CLAIM NO. E517189
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 8, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by PETER O. THOMAS, JR., Attorney at Law, Little Rock, Arkansas.
Respondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] Respondent appeals an April 1, 1997 opinion of the Administrative Law Judge finding that there are objective findings to support claimant’s compensable injury and that a discogram is reasonably necessary for the treatment of claimant’s injury. [3] Respondent’s controversion of the compensability of this claim is based solely on its contention that claimant failed to establish a compensable injury by medical evidence, supported by objective findings pursuant to Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997). Objective findings are those which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 1997). Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 1996). After our de novo review of the entire record, we find that claimant has met her burden of proof and accordingly, affirm the opinion of the Administrative Law Judge. [4] On November 14, 1995, claimant sustained an injury when she caught a visitor, who had slipped in a puddle of water. Several diagnostic studies were performed and conservative treatment initiated. Respondent accepted the claim as compensable and apparently began paying appropriate benefits. In April 1996, respondent suspended the payment of benefits based on a report by Dr. Jim Moore, who evaluated claimant at respondent’s request. We would point out, however, that Dr. Moore’s report is silent as to whether claimant sustained a compensable injury or was entitled to additional treatment. Claimant returned to her treating physician, Dr. Thomas M. Ward. Dr. Ward eventually believed that claimant had actually suffered an annular tear. Since respondent would not pay for any treatment whatsoever, Dr. Ward recommended a discogram to verify his diagnosis. [5] Respondent states repeatedly that “[a]ll of the objective studies were reported to be normal.” This is entirely inaccurate. The MRI and CT scans showed, at a minimal, a disc bulge at L5-S1 and degenerative changes in the facet joint at L4-5 and L5-S1. Additionally, the EMG revealed a prolonged right tibial latency and borderline left tibial latency. Furthermore, the physical therapist noted muscle spasms during the prescribed therapy. While some of the reports state that claimant complained
of muscle spasms, the assessment portion of the December 8, 1995 note documents that claimant was only able to perform five minutes of the treatment due to muscle spasms down the middle of her lower back and down both legs. A physical therapist, and most likely anyone, would be able to recognize muscle spasms. Furthermore, there is nothing in the Act which limits objective findings to those made by a physician. Therefore, the results of the MRI and CT scans, the EMG and the observations by the physical therapist are sufficiently objective to support the compensability of this claim. Therefore, we find that claimant has proven by a preponderance of the evidence that she sustained a compensable injury established by medical evidence and supported by objective findings. [6] Further, we find that a discogram to clarify and delineate a diagnosis and need for treatment is reasonable and necessary. Dr. Ward’s opinion that a discogram is necessary to objectively verify his clinical diagnosis is unrebutted. The treatment for claimant’s condition might vary considerably with a diagnosis of an annular tear, as opposed to a musculoligamentous strain/sprain. [7] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant sustained a compensable injury and that a discogram is reasonable and necessary. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. 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. [8] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[9] Commissioner Wilson dissents.