CLAIM NO. E611967
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 7, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by HONORABLE BRUCE ANIBLE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals to the Full Commission an Administrative Law Judge’s order filed December 4, 2000. The Administrative Law Judge found that claimant failed to prove surgery was reasonably necessary in relation to his compensable work-related injury. Upon de novo review of the entire record, the Full Commission reverses the Administrative Law Judge’s opinion. We find such surgery to be reasonably necessary treatment for the claimant.
I. HISTORY
Claimant sustained an admittedly compensable injury to his right foot on August 29, 1996, while working construction for respondent-employer. He was injured when a 3,000 to 5,000 pound concrete block fell onto his right foot while he was wearing soft-toe boots. (Claimant’s Medical Ex. 1, p. 2). Dr. McFarland’s radiology report of August 29, 1996, noted:
There is comminution of the distal phalanx of the great toe and comminution with dislocation of the distal phalanx of the second toe and communution of the distal phalanx of the third toe. The third toe also probably demonstrates communution of the distal phalanx. Only the distal aspect of the distal phalanx of the great toe is involved but severe comminution and destruction of the comminuted fracture fragments of the distal aspect of the distal phalanx of the great toe is present.
(Claimant’s Medical Ex. 2, p. 13). Part of claimant’s first four toes was removed, but claimant continued to have pain from his crush injury. On September 4, 1996, claimant underwent a repeat incision and drainage. (Claimant’s Medical Ex. 1, p. 3).
Dr. Steven A. Kulik recommended on March 3, 1997, that claimant’s first and third toes be revised, “[h]is great toe should have the nail removed. His 3rd toe, the nail should be removed and also the remainder of the middle phalanx removed, the toe shortened and some of the plantar skin brought up at the tip of the toe to relieve the tender toe.” (Claimant’s Medical Ex. 2, p. 49, 50).
Claimant saw Dr. Philip Johnson on July 15, 1997, for continued pain in his foot. Dr. Johnson noted that since amputation of claimant’s toes,
[C]laimant has been unable to work because of persistent pain, particularly in the great toe and a small bone which has spontaneously come out recently from the tip of the third toe. He had a painful swollen enlarged tip of the right great toe which precludes him from wearing a shoe. The remainder of the toes have healed amputation stumps. My recommendation is that the patient have revision of the amputation of the great toe to include removal of the nail and nail bed, and reshaping of the skin to allow him to wear regular shoes.
(Claimant’s Medical Ex. 2, p. 38). On July 22, 1997, claimant underwent toe nail ablation, right great toe, and revision amputation, right great toe, and the toe nail was removed with the nail matrix that generates nails. Claimant also underwent revision of the stump at the tip of the lateral side to reshape his great right toe. (Claimant’s Medical Ex. 2, p. 39). Claimant received a 17% impairment rating to his right foot, (Claimant’s Medical Ex. 3, p. 57), a 10% permanent physical impairment rating to his lower extremity, (Claimant’s Medical Ex. 2, p. 45), and a 5% impairment rating to his body as a whole. (Claimant’s Medical Ex. 4, p. 2). Claimant continued to have pain in his foot and was unable to wear the steel-toed boots required for work.
Claimant returned to duty on September 24, 1997, but he could not work because of his pain. Dr. Michael Webber, opined on October 29, 1998, “I do feel that further surgery on the great toe nail would be of further benefit to relieve dorsal tenderness of this toe.” (Claimant’s Medical Ex. 4, p. 3). He further stated that he was not sure this surgery would help return the claimant to work because claimant is complaining more of pain underneath the toes than on top of them.
Dr. Webber performed a permanent great toenail ablation of claimant’s right great toe in April of 1999, and he removed a cyst from claimant’s great right toe in May of 1999. Claimant continued to have pain in his toes, particularly in the great toe and second toe. Dr. Webber stated that another surgery could possibly:
I told him that I’d really like him to not have anything further done to this foot, because I can’t be sure that it would help him, but he feels he has to have something done because he’s so disabled being unable to wear shoes.
I told him the only thing I can think that would be reasonable would be to excise the distal phalanx from his great toe, and the middle phalanx from his second toe, and shorten them slightly. This would hopefully prevent them from rubbing and relieve the pain. I told him it’s not guaranteed to help him, but he still wants to have it done.
(Claimant’s Medical Ex. 5, p. 2). Claimant brings this appeal to make respondents liable for this procedure.
II. ADJUDICATION
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a). Injured employees have the burden of proving, by a preponderance of the evidence, that medical treatment is reasonably necessary for treatment of the compensable injury. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 1996); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).
Dr. Webber testified by deposition that he was unsure whether a distal phalanx — a further amputation and shortening of the toe — would actually help claimant, but he felt that it was reasonable given the amount of pain claimant was experiencing.
Claimant has been unable to wear a steel-toe work boot due to the tenderness of his toes. Dr. Webber stated that surgery could alleviate this tenderness. He further stated that if claimant’s bone and distal phalanx are causing the pain, then he could be assured that this surgery would alleviate that pain, “But I’m not 100 percent sure of that, and that’s why I can’t say that it would cure him.” (Respondent’s Ex. 2, p. 18).
[I]s it conceivable that that sort of tenderness might be relieved to the extent that perhaps he could wear a construction boot?
I think that that’s true.
[Could] this surgery put him physically in a position where he might ultimately be able to return to that kind of work, if he has a good result. Would that be fair to say?
I think you could say that. . .
If he is not able to be returned to the work of a construction area, which he has done for some time, would you recommend perhaps that he be retrained in some other work that does not necessitate the use of like a work boot or maybe even a shoe?
I think that would be fine.
(Respondent’s Ex. 2, p. 12-13). Dr. Webber further testified that he felt this surgery was reasonably necessary to treat claimant’s compensable injury, “I would say that it’s certainly not clearly unnecessary surgery, and it’s not — it’s not clearly just a, you know, attempt to Milk the system or anything like that. It’s reasonable.”
Notably, the surgery Dr. Webber recommends would be done outpatient at a cost of about $500, plus any other procedure and facility costs and post-treatment medications. (Respondent’s Ex. 2, p. 16, 18). We find it questionable that respondents would controvert such an inexpensive surgery, particularly if it might help return claimant to some type of gainful employment.
Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Tina Haskins v. TEC, Full Workers’ Compensation Commission, June 20, 1991 (D704562). An employer may also remain liable for medical treatment reasonably necessary to maintain a claimant’s condition after the healing period ends. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845
(1983).
Dr. Webber noted that while he was unsure of the source of claimant’s tenderness, he believed this surgery to be reasonably necessary to treat claimant’s compensable injury. This Commission finds that clearly this surgery is reasonably necessary in light of claimant’s pain due to his compensable injury. I further find that claimant presented credible evidence on the amount and severity of pain he is experiencing. Dr. Webber testified that while he did not know the claimant very well, he had no reason to believe that claimant’s complaints of pain are exaggerated.
For the reasons stated herein, the Full Commission finds that the Administrative Law Judge’s decision is hereby reversed and that claimant be awarded medical costs associated with this surgery.
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.
______________________________ SHELBY W. TURNER, Commissioner
______________________________ MIKE WILSON, Commissioner
Chairman Coffman concurs.
I concur in the award of benefits for the following reasons. The claimant sustained a significant crush injury to the toes of one foot in 1996, and despite several procedures, his foot is still too tender to wear a boot so he can return to work. It appears that the minor additional amputation surgery at issue is the only thing Dr. Weber has left to try to reduce the claimant’s foot pain sufficiently so the claimant can try to wear a shoe/boot. If the claimant cannot wear a shoe or boot on his right foot, his chances of ever returning to gainful employment are questionable.
Under these circumstances, the additional amputation surgery at issue by Dr. Weber has potentially great benefit (permitting the claimant with debilitating foot pain to decrease his pain sufficiently to begin wearing a boot and return to work), relatively little cost, and relatively little risk. While Dr. Weber has had an understandably difficult time assessing the odds of additional amputation helping the claimant since the prior procedures have not already relieved the pain, it certainly appears to me that the potential benefits of the proposed procedure far outweigh the cost and potential risks in this case, where the claimant is not working without the minor procedure, and will be able to return to work if the relatively minor procedure achieves its intended goal.
Further, I point out that, the dissent’s comments notwithstanding, no physician has ever opined that “the probability of the claimant obtaining relief from the proposed surgery is highly doubtful, at best.” Therefore, the dissent’s medical prognosis is not based on evidence in the record.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
I respectfully dissent from the majority opinion finding that the proposed surgical procedure is reasonable and necessary medical treatment. In my opinion, the claimant has failed to prove by a preponderance of the evidence that the additional surgery proposed by Dr. Webber is reasonably necessary treatment for the claimant’s compensable injury.
Dr. Webber has indicated that he preferred not to do anything additional to the claimant’s foot. The evidence indicates that the proposed surgery has been suggested only because the claimant insists that something else be done and because this is the only remaining procedure that can be performed. I would note that the evidence establishes that the claimant’s complaints are much greater than they should be for the injury that he sustained. Further, the probability of the claimant obtaining any relief from the proposed surgery is highly doubtful, at best. Therefore, in my opinion, the evidence fails to prove that the proposed surgery is reasonably necessary medical treatment for the claimant’s compensable injury.
Therefore, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner