McCURTAIN v. CITY OF FORT SMITH, 1998 AWCC 278

CLAIM NO. E109642

RICKY McCURTAIN, EMPLOYEE, CLAIMANT v. CITY OF FORT SMITH, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 21, 1998

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

Claimant represented by DAVID HARP, Attorney at Law, Fort Smith, Arkansas.

Respondents represented by DOUGLAS CARSON, Attorney at Law, Fort Smith, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Respondent appeals an opinion of the Administrative Law Judge finding that claimant is entitled to additional medical treatment. [3] Claimant sustained a compensable injury on May 31, 1991, involving his lower back. This injury has been previously litigated with regard to wage loss, and the Arkansas Court of Appeals ultimately affirmed the Commission’s award. Presently, claimant is seeking additional benefits in the form of treatment at a pain clinic as recommended by his treating physician. [4] Claimant testified that Dr. Cesar operated on him after his injury, but that he still suffers from “lower back pain, down my legs, left and right.” Claimant went on to acknowledge that his pain had been continual since the date of his surgery and had only gotten worse since then, and denied that he had been involved in any “accidents or incidents” that might have perpetuated his condition. By way of a letter dated May 28, 1997, respondent carrier informed claimant that it would provide no further medical treatment after May 30, 1997. [5] Previously, claimant had obtained follow-up care for his ongoing difficulties from Dr. John L. Kientz. On May 9, 1997, Dr. Kientz summed up claimant’s history in a letter to respondent carrier:

Mr. McCurtain was initially evaluated in follow-up by Dr. John Lavery at Holt-Krock Clinic. Dr. Lavery was a rheumatologist. I picked the patient up for the first time in August 1995 for complaints of back pain. The report was that he had suffered a back injury approximately three to four years earlier, for which he underwent laminectomy. Dr. Lavery subsequently followed him, thinking he had a sacroiliac joint dysfunction affecting primarily the right side. He felt that this was related to the initial injury.
The next visit with the patient was in March 1996, at which time he continued to have complaints of severe pain. He was sent to physical therapy which did not result in much improvement in symptoms. A variety of medications were tried, none of which proved to be particularly effective. The only thing the patient claimed gave him any relief was Lorcet. The patient had been referred to the pain clinic to see if injections or other approaches could be utilized to relieve his discomfort.
His last visit with me was on April 25, 1997. This was the last recommendation to the patient with referral to the pain clinic. As in most cases of back injuries and chronic pain, it becomes difficult to tell at what point chronic degenerative changes ensue as a source of the continued pain problem or where the old injury leaves off. The initiating event would appear to be the event occurring 1992 (sic). How much of that continues to play a role in his current symptoms is difficult to assess.

[6] 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 compensable injury, the Commission analyzes both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion filed December 12, 1989 (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 sustained. Tonnie Crisp v. Weyerhauser Corp., Full Commission Opinion filed July 27, 1993 (D812922). [7] In the present case, Dr. Kientz has suggested pain clinic management (the proposed procedure) as a means of treating claimant’s chronic pain (the condition it is sought to remedy). Treatment intended to reduce or enable a claimant to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment within the meaning of Ark. Code Ann. § 11-9-508(a) (Repl. 1996). Billy Chronister v. Lavaca Vault, Full Commission Opinion filed June 20, 1991 (D704562). [8] It is true that Dr. Kientz has expressed uncertainty as to whether claimant’s injury or the degenerative condition resulting therefrom is responsible for his current complaints. However, Dr. Kientz has also opined that claimant’s injury is at least the “initiating event” behind his symptoms. At the same time, claimant has provided credible testimony indicating that his pain has never abated since Dr. Cesar performed surgery. Under these circumstances, we find that claimant’s current condition is causally related to his compensable injury in 1991. [9] The evidence which respondents pointed out during the hearing, ostensibly to show that claimant’s condition “plateaued” on or about April 25, 1996, is simply a physical therapist’s discharge summary which discussed claimant’s condition at that time. Perhaps claimant did indeed plateau on April 25, 1996 with regard to physical therapy. However, this does not preclude the possibility that other forms of treatment might have been of further benefit. In light of Dr. Kientz’s recommendation and claimant’s credible testimony, and given the fact that formal pain management treatment has apparently not been utilized in this case, we find that claimant remains entitled to additional treatment. Such treatment should take the form of the pain management therapy as recommended by Dr. Kientz. [10] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant is entitled to additional medical treatment. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [11] IT IS SO ORDERED.

BEN FRANK, Special Chairman PAT WEST HUMPHREY, Commissioner

[12] Commissioner Wilson dissents. [13] DISSENTING OPINION
[14] I respectfully dissent from the majority opinion finding that claimant is entitled to additional medical treatment in the form of a referral to the pain clinic. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof. [15] Claimant sustained a compensable injury on May 31, 1991, when he was involved in an automobile accident during the course and scope of his employment. This accident resulted in an injury to claimant’s lower back which ultimately required a laminectomy. At the hearing held on September 4, 1997, claimant contended that he is entitled to treatment at a pain clinic as a result of his compensable injury. Conversely, respondents contended that the additional medical treatment is not related to claimant’s compensable injury. After reviewing the record impartially, without giving the benefit of the doubt to either party, I find that claimant has failed to prove by a preponderance of the evidence that the recommended treatment to a pain clinic is related to claimant’s compensable injury. Therefore, I agree with respondent. [16] The only evidence claimant presented at the hearing is claimant’s testimony that claimant currently has “lower back pain, down my leg, legs, left and right” which has “basically gotten worse.” In addition, claimant has introduced the handwritten notes of Dr. John L. Kientz these notes are summarized as follows:

11/1/96 . . . Back and joint pain unimproved on Relafen. Stopped. Will start Amitriptylene . . . try Naprosen . . . IMP: Myofascitis low back pain could not hand [?] ep injections.

***

4/25/97 . . . No change. Every med this patient has tried except for Loracet Plus has been “ineffective” and poorly tolerated. Has advised patient to cut Loracet down to BID and use Tylenol in mid-day. Advised pain clinic referral again for chronic back pain. Last injection not helpful.

[17] In my opinion, claimant’s evidence falls short of proving that the recommended treatment at a pain clinic is reasonable and necessary medical treatment of claimant’s compensable 1991 injury. The evidence introduced by respondent exemplifies the inadequacy of claimant’s evidence. Specifically, the May 9, 1997 correspondence of Dr. Kientz states:

His last visit with me was on April 25, 1997. This was the last recommendation to the paper with referral to the pain clinic. As in most cases of back injuries and chronic pain, it becomes difficult to tell at what point chronic degenerative changes ensue as a source of continued pain problem or where the old injury leaves off. The initiating event would appear to be the event occurring in 1992 [sic]. How much of that continues to play a role in his current symptoms is difficult to assess.

[18] Clearly, Dr. Kientz opinion falls short of proving that the recommended treatment is related to claimant’s compensable injury. Dr. Kientz candidly admitted that it is difficult to assess whether claimant’s compensable injury continues to play a role in claimant’s current symptoms. In fact Dr. Kientz’s opinion implies that at some point claimant’s original injury “leaves off” and claimant’s chronic degenerative changes took over. As noted above, it is claimant’s burden to prove by a preponderance of the evidence that the recommended treatment is related to his compensable injury. In light of Dr. Kientz’s opinion set forth in the May 9, 1997, correspondence introduced by respondent, I find that claimant has failed to meet his burden of proof. Therefore, I find that the decision of the Administrative Law Judge should be reversed, and I respectfully dissent from the majority opinion. [19] MIKE WILSON, Commissioner