FOSTER v. WAL-MART STORES, INC., 1999 AWCC 3

CLAIM NO. E612307

ROSALYN FOSTER, EMPLOYEE, CLAIMANT v. WAL-MART STORES, INC., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 5, 1999

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.

Respondent represented by HONORABLE ANGELA M. DOSS, Attorney at Law, Fayetteville, Arkansas.

Decision of the Administrative Law Judge: Affirmed in part; reversed in part.

OPINION AND ORDER
The respondent appeals an opinion and order filed by the administrative law judge on January 22, 1998. In that opinion and order, the administrative law judge found that the claimant is entitled to additional medical treatment for the compensable back injury that she sustained on July 25, 1996, that the claimant is entitled to a change of physician, and that Dr. Thomas Hart is appointed as the claimant’s authorized treating physician. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that she is entitled to additional medical treatment for the compensable back injury that she sustained on July 25, 1996. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. However, we also find that the claimant failed to establish that she is entitled to a change of physician. Therefore, we find that the administrative law judge’s decision in this regard must be reversed.

The underlying factual issues regarding the claimant’s request for additional medical treatment in this case are (1) Whether the claimant aggravated her degenerative disc disease condition on July 25, 1996 in addition to experiencing a herniated disc, (2) Whether or not that aggravation, if it occurred, had already resolved by September 10, 1996, and (3) Whether any additional medical treatment that she seeks is solely for the underlying degenerative disc disease and not for the alleged work-related aggravation.

To the extent that the respondent seems to assert that the claimant never actually experienced an aggravation of her underlying degenerative disc disease as a result of the lifting incident on July 25, 1996, we note that Dr. Marshall, the general practitioner to whom Wal-Mart initially referred the claimant, indicated in the diagnosis section of his September 4, 1996, report that he felt the claimant’s generalized disc disease and protrusion at L5 were, most likely, long-standing conditions “but were aggravated by her work” (emphasis added). Likewise, we note that the September 10, 1996, consultation report of Dr. Honghiran, the specialist to whom Wal-Mart referred the claimant for an orthopedic consultation, indicated in the impression section of his report as follows:

It is my impression this lady sustained an injury at work and she has evidence of a herniated disc at L-5, S-1 level. She has a pre-existing condition of degenerative disc disease at L-5, S-1 and L-4, 5 and the job injury does aggravate the pain that she has. Her prognosis is poor. I believe that she will continue to have pain in her back and leg in the future. She was recommended to try a week of DepoMedrol Dosepak to see if this would help relieve the leg pain and hip pain that she has and she might benefit from a (sic) epidural injection, if the pain persists. At this time I would recommend her to continue on conservative measures but there is the possibility in the future that she might need surgical treatment. I would rate her impairment to be seven percent of the body as a whole as a result of the injury of her back without surgery.

We also note that there is no evidence in the record that the claimant has ever experienced, or been treated for, any back, hip, buttock, or leg pain prior to the incident on July 25, 1996. In addition, the claimant testified that she has never been treated for any back pain prior to July 25, 1996. Based on the impressions of Dr. Marshall and Dr. Honghiran, and the claimant’s testimony that she did not have any back symptoms before the July 25, 1996 incident, we find that the claimant proved by a preponderance of the evidence that the July 25, 1996 incident aggravated the claimant’s preexisting degenerative back abnormalities.

We note that the respondent’s December 19, 1997, letter in the record to the administrative law judge asserts that: “the respondent has further taken the position to continue treatment after September 10, 1996, is solely necessitated by the preexisting degenerative disc disease and that it is not reasonable and necessary in relation to the compensable injury”. However, we further conclude from Dr. Honghiran’s September 10, 1996, report that Dr. Honghiran also felt that the claimantwould require the additional conservative treatment that he indicated in that report, and that the claimantmay also require additional surgical treatment related to that aggravation. Consequently, we find on this record that the claimant also established by a preponderance of the evidence that additional medical treatment after September 10, 1996,would be reasonably necessary for her work-related aggravation.

In reaching our decision, we note that the respondent’s brief on appeal also argues that the claimant must establish by a preponderance of the evidence that the claimant’s work-related injury on July 25, 1996 (and not the claimant’s preexisting degenerative disc disease), is the “major cause” of her present need for medical treatment in order to prevail on her claim for additional medical treatment.

In assessing the potential merit of this legal argument, we initially note that the respondent’s brief on appeal misquotes Ark. Code Ann. § 11-9-102(5)(F)(ii)(b), the statutory provision which apparently forms the basis of the respondent’s “major cause” argument. In addition, we note that the Arkansas Court of Appeals delivered a decision on May 13, 1998, (five days after the respondent filed its reply brief), which addressed and specifically rejected the major cause argument raised by the respondent in this case. See, General ElectricRailcar v. Hardin, 62 Ark. App. 120, ___ S.W.2d ___ (1998).

In reaching our decision, we note that the dissent, relying on a referral report from Dr. Reginald Rutherford, also asserts that any additional conservative medical treatment that the claimant might receive after Dr. Rutherford’s July 3, 1997 “second opinion” would be causally related solely to the claimant’s underlying degenerative disc disease and not at all to the claimant’s work-related aggravation to that condition. After reviewing the reports of Dr. Marshall, Dr. Honghiran, Dr. Rutherford, and Dr. Hart, and all other evidence properly in the record, we do not reach the same conclusion as the dissent. According to Dr. Rutherford’s July 3, 1997, “second opinion” report, Dr. Rutherford performed a clinical examination, Dr. Rutherford proposed a psychological evaluation and EMG testing, and Dr. Rutherford opined that if the claimant’s EMG testing was negative, that, in his opinion, all of the claimant’s present complaints are due to her underlying degenerative disc disease and not to any work-related injury that she sustained on July 25, 1996. The claimant’s EMG testing came back with no abnormality. On that basis, the dissent asserts that Dr. Rutherford’s analysis of the claimant’s medical condition supports a finding that all of the claimant’s present problems are causally related to her underlying degenerative disc disease and not the work-related injury (herniated disc) that she sustained on July 25, 1996.

However in December of 1997, just days prior to the hearing in this case, Dr. Hart performed diskography and post-diskography CT testing in the claimant’s lumbar spine which apparently indicated significant degenerative problems at several levels and, also, apparently indicated a leak of the dye through the discs at the L3-4 and L5-S1 levels. Based on the diskography and post-diskography CT scan results, Dr. Hart apparently feels that the claimant’s pain complaints are legitimate and are verifiable by his diskography testing.

In the present case, we place considerably more weight on the records and conclusions of Dr. Marshall, Dr. Honghiran, and Dr. Hart than on the report of Dr. Rutherford, for the following reason. Dr. Rutherford appears to base his analysis on causation on EMG testing. However, we note that, to our knowledge, EMG testing is indicative of abnormality in the function ofnerves, and is in no way indicative of the etiology ofback pain which in this case is clearly associated withdisc abnormalities, not nerve abnormalities. Consequently, we find that Dr. Rutherford’s EMG testing and data have no relevance and are totally unpersuasive on the issue as to whether the claimant’s back pain in July of 1997, was causally related solely to her underlying degenerative disc abnormalities, or instead to her work-related aggravation of that condition. In light of the reports of Dr. Marshall and Dr. Honghiran indicating that the claimantdid sustain a work-related aggravation, the evidence that the claimant never had any back problems prior to her work-related injury, the lack of credible evidence in the record which might suggest that the claimant’s work-related aggravation had resolved, and Dr. Hart’s objective diagnostic test results later in 1997, which apparently validated the claimant’s persistent post-injury subjective complaints, we find that the claimant proved by a preponderance of the evidence that the condition for which she sought medical treatment in July of 1997 and in December of 1997, was her work-related injury, and not her underlying degenerative disc disease which was asymptomatic prior to the work-related aggravation.

However, we also find that the claimant has failed to establish that she is entitled to a change of physician from Dr. Honghiran to Dr. Hart or to Dr. Peek, as she suggests. In reaching that conclusion, we note that the claimant testified at the hearing that she became dissatisfied with Dr. Honghiran, testifying “he didn’t even check my back, wasn’t concerned with my back . . .” According to the claimant, she went to Dr. Hart on her own initiative because she purportedly was not “getting any results” from her other physicians.

In assessing the weight to be accorded the claimant’s testimony in this regard, however, we note that by the time the claimant had abandoned Dr. Honghiran’s care, the claimant had self-terminated two rounds of physical therapy which were prescribed between July and September of 1996 (the claimant advised her physicians that she stopped going to physical therapy because this treatment aggravated her pain). In addition, we note that the claimant did not fill Dr. Honghiran’s prescription for DepoMedrol Dosepak, and in this regard the claimant testified at the hearing that she did not fill Dr. Honghiran’s prescription because she “lost” it. In addition, we note that Dr. Honghiran’s report which prescribed the Dosepak also scheduled follow up to see the effectiveness of Dosepak treatment, to consider epidural injections if the claimant’s pain persisted, and to also continue following the claimant for possible surgical intervention. In light of the evidence that the claimant self-terminated physical therapy, did not fill her doctor’s prescription and then abandoned her physician in the course of what appears to have been appropriate conservative treatment, we find that the claimant’s testimony that Dr. Honghiran “didn’t even check my back, wasn’t concerned with my back” is entitled to no weight. In reaching that conclusion, we note that even Dr. Hart has indicated that, if the claimant were re-assigned to his care, he would refer the claimant back to Dr. Honghiran, if surgery were indicated. Consequently, after considering the claimant’s testimony, Dr. Honghiran’s reports, Dr. Hart’s reports, and all other evidence in the record, we find that the claimant has failed to present any credible justification that would warrant a change of physician from Dr. Honghiran, and on this record, we find that Dr. Honghiran is the claimant’s authorized treating physician for future medical treatment.

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

Commissioner Humphrey concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION
I concur in part and respectfully dissent in part. I concur in the findings that the incident of July 25, 1996, aggravated claimant’s pre-existing degenerative back abnormalities, and that she is entitled to receive additional medical treatment for the work-related aggravation. However, I must respectfully dissent from the finding that claimant is not entitled to a physician change. I cannot agree that claimant’s testimony is entitled to no weight with respect to the change of physician issue. In my opinion, claimant clearly articulated her reasons for desiring a physician change.

Dr. Honghiran was selected by respondents. She became dissatisfied with Dr. Honghiran because “he didn’t even check my back, wasn’t concerned with my back . . .” Claimant’s request for a physician change to a doctor of her choice was rejected by respondents. Instead, respondents sent claimant to Dr. Rutherford.

Claimant explained that she is not pain-free. She decided to obtain treatment from Dr. Hart. Claimant stated that she knew that respondents would not pay for her visit to Dr. Hart. Nevertheless, claimant consulted Dr. Hart because she was not “getting any results” from the other physicians. Although claimant proposed the names of two physicians to the Administrative Law Judge, she readily agreed to accept any physician chosen by the Commission.

I am satisfied with claimant’s rationale for seeking a physician change. Thus, I find that she is entitled to a physician change.

Based on the foregoing, I concur in part and respectfully dissent in part.

_______________________________
PAT WEST HUMPHREY, Commissioner

Commissioner Wilson concurs in part and dissents in part.

CONCURRING DISSENTING OPINION
I concur in part and respectfully dissent in part. Specifically, I must dissent from the finding that claimant is entitled to additional medical treatment. However, I concur that claimant has failed to prove entitlement to a change of physician.

It was claimant’s personal belief that she was not getting the desired results from the authorized physicians, therefore, she requested a change of physician and entitlement to additional medical treatment. After making her request, claimant sought additional medical treatment on her own, outside the authorized chain of physicians. Prior to filing a formal request for a change of physician and entitlement to additional medical treatment, claimant was evaluated by Dr. Reginald Rutherford for a second opinion. Contrary to claimant’s testimony regarding her understanding of Dr. Rutherford’s examination, it is clear in Dr. Rutherford’s July 3, 1997, report that Dr. Rutherford advised her that she was being seen for a second opinion and that he would not be assuming the responsibility for her medical care. Dr. Rutherford’s July 3, 1997, report reveals that he took a detailed history from claimant, reviewed her medical records including the MRI film, and conducted a physical examination of the claimant. Dr. Rutherford concluded his report by stating:

With respect to the questions as posed in the covering letter, I would consider Ms. Foster’s complaints to be work-related if it may be demonstrated on electrodiagnostic testing that she does in fact have lumbar radicularpathy and the changes as noted on the electromyographic examination correlate with the findings on her MRI study. If the EMG is normal, I would then consider Ms. Foster’s complaints to be solely referable to degenerative disc disease and functional overlay, the latter in essence meaning that Ms. Foster’s complaints are subject to exaggeration, the underlying substrate for which being potentially clarified via psychological evaluation if this is approved and undertaken, the recommended examiner in this field being Dr. Judy White Johnson.

Pursuant to Dr. Rutherford’s request, an electromyographic exam was performed by Dr. John L. Kareus on August 19, 1997. Dr. Kareus read the electromyogram as showing “Normal EMG and nerve conduction study of the right leg with the exception of absence of the H-reflex bilaterally, of questionable significance.” Consequently, pursuant to Dr. Rutherford’s opinion, he would consider claimant’s complaints in light of the normal EMG to be the sole result of degenerative disc disease and functional overlay.

As previously noted, claimant sought additional medical treatment on her own outside the authorized chain of physicians. Claimant’s first physician of choice was Dr. Richard Peek, however according to claimant’s testimony he declined to schedule claimant for an appointment. Claimant then chose Dr. Thomas Hart. In his November 18, 1997 history and physical evaluation, Dr. Hart indicated that he was unable to retrieve medical records from Dr. Rutherford and thus he relied upon claimant as the sole historian with regard to her complaints and medical treatment. In Dr. Hart’s December 11, 1997, Clinical and Procedure Note he stated that he eventually received a copy of Dr. Rutherford’s second opinion dated July 3, 1997. Although Dr. Hart disagreed with Dr. Rutherford’s final conclusion, Dr. Hart stated that Dr. Rutherford’s July 3, 1997, report “was a very thorough history and physical evaluation . . .” On December 11, 1997, Dr. Hart performed a provocative discography which revealed the following finding:

In summary, L1-2 appears to be a normal disc, L2-3 is a disrupted disc with a significant amount of pain reproduced and abnormal pressures. 3-4 was a markedly abnormal disc. There appears to be a herniation reproducing mainly her back and buttock pain, markedly abnormal disc, abnormal pressures. 4-5 appears to be disrupted, some abnormal pressures, very minimal amount of pain was reproduced. At L5-S1, it was markedly abnormal, degenerated, shows a leak posteriorly with reproducing her right lower extremity pain complaints, all the way to her foot.

The discography is a subjective test which confirmed claimant’s subjective complaints of pain based upon claimant’s subjective responses.

While claimant did sustain a compensable herniation at the L5-S1 level, I find that the preponderance of the evidence reveals that claimant’s current back complaints are a result of her degenerative disc disease. As evidenced by the provocative discography performed by Dr. Hart, claimant’s most painful area lies within the L3-4 disc space. I am not persuaded to find that the pain in this area is attributed to claimant’s compensable injury which resulted in the herniated disc at L5-S1 and not claimant’s underlying degenerative disc disease. Claimant is seeking medical treatment to address her back pain. In as much as claimant’s current back pain is a result of claimant’s pre-existing underlying degenerative disc disease, I cannot find that additional treatment is being sought to remedy claimant’s compensable injury.

If in the future it is determined that claimant needs surgical intervention for the L5-S1 herniated disc, such medical treatment may more than likely be reasonable and necessary medical treatment of claimant’s compensable injury. However, it is my opinion that medical treatment for claimant’s generalized back complaints which according to the provocative discography is associated with the degeneration at L3-4, is not, and cannot be reasonable and necessary medical treatment of claimant’s compensable injury.

Accordingly, for those reasons stated herein, I must respectfully dissent from the principal opinion finding that claimant is entitled to additional medical treatment to address her back pain. However, for those reasons expressed in the principal opinion I find that claimant is not entitled to a change of physician.

______________________________
MIKE WILSON, Commissioner