HUBBARD v. EWI CONSTRUCTION COMPANY, 1997 AWCC 87

CLAIM NO. E417814

BOBBY HUBBARD, EMPLOYEE, CLAIMANT v. EWI CONSTRUCTION COMPANY, EMPLOYER, RESPONDENT and AMERISURE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 25, 1997

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

Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE JOHN DAVIS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] The claimant appeals and the respondent cross-appeals an opinion and order filed by the administrative law judge on June 26, 1996. In that opinion and order, the administrative law judge found that the medical care provided to the claimant by Dr. Valentine and Dr. Peek was reasonably necessary for treatment of the claimant’s compensable injury. In addition, the administrative law judge found that the claimant failed to prove that he is entitled to compensation for a 5% permanent anatomical impairment.

[3] After conducting a de novo review of the entire record, we find that the preponderance of the evidence establishes that the medical care provided by Dr. Valentine and Dr. Peek was reasonably necessary for treatment of the claimant’s compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. In addition, we find that the claimant proved by a preponderance of the evidence that he sustained a 5% permanent anatomical impairment as a result of his compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [4] Since the claimant sustained an injury after July 1, 1993, this claim is subject to the provisions of Act 796 of 1993. However, Act 796 did not change the general law regarding medical services. In that regard, employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (Repl. 1996). 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. BenPearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. DeborahJones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No. D511255). [5] In the present case, the claimant first injured his lower back in October of 1994 while stacking sheets of fiberboard at work. After a period of unsuccessful conservative treatment provided by several physicians, Dr. Glenn Marshall, an orthopedic specialist proposed to refer the claimant to a pain clinic on June 6, 1995, on the following basis:

Bobby returns to the neurology clinic for clinical symptoms consistent with back pain. He has been previously evaluated by Dr. Giles, Dr. Schlesinger, and myself whereby there was no patioetiology to his back pain and right leg symptomology. There is nothing surgically that could be done for his back. He continues to have back pain and at the present time, he has what appears to be weakness. He is inverting his foot and he is walking on the lateral aspect of his foot and wearing out his shoes. He says that he is unable to rotate his foot outward or maintain a flat posture of the foot. However, I don’t understand the pathoetiology to this process at the present time. He has had a previous EMG nerve conduction study of the right lower extremity and there was no specific pathology appreciated on the NCV or EMG. I don’t understand why this man is having the weakness that he is having and why he is walking the way he is. We discussed the next step, about referring him to a pain clinic situation, which I feel may be warranted at the present time because he is not getting better. He feels that he is getting worse. I believe that having someone else that will review his case objectively, review the findings thus far, repeat some neuro diagnostic studies if they feel that it is warranted, and address this problem both from the pain standpoint as well as from the psychodynamics of his problem at the present time which may improve the quality of his life in the future. However, the patient today wants more time to think about it. I would refer him to either Dr. Valentine or Dr. Money, who both operate pain clinics in the Little Rock area for an assessment and then to discuss with him a reasonable approach in approving [sic] the quality and managing the pain that he is presently experiencing. Bobby stated that he will contact the neurology clinic once he makes up his mind on where he would like to go and I will assist him in any way that I can in helping him to get further help on the situation that he is presenting with today. Bobby may return to the neurology clinic on a prn basis.

[6] Dr. Marshall ultimately referred the claimant to Dr. Valentine. Dr. Valentine’s report from December 5, 1995, indicates that he was made aware of the claimant’s prior two neurosurgical evaluations and apparently had available at least some of the claimant’s medical records and diagnostic test results. Dr. Valentine performed a physical examination, and indicated an impression of (1) low back pain (2) lumbar degenerative disc disease and (3) possible S1 radiculopathy. In that regard, Dr. Valentine provided the following summary and recommendations:

Mr. Hubbard’s situation is somewhat confusing. He gives a good history of a right S1 sensory radiculopathy, but his reflexes are intact. There is no physiologic finding on motor evaluation of the right foot and toes. There is known significant degeneration of the lumbar discs and significant tenderness to palpation of the spinous processes of the midline rather than the muscle groupings. I would therefore recommend the following:
1. Evaluation by Dr. Richard Peek, an orthopedic spine surgeon in Little Rock. It may well be that Mr. Hubbard has significant instability from his degenerative disc disease. This could account for his back and leg discomfort. Additionally, despite a negative MR scan, Mr. Hubbard certainly could have a disc herniation despite essentially negative exam (I note also that straight-leg raising was negative for radicular pain).
2. If Dr. Peek does not feel surgery is indicated, I would recommend rehabilitation of the patient. This could be followed by either Dr. Peek or Dr. Collins at Central Arkansas Rehabilitation Hospital.
3. I will certainly be placed [sic] to perform any diagnostic maneuvers considered indicated, but I do believe the first order of business would be to have Mr. Hubbard evaluated by another spine surgeon and I think Dr. Peek may well be the best choice since he is well trained and conservative about surgery.

[7] The claimant presented to Dr. Peek on April 18, 1996. After performing a clinical examination and reviewing the claimant’s first MRI and his January, 1996 myelogram study, Dr. Peek ordered a third MRI. [8] The claimant testified at the hearing that he subsequently received an injection from Dr. Valentine, which was apparently related to pain clinic treatment. The claimant’s wife and a neighbor each testified that the claimant had not experienced any back problems prior to his compensable injury, but has appeared to have problems (walking with a cane, problems standing, walking, stooping and bending, and depression) since the injury. [9] We find that the claimant proved by a preponderance of the evidence that Dr. Valentine’s pain clinic treatment and Dr. Peek’s evaluation and testing were reasonably necessary for treatment of the claimant’s compensable injury. In this regard, the medical records indicate that both Dr. Giles and Dr. Marshall recommended treatment for the claimant at a pain clinic. In addition, the diagnostic testing and evaluation performed by Dr. Peek is precisely the type of additional evaluation recommended by Dr. Marshall in his June 6, 1995, report, and requested by Dr. Valentine. According to Dr. Peeks’ evaluation report, the claimant had not received any type of injection treatment (available from a pain clinic) prior to the claimant’s evaluation in April of 1996. Therefore, Dr. Valentine’s pain clinic treatment
was not duplicative or repetitive of prior treatment received by the claimant. Although Dr. Peek’s additional neurological evaluation was repetitive, Dr. Valentine ascertained a medical necessity for seeking an additional neurological evaluation (specifically from Dr. Peek) after his examination of the claimant. [10] Therefore, since Dr. Giles and Dr. Marshall both recommended pain clinic treatment, and since Dr. Marshall and Dr. Valentine both recommended an additional neurological evaluation, we find that Dr. Valentine’s pain clinic treatment and Dr. Peek’s neurological evaluation are reasonably necessary for treatment of the claimant’s compensable injury. [11] Act 796 also did not change the requirement that an injured worker bears the burden of proving that he is entitled to an award for permanent physical impairment. Therefore, when considering a claim for permanent physical impairment, the Commission must impartially weigh all of the evidence in the record to determine whether the preponderance of the evidence establishes that the worker sustained a permanent physical impairment as a result of a compensable injury. Physical impairment occurs when an anatomical, physiological, or psychological abnormality limits the ability of the worker to effectively use part of the body or the body as a whole. [12] However, any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” Ark. Code Ann. § 11-9-704 (c)(1) (Repl. 1996). In addition, permanent benefits may only be awarded upon a determination that the compensable injury was the major cause of the impairment. Ark. Code Ann. § 11-9-102 (5)(F)(ii) (Repl. 1996). [13] In the present case, objective findings, including a MRI and a myelogram/post-myelogram CT study, establish that the claimant has sustained an abnormality to the intervertebral disc at the L5-S1 level of the lumbar spine. In addition, we find that the claimant’s injury was the major cause of the abnormality at the L5-S1 level. In this regard, there is no evidence in the record indicating that the claimant had any preexisting back difficulties when he sustained his compensable injury. Although diagnostic testing indicated some degree of degenerative disc disease in the claimant’s back, the claimant’s abnormality indicated at L5-S1 clearly exceeds the degree of abnormality at the other levels of his lumber spine. Moreover, after reviewing the claimant’s diagnostic test results, Dr. Wilbur Giles, a neurosurgeon who treated the claimant on referral, opined that the claimant sustained a 5% permanent anatomical impairment rated to the body as a whole as a result of the abnormality indicated by post-myelogram CT diagnostic testing. Consequently, we find that the claimant proved by a preponderance of the evidence in the record that he sustained a 5% permanent anatomical impairment rated to the body as a whole. [14] Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that the medical provided by Dr. Valentine and Dr. Peek was reasonably necessary for treatment of the claimant’s compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, affirmed. In addition, we find that the claimant proved by a preponderance of the evidence that he sustained a 5% permanent anatomical impairment rated to the body as a whole. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, reversed. [15] 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). 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 in accordance with 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 concurs in part and dissents in part.

[18] CONCURRING AND DISSENTING OPINION
[19] I concur in part and dissent in part from the majority’s opinion. I concur with the majority finding that claimant is entitled to a 5% whole body impairment based upon Dr. Giles’ rating. In my opinion, Table 75 found on Page 113 of the guides complies with Rule 34 so long as the physician does not consider pain in assigning or assessing a permanent impairment rating. While this chart is considered the Range of Motion Model, the footnote states that the ratings for the diagnosis set forth in Table 75 must beadded to the range of motion impairment estimates and whole person impairment estimates to arrive at the complete range of motion impairment rating. The table used by Dr. Giles only assigns an impairment for a diagnosis. The entire Range of Motion Model and formula was not used. By simply using the table on Page 75 for the diagnosis, the range of motion impairment estimates are not considered.

[20] With regard to respondent’s cross-appeal, I would reverse the decision of the Administrative Law Judge. In this aspect, I cannot agree with the majority. In addition to the treatment sought from Dr. Valentine and Dr. Peek, claimant has been seen and treated by Dr. James Pennington, Dr. William Barron, Dr. Wilbur Giles, Dr. Glenn Marshall, and Dr. Scott Schlesinger. Only Dr. Brown and Dr. Pennington are not specialists. These doctors have performed at least two MRI’s, one lumbar myelogram and post myelogram CT scan. Both Dr. Giles and Dr. Schlesinger agreed that claimant was not a surgical candidate and that additional neurological consultations were of no benefit. [21] In November of 1995, Dr. Brown referred claimant to Dr. Valentine for pain management. Despite all the previous objective testing performed to date, Dr. Valentine referred claimant to Dr. Richard Peek, an orthopedic surgeon who ordered yet another MRI scan. By the time claimant was referred to Dr. Valentine, it had already been determined that additional orthopaedic and neurologic evaluations were of no benefit. The doctors all agreed that claimant only needed pain management due to his lack of objective findings. In my opinion, a referral to Dr. Peek for yet another MRI scan and further orthopaedic consultation is not reasonable and necessary medical treatment for claimant’s compensable injury in light of all previous evaluations and tests performed. [22] Accordingly, I find that claimant has failed to prove by a preponderance of the credible evidence that the treatment rendered by Dr. Peek is reasonable and necessary. Therefore, I would reverse the decision of the Administration Law Judge on this issue and must respectfully dissent from the majority opinion. [23] MIKE WILSON, Commissioner