CLAIM NO. F003312
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 9, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by the HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on April 2, 2002. In that opinion and order, the Administrative Law Judge found that the respondents are liable for the claimant’s right knee replacement surgery at issue, and for associated benefits. After conducting a de novo review of the entire record, we find that the claimant has failed to establish by a preponderance of the evidence that the knee replacement surgery performed by Dr. Foster was reasonably necessary treatment for the claimant’s admittedly compensable knee injury. Therefore, the decision of the Administrative Law Judge must be reversed.
The claimant was employed by the respondent hospital for 28 years as a nurse’s aide. On March 13, 2000, the claimant sustained an admittedly compensable knee injury when she twisted her knee and hit it against a bed rail. The claimant came under the care of Dr. Doug Foster, an orthopedic specialist. Dr. Foster performed arthroscopic surgery to repair a meniscal tear on April 3, 2000. The respondents accepted liability for Dr. Foster’s meniscal repair surgery. Dr. Foster later performed the total knee replacement surgery at issue on November 19, 2000.
Act 796 of 1993 did not change the general law regarding an employer’s duty to provide medical treatment. Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). However, injured workers have the burden of proving by a preponderance of the evidence that medical treatment is causally related to and reasonably necessary for treatment of the compensable injury. 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 seeks to remedy.
In the present case, we find for several reasons that the claimant has failed to establish that Dr. Foster’s total knee replacement surgery was reasonably necessary to treat her work-related knee injury. First, as we understand Dr. Foster’s deposition testimony, the total knee replacement surgery was necessary because of a preexisting degenerative chondromalacia condition in the claimant’s knee. In this regard, Dr. Foster testified:
A. However, in the initial surgical treatment, the arthroscopy was geared to address [her meniscal tear] and the further surgery she had, the knee replacement, was an attempt to address her main parts of the problem that did not improve with arthroscopic.
Q. All right. Now, I didn’t hear everything you said. Could you repeat the last sentence?
A. Her total knee replacement —
Q. Yes, sir.
A. — was addressed to fix her main problems that she had with her knee that didn’t improve with the arthroscopic surgery.
Q. And that main problem was what?
A. Chondromalacia.
Q. And that was a major cause, the major reason for her total knee replacement?
A. Yes. (Dep. 10)
Second, we point out that Dr. Foster’s office note and his deposition testimony both indicate that the claimant had only grade 3 chondromalacia at the time Dr. Foster performed surgery. He has also acknowledged that the claimant elected to have knee replacement surgery, and that he agreed to perform knee replacement surgery when he did because of the claimant’s concern that she would soon be losing group insurance coverage.
Third, we are persuaded by the December 20, 2001 written report of Dr. Lowry Barnes, an orthopedic specialist in Little Rock who reviewed the claimant’s records, and agreed that the claimant’s twisting injury could have caused meniscal injury, but that the claimant did not have significant trauma to the knee to lead to significant enough post-traumatic arthritis so that she would require total knee replacement for her on-the-job injury.
Fourth, we are persuaded by the “CORE” peer review analysis report from September 20, 2001 in the record which opines that a total knee replacement was not medically indicated when performed by Dr. Foster, and was not related to the work injury, because although the incident may have produced the symptoms, the meniscal tears and chondromalacia were preexisting, and because the arthroscopic findings from pre-surgical MRI did not identify end-stage (grade 4) degenerative arthritis of the right knee.
Furthermore, as the respondents’ brief also notes, post-surgical improvement or lack thereof also is certainly a legitimate criteria to consider in determining whether or not a particular medical treatment is reasonably necessary. See Hill v. Baptist Medical Center, 74 Ark. App. 250, 48 S.W.3d 544 (2001). In the present case, the claimant has had essentially no improvement in her knee symptoms since the time of knee replacement surgery.
Therefore, 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 the respondents are liable for the total knee replacement surgery at issue and for benefits associated with that surgery.
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I must respectfully dissent from the finding in the majority opinion that claimant failed to prove by a preponderance of the evidence that the total knee replacement surgery was reasonably necessary treatment for her admittedly compensable knee injury. In my opinion, claimant has met her burden of proof and, accordingly, the opinion of the Administrative Law Judge should be affirmed.
It is not surprising that Dr. Leela Rangaswamy, who apparently authored the “CORE” peer review analysis report, concluded that the total knee replacement surgery was not medically indicated when Dr. Foster performed the operation in December 2000 and that the surgery was related to claimant’s preexisting condition, as opposed to the work-related injury. I simply refuse to accord more weight to a physician reviewing only medical records than to Dr. Foster, who had the benefit of personally observing claimant’s clinical presentation deteriorate over the months following the work-related injury. Additionally, I note that Dr. Lowry Barnes, an orthopedic surgeon who reviewed some medical records for respondent, never opined that the total knee replacement surgery was contraindicated. He certainly never stated that a total knee replacement would only be indicated for end stage degenerative conditions.
I also acknowledge Dr. Barnes’ opinion that the work-related trauma to claimant’s knee was insufficient to produce enough “post trauma arthritis” to eventually require total knee replacement surgery. However, this opinion ignores or misses the point. There has never been any contention that the work-related accident caused the degenerative condition in claimant’s knee. The focus must be on whether the work-related accident aggravated, precipitated, accelerated, or combined with the preexisting condition to produce the subsequent disability and/or need for treatment. Even Dr. Rangaswamy acknowledged that the work-related “incident may have produced the symptoms,” and Dr. Barnes stated that the twisting injury to her knee “could have caused meniscal injury.” Granted, these opinions may not be stated within a reasonable degree of medical certainty, but as pointed out below, Dr. Foster’s opinion easily meets this standard.
While portions of Dr. Foster’s testimony appear to support the majority’s denial of benefits, a close review of his testimony as a whole leads to the ultimate conclusions that the work-related injury aggravated claimant’s preexisting condition and was the major cause of the need for total knee replacement surgery.
Q. What causes a degenerative meniscal tear?
A. A couple of things. First off for a degenerative meniscal tear to occur, you have to have a degenerative meniscus or some type of arthritis in your knee to begin with. What happens the natural history of an arthritic knee is the articular cartilage generally softens first, the articular cartilage being the cartilage on the ends of the bone, and develops problems and subsequently becomes soft and friable and flaky.
The meniscus is actually, can preserve knee problems for a while. The meniscus is an interposition cartilage between the articular surfaces of the knee joint, so as long as your menisci are intact or stable, you can have chondromalacia and not have any symptoms.
Q. Okay.
A. But eventually what happens is the meniscus itself becomes damaged or abnormal and once it becomes torn or injured the continuity of that interposed between two abnormal surfaces leads to problem and pain and complaints.
Q. Is that just the normal degenerative process with these types of situations?
A. It certainly can be that way.
Q. And was it that way with Miss Fletcher?
A. Yes.
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Q. Go ahead, Doctor.
A. In Mrs. Fletcher’s case, she gives a precipitating cause. These menisci are quite friable, in other words, they can be easily torn or injured, and when they are, they become symptomatic, they might need something done.
Q. Okay. And are they more friable in a person such as Miss Fletcher with that type of degenerative problem than they would, say, in somebody that (sic) a healthy knee?
A. Well, somebody with a healthy knee should not have a degenerative meniscus as a rule.
Q. Okay. And is there a way in your opinion to determine the major cause of her problem? Would it be the degenerative meniscal tear, the degenerative problem that she had, or would it be a specific incident?
* * *
A. I would say in Betty Fletcher’s case (sic) precipitating problem was her meniscal tear.
Q. Okay. And are you able to tell us what —
A. I’d like to finish.
Q. Yes, sir, I’m sorry; I didn’t mean to interrupt you, Doctor.
A. However, in the initial surgical treatment, the arthroscopy was geared to address that and the further surgery she had, the knee replacement was an attempt to address her main parts of the problem that did not improve with arthroscopic.
Q. All right. Now, I didn’t hear everything you said. Could you repeat the last sentence.
A. Her total knee replacement —
Q. Yes, sir.
A. — was addressed to fix her main problems that she had with her knee that didn’t improve with the arthroscopic surgery.
Q. And that main problem was what?
A. Chondromalacia.
Q. And that was a major cause, the major reason for her total knee replacement?
A. Yes.
Q. Okay. I noticed in one of your reports that you had referred (sic) to going ahead and doing the surgery for the total knee because she had group health insurance or health insurance was going to run out. Would you tell me what you meant by that and what your thinking was at that time?
A. My thinking was with Betty Fletcher is that Betty Fletcher really never did respond to arthroscopic surgery too well. She still had problems with her knee. And one of the reasons for that is because of the problems that she had and the other reason is surgical, in other words, when we debride these, we actually do shave off loose pieces of cartilage and trim and form pieces of cartilage in an attempt to try to restore some continuity. And in her case, it actually, it failed to help her at all.
The eventuality was with Betty Fletcher that she was going to need a knee replacement. The question was when was that going to occur and to Betty Fletcher’s way of thinking who was going to pay for it.
* * *
Q. Do you have an opinion as to what occurred to Miss Fletcher on March the 13th, I believe it is, of 2000?
A. Are you referring to her when she twisted her knee at work that day?
Q. If she twisted her knee.
A. Miss Fletcher — people who have, people who are in Miss Fletcher’s situation can actually be asymptomatic and I think what occurred is that she had a degenerative meniscus and she also had some chondromalacia and developed an acute meniscal tear and that acute meniscal tear made her symptomatic.
A preexisting disease or infirmity does not disqualify a claim, if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought.Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664
(1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979). Claimant’s preexisting obesity is of no consequence because the employer takes the employee as he finds him.Murphree, supra.
Based on the evidence that claimant had no prior problems with her knee, that she was functioning without symptoms in her knee prior to the March 2000 compensable injury, that this injury precipitated or triggered claimant’s symptoms by causing a meniscal tear, and that this tear and the aftereffects of the surgical procedure to address it accelerated the need for total knee replacement surgery, I find that claimant has proven by a preponderance of the evidence that she is entitled to the additional benefits sought. See Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001); Janet Roberts v. Baxter International, Full Commission Opinion filed April 12, 2001 (E714829); Kenneth Pardon v.Seark Substance Abuse Center, Full Commission Opinion filed March 11, 2002 (F014289).
Finally, respondent points to Dr. Foster’s reference to the fact that claimant was about to lose her group health insurance. However, what was claimant to do? Dr. Foster had repeatedly informed her since June 2000 that she would eventually need total knee replacement surgery, and respondent had made it clear that such surgery would be controverted as not work related. In my opinion, she was left with no real choice in this matter. She submitted to surgery, when she continued to have debilitating symptoms. Moreover, there is no evidence whatsoever that her group health insurance carrier refused to pay for the surgery because her knee supposedly was not at end stage degeneration. I note that the diagnosis of Grade III, as opposed to the greatest Grade IV degeneration, was made eight (8) months before the replacement surgery was performed on December 19, 2000. Further, Dr. Foster believed the surgery was medically necessary and Dr. Barnes certainly did not indicate otherwise.
For the foregoing reasons, I must respectfully dissent. The opinion of the Administrative Law Judge should be affirmed in its entirety.
_______________________________ SHELBY W. TURNER, Commissioner