HAWLEY v. WAL-MART TRUCKING, 2001 AWCC 129

CLAIM NO. E603795

WAYNE HAWLEY, EMPLOYEE, CLAIMANT v. WAL-MART TRUCKING, EMPLOYER, RESPONDENT, CLAIMS MANAGEMENT, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 6, 2001

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

Claimant represented by HONORABLE JAMES EVANS, JR., Attorney at Law, Springdale, Arkansas.

Respondent represented by HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed.

OPINION AND ORDER
Respondents appeal to the Full Commission an Administrative Law Judge’s decision filed September 20, 2000. The Administrative Law Judge awarded claimant additional medical treatment, found that treatment claimant previously received was reasonable and necessary, and that claimant is entitled to temporary and total disability from August 8, 1998, to a date to be determined. Upon de novo review of the record, the Full Commission affirms the Administrative Law Judge’s decision.

I. HISTORY

Two previous opinions were rendered in this case. In the opinion dated February 11, 1998, the Administrative Law Judge found that: (1) claimant sustained a compensable injury on January 15, 1996, while working for the respondent; and (2) claimant was entitled to temporary total disability from September 18, 1996, until March 17, 1997. The respondent also was ordered to pay for claimant’s chiropractic care at Morter Chiropractic Clinic. In the opinion dated July 22, 1998, the Administrative Law Judge found that: (1) the prior opinion was res judicata and the law of the case; (2) claimant was not entitled to additional total disability from March 17, 1997, to a date to be determined; and (3) claimant was entitled to change his physician to Dr. Cyril “Tony” Raben for examination, evaluation and treatment.

Respondents bring this appeal based on the Administrative Law Judge’s September 20, 2000, opinion, finding that claimant is entitled to additional medical treatment. Respondents argue that treatment claimant received from Dr. Raben was not reasonable and necessary so that they are not liable for those costs or for indemnity benefits.

Claimant contends that respondents have failed to pay any of the medical expenses (specifically the Morter Chiropractic bill), temporary total disability benefits or attorney’s fees previously awarded him by the Administrative Law Judge.

The Administrative Law Judge ruled that claimant could continue receiving medical treatment from Dr. Raben who performed a revision discectomy and has recommended a two-level fusion. She also ruled that claimant was to receive additional medical treatment until released from Dr. Raben’s care.

On August 27, 1998, Dr. Raben diagnosed the claimant with a “very large” disc herniation at L5/S1 centered to the right of his midline. He stated that it appeared to be recurrent in nature with central herniation and stenosis at the level above. Dr. Raben also noted a disc space bulge at L4/5 and stated, “His MRI scan not only shows damage of these bottom two discs it also shows the discs from L3/4 and up to be very pristine.” (Claimant’s Exhibit, p. 4). At that time, Dr. Raben noted that he explained to claimant that claimant is, “completely and totally disabled as far as truck driving is concerned.” (Claimant’s Exhibit 1, p. 4). Claimant was then complaining of severe right leg and back pain.

Dr. Raben operated on the claimant on September 3, 1998, for a revision of posterolateral hemi-laminotomy. A September 5, 1998, post-operative report from Washington Regional Medical Center indicated that claimant suffered from a herniated nucleus pulposus. (Claimant’s Exhibit 1, p. 22).

By letter, dated September 17, 1998, Dr. Rabin informed the claimant that he would not be able to continue his professional career as a truck driver,

At no point will I ever consider releasing you to anything other than light duty work. This is with complete and total knowledge of your physical limitations, objective findings, subjective findings and the current result that we have status-post surgical intervention including revision hemilaminotomy/discectomy.

(Claimant’s Exhibit 1, p. 39).

On October 19, 1998, Dr. Raben stated that the claimant was experiencing a constant ache in his back and pain in his right leg when it gets cold, but noted that this pain was less severe at that time than before the surgery. He recommended that claimant begin seeing Dr. Simpson to help with chronic pain management. (Claimant Exhibit 1, p. 40).

On March 18, 1999, Dr. Raben diagnosed claimant with marked decreased disc space height at L5/S1 and osteophytic spurring and lipping. He also noted a possible facet fracture. Claimant complained of excruciating pain that “comes and goes with burning, numbness and tingling.” (Claimant’s Exhibit 1, p. 44).

Claimant presented again to Dr. Raben on April 16, 1999, with complaints of increased pain. Dr. Rabin stated that his bone scan indicated an increased tracer activity at the lumbosacral junction. (Claimant’s Exhibit 1, p. 47). Dr. Raben’s office staff noted on May 5, 1999, that in response to their April 1999, request for authorization for a CT scan of claimant’s lumbar spine, respondent’s adjuster stated that, “she would not authorize this test or `anything else for [claimant].'” (Claimant’s Exhibit 1, p. 48).

On April 13, 2000, Dr. Raben finally obtained an MRI scan of the claimant that was taken at Northwest Arkansas Medical Imaging. He reported that the MRI showed a posterior annular tear at L4/5 with no extruded disc herniation and a central herniation at that level. He also noted a very large extruded fragment of disc, recurrent in nature, centered to the right of midline and induration and swelling of the nerve root on the right.

Wayne has the understanding today that what we are dealing with here is degeneration of the bottom two discs secondary to the injuries that he has sustained with again a recurrent disc herniation and peridual scarring and adhesion related to his previous surgery which are all related to his previous on-the-job injury. Bony osteophytosis and/or residual disc herniation are, most likely, a byproduct also of his previous surgical intervention again relating this to past surgical intervention. (Emphasis added).

At that point, Dr. Raben recommended an interior interbody fusion at L4/5 and L5/S1 with a posterolateral fusion from L4 to the sacrum using Wiltse instrumentation under the same anesthetic. He stated that this would include a laminectomy of L5 with lysis of adhesions and peridural scarring and removal of the bony osteophyte on the floor of the canal as well as the recurrent disc herniation. Dr. Raben also suggested that claimant get on a weight reduction program with Dr. Simpson to prepare for surgery. (Claimant’s Exhibit 2, Raben). At the time of the hearing claimant had lost 38 pounds while awaiting his fusion.

Claimant was last seen by Dr. Vincent Runnels for an independent evaluation per respondent’s request to determine whether a disc fusion is needed. Dr. Runnels stated that it would not be wrong to perform a two-level fusion on claimant, however he opined that more conservative treatment could be followed. He then recommended that claimant take an additional year for weight loss and exercises before having the surgery. Dr. Runnels also noted that he found no signs of malingering and that he believes the claimant feels the pain claimant purports to feel. (Respondent’s Exhibit).

II. ADJUDICATION

At issue is whether this two-level fusion is reasonably necessary to treat claimant’s compensable injury and whether claimant is entitled to indemnity benefits. Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. §11-9-508(a). 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. Ark. Code Ann. § 11-9-705(a)(3) (repl. 1996); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).

Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Tina Haskins v. TEC, Full Workers’ Compensation Commission, June 20, 1991 (D704562). An employer may also remain liable for medical treatment reasonably necessary to maintain a claimant’s condition after the healing period ends. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845
(1983).

Here, claimant credibly testified that he continues to be in severe pain. Dr. Raben attributes claimant’s symptoms directly to his admittedly compensable injury.

The argument that a fusion with instrumentation is not reasonable and necessary appears to be based mainly on the fact that Dr. Runnels, the company doctor, opined that he felt a year-long conservative form of treatment, such as weight loss, exercise and back posture techniques, would be more appropriate than a two-level fusion. However, Dr. Runnels also opined that a, “two-level fusion with instrumentation,” — as recommended by Dr. Raben, claimant’s treating physician — “would not be a wrong course of action.”

The Commission finds that Dr. Runnels’ recommendation that claimant wait another year to receive medical treatment for his chronic pain is unreasonable. Claimant suffered an admittedly compensable injury. Over the course of several years, his body began to degenerate because of that injury. There is sufficient medical evidence to determine that a fusion is a reasonable and necessary course of action under the circumstances. Claimant has lived with his pain for much longer than the year that respondent proposes he wait. We find it unreasonable make claimant wait another year to receive medical attention. Notably, respondents have failed to pay even what the Administrative Law Judge ordered back in 1998, and have continually hindered the claimant from receiving the health care to which he is entitled.

We find that claimant has proved by a preponderance of the evidence that the aggressive treatment of a two-level fusion is reasonable and necessary under the circumstances.

Next, respondents argue that claimant is not entitled to temporary total disability benefits.

Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve the condition, the healing period has ended. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).

We find respondents’ argument that claimant is not entitled to temporary total disability benefits beginning on July 23, 1998, through a date yet to be determined to be without merit.

Dr. Raben testified that claimant was unable to work as a truck driver, a position that he held for 20 years with the respondent. Claimant testified that his pain is such that he can’t bear to stand or sit for any length of time. In fact, claimant testified that Dr. Raben stated that he could go back to work for one hour each day if respondents would provide him with a bed, wheelchair, and transportation to and from work.

Dr. Raben stated that in August of 1998, after analyzing an MRI scan of the claimant taken February 18, 1998, he had no doubt that claimant was temporarily and totally disabled from that point until whenever. (Claimant’s Exhibit 2, p. 5).

My suggestion at that point was that he have a procedure done as quickly as possible because of the very large size of the disc herniation. I had suggested that he consider a simple procedure to decompress the nerve root and the central stenosis in an attempt to decrease the his leg pain and forestall intervention for back pain. I warned him that at some point in the future he may have to have that. That would be a fusion, but I suggested at that point that he consider only a hemilaminotomy/discectomy, lysis of adhesions and peridural scarring.

(Claimant’s Exhibit 2, p. 5).

Respondents further argue that claimant has not sought employment and that his lack to do so is not due to any physical ailments he may have. It should be noted, however, that Dr. Runnels stated that he found no signs of malingering and that he believes the claimant feels the pain he purports to feel.

Dr. Rabin further reported in a post-operative clinic note on October 19, 1998:

He is having a constant ache in his back. He also has some pain in his right leg when it gets cold. On exam today he has perhaps some weakness of his ankle dorsiflexors. He can walk with his heels extended up: however, there is weakness — right compared with left.

(Claimant’s Ex. 1, p. 40). Dr. Raben then suggested that claimant receive some job restructuring, re-education and retraining.

In April of 1999, Dr. Raben requested authorization for an MRI that was not received until April of 2000. Dr. Raben testified that the results of this MRI, as noted earlier, confirmed his opinion that claimant was and remains medically incapacitated. (Claimant’s Exhibit 2, p. 9). Based also on the MRI results, Dr. Raben recommended a posterolateral fusion with instrumentation essentially removing all the disc so that there would be no way that it could come back in herniation. Once this is accomplished, Dr. Raben opines that claimant would be safely limited from any form of gainful employment for at least the first year, but that the fusion would continue to mature over the first couple of years. However, Dr. Raben stated that at no time would he recommend that claimant resume a truck driving career. (Claimant’s Exhibit 2, p. 9-10).

The Commission finds that claimant remains totally incapacitated in his present condition. He also remains within his healing period because there is continuing medical treatment that could help his condition.

Respondents emphasize the fact that claimant is receiving social security and long-term disability benefits — neither of which is being paid by them. This fact has no bearing whatsoever on their responsibility to the claimant and is not a factor in determining respondents’ liability where claimant’s medical treatment is concerned.

The fact is that respondents have failed to pay expenses they previously were ordered to pay. While the claimant does receive social security disability benefits, these are applied as a direct offset to a long-term disability plan from which claimant draws and for which claimant paid 100% of the premiums for his own coverage. Lastly, the respondents claim that claimant has a pension fund. While this also is true, claimant testified that respondents have that money “tied up” so that he cannot access it.

Effectively, the respondents have failed to take care of their responsibility to the claimant who remains temporarily and totally disabled and in great need of additional medical care for his admittedly compensable injury.

Based on our de novo review of the entire record, and for the reasons stated herein, we affirm the Administrative Law Judge’s opinion and find that claimant is entitled to all reasonably necessary medical treatment related to his compensable injury. Specifically, we find respondents liable for claimant’s two-level fusion surgery and for temporary total disability benefits from July 23, 1998, through a date yet to be determined.

IT IS SO ORDERED.

______________________________ SHELBY W. TURNER, Commissioner
______________________________ MIKE WILSON, Commissioner

Chairman Coffman concurs.

I concur in the principal opinion’s award of additional benefits. I write separately only to address comments made in the dissenting opinion.

I note that the dissenting opinion suggests that the claimant should not undergo the proposed back fusion surgery at this time, but should instead delay the fusion surgery for one year from June 7, 2000, as per the recommendations of Dr. Vincent Runnels. I note that, whatever the merits of Dr. Runnels’ recommendation might or might not have been, because of the litigation in this case, the claimant has now essentially had his surgery delayed for the one-year period recommended by the dissent. Therefore, it appears to me that the dissent’s recommendation in this regard is now moot.

Likewise, I fail to grasp the logic in the dissenting opinion’s suggestion that, because the claimant has been determined to be disabled by both the Social Security Administration and a long-term disability insurance provider, the claimant is therefore not disabled. In addition, I note that the record establishes that what the claimant needs to relieve his extremely painful disability so as to be able to return to work is Dr. Raben’s proposed fusion surgery, and not additional motivation, as the dissent seems to imply.

In this regard, I note the medical evidence indicates that the claimant essentially never got better after his September 19, 1999 diskectomy surgery, and the reason that it took so long to figure out exactly what the problem was, and the reason it is taking so long to fix the problem, is that the respondent has refused to pre-authorize diagnostic testing ordered by Dr. Raben for approximately one year. Then, when testing identified what was wrong (disk fragment at site of prior surgery), the necessary surgery was delayed yet another year based on Dr. Runnels’ recommendation. I concur that the claimant remains in his healing period pending the recommended surgery.

With regard to the claimant’s capacity or incapacity to earn, I note that the claimant is a truck driver, and that Dr. Raben has indicated that the claimant can never go back to truck driving. In addition, Dr. Raben has indicated that the claimant would be limited to working one to three hours a week because his intense pain would prevent him from concentrating any longer from that. Moreover, under these circumstances, I find it unpersuasive that anyone would hire the claimant as a truck dispatcher, as the dissent argues, where he has been denied but needs additional back surgery, and his doctor has indicated that he could only work one to three hours per week because his pain affects his concentration. Under these circumstances, I concur that the greater weight of the evidence establishes that the claimant has been totally incapacitated from earning during the entire period in question.

Therefore, for the reasons discussed herein, I concur in the award of additional medical treatment at issue in this case, and I concur in the award of additional temporary total disability compensation.

_______________________________ ELDON F. COFFMAN, Chairman

Commissioner Wilson dissents.

I respectfully dissent from the majority opinion finding that the claimant was entitled to additional medical treatment. Based upon my de novo review of the record, I find the claimant has failed to meet his burden of proof.

In my opinion, the claimant has failed to prove by a preponderance of the evidence that any additional medical treatment is reasonable and necessary. Dr. Raben has recommended a post-lateral fusion with instrumentation. Dr. Vincent Runnels, who evaluated the claimant on June 7, 2000, recorded that a two-level fusion with instrumentation would not be a wrong course of treatment. However, he recommended that the claimant sustain a one-year period of weight loss, proper exercises, and back posture techniques. Dr. Runnels noted that if the claimant’s symptoms remained at the end of the one year of diligent effort to follow this course of conservative treatment, then the two-level fusion may be appropriate. In my opinion, it is not reasonable and necessary for the claimant to undergo a two-level fusion.

The claimant has also failed to prove that he is entitled to temporary total disability benefits beginning July 23, 1998 through a date yet to be determined.

The claimant contends he has been unable to earn wages since July 23, 1998. However, Dr. Raben released the claimant on October 19, 1998, after previously indicating that he would never release the claimant to anything but light duty. Between October 19, 1998, and March 18, 1999, the claimant was effectively released by Dr. Raben and was not being seen by any doctors.

The claimant testified that he had not looked for any type of work since July 23, 1998 because he only knows how to drive a truck. Claimant testified that he did not think he could be a dispatcher or learn anything about trucking routes. However, the evidence shows that the claimant has been a truck driver for the respondent for twenty years, as well as driving for Willis Shaw prior to working for the respondent employer. The claimant has a CDL, has kept trucking logs, and does know about the trucking industry. The claimant testified that he has never tried to use his skills in some other area of the trucking industry. The evidence also shows that the claimant is drawing $1,400 per month in Social Security benefits, as well as a long-term disability policy in the amount of $2,023 per month.

The claimant has at least sufficient knowledge to work as a dispatcher in the trucking industry. This is a sedentary job that would allow the claimant to move around as necessary. By claimant’s own testimony, he has not worked simply because he has not tried to find work. Dr. Raben testified that the claimant was capable of working and was only limited by his affected concentration. However, Dr. Raben also testified that he was not an expert in the field of locating jobs for disability and was not familiar with the Dictionary of Occupational Titles and had not performed a transferable skills test on the claimant. Accordingly, I find that the claimant is not entitled to any temporary total disability benefits after July 23, 1998 through a date yet to be determined.

Therefore, for all the reasons set forth herein, I respectfully dissent from the majority opinion.

_______________________________ MIKE WILSON, Commissioner