CLAIM NOS. D908862 E706902.
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 3, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by KEITH M. McPHERSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals a March 7, 2000 opinion of an Administrative Law Judge finding that the proposed intradiscal electrothermal therapy (IDET) is not reasonably necessary treatment in connection with claimant’s compensable back injury.
Claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 1996); Jordanv. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Swift- Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). It is respondents’ obligation to provide medical services reasonably necessary for treatment of the compensable injury. Ark. Code Ann. § 11-9-508(a) (Repl. 1996). What constitutes reasonably necessary medical treatment is a question of fact to be determined by the Commission. Gansky v.Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). After our de novo review of the entire record, we find that claimant has met her burden of proof and accordingly, the opinion of the ALJ is reversed.
Claimant sustained an admittedly compensable lower back injury in June 1989. As a result of an opinion filed by another ALJ in January 1998, a May 10, 1997 incident was deemed to be a mere recurrence and claimant’s entitlement to compensation benefits continued. Over the years, claimant has experienced severe and continuous back pain with periodic sharp pains radiating into the lower extremities. She takes prescription medications on a daily basis. Claimant’s treating physicians have been Drs. J. Tod Ghormley and Edward H. Saer. At this time, Dr. Saer does not believe claimant is a candidate for a fusion and has therefore, recommended that claimant undergo the relatively new,(but not experimental), IDET procedure. Dr. Ghormley also opined that the procedure “would be helpful” and that the risks “would probably be minimal.” These are the only medical opinions in the record concerning whether claimant is a viable candidate for this new and very promising procedure. There certainly are no medical opinions to the contrary. Respondents counter the opinions of claimant’s treating physicians with information acquired through the Internet. We specifically accord greater weight to the opinions of two treating physicians than the rebuttal evidence offered by respondent. Therefore, we find that based on these medical opinions, claimant has proven by a preponderance of the evidence that the IDET procedure is reasonable and necessary.
For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that the IDET procedure is not reasonably necessary treatment in connection with claimant’s compensable injury. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.
IT IS SO ORDERED.
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PAT WEST HUMPHREY, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion’s finding that the claimant has proven by a preponderance of the evidence that the IDET procedure is reasonably necessary for treatment of the claimant’s medical condition. The dissent complains that there has been inadequate evidence presented discussing the procedure, describing the potential benefits, discussing the probability of success, the procedure risks and the potential complications. The dissent concludes that there is no evidence to conclude that the IDET procedure is reasonably necessary for treatment of the claimant’s injury. For his part, the administrative law judge found that the IDET is a new procedure that the Commission is not familiar with.
While the administrative law judge may not yet be familiar with the IDET procedure, the Full Commission is now familiar with the procedure. In fact, the Full Commission issued an unpublished opinion on May 18, 2000 in another case in which we considered the IDET procedure, and a majority of the Full Commission found the procedure reasonably necessary for treatment of an injured worker’s back injury. I point this out not for the purpose of relying on any evidence presented in the prior case, but solely to address the administrative law judge’s statement that the Commission is not familiar with the IDET procedure.
In the present case, Dr. Saer indicated in his May 18, 1999 note that he felt the claimant is a candidate for IDET. In his July 19, 1999 note, Dr. Ghormley noted that the claimant had a lot of problems, that he agreed that sending her to Dr. Saer for IDET would be helpful, and that the risks would probably be minimal. Consequently, the dissent is clearly in error in stating that there has been no evidence introduced that shows that the IDET procedure is reasonably necessary for the treatment of this claimant’s compensable injuries. Quite the contrary, both Dr. Ghormley and Dr. Saer have indicated that IDET is appropriate for the claimant’s condition.
In short, I do not agree with the dissent’s argument that the claimant has failed to meet her burden of proof that the intradiscal electrothermal treatment is reasonable and necessary medical treatment, where, as here, the medical opinions in the record indicate that this patient is, in fact, a candidate for IDET, that IDET would be helpful, and that the risks would probably be minimal. The respondents’ literature and documentation from the internet simply fails to rebut the expert medical opinions of Dr. Saer and Dr. Ghormley that the claimant is a candidate for IDET, that IDET would be helpful, and that the risks would probably be minimal. It is the respondents, not the claimant, who alleged that the IDET procedure is too experimental to treat the claimant. Under these circumstances, it appears to me that it is the respondents, and not the claimant, who have failed to support their allegations with credible evidence. If the carrier consulted any physicians in the present case, the carrier did not put any evidence of those consultations into the record to rebut the expert medical opinions of Dr. Saer and Dr. Ghormley. Therefore, for all of the foregoing reasons, I concur that the decision of the administrative law judge must be reversed.
________________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority’s opinion finding that the claimant has proven by a preponderance of the evidence that the intradiscal electrothermal treatment (IDET) is reasonable and necessary medical treatment for the claimant’s compensable injuries. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
The claimant sustained an admittedly compensable injury on June 5, 1989, and a recurrence of that injury on May 10, 1997. Presently, the claimant is seeking medical treatment in the form of an IDET procedure that has been recommended by Dr. Saer and Dr. Ghormley her treating physicians. The respondents contend that they have paid all reasonable and necessary medical expenses and related benefits and that the intradiscal electrothermal treatment is not reasonably necessary for the treatment of the claimant’s compensable injuries. I agree with the respondents.
The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary. Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 (D612291); B.R. Hollingshead v.Colson Caster, Full Commission Opinion, Aug. 27, 1993 (D703346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees’ injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857
(1987). In workers’ compensation cases, the burden rests upon the claimant to establish her claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba,Inc., Full Commission Opinion, Dec. 13, 1989 (D512553).
The claimant has been treated conservatively with medication and physical therapy since the occurrence of her 1989 injury. She testified that she has continually experienced rather severe symptoms although she has been able to continue working. The claimant testified that she experiences pain constantly. She has been treated by Dr. J. Tod Ghormley, an orthopedic surgeon and Dr. Edward Saer, a neurosurgeon. These physicians have recommended the intradiscal electrothermal treatment due to her continued complaints.
The intradiscal electrothermal procedure is a relatively new procedure that was developed in 1997. The procedure involves the insertion of a flexible needle into the disc on a horizontal basis so that it circles the disc. Electricity is applied to the needle which causes it to heat creating the therapeutic effect of increasing collagen and closing tears in the annulus. The initial studies have produced promising results however further study was recommended and these long-term studies have not been completed. The FDA has only partially approved the procedure.
The concurrence notes that the Full Commission is familiar with the procedure because of its finding in Judy F.Stone v. Aalf’s Manufacturing Inc., unpublished opinion dated May 18, 2000 (Claim # E813161). In Stone, the Commission found the IDET procedure to be reasonably necessary medical treatment for the claimant’s back injury. I would note that I dissented in theStone case as well. The evidence presented in Stone was much different than the evidence presented in this case. The claimant in Stone offered extensive evidence through the deposition of Dr. Hart. Dr. Hart testified about the procedure, its benefits, and the studies performed by other physicians. In addition, Dr. Hart himself had performed the procedure approximately 50 times. In the case presently before the Commission the claimant failed to offer proof to the degree the claimant in Stone did. No evidence was introduced into the record about the procedure other than the claimant’s testimony and the research done by the respondents on the Internet. There has been no evidence introduced from the claimant’s treating physicians or any other expert familiar with the claimant’s case discussing the procedure, describing the potential benefits, or the probability that the procedure will be successful in alleviating the claimant’s symptoms. We have no evidence about the risks of the procedure or the possibility of additional problems arising as the result of the procedure. In short, there has been no evidence introduced that shows that the procedure is in fact reasonably necessary for the treatment of this claimant’s compensable injuries.
The Commission conducts a de novo review of each and every case presented before it. Every case is judged on its own merits based upon the evidence presented. Because the Commission has deemed an investigative procedure to be reasonably necessary in one case does not mean it is reasonably necessary medical treatment in every case.
Therefore, for the reasons set forth herein, I respectfully dissent from the majority opinion.
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MIKE WILSON, Commissioner