CLAIM NO. E704145
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 23, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith.
Respondents represented by CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on September 30, 1997, finding that claimant was entitled to temporary total disability benefits from April 21, 1997, until a date yet to be determined, and that the surgical treatment offered by Dr. Luke Knox was reasonably necessary and causally related to claimant’s compensable injuries. Respondents now appeal from that opinion and order. [3] Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that the surgery recommended by Dr. Knox is reasonably necessary treatment for her compensable injury, and that she is entitled to an award of temporary total disability benefits from April 21, 1997, through a date yet to be determined. The decision of the Administrative Law Judge is therefore affirmed. [4] In the event of a work-related injury, it is the duty of respondent employer to provide medical services that are “reasonably necessary in connection with the injury received by the employee.” Ark. Code Ann. § 11-9-508(a) (Repl. 1996). In assessing whether a given medical procedure is reasonably necessary for the treatment of a compensable injury, the Commission analyzes both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Opinion Filed December 12, 1989 (Claim No. D511255). While the results obtained may be a consideration in some cases, the primary considerations are the nature of the service in relation to the injury of the claimant. Tonnie Crisp v. Weyerhauser Corp., Full Workers’ Compensation Commission, Opinion Filed July 27, 1993 (Claim No. D812922). [5] This claim arises out of a pair of compensable back injuries that claimant sustained on July 22, 1994, and April 23, 1996. In essence, we are called upon to resolve conflicting medical evidence pertaining to whether surgical intervention is reasonably necessary to treat the effects of those injuries. It is, of course, a long-standing rule that the resolution of conflicting medical evidence is a question of fact for the Commission. See, generally, Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977). [6] Dr. Luke Knox, claimant’s treating physician, ultimately recommended an L4-5 discectomy and fusion on April 22, 1997. However, two other physicians, Drs. Ray Jouett and Alice Martinson, have opined that the recommended surgery is not advisable for the following reasons:
[7] While recognizing that Drs. Jouett, Martinson, and Knox are all physicians of high repute, we are persuaded that Dr. Knox’s opinions are entitled to the greatest weight in the instant claim:It would also seem to me that if surgery is done that it should be covered by Group Health due to the extent of the degenerative process present and also the fact that this has been a known problem in existence since 1993 and would have (sic) difficulty assigning this to be covered by workers’ compensation. (From Dr. Jouett’s “File Review” of May 14, 1997.)
Given her lack of objective findings, and the discordance between her complaints and the findings on her imagine studies, I think that surgical fusion would be a questionable undertaking in this lady who is a smoker and has significant coronary artery disease. There is certainly no evidence that her on-the-job incident in April, 1996, resulted in any new pathology, so I do not believe that the complaints for which surgery has been proposed can be specifically attributed to that injury. Spinal fusion, even if successful, would not allow her to return to unrestricted physical labor. When she last worked regularly in August, 1996, her physical condition and complaints were not materially different than they are at present, and it seems to me reasonable to presume that when she sought to return to work after her leave of absence that she believed she was physically capable of doing her previous job at that time. I would, therefore, recommend that if she elects to have a surgical fusion, that it be done outside a Workers’ Compensation context, and that all Workers’ Compensation claims be closed prior to any such surgical endeavor. (From Dr. Martinson’s letter of July 22, 1997.)
[8] In assessing the weight to be accorded the alternative recommendations of Dr. Jouett and Dr. Martinson, we would point out the following admission from Dr. Jouett’s file review: “I hasten to add that I have not seen the patient and the amount of material that I have at my disposal is certainly limited.” Likewise, Dr. Martinson based her conclusions on a review of claimant’s records and what claimant herself described as a fifteen-minute exam. Having accepted claimant’s testimony as credible, and considering the circumstances noted above, we simply do not think that Drs. Jouett and Martinson are as well-positioned as Dr. Knox to determine claimant’s need for surgery. [9] We also note that Dr. Knox’s own partner, Dr. Vincent Runnels, also appears to have cautioned against surgery at one point stating: “It would take a fusion, really, to cure this lady, and I doubt that she is going to make a good candidate for any sort of surgical intervention.” We interpret Dr. Runnels’ objection, contained in a letter of February 26, 1997, as running more to claimant’s qualifications as a suitable patient than to the proposed procedure. After all, Dr. Runnels did indicate that a fusion would be necessary to “cure this lady.” Since Dr. Runnels ultimately deferred the question of surgery to Dr. Knox (see Dr. Runnels’ letter of April 18, 1997), we do not find his earlier reluctance to surgery persuasive. [10] We further note that Dr. Jouett seems to have focused on claimant’s prior back symptoms, and suggested that pre-existing symptoms placed the proposed surgery outside the ambit of workers’ compensation coverage. While there is no question that claimant’s back difficulties to some extent preceded her compensable injuries in 1994 and 1996, claimant’s credible testimony establishes that she was able to perform her employment duties prior to July 22, 1994, and did not seek medical treatment for back or leg pain for several months preceding that date. Subsequent to both injuries, however, claimant has obtained significant conservative treatment and was pronounced “unable to work” as of April 18, 1997, by Dr. Runnels. Under these circumstances, we are persuaded that, to the extent claimant suffered from a pre-existing degenerative condition, her work-related injuries of July 22, 1994, and April 23, 1996, significantly aggravated that condition; and that her current disability and need for treatment are attributable to said aggravation. See, generally, Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992). Accordingly, based on Dr. Knox’s recommendations, to which we accord considerable weight, we find that an L4-5 discectomy and fusion is reasonably necessary treatment for the effects of claimant’s compensable injuries and is related thereto. [11] Finally, to the extent that the dissent speculates that Dr. Knox’s proposed surgery is causally related to pre-existing back problems, and is not causally related to the claimant’s 1994 and 1996 work-related injuries, we point out that none of the claimant’s primary treating physicians attribute claimant’s current problems or her need for surgery to claimant’s condition which existed prior to her compensable injuries. Notably, Dr. Runnels saw the claimant in 1993 and 1997, and Dr. Runnels did notMs. Flora Goett was seen in the Neurosurgery Clinic on 04-21-97 for follow-up. She continues to be plagued with significant leg-pain, and in view of this, I recommended that she consider surgery, which would necessitate a lumbar discectomy and fusion at L4-5. She has apparently had an angioplasty several weeks ago, and I asked that she clear this with Dr. Green prior to scheduling surgery. This will be arranged in the next few weeks after she has had a chance to follow up with Dr. Green, and I will keep you apprised of her progress. (From Dr. Knox’s letter to Management Services of April 22, 1997).
As you know, Ms. Goett has been through the mill as far as treatment in the past. I originally saw her in clinic on 11-20-95. She has been noted to have a herniated disc on the right at L4-5 with left leg pain. I have been extremely hesitant to recommend surgery in the past. However, I have always felt that her primary diagnosis was probably related to the herniated disc causing her left leg pain by way of a facet syndrome. I would normally not recommend surgery on an individual such as this. However, in Ms. Goett’s case, she has had marked resolution of her pain with steroid injections into her facet on the left. I believe this determines the site of her discomfort and would be relieved with a fusion.
We discussed at length the risks and complications of surgery. She understands and wishes to proceed accordingly. She understands that her disc herniation is on the right, despite her left leg symptoms. I have consequently recommended that we go ahead and proceed with surgery within the month, as she has been cleared by her cardiologist. (From Dr. Knox’s letter to Management Services of May 7, 1997).
I had the opportunity to visit with Ms. Flora Goett on 05-05-97. Apparently, she has been cleared for surgery by her cardiologist, Dr. Michael Green. We went over extensively her more recent x-rays showing the herniated disc at L4-5. She continues to be plagued with significant left leg pain, which I believe to be related to the instability at the L4-5 level.
I recommended that we go ahead and proceed with L4-5 discectomy and fusion with Luque rectangle stabilization. We discussed the need to go ahead with a Luque rectangle rather than the pedicle screws in the fact of her recent cardiac problems, I believe that would be somewhat less invasive and more expeditious as far as surgical time requirements. She understands and wishes to proceed accordingly, and this will be arranged in the next four weeks after she has had a chance to donate her own blood and be fitted for shells. (From Dr. Knox’s letter to Management Services of May 7, 1997).
indicate that the claimant’s current problems are not work-related. [12] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep’t. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Because claimant remains in need of surgical intervention, she cannot be said to have arrived at maximum medical improvement and thus remains in her healing period. Also, from Dr. Runnels’ comments of April 18, 1997, we find that claimant was totally incapacitated from earning wages as of that date and is entitled to a corresponding award of temporary total disability benefits from April 21, 1997, through a date yet to be determined. [13] Based on our de novo review of the entire record, and for the reasons stated herein, we specifically find that the surgery recommended by Dr. Knox is reasonably necessary treatment for claimant’s compensable injury, and that claimant is entitled to an award of temporary total disability benefits from April 21, 1997, until a date yet to be determined. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [14] 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). [15] 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 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [16] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[17] Commissioner Wilson dissents. [18] DISSENTING OPINION[19] I respectfully dissent from the majority opinion finding that the surgical procedure recommended by Dr. Luke Knox is reasonable and necessary medical treatment of claimant’s compensable injuries of July 1994 and April 1996. Based upon my de novo review of the entire record, I find that claimant has failed to meet her burden of proof. [20] The evidence reveals that even prior to her first compensable incident, claimant suffered from low back pain and radicular pain in her left leg. On November 30, 1992, claimant presented to Dr. Ben Hall with complaints of back pain. Claimant provided Dr. Hall with a history of:
[21] Dr. Hall eventually referred claimant to Dr. Vincent Runnels, a neurosurgeon. In his March 18, 1993, report to Dr. Hall, Dr. Runnels recorded the following history:The patient evidently sat down on a cough (sic) and heard a pop in her back and she got excruciating pain in her back and now has radicularpathy down especially her left leg to her hamstrings.
[22] After examining the claimant and reviewing her diagnostic test results, Dr. Runnels opined:She complains of left thigh pain to her knee, occasionally to her calf no pain on the right and there never has been. This is quite surprising, as the disc we see on her MRI if anything, is slightly to the right but is mostly midline. It started in November when she sat down and twisted to see her grandson behind her. This even bothered her before that, last spring. She was working at the time and was lifting groceries putting them away at a nursing home in Springdale where she was employed. She no longer works there. She had some low back pain then, and has seen you and was given a cortisone shot but this did not help. . . .
[23] 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., FC Opinion Dec. 13, 1989 (D512553). [24] Dr. Knox has recommended a discectomy and fusion at L4-5 in an effort to alleviate claimant’s left leg pain. The evidence reflects that prior to commencing her employment with respondent, claimant was plagued with low back and left leg pain as evidenced by Dr. Ben Hall’s and Dr. Vincent Runnels’ medical records. Claimant’s left leg pain was apparently significant enough in March of 1993 for claimant to tell Dr. Runnels that she was unable to work due to the pain and that at times “it is so bad she could cry.” Given claimant’s pre-existing complaints of significant leg pain, I cannot find that the condition surgery is sought to remedy is causally related to claimant’s compensable injuries. [25] Moreover, even assuming, arguendo, that all of claimant’s left leg pain and low back pain are related to claimant’s two compensable injuries, a finding which I do not make, I cannot find that the recommended surgery is reasonable and necessary medical treatment of claimant’s compensable injuries. In finding that the surgery is reasonable and necessary, the Administrative Law Judge deferred to the medical opinion of Dr. Luke Knox claimant’s primary authorized treating physician. However, the Administrative Law Judge and the majority glance over the fact that Dr. Knox has offered diametrically opposed opinions concerning claimant’s need for surgery. If the surgery is approved, it will be Dr. Knox who performs the procedure. While I acknowledge that Dr. Knox is a respected neurosurgeon in Northwest Arkansas, I cannot agree to find that the surgery he proposes is reasonable and necessary medical treatment of claimant’s compensable injury. [26] After Dr. Knox recommended surgery, respondent requested an independent medical evaluation by Dr. Alice Martinson. Dr. Martinson performed her examination of the claimant on July 21, 1997. After examining the claimant, reviewing x-rays and an MRI film, in addition to reviewing the written interpretations of previous MRI’s, Dr. Martinson concluded:I feel she is mostly having facet pain. . . . she is advised to lose weight, soak in hot water, do the back exercises and I will follow her up in one month. At the present time I do not think she is going to need surgery. . . .
[27] In addition to the independent medical examination performed by Dr. Martinson, respondent requested a file review of claimant’s medical record from Dr. Ray Jouett. Dr. Jouett is the medical director for National Comp Care Inc. After reviewing claimant’s medical records, Dr. Jouett noted:Given her lack of objective physical findings, and the discordance between her complaints and the findings on her imaging studies, I think that surgical fusion would be a questionable undertaking in this lady who is a smoker and has significant coronary artery disease. There is certainly no evidence that her on-the-job incident in April, 1996 resulted in any new pathology, so I do not believe that the complaints for which surgery has been proposed can be specifically attributed to that injury. Spinal fusion, even if successful, would not allow her to return to unrestricted physical labor. When she last worked regularly in August, 1996, her physical condition and complaints were not materially different than they are at present, and it seems to me reasonable to presume that when she sought to return to work after her leave of absence that she believed that she was physically capable of doing her previous job at that time.
[28] Prior to recommending surgery, claimant was examined by Dr. Vincent Runnels at the request of his partner, Dr. Knox. After examining the claimant, and reviewing her films Dr. Runnels stated:The disc protrusion is on the right with a midline protrusion causing some stenosis and apparently she also has facet arthritis bilaterally at L4-5. This would appear to me to be a degenerative process and certainly the reason for compensability of this problem, at the moment, is in my mind uncertain. Also, the disc protrusion is to the right and the lady’s pain is on the left, which is probably due to facet arthritis as that is a known factor and I am not familiar with doing a discectomy that presents on one side and the pain is on the opposite as being a method for the relief of that pain. Also, I have questions doing the extensive procedure that has been outlined by the orthopedic surgeon on a lady with this type of problem and also with known coronary artery disease. . . .
[29] Dr. Runnels prescribed a regime of “Williams flexion exercises” however, he noted “it would take a fusion, really, to cure this lady, and I doubt that she is going to make a good candidate for any sort of surgical intervention.” Again, in March of 1997 Dr. Runnels noted after examining the claimant “Basically, this lady has a lot of spondylosis in her low back and facet arthropy but would not benefit from surgery at this time.” [30] Although Dr. Knox is presently recommending a discectomy and fusion, Dr. Knox previously diagnosed claimant’s major component of her complaint “to be related to the facet syndrome.” Dr. Knox further noted:Basically, I think this lady is having degenerative disc disease and facet pain at L4-5. She may have some spinal stenosis at 4-5 to account for the leg pain. The disc bulges on the wrong side, and the disc space is narrow.
[31] (See Dr. Knox’s November 22, 1995 report.) When Dr. Knox re-examined claimant in June of 1996 he noted:It is indeed related to the degenerative disc changes and disc herniation noted at the 4-5 level, but I believe a procedure directed towards removing the disc, would cause, if anything, worsening of her pain syndrome. . . . and I strongly urge her to avoid any surgical endeavors on her lumbar spine.
[32] However, just six days after preparing that report, Dr. Knox authored a contradictory report. Specifically, in June 19, 1996, Dr. Knox stated “Otherwise, her MRI scan showed a rather sizeable central disc herniation at 4-5, which I feel to be the primary culprit to her continued complaints.” [33] Although Dr. Knox characterized the disc bulge as centrally located in his June 19, 1996, report, he later described it to be on the right in his January 14, 1997, report:I had felt that a significant component of her complaints was related to a facet syndrome the last time I saw her this past November. I still believe that to be a significant component of her complaints, as she does have worsening symptoms with back extension.
[34] Claimant’s MRI report dated September 28, 1994, describes “A moderate to marked concentric disc bulge at L4-5.” The MRI performed on September 27, 1995, noted “Moderate-sized herniated nucleus pulpus on the right at L4-5.” Finally, the MRI report dated June 13, 1996, states:She continues to be plagued with left sided symptoms despite the fact that she has a herniated disc on the right at 5-1. (It is noted that 11 diagnostic tests only reveal a true herniated disc at L4-5, therefore it is presumed that reference to 5-1 is in error.)
[35] Finally, the MRI of the claimant’s lumbar spine performed on January 8, 1997, noted “This MRI of the lumbar spine shows a large disc herniation in the midline and to the right at the L4-5 level comprising the quarterly coursing right L5 nerve root.” [36] When all of the medical evidence is reviewed, I am not convinced that the surgery proposed by Dr. Knox is reasonable and necessary. The medical professionals all agreed, (at least at one time,) that the primary component of claimant’s pain is the facet joint syndrome. Without explaining his reasoning, Dr. Knox vacillates between perceiving claimant’s pain to be facet syndrome and the right sided herniated disc at L4-5. As explained originally by Dr. Knox, and as held in the opinions of Dr. Runnels, Dr. Jouett, and Dr. Martinson, the herniated disc cannot be the cause of claimant’s left leg pain since it presents to the right and all pain is on the left. Dr. Knox’s current recommendation of surgery is not only inconsistent with the opinions of Dr. Runnels, Dr. Jouett, and Dr. Martinson, but it is also inconsistent with his previous opinion in which he “Strongly urged her to avoid any surgical endeavors on her lumbar spine.” Although Dr. Knox is a well respected neurosurgeon, in this recommendation of surgery, his opinion stands alone. Consequently, when I review all of the medical opinions regarding the recommended surgical procedure, including but not limited to Dr. Knox’s initial assessment and recommendation against surgery and Dr. Runnels’ comments regarding whether claimant would make a good surgical candidate, I cannot find that claimant has proven that the recommended surgical procedure is reasonable and necessary medical treatment of claimant’s compensable injury. [37] Since I find that the proposed surgical procedure is not recommended to treat claimant’s compensable injury, but rather claimant’s pre-existing underlying facet syndrome, I cannot find claimant’s current physical status is associated with claimant’s compensable injury. It is claimant’s current physical condition, her pre-existing facet syndrome and pain associated therewith which is currently causing claimant to seek medical treatment. It is not claimant’s temporary aggravation of this condition which resulted from claimant’s two compensable injuries which currently has claimant in her healing period. Accordingly, I find that claimant has failed to prove that she remains in her healing period for her compensable injury. Additionally, I find that claimant has failed to prove that she is totally incapacitated from earning wages. The medical records reveal that claimant’s current physical complaints are similar to those complaints she experienced in August of 1996 when she voluntarily left her employment to care of a friend. Claimant was physically capable of working at that time, consequently, I cannot find that she is currently totally incapacitated from earning wages as her present complaints and findings are virtually the same. [38] Accordingly, for those reasons stated herein, I respectfully dissent from the majority opinion. [39] MIKE WILSON, CommissionerAn L4-5 disc protrusion predominately in the central region indenting the thecal sac with some bilateral recessed stenosis with no definite impingement of the nerve roots.