GANSKY v. HI-TECH ENGINEERING, 1994 AWCC 144

CLAIM NO. E218283

RICK GANSKY, EMPLOYEE, CLAIMANT v. HI-TECH ENGINEERING, EMPLOYER, RESPONDENT and HARTFORD INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 17, 1994

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

Claimant represented by the HONORABLE DONALD C. PULLEN, Attorney at Law, Hot Springs, Arkansas.

Respondents represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed in part and vacated in part.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on February 28, 1994. In that opinion and order, the administrative law judge found that the respondents are responsible for continued reasonable and necessary medical treatment, including a functional capacity assessment. In addition, the administrative law judge reserved the claimant’s entitlement to additional temporary total disability compensation.

[3] After considering this claim, we find that the claimant failed to prove by a preponderance of the evidence that further medical treatment is reasonably necessary for treatment of the compensable injury. In light of our decision regarding further medical treatment, we find that reserving the issue of the claimant’s entitlement to additional temporary total disability compensation is not warranted, and we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge’s decision must be reversed.

[4] The claimant began working for the respondent employer as a machinist in June of 1991. He sustained an admittedly compensable injury to his low back on October 31, 1992. According to his testimony, he had been lifting parts weighing approximately 150 pounds all day when his back “finally gave out,” and he began to experience pain from his shoulders, down his back, and into his leg. He left work and sought treatment at the emergency room. X-rays taken at the emergency room did not reveal any abnormality, and an acute lumbar strain was diagnosed.

[5] The claimant was followed by Dr. Jeff Reinhart, a general physician. Dr. Reinhart’s November 2, 1992, notes indicate that his clinical examination revealed lumbar tenderness, some decreased sensation in the lower extremities, and hyperreflexia. Dr. Reinhart suspected possible disc involvement, and, when these findings persisted, he ordered a MRI. This MRI showed bulging discs at L4-5 and L5-S1, but there was no evidence of a herniated nucleus pulposus. Consequently, Dr. Reinhart treated the claimant conservatively with medication and physical therapy. While Dr. Reinhart’s records make little mention of upper spine problems, the notes of the physical therapist, Cleveland Smith, indicate that the claimant complained of soreness and pain in his neck with an accompanying headache. The medical records indicate that the claimant progressively improved with physical therapy. Physical therapy reports indicate that the claimant’s “symptoms [had] been all but alleviated, except for a minimal amount of soreness in the lumbar region” by January 11, 1993. Likewise, Dr. Reinhart’s January 11, 1993, examination revealed “much less tenderness,” with no muscle spasm, and the examination revealed range of motion within normal limits. Dr. Reinhart’s notes of that date also indicate that the claimant advised him that he was ready to return to “partial work,” and Dr. Reinhart released him to light duty work.

[6] The claimant apparently did return to work on January 12 or 13, 1993. However, the physical therapist’s notes indicate that the claimant began to experience pain in his upper back and neck on January 13, 1993, and that he also complained of “tingling” sensations in both arms. Consequently, the claimant contacted Dr. Reinhart and requested additional physical therapy, which Dr. Reinhart approved, and he remained off work the remainder of that week. The claimant did return to work the following Monday, but, on Wednesday, he had to go to the emergency room due to cervical pain and lumbar pain.

[7] Due to the claimant’s persistent problems, Dr. Reinhart referred him to Dr. Allen Gocio, a neurosurgeon. Although Dr. Gocio had previously treated the claimant, he first examined him for this injury on January 25, 1993, and his notes indicate that the claimant was complaining of neck, shoulder, and lumbar pain which radiated into both upper extremities and both lower extremities with a burning sensation in his foot. Dr. Gocio’s examination revealed decreased range of motion in the cervical and lumbar spines, but the straight leg raising maneuver was negative bilaterally, and the sensory examination did not reveal any deficits. On January 27, 1993, a cervical and lumbar myelogram and post myelogram CT scan were performed. The lumbar myelogram was normal. The cervical myelogram and post myelogram CT scan revealed moderately severe focal spinal stenosis related to focal small osteophyte formation at C3-4 and C4-5, and these tests revealed early generalized posterior lipping at C5-6. However, no evidence of disc herniation was revealed. Based on these findings, Dr. Gocio diagnosed a strain, and he continued to treat the claimant with medication and physical therapy. His February 22, 1993, office notes indicate that the claimant was improved. Dr. Gocio ordered a functional capacity evaluation, and he indicated that he would consider the claimant’s return to work after he obtained the results of the functional capacity evaluation. In this regard, the claimant testified that he expected to be released to return to work when he went to Dr. Gocio on February 22, 1993. However, the respondent employer had advised the claimant on the previous Friday that he was being laid off due to a lack of work, and the claimant testified that Dr. Gocio ordered the functional capacity evaluation instead of releasing him because he had been laid off.

[8] Nevertheless, the respondents subsequently refused to pay for the functional capacity evaluation, and they controverted the claimant’s entitlement to any additional medical or indemnity compensation. Due to the respondents’ controversion, the claimant has not received any medical treatment since February 22, 1993. According to his testimony, he could not afford to pay for medical treatment, and he did not want to take a chance that he might be responsible for any medical expenses. Nevertheless, he testified at the December 13, 1993, hearing that he had not returned to work because he had not been released by any physician to do so. He testified that he has spent his time since February 22, 1993, sitting at home watching television. Although he testified that he continues to experience cervical and lumbar pain, he admitted that he is able to do house work and that he is able to mow with a riding mower.

[9] Significantly, the claimant had previously sustained a similar low back injury on February 13, 1990, while employed as a machinist by a different employer. He and a co-employee were lifting a barrel of steel parts at the time when the co-employee dropped his end, bending the claimant forward. The claimant went by the name of Rick George at the time of this accident, although he subsequently legally changed his name to Rick Gansky. He was initially treated for this injury by Dr. Gocio. Dr. Gocio’s initial examination revealed findings suggesting a herniated nucleus pulposus, but a MRI did not reveal any abnormality. Dr. Gocio also performed a myelogram on February 28, 1990, but this myelogram was essentially normal, with no evidence of a herniated nucleus pulposus. Consequently, Dr. Gocio released the claimant to return to full duty work on March 27, 1990. However, after he returned to work, the claimant again hurt his back while lifting. He returned to Dr. Gocio, and electrodiagnostic studies suggested possible L5 or S1 nerve root compression. However, he was treated conservatively with physical therapy, and he improved with physical therapy. He also saw Dr. Thomas Fletcher at that time, and Dr. Fletcher concluded that there were signs of nerve root compression in the left leg, and he opined that surgery might be indicated if the claimant failed to respond to conservative treatment. Dr. Gocio continued to treat the claimant with aggressive physical therapy. On August 13, 1990, Dr. Gocio noted left hand symptoms which were consistent with carpal tunnel syndrome.

[10] The claimant ultimately came under the care of Dr. Barry Thompson, an orthopedic surgeon, for treatment of the 1990 injury. Apparently, the claimant became dissatisfied with Dr. Gocio’s care, and he requested a change of physicians. In this regard, Dr. Thompson’s report contains the following statements:

Mr. George expresses today considerable hostility towards Dr. Gocio — more than I would anticipate being present, after reading the reports which seem to show excellent treatment to this time. Mr. George is convinced that, since he has had further pain in his back since the original two studies, it must be that something additional has happened to him that further tests [must be] run. He is very fixed on this idea but does not seem to accept other alternatives or suggestions. . . . Again, it seemed to me on the initial part of the evaluation that there was a lot of hostility coming out, which I could not explain on the basis of anything that happened to Mr. George up to now and which may simply reflect his frustration at his inability to get well. . . .

[11] In any event, Dr. Thompson did order a repeat MRI, and this MRI revealed evidence of early degeneration of the L3-4 disc and slight facetal hypertrophy at L5-S1. However no evidence of herniation was revealed.

[12] Dr. Thompson released the claimant to return to work on October 1, 1990, with the only restriction being on the body mechanics he used to lift. A November 2, 1990, narrative report from Dr. Thompson indicates that the claimant advised him that his employer refused to allow him to return to work under these minimal restrictions without a functional capacity evaluation and work hardening. However, it appears that this was not accurate. In this regard, Dr. Thompson’s December 10, 1990, narrative statement contains the following:

It appears that there are a lot of things going on that I am not completely aware of. The rehabilitation counselor states that the employer never said that he wouldn’t take Mr. George back without a functional capacity evaluation. What the employer has done is simply not taken him back because he has eliminated his position, or at least hired someone else to fill that position, and now has nowhere to put Mr. George.

[13] After November 2, 1990, Dr. Thompson did not examine the claimant again until March 20, 1991, when he returned for a permanent physical impairment rating. Dr. Thompson assigned a 5% permanent physical rating based on degenerative changes in the lumbar spine. Dr. Gocio and Dr. Paul Kramm, a physiatrist, opined that the claimant did not sustain any permanent physical impairment as a result of the injury. This claim was settled by a joint petition which was approved by the administrative law judge on May 17, 1991. The claimant testified at the joint petition hearing on that date that he continued to experience recurrent problems with his back, although he also testified that these were not serious enough to interfere with his work.

[14] With regard to recurrent problems, the claimant testified that he did not experience any physical difficulty performing his duties for the respondent employer prior to October 31, 1991. However, the record contains an Employer’s First Report of Industrial Injury indicating that the claimant also injured his lower and upper back on March 10, 1992, in the course of his employment with the respondent employer. Like the injury currently under consideration, this injury occurred while he was lifting parts weighing approximately 200 pounds. He was treated in the emergency room for this injury, and he apparently missed time from work.

[15] This Commission has a statutory duty to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704
(c)(2) (1987); see, Gencorp Polymer Products v. Landers,36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704
(c)(4) (1987); Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). In this regard, the claimant has the burden of establishing his entitlement to the compensation sought by a preponderance of the evidence. Bates v. FrostLogging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992); Lybrandv. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra. Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508
(a) (1987). However, 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. Norma Beatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291).

[16] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that further medical treatment is reasonably necessary for treatment of the injury he sustained in the course of his employment with the respondent employer. In this regard, we find that the preponderance of the evidence establishes that the claimant suffers from a preexisting degenerative condition, and we find that he has suffered from recurring episodes of back pain which is associated with this degenerative condition, at least since the time of his February 14, 1990 injury and prior to his employment with the respondent employer. Significantly, the medical evidence pertaining to the February 14, 1990 injury contains findings that are very similar to the findings after the October 31, 1992 injury. Likewise, the medical evidence pertaining to the February 14, 1990 injury indicate that his complaints at that time are very similar to his complaints after the October 31, 1992 injury. As late as March 20, 1991, the claimant described weekly episodes of back pain to Dr. Thompson, and the claimant related these episodes of back pain to the physical demands of his employment as a machinist with a different employer. In addition, at the May 17, 1991 joint petition hearing, less than one month before he began working for the respondent employer, the claimant testified that he continued to experience recurrent episodes of back pain. Moreover, contrary to his testimony that he did not experience any physical problems prior to October 31, 1992, the claimant reported another back injury in March of 1992 which was virtually identical to the October 31, 1992, injury. Furthermore, we also find that a preponderance of the evidence establishes that the October 31, 1992, injury only temporarily aggravated the claimant’s preexisting back condition. The physical therapy reports establish that the claimant was essentially symptom free by January 11, 1993. Although he did experience another recurrence of symptoms, the physical therapy reports establish that he was again essentially symptom free by at least February 25, 1993. Also, Dr. Gocio has opined that the claimant’s injury was not permanent in nature. While the claimant may continue to need periodic medical treatment due to episodes of back pain related to the degenerative condition, the need for that treatment is not causally related to the compensable injury. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that additional medical care is reasonably necessary for treatment of the compensable injury, and we find that the administrative law judge’s decision in this regard must be reversed.

[17] In light of our decision regarding additional medical treatment, we also find that the determination of the claimant’s entitlement to additional temporary total disability compensation should not be reserved. In this regard, the administrative law judge concluded that the functional capacity evaluation suggested by Dr. Gocio on February 22, 1992, was necessary to determine whether the claimant was entitled to additional temporary total disability compensation. However, as discussed, we find that the evidence contained in the record establishes that the claimant was not in need of further medical treatment for the compensable injury, for, also as discussed, the medical evidence establishes that the claimant was essentially symptom free by that time. We also note that the physical therapy records contain assessments of the claimant’s physical capabilities. Furthermore, we also find the preponderance of the evidence fails to establish that the claimant remained in his healing period beyond February 22, 1993. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation.

[18] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that further medical treatment is reasonably necessary for treatment of the compensable injury. We also vacate the administrative law judge’s reservation of the claimant’s entitlement to additional temporary total disability compensation, and we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge’s decision must be reversed in part and vacated in part.

[19] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[20] Commissioner Humphrey dissents.