CLAIM NO. E112906
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 12, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
[1] OPINION AND ORDER[2] Claimant appeals a decision of the Administrative Law Judge filed April 3, 1998, finding that claimant’s healing period ended on November 23, 1994. Based upon our de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that he remained within his healing period subsequent to November 23, 1994, when he was evaluated and given a permanent impairment rating of 25% to the body as a whole by Dr. Jim Moore. Respondent has not cross-appealed from the Administrative Law Judge’s finding that claimant’s request for a referral to The Pain Clinic for evaluation is reasonable and necessary medical treatment of claimant’s compensable injury. Accordingly, we find that the decision of the Administrative Law Judge must be affirmed. [3] Claimant, a young man of 30 years of age, sustained two serious injuries to his lumbar spine. The first occurred as the result of an automobile accident in 1987 resulting in a burst fracture of L3 which required surgical decompression. In 1991, as a result of a compensable incident, claimant sustained an injury to the same area of his spine resulting in a collapse of the L3 vertebral body. Following claimant’s compensable injury, claimant underwent a surgical procedure to decompress and fuse his lumbar spine from L2 through L4. A local bone graft and pedicle screws were used. The record reveals that as a result of his compensable injury, claimant has sustained neurological damage and is currently being followed by various physicians. Claimant’s primary treating physician for his compensable injury is Dr. Charles Shock. [4] The only issue on appeal is whether claimant is entitled to additional temporary total disability benefits subsequent to November 23, 1994. As previously noted, the Administrative Law Judge found that claimant reached a point of stability in his healing process on that date and is thus no longer entitled to temporary total disability benefits. The healing period continues until the employee is as far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. [5] A review of the medical records and of Dr. Shock’s deposition reveals that by November of 1994, claimant’s healing for his spinal fusion had reached a point of stability where further medical treatment was unlikely to yield further positive results. As explained by Dr. Shock in his March 2, 1998, deposition, when he examined claimant on November 28, 1994, the x-rays revealed that claimant did not have any motion and the stability of the fusion was no longer a question. When asked to explain his findings, Dr. Shock stated:
[6] Although it was later determined that claimant’s fusion was, in fact, a non-union, by November of 1994 it was at least clear that the fusion had reached a point of stability. Dr. Shock further explained that by 1997 it was clear that there was a non-union. However, despite the non-union, additional treatment of claimant’s spinal condition was not necessary. All Dr. Shock could do was to continue to monitor the fusion. Dr. Shock explained:Well, it looked like it was going on to be stable. In other words, stable meaning no motion and that eventually the bone would remodel itself into a relatively mature bone and at least prevent collapse of the area.
[7] Until such situation occurred no response with regard to claimant’s treatment is necessary. [8] Once it was determined that claimant’s fusion had stabilized or plateaued, Dr. Shock agreed that additional treatment was not necessary. When asked what treatment would be necessary, Dr. Shock stated “Just to follow up on the fusion. We always do that when we do a surgery. We want to be naturally curious, we want to see what has happened to it.” [9] Consistent with Dr. Shock’s assessment that claimant’s spinal condition had reached a point of stability by the fall of 1994 are the medical opinions and reports of Dr. Zachary Mason and Dr. Jim Moore. In his August 1, 1994, report, Dr. Mason noted:It’s possible that the current situation will continue indefinitely, but its not 100% certain that it would do that. It could be that the pins could loosen with time, as you have mentioned, requiring somebody — something else to be done.
[10] Likewise, on November 23, 1994, Dr. Moore noted in his independent medical evaluation report after reviewing claimant’s medical records and conducting a physical examination:Today I’m impressed that he actually is doing well. He ambulates very well. His lower extremity motor function is good. He has good L5 and S1 motor functions. The quadriceps worked well. His bowel and bladder complaints seem to be the biggest part of his current symptomology.
He tells me that he is going to see Dr. Tom Ward for evaluation and vocational rehabilitation training. I suggest that you ask Dr. Ward to prepare an overall impairment rating that takes into account his bladder impairment, his lumbar fractures and fusion. Other than his bowel and bladder dysfunction, neurologically he is remarkably intact considering the fractures that he has had. Dr. Shock should also be able to assist you in establishing any impairment rating in regards to his lumbar fusion.
This patient is severely compromised and it is my understanding that Dr. Shock is still concerned that he has not sufficiently achieved an adequate healing as far as the bone is concerned. I cannot establish this on the films that he brings along with him today, but certainly it is imperative that he get adequate bone healing because the pedicel screws and metallic instrumentation is only good enough until adequate bone fusion does occur.
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[11] Dr. Shock’s November 28, 1994, report categorizes claimant’s clinical status as “roughly the same.” [12] In our opinion, it is obvious that claimant’s medical condition reached a point of stability by November of 1994. As evidenced by the lack of any further active additional medical treatment subsequent to November of 1994, there was nothing in the way of medical treatment to actually improve claimant’s condition as of that time. Claimant’s condition stabilized and remained the same. Claimant continued to experience pain which required pain medication. However, it has long been held that pain in and of itself is insufficient to extend one’s healing period once a point of stability has been attained. See Mad Butcher v. Parker, supra. It is immaterial, in our opinion, that Dr. Shock did not realize until June of 1996 that there would be a non-union of claimant’s fusion. As evidenced through Dr. Shock’s medical records and deposition the fusion reached a point of stability by November of 1994. This stability need not be a complete fusion for the healing period to end, as obviously a failed fusion does not mean that one remains in a life long healing period. At some point, the fusion whether it has failed or not must reach a plateau. As evidenced by the medical evidence in this case, that plateau occurred in November of 1994. [13] The dissent relies upon Dr. Shock’s October 1997 report to support its conclusion that claimant is still within his healing period. While Dr. Shock remained optimistic at that point in time that claimant would eventually achieve good bony union, the evidence proves this not to be the case. Unfortunately, claimant’s medical condition plateaued by November of 1994 and his condition has remained stable since that time. Understandably, claimant and his doctors want the condition to improve and hope that a fusion will someday occur, but this optimism does not mean that claimant remains within his healing period. [14] Accordingly, for those reasons expressed herein, we find that the decision of the Administrative Law Judge finding that claimant’s healing period ended on November 23, 1994, should be, and hereby is, affirmed. [15] IT IS SO ORDERED. [16] _______________________________. . . On the other hand, at the present time, the patient does have neurologic deformities, and I doubt they will improve with additional passage of time. I think this, in itself, will translate to 25% PPD. At the present time, there is a question as to whether or not the patient has an adequate level of fusion. This obviously is going to be answered by continued follow and additional radiographs.
ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
[17] Commissioner Humphrey dissents. [18] DISSENTING OPINION[19] I respectfully dissent from the majority’s opinion. [20] Upon a review of the opinion and the parties’ briefs and the record, I find that we should reverse the Judge’s ruling denying claimant the requested temporary total disability benefits. The sole issue on appeal is whether or not claimant had reached the end of his healing period on November 24, 1994. [21] Claimant is a thirty-year-old male who has suffered two (2) rather serious injuries to his spine. In 1987, he had a burst fracture of L-3 that required a decompression and bone graft, and in 1991, he suffered a progressive collapse of a vertebral body with propulsion of fragments into the spinal canal. As a result, in 1991, claimant had a posterior midline decompression of L2-3 and L3-4 with a duro patch. At the same time claimant also had a spinal fusion at L-2 through L-4 with cotrel-dubuosset rods and cross links using pedicel screws at L-2 and L-4, some local bone graft was used as well. [22] Naturally, claimant has been closely followed by his primary treating physician, among others, since his surgery. Claimant’s condition gradually improved over the years and the physicians continued to monitor the level of fusion as claimant’s injury continued to heal. In November of 1994, Dr. Jim Moore, neurosurgeon, examined the claimant and concluded that claimant’s spine had sufficiently fused underneath the metal implements screwed into claimant’s remaining spine, resulting in, he believed at the time, the maximum stability for claimant’s spine. Claimant, however, continued to suffer debilitating side effects such as numbness, stinging pains, bowel problems attributed to neurological damage, and chronic pain. [23] Relying on the medical opinion that claimant had achieved a stable fusion in his spine, respondents apparently formed the opinion that claimant was malingering. In September of 1997, claimant was videotaped by respondent as part of an investigation into this claim. Claimant’s primary care physician viewed the videotape and testified that claimant’s actions reflected on the videotape were entirely consistent with his medical restrictions. The Administrative Law Judge properly observed that disabled does not mean bedridden. Claimant may still be, and is in fact expected to be, able to engage in some ordinary activities without prejudicing his disability claim. [24] In June of 1996, it was discovered that claimant’s bone fusion had not healed properly and he suffered a non-fusion in his spine. This diagnosis was made more difficult by the fact that the large pieces of metal in claimant’s back tended to obscure portions of the injury from typical diagnostic tools. Since that discovery, the claimant has continued to seek treatment to spur the necessary bone growth in order to receive the maximum medical benefit of his previous surgery. Upon completion of the bone fusion, the metal objects in the claimant’s back can be removed. [25] At the time of the hearing claimant was wearing an external bone growth stimulator several hours a day to stimulate bone growth in his spine. The medical records of Dr. Shock reflect that there continued to be growth in the fusion until June 3, 1996, at which time Dr. Shock noted that there was not a complete fusion. During this time claimant continued to suffer considerable pain attributable to his injury. Claimant’s physician has suggested that he seek some type of sedentary employment. The claimant has commenced suitable training pursuant to that recommendation. [26] Dr. Shock testified that claimant’s condition continued to improve due to progressive fusion between November of 1994 and June of 1996. June of 1996 was the month during which claimant was diagnosed with an incomplete fusion because Dr. Shock had recognized that bone growth had stopped. [27] The healing period continues until the injured worker is as far restored as the permanent character of his injury will permit. If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized.Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582
(1982). [28] The standard for determining the end of the healing period is a two-part test; both parts must be answered in the affirmative to establish that a claimant has reached the end of their healing period. The initial question is whether or not Mr. Goode is as far restored as the permanent character of his injury will permit. Through June of 1996, Dr. Shock continued to observe bony growth in claimant’s spine. That is to say his body was, in effect, regenerating the damaged area, quite literally “healing”. As of that date, the claimant began treatment designed to spur the growth of new bone in his spine. The ultimate conclusion is that this type of treatment is taken for the sole purpose of restoring the claimant’s medical condition. Accordingly, by our definition, the healing period cannot have ended. [29] The second part of the test for determining the end of the healing period is whether or not there is anything further in the way of treatment which will improve that condition. If, as the courts have held, the rule in Arkansas is that when it is determined that nothing further in the way of treatment will improve a claimant’s condition, it is determined that a claimant’s healing period has ended. Milligan v. West Tree Service, 57 Ark. App. 14, 941 S.W.2d 433 (1997). Then the converse rule, that when it is determined that additional treatment will improve a claimant’s condition, the healing period has not ended must be true. The simple fact that claimant continues to undergo treatment intended solely to promote further healing leads me to the inevitable conclusion that it is the opinion of the treating physicians that further medical treatment will improve claimant’s condition. [30] As recently as October of 1997 Dr. Shock, claimant’s primary treating physician, reported that;
[31] It is true that pursuant to our rules pain may not, of itself, prevent a finding that the healing period is over provided that the underlying condition has stabilized. Pain, however, is still a factor which may be considered when determining the end of a claimant’s healing period. Significant pain, such as that suffered by the claimant, is evidence that claimant has not reached the end of his healing period when it is viewed in conjunction with claimant’s continued physical healing. [32] I believe that the majority opinion in this matter is misled by the use of the words “stability” and “stable” by the physicians. In November of 1994 those words were used to indicate that the broken bones in claimant’s spine would not move relative to each other. To give those words as used by the physicians in a medical context the meaning that they have when used by lawyers as legal terms of art is mistaken. The diagnosis was clearly not that claimant had reached the end of his healing period. As is cited in the majority opinion Dr. Moore reported that “certainly it is imperative that he get adequate bone healing because the pedicel screws and metallic instrumentation is only good until adequate bone fusion does occur.” Of course bone growth is the type of healing that can occur without any further medical treatment, it merely requires patience and close monitoring. Once it became clear that claimant’s spine was not healing properly on its own he began, once again, to receive medical treatment intended to actually improve his condition. It is important to remember that ultimately the body heals itself and medical treatment is not a medical or legal requirement for healing to occur. [33] Without regard to the serious neurological damage for which claimant continues to receive treatment, his orthopedic situation is exactly analogous to a person who suffers a broken leg. Once a cast is placed on that leg the broken bones become “stable” in the regard that there is no movement by those bones relative to each other. That does not however mean that the patient’s underlying condition has become stable so that he has reached the end of his healing period because he is not as far restored as the permanent character of his injury will permit, additional bone growth is still required. Once the additional bone growth has occurred, or all reasonable efforts to spur that healing have failed, only then has the patient reached the end of his healing period. [34] Let us not forget that ultimately the diagnosis made in November of 1994 was wrong. As it turns out there was not “good progressive fusion” and claimant has not enjoyed adequate healing of his injury. Unlike the majority I believe that this is material and would not deny this injured worker the requested benefits on the basis of a misdiagnosis. [35] As of May of 1997 claimant continued to receive treatment from urologist and gastrointestinal doctors for the purpose of improving his ability to regulate his bodily functions for social acceptability. This treatment is attributable to the neurological defects claimant suffers as a result of his repeated injuries. Over and above the orthopedic issues, this treatment alone is evidence that claimant remains in his healing period, it is further treatment that will ultimately improve the claimant’s condition and eventually allow him to re-enter the workforce. [36] Because the claimant continues to be in his healing period, I would reverse the opinion of the Administrative Law Judge in this matter and award claimant temporary total disability benefits from November 24, 1994 through a date yet to be determined. Therefore, I respectfully dissent from the majority opinion. [37] ________________________________ PAT WEST HUMPHREY, Commissioner“With respect to Dr. Moore’s note of Sept. 24th, it would appear as best I can tell that he seems to be saying that there is not adequate bony fusion but that there may be some degree of fibrous union and wonders if this would be adequate. I would disagree with this on an orthopedic basis and feel that we should continue to attempt to achieve good bony union. He is, therefore, not at the end of his healing period.”
Because Dr. Shock is an Orthopedic Surgeon and Dr. Moore is a “Neurological Surgeon” I find that Dr. Shock’s opinion regarding claimant’s orthopedic injury and the treatment thereof is entitled to greater weight than the opinion of Dr. Moore. Accordingly, by our definition, the healing period cannot have ended.