DURHAM v. AEGON INSURANCE USA, 2000 AWCC 246

CLAIM NO. E911422

DeANN E. DURHAM, EMPLOYEE, CLAIMANT v. AEGON INSURANCE USA, EMPLOYER, RESPONDENT, RSK CO. OF DALLAS, INSURANCE CARRIER/TPA, RESPONDENT.

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 GAIL O. MATTHEWS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed.

OPINION AND ORDER
Respondents appeal an opinion and order of the administrative law judge filed February 29, 2000. The administrative law judge found that the respondents must pay for all reasonably necessary medical and related treatment, including, but not limited to intradiscal electrothermal therapy (“IDET”). After a de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.

The parties stipulated that the employment relationship existed on February 11, 1998, when claimant sustained a compensable injury after she bent over to pick something up and felt a pop. The parties also stipulated to the average weekly wage and the compensation rates for temporary total disability and permanent partial disability. The only benefit controverted in this case was the IDET treatment recommended by Dr. Robert Valentine. The parties agreed this was the sole issue presented for determination. The claimant contended that the treatment was reasonably necessary and the respondents said it was not.

The claimant is 48 years old and has a history of low back problems dating back twenty years but she stated she had not experienced back problems during the two to three-year period preceding her back injury on February 11, 1998. All of claimant’s treatment has been from doctors she was referred to by the company physician. Dr. Dillard referred her to Dr. Kevin Collins who referred her to Dr. Susan Samlaska who gave claimant trigger point injections. Claimant was then referred to Dr. William Ackerman and she was eventually referred to Dr. Robert G. Valentine, Jr., at the Arkansas Pain Center. Dr. Valentine recommended the IDET. Claimant discussed the procedure with Dr. Valentine, Dr. Jim Moore and Dr. Steven Cathey.

Dr. Valentine stated that the IDET would be reasonable treatment for claimant and that the main risk involved would be infection which is the same with any other procedure where the skin is broken. Antibiotics would be used to reduce the risk of infection. Dr. Valentine said the IDET procedure has been around for about three years and is FDA approved and was developed by doctors at Stanford who have used it on patients for three years now. The procedure has a 70 percent success rate and has no known downside at this point.

Dr. Moore disagreed with the IDET procedure and recommended further conservative treatment such as the use of a TENS unit and work hardening. Dr. Moore admitted in his deposition that he does not have any experience with the procedure and that Dr. Valentine is more familiar with the procedure and that Dr. Valentine has performed quite a number of IDET procedures. Dr. Moore also stated that he has not followed any studies where patients have had the treatment. Furthermore, Dr. Moore agreed in his deposition that if the IDET procedure gets claimant off narcotic pain killers that would be a tremendous result.

Dr. Cathey said he did not have any experience with the procedure but that the success rate was oftentimes less than gratifying. Dr. Cathey said he did not know if the procedure would be beneficial but that he doubted it would cause claimant any harm and therefore he would not stand in Dr. Valentine’s way if he believes the procedure has merit.

The administrative law judge found the claimant “to be a most credible witness” and highly motivated and said claimant only requests medical treatment to reduce her level of pain without the use of narcotic medications. The administrative law judge held that the respondents must pay for all reasonably necessary medical and related treatment, including, but not limited to IDET.

What constitutes reasonable and necessary medical treatment is a question of fact for the Commission’s resolution. Gansky v. High-TechEngineering, 325 Ark. 163, 924 S.W.2d 790 (1996). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (D511255).

Testimony shows that the proposed treatment, IDET, is only about three years old but that it has been approved by the FDA. So far, there are no side effects and the risks are minimal. Three doctors commented on the proposed treatment. Dr. Valentine proposed the treatment after examining and treating the claimant with injections which were unsuccessful. Dr. Valentine has been trained to perform this procedure and has performed several. Dr. Moore has no experience at all with the procedure but states claimant should instead stick to conservative treatment. Dr. Cathey also lacks any experience with the procedure but he doubts it would harm the patient and he said if Dr. Valentine recommends it he would not stand in his way.

The Claimant was diagnosed with an L4-5 annular tear in the lower back by respondents’ doctors. After performing a lumbar discogram and CT scan, Dr. Valentine recommended the IDET and stated that claimant is a reasonable candidate for the procedure.

The Commission has approved the IDET procedure before and held that it was reasonable and necessary. . Galloway v. White ConsolidatedIndustries, Full Workers’ Compensation Commission, August 3, 2000 (D908862 E706902).

The Full Commission finds that Claimant proved, by a preponderance of credible evidence, that she is entitled to additional medical treatment, including, but not limited to treatment recommended by Dr. Robert Valentine, specifically, an IDET procedure and the maximum statutory attorney’s fee.

The Full Commission affirms the administrative law judge’s findings and 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.

_____________________________ PAT WEST HUMPHREY, Commissioner

Chairman Coffman concurs.

CONCURRING OPINION
I concur in the principal opinion’s finding that the claimant has established by a greater weight of the evidence that the IDET procedure at issue is reasonably necessary to treat her L5-S1 annular tear condition.

As I interpret the dissenting opinion, the dissent concludes that a comprehensive psychological, pharmaceutical, therapeutic and physical treatment plan is reasonably necessary treatment for the claimant instead of the IDET procedure proposed by Dr. Valentine. For my part, I have no reason to dispute the dissent’s suggestion that a comprehensive psychological, pharmaceutical, therapeutic and physical treatment plan could be reasonably necessary for the claimant, regardless of whether the claimant were or were not to undergo the IDET procedure at issue. However, I feel compelled to note that neither the claimant or the respondent have proposed that the claimant undergo the comprehensive treatment plan suggested by the dissent. While I see no problem with a comprehensive treatment plan, I point out that the specific treatment at issue on appeal is Dr. Valentine’s proposal to perform a very specific procedure on a very specific diagnosed back abnormality, an annular tear at the L5-S1 level of the spine. On this specific issue, I am persuaded by the opinion of the claimant’s treating pain physician, Dr. Valentine, that the claimant is a candidate for the IDET procedure. I find the opinion of Dr. Valentine more persuasive than the opinions of Dr. Moore and Dr. Cathey in this case as to whether IDET is appropriate treatment for the claimant’s L5-S1 annular tear abnormality.

Since neither the claimant or the respondent currently propose a comprehensive psychological, pharmaceutical, therapeutic and physical treatment plan in addition to the IDET currently at issue, I do not reach any finding at this time as to whether the comprehensive plan suggested by the dissent is or is not also reasonably necessary to treat the claimant’s admittedly compensable condition.

__________________________ ELDON F. COFFMAN, Chairman

Commissioner Wilson dissents.

DISSENTING OPINION
I must respectfully dissent from the majority opinion, because I find that claimant failed to prove by a preponderance of the evidence that intradiscal electrothermal therapy is reasonable and necessary treatment of her compensable back injury. After my de novo review of the entire record, I would reverse the decision of the Administrative Law Judge, deny the IDET and approve further conservative care to include physical therapy and psychological support.

Claimant, who has suffered back and neck problems for an extended period of time, injured her back on February 11, 1998 while bending over to pick up a piece of paper. The record indicates that claimant had a history of low back pain, as well as cervical problems, dating back as early as 1978. Claimant received treatment for back pain regularly since 1991. Claimant has been on a variety of medications including increasing doses of Morphine since her injury. Dr. Valentine, an anesthesiologist, has recommended the IDET procedure. Dr. Moore, a neurological surgeon, who performed an independent medical evaluation opined that claimant required a comprehensive conservative treatment plan including psychological support and that the IDET was not warranted.

After reviewing the depositions, the hearing transcript and the medical evidence in this claim, I agree with Dr. Moore that a comprehensive conservative treatment program is warranted, although I would not rule out the IDET procedure in the future, after a thorough course of conservative treatment. It appears that this procedure has its uses, and indeed this Commission has approved it in the past. However, a review of the evidence demonstrates that, while claimant has been treated conservatively with no conclusive success, a treatment plan which addresses the psychological aspect of her problem as well as a coordinated pharmaceutical and therapeutic plan has not been developed or applied to claimant. Before claimant is subjected to an invasive procedure which has a 70% percent chance of addressing her pain from L5-S1, and not from L4-5 and not from her sacroiliac trigger, a treatment plan as suggested by Dr. Moore should be aggressively pursued, especially to address the non-organic origins of claimant’s discomfort, as noted by Dr. Cathey, and Dr. Moore. Certainly, the success of the IDET, if performed at some point, could only be enhanced by the strengthening of claimant’s mental and physical health. Without addressing the functional basis of her complaints, her success will be impeded.

While Dr. Valentine did not note any functional overlay or non-organic basis for claimant’s problems, other physicians did. Dr. Moore noted that the dullness to pin prick in claimant’s leg did not follow a dermatomal pattern, that claimant’s neurological exam was normal, with normal straight leg raising, normal reflexes, good position, vibration and temperature sense, and that her sensory patterns were not consistent with an objective abnormality. “She did describe a sensory depression over the right side of the body as compared to the left, but it was not as intense as it was over the leg. Again this is usually interpreted as a functional response.” Dr. Moore explained that “functional” means “not organic.”

At his deposition, Dr. Moore was advised of claimant’s hearing testimony that she took Prozac, an antidepressant, and Darvocet, a pain pill, from 1991 to 1998 for neck pain, that she stopped taking them about 13 days prior to her compensable injury, and that after her injury, her neck pain went away. He stated that this testimony “would suggest that perhaps she transferred one area of complaint to another.” When asked if this testimony concerned him in treating her subjective pain, he stated “I think that subjective complaints of pain are always bothersome, no matter what the sequence of events, if you have little or no objectivity to establish concern.” He stated that “there is little objectivity present” in claimant’s complaints.

In fact, it is clear from the record that claimant suffered physical violence at the hands of her former husband, as well as a variety of injuries to her cervical and lumbosacral spine and infection and illness since 1978. The medical records do not reveal that these issues, most importantly claimant’s mental and emotional health after suffering domestic abuse, have been addressed other than by the prescription of Prozac. Obviously, this is insufficient.

In his deposition, Dr. Moore stated that Dr. Cathey made a very important comment in his notes concerning her treatment: “There is undoubtedly a profound co-morbid depression having an adverse effect on her perception of pain being exacerbated by huge does of narcotic analgesic she’s been using on a daily basis.” Dr. Moore stated that such facts “tend to create a difficult management problem.” He went on:

Well, generally speaking, when a person has had medications, especially narcotics, they need to be detoxified, and I don’t see enough evidence here that this patient has got a failed back syndrome. She’s had nothing surgically done and I don’t see any justification to do anything. I think she would be benefitted by a psychological support program.

Dr. Valentine and Dr. Moore disagree on claimant’s basic injury, as well as treatment options. At deposition, Dr. Valentine stated that claimant “has internal disruption of the L5-S1 disk, which is very painful at rather low pressures,” and that her herniation of the L4-5 disk “actually appears to have resolved.”

Dr. Moore agreed with Dr. Cathey’s statement that there are degenerative changes at L4-5, but not at L5-S1. Dr. Moore felt that Dr. Cathey was correct in finding no evidence of any focal disk herniations, spinal stenosis or nerve root impingement.

Dr. Moore explained that an annular tear is a “separation of the annular fibrosis, but in itself does not mean anything,” and that an annular tear should not be treated with an IDET, or that “it should be treated period, other than strengthening of the back,” with exercise. Dr. Valentine similarly stated that if claimant reported that her pain was improving, she would still be a candidate for IDET, but that he would advise to give it more time and to work on strengthening. This is as close as the doctors seem to get in their opinions.

I agree with both Dr. Moore and Dr. Valentine that claimant needs to get off narcotic medication. In fact, Dr. Moore found no justification for claimant’s use of morphine at all. When asked whether it appeared that claimant’s condition was worsening based upon the increases in her dosage of morphine, Dr. Moore respondent that “unfortunately, when you’re on morphine, you take increasing doses. . . . when you’re on a narcotic medication, once you hit a plateauing and a tolerance to it, then you can take more and more and more and more. And then when you get to a certain point on that then you get to another one and take more and more and more.”

In light of claimant’s psychological overlay, the inconsistent opinions of two reputable physicians, claimant’s long-standing and increasing use of narcotic medication, and her non-organic indications, I believe that the reasonable and necessary treatment of claimant at this juncture is not IDET, but it is a comprehensive psychological, pharmaceutical, therapeutic and physical treatment plan. At some point in the future the IDET may prove necessary and reasonable for claimant, however, even Dr. Valentine agrees that conservative treatment in a rehabilitation setting would be beneficial to claimant’s L4-5 problems. Currently, any invasive procedure is doomed to less than reasonable success and probably to failure in light of claimant’s personal and medical history and her narcotic prescriptions. There are significant issues to be addressed as well as conservative treatment options to be explored, including psychological support and physical conditioning, before any type of invasive procedure, is reasonable at this time.

After my de novo review of the evidence, I find that claimant has failed to prove by a preponderance of the evidence that the IDET procedure is reasonable and necessary. I would reverse the decision of the Administrative Law Judge, deny the IDET and approve further conservative care to include physical therapy and psychological support.

________________________________ MIKE WILSON, Commissioner