellent motor function in all muscle groups today. . . .
I think that nothing else needs to be done other than reassure her at this time. I will see her back on an as needed basis.
The following opinion resulted from a lumbar myelogram taken March 3, 1993:
1. Borderline spinal stenosis at L3 and L4.
2. Post op L4 right with some scarring but no definite residual or recurrent disc, though the L4 disc does diffusely bulge.
3. Facet arthrosis at L3 and L4.
The claimant continued periodic followup visits with Dr. Simpson. After examining the claimant in May, 1993, Dr. Robert D. Dickins, Jr. recommended additional physical therapy and a back rehabilitation program. A Functional Capacity Evaluation taken June 7, 1993 was not considered a valid test. The evaluators opined that the claimant had shown various testing inconsistences, and they stated, “Until this patient puts forth maximal effort on a consistent basis, no further recommendation for outpatient therapy would be deemed appropriate.”
Dr. Simpson wrote on June 8, 1993:
She is back in today. Her functional capacity evaluation has been noted that there is a lot of inconsistencies seen on that. With that in mind I am going to have a hard time resuming further work-up on this lady, especially since most of the studies were negative. She has also seen Dr. Dickins a neurosurgeon in Little Rock and he told her the same thing that I did apparently.
PLAN: I have told her from my standpoint that I thought she has reached maximum medical benefit and there was nothing else that I could do for her. She wants to see another physician to get another opinion. I told her that she was welcome to petition her workman’s comp carrier but I could not justify this with another neurosurgeon offering her surgical intervention and her test being negative, especially with a functional capacity evaluation stating that she is not putting out maximum effort. . . .
She has reached maximum medical benefit and has been released from my care effective Tuesday, June 8, 1993.
Dr. Simpson informed the respondent-employer on July 14, 1993 that the claimant “has No Permanent Partial Disability to the Body as a Whole.” The claimant returned to Dr. Simpson on August 16, 1993:
She comes in today stating that she is having some pain in her back. It is not low down in the lower lumbar area like it was before when I saw her. It has moved up now to where it is in the lower thoracic area. She complains of some mild tenderness in this area to deep palpation. No paravertebral muscle spasm. Her ROM of her back is decreased. No radiculopathy. There is just nothing to suggest that she has any nerve root compression syndrome. She hurts worse after she has been working for long periods of time.
PLAN: I have explained to Ms. Daniels that there is really nothing that I can do with her chronic musculoskeletal back pain. This is something that will either work out on its own or she will have to consider trying to find some other employment that is not quite as strenuous on her. But from a surgical standpoint of view there is certainly not a thing to be done. . . . I am releasing her from my care effective 8/16/93.
The claimant began treating with an osteopathic physician, who eventually referred her to Dr. Jay M. Lipke. Dr. Lipke wrote on December 9, 1993:
I feel she has a chronic lumbar ligamentous sprain or symptoms due to the bulging lumbar disc noted on her MRI scan. It’s really impossible on physical examination to tell what is the exact basis of her symptoms, but certainly I think her symptoms are real. She does not have a problem that would be amenable to any sort of surgical manipulation. I think that time will be the primary factor in the resolution of her symptoms. I would recommend she continue to work on a light duty basis or part-time basis until her symptoms improve. The only other treatment suggestion I might offer is that of an epidural steroid injection to see if this affords her any symptomatic relief. . . .
I think she’s had very complete and effective treatment to date and I don’t have a lot to add to her care other than that suggested above.
Dr. Jeff Yates wrote to the respondent-employer on May 27, 1994:
In response to your present letter, question #1 whether or not in my opinion if the claimant has reached the end of her healing period with regard to her back injury suffered at Wal-Mart in September 1993 I feel that the patient has had ample time for healing process to occur.
Dr. Lipke wrote on September 22, 1994, “I feel her healing period will end as of October 1, 1994.” Nevertheless, the claimant continued to periodically treat with Dr. Lipke, who reported on March 27, 1996:
Stella Daniels returns and has had increasing back symptoms as of late. She’s also noted a weak numb feeling in her right leg. . . .
I feel the symptoms she’s noticed in the right lower extremity are related to the previously noted HNP at L-4-5. It’s not uncommon to have intermittent neurologic symptoms in the lower extremity. I reassured her that this is not a significant problem that will require further investigative studies or surgery. She’ll continue working her regular duty status and I’ll see her back if she has persistent problems in the future.
The claimant continued to periodically treat with Dr. Lipke. Dr. Tad C. Pruitt examined the claimant for the carrier in December, 1996 and reported:
X-rays were not available to me today. In order to evaluate for lumbar instability I took flexion extension views of the lumbar spine. The patient has degenerative disc changes at L4-5 with a 3-4 anterior pseudolisthesis but that does not change in flexion or extension. The patient has no instability.
ASSESSMENT: Chronic low back pain.
RECOMMENDATIONS:
1. I certainly think her treatment to this point has been appropriate. She has been maintained at full duty essentially with doctors visits approximately every six months. She has not been having regular physical therapy or invasive treatments.
2. I do feel that she is at maximum medical improvement and does not have permanent impairment.
3. I recommend the patient continue to work at full duty without restrictions though to the extent possible she should try to avoid prolonged heavy lifting.
4. Reasonable continuing medical treatments are indicated to include office visits to rule out neurologic changes, anti-inflammatory and pain medication, and occasional epidural steroid injection since those have been helpful to her in the past.
The claimant returned to Dr. Lipke in February, September, and October, 1997, each time receiving conservative treatment modalities. The claimant returned to Dr. Lipke in June, 1998, November, 1998, April, 1999, and November, 1999. Dr. Earl Peeples wrote to the carrier on March 23, 2000:
Stella Daniels was seen February 29, 2000, for the purpose of an independent medical evaluation. . . . On careful review of her chart, there does not appear to be any significant change from examination in December of 1996, by Dr. Pruitt. It is, therefore, my opinion the patient continues, as Dr. Pruitt has already mentioned, to be at maximum medical improvement, unchanged from the last three years. The patient may, as many individuals do from time to time, need evaluation and treatment for symptoms of low back pain. This is seen in the general uninjured population and more frequently seen in people of previous history of back problems. I cannot indicate the type or frequency of treatment that would be necessary, since it is based on symptoms.
I cannot specifically say that future treatment would be specifically related to the 1993 injury, it would depend on the circumstances. I do not believe, as did Dr. Pruitt, that the patient has an identifiable abnormality which would cause me to rate her as having permanent impairment of function.
The respondents apparently controverted additional medical treatment after Dr. Peeples’ report. The claimant returned to Dr. Lipke on July 19, 2000:
She has had an aggravation of her underlying back problems. She has noted symptoms of pain in the low back region with radiation down her leg. . . .
I feel Ms. Daniels has evidence of lumbar nerve root irritation. . . .
Dr. Lipke continued conservative treatment.
Dr. Lipke wrote to the claimant’s attorney on August 25, 2000:
I feel within a reasonable degree of medical certainty that my continued treatment for Stella Daniels is related to her original work related injury sustained on February 2, 1993.
Ms. Daniels claimed entitlement to additional worker’s compensation. The claimant contended that she remained symptomatic; she desired to return to her treating physician, Dr. Lipke, for continuing medical treatment. The claimant relied on Dr. Lipke’s report of August 25, 2000. The claimant sought payment of medical expenses and attorney’s fees. The respondents contended that further treatment was “unreasonable, unnecessary and unrelated to the compensable injury. The claimant has returned to work at full duty with no permanent impairment rating.”
After the parties submitted the claim on the record, the administrative law judge found that “the evidence does not preponderate in favor of the claimant.” The administrative law judge found that “all appropriate benefits have been paid and further medical treatment is unreasonable, unnecessary, and unrelated to the compensable 1993 injury.” The administrative law judge therefore denied and dismissed the claim for additional medical treatment; claimant appeals to the Full Commission.
II. ADJUDICATION
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. §11-9-508(a) (1987). Injured employees have the burden of proving that medical treatment is reasonably necessary for treatment of the compensable injury. Beatty v. Ben Pearson, Inc., Workers’ Compensation Commission D612291 (Feb. 17, 1989). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. Jones v. Seba, Inc., Workers’ Compensation Commission D511255 (Dec. 13, 1989). What constitutes reasonable and necessary medical treatment is a fact question for the Commission. Gansky v.Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996).
As a threshold matter, we note the claimant’s objection to the Administrative Law Judge’s finding that the claimant’s present condition “is the result of the effects of aging and scarring from her 1979 surgery.” On this point, we agree with the claimant’s attorney. We fail to see where any physician has rendered any such opinion in this case, and we reject the Administrative Law Judge’s conclusion in this regard outright.
The Administrative Law Judge and the dissent also rely on a medical opinion from 1993 and the results of functional testing in 1993 to conclude that the claimant is not entitled to the additional medical treatment at issue some seven years later when the respondent controverted additional medical treatment in 2000. Since respondents did not controvert claimant’s treatment until June of 2000, we frankly tend to see little material relevance to the 1993 reports relied on by the Administrative Law Judge. The Administrative Law Judge apparently feels that Dr. Simpson, a physician from whom claimant has received no
treatment since 1993, is best positioned to evaluate the claimant’s current medical needs. However, we point out that Dr. Simpson stated in October of 1993 that the determination regarding additional medical treatment would be made by Dr. Dickens.
We also note that although Dr. Simpson released claimant to light duty on February 23, 1993, he subsequently ordered physical therapy and excused her from work. On May 21, 1993, he indicated that claimant did not have a disc herniation. He wrote: “[Claimant] does not need surgery, but has some back pain at this time that may get better on its own with this conservative treatment.” Noting the invalid FCE, Dr. Simpson indicated on June 8, 1993, that claimant had reached maximum medical improvement and he could not justify a referral to another neurosurgeon. Even so, he amended claimant’s full release to six-hour days on June 23, 1993. Then, on September 21, 1993, his chart note revealed this plan:
I have suggested that she see Dr. Dickens again and will make appointment for her and we will get her to sign a release of information. We will fax our records so that he will not have to repeat work up unless he thinks that it is necessary.
Thus, Dr. Simpson amended his position, scheduling an appointment with Dr. Robert Dickens. On October 4, 1993, he wrote to counsel for respondents, stating that “I have released [claimant] from my care to Dr. Robert Dickens effective October 4, 1993. Dr. Dickens will determine if any further medical treatment is reasonable and necessary for treatment.”
More importantly, Dr. Jay Lipke, claimant’s authorized treating physician, contemporaneously opined in August of 2000 that additional treatment was reasonably necessary and related to claimant’s compensable injury. We afford much greater weight to the contemporaneous medical opinion of Dr. Lipke in 2000 than any weight we might accord any opinion rendered by any physician seven years earlier, on the reasonable necessity of treatment at issue starting in 2000.
In reaching this decision, we note that respondents controverted additional medical treatment after receiving the report of an IME performed at their direction by Dr. Earl Peeples. In correspondence dated March 23, 2000, Dr. Peeples stated that: “I cannot specifically say that future treatment would be specifically related to the 1993 injury, it would depend on the circumstances.” Thus, Dr. Peeples has simply refused to act as a prognosticator in this case.
After conducting a de novo review of the entire record, and for the reasons discussed herein, we reverse the Administrative Law Judge’s finding that continuing medical treatment is not reasonably necessary for the claimant’s compensable injury. We find that the claimant’s attorney is entitled to the maximum statutory attorney’s fee on the benefits awarded herein.
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 also 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
________________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION MIKE WILSON, Commissioner
I must respectfully dissent from the majority opinion. In my opinion, the claimant has failed to prove by a preponderance of the evidence that continuing medical treatment is reasonable, necessary, and related to the claimant’s compensable injury.
The claimant injured her back while moving a ladder in February, 1993, which was initially diagnosed as an “acute sacroiliac strain.” The claimant began treating with Dr. Simpson, who had previously performed surgery on the claimant for a herniated disc at L4-5. Diagnostic testing showed a bulging annulus at L4-5 but no recurrent disc. Dr. Simpson indicated as early as February 23, 1993, that “nothing else needs to be done.” Dr. Simpson noted in June, 1993, that the claimant had put forth invalid effort during a Functional Capacity Evaluation. Based in part on the invalid FCE, Dr. Simpson pronounced that the claimant had reached “maximum medical benefit” and released her from his care. Dr. Simpson wrote in August, 1993, that he had no other treatment to offer for the claimant’s “chronic musculoskeletal back pain.” The claimant was referred to Dr. Lipke in December, 1993. Dr. Lipke at first reported “chronic lumbar ligamentous sprain or symptoms due to the bulging lumbar disc noted on her MRI scan.” Dr. Lipke failed to describe any acute process which caused the claimant’s symptoms. Dr. Lipke wrote that the claimant had received “very complete and effective treatment to date and I don’t have a lot to add to her care.”
Dr. Yates stated in May, 1994 that the claimant had reached the end of her healing period. Dr. Lipke stated that the claimant’s healing period would end as of October 1, 1994. The claimant continued to periodically follow up with Dr. Lipke, but the preponderance of evidence indicates that this treatment was related to chronic symptoms rather than her compensable injury. Dr. Pruitt assessed chronic low back pain in 1996 and pronounced maximum medical improvement. Dr. Peeples pronounced that the claimant had reached maximum medical improvement in March, 2000.
In my opinion, Dr. Simpson was best situated to evaluate the extent of the claimant’s injuries. Dr. Simpson had previously operated on the claimant’s lumbar spine, was the initial and primary treating physician after her compensable injury. He indicated that no further treatment was necessary for the claimant’s compensable injury as of February 23, 1993. In addition, four highly qualified medical professionals have opined that the claimant has reached maximum medical improvement. Therefore, I must dissent from the majority’s finding.
______________________________ MIKE WILSON, Commissioner