CLAIM NO. E705724
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 2, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JEFF WATSON, Attorney at Law, Springdale, Arkansas.
Respondents represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER[2] The respondents appeal an administrative law judge’s opinion filed June 12, 1998. The administrative law judge found that the claimant has proven that treatment she received from Dr. Sites, Dr. Kendrick, and Northwest Arkansas Physical Therapy is reasonable, necessary, and causally related to her compensable injury of May 6, 1997, and that the claimant is entitled to additional temporary total disability benefits from September 15, 1997 and continuing through February 1, 1998. After reviewing the entire record de novo, we find that the treatment the claimant received from Dr. Sites and Northwest Arkansas Physical Therapy was reasonable, necessary, and related to her compensable shoulder injury, and we find that the claimant proved by a preponderance of the evidence that she is entitled to additional temporary total disability benefits for her compensable shoulder injury for the period from September 15, 1997 and continuing through February 1, 1998. Therefore, we find that the administrative law judge’s decision in these regards must be affirmed. However, we find that the claimant has failed to establish that she has sustained a compensable thoracic outlet syndrome injury, and we therefore reverse the administrative law judge’s finding that the respondents are liable for Dr. Kendrick’s treatment. [3] The parties stipulated that the claimant sustained a compensable injury to her right shoulder on May 6, 1997. On that date, the claimant testified, she felt a terrible pain in her upper back after moving a “big, big, big” bucket of water. The claimant was examined at Mediquik on May 12, 1997, where the physician assessed persistent pain in the neck and upper back, with an onset of May 6, 1997. A CT of the cervical spine taken on May 15, 1997 gave the impression of very mild degenerative changes at 5/6 and 6/7. A CT of the thoracic spine, also taken on May 15, 1997, revealed a negative examination of the upper thoracic spine, T-1 through T-7/8; pleural and parenchymal scarring in both upper lobes was suspected. The Mediquik physician referred the claimant to an orthopedist, Dr. Cyril Raben, who examined the claimant on May 27, 1997. [4] The claimant now complained of shoulder pain in addition to upper back pain; Dr. Raben assessed mid-back pain without clear-cut signs of radiculopathy, and some type of pleural scarring. Dr. Raben treated the claimant conservatively, including a referral to Northwest Arkansas Physical Therapy, but by June, 1997, the claimant was reporting a constant ache in her shoulder. Dr. Raben stated that the claimant could return to restricted light-duty work; however, the respondents had no light-duty positions available, so the claimant has not returned to their employ. On June 23, 1997, Dr. Raben stated that the claimant had a diagnosis of impingement syndrome as well as possible parenchymal scarring of her lungs. Conservative treatment in the form of injections and physical therapy continued. [5] By July, 1997, Dr. Raben reported a constant ache in the claimant’s neck, parascapular region, and right arm, and on July 7, 1997, Dr. Raben stated that the claimant had “had marked exacerbation with driving to Texas to pick up a son as well as with a session of pulling weeds in the garden.” Dr. Raben arranged an MRI of the cervical spine, which was done July 11, 1997. The impression was small C5-6 posterior midline protrusion and small left posterolateral herniated nucleus pulposus at 6/7, in the region of the nerve root sleeve on the left. In addition to a referral to Dr. Knox, Dr. Raben referred the claimant to Dr. D. Wayne Brooks for nerve conduction studies. On July 28, 1997, Dr. Brooks reported that his electrodiagnostic study of the claimant was within normal limits. Dr. Brooks’ impression was “a lady with thoracic and right radiating arm pain.” Dr. Brooks thought that the claimant had sustained a muscular tear or ligamentous injury with lifting, and he essentially suggested further conservative modalities. [6] The claimant testified that she requested and received the respondents’ approval for a second opinion after being treated by Dr. Raben. Thereafter, Dr. Luke Knox, a neurosurgeon, examined the claimant on August 5, 1997, and he believed that a significant component of the claimant’s complaints related to pathology intrinsic to her right shoulder. Dr. Knox stated that the MRI “certainly showed significant degenerative disc changes at multiple levels, which I believed to be not causing a significant component of her complaints. . . . In order to get to the bottom of her continued difficulties, I asked her to see Dr. Terry Sites to go over her shoulder to see if he may have any therapeutic alternatives available.” However, on September 3, 1997, Dr. Knox reported that the carrier had disallowed the referral to Dr. Sites, but that the claimant wished to pay for Dr. Sites’ examination on her personal health insurance coverage. [7] On September 5, 1997, the claimant underwent an MRI, cervical myelogram, and cervical CT/myelogram, with the following impression:
[8] Dr. Terry Sites, an orthopedic surgeon, saw the claimant on September 10, 1997. Dr. Sites’ impression was chronic right shoulder girdle, neck, and upper extremity pain, etiology uncertain. He injected cortisone into the claimant’s right shoulder, immediately but only temporarily improving her condition. On September 11, 1997, Dr. David Davis, a neurologist, told Dr. Knox that the claimant had undergone right median and ulnar nerve conduction studies, which were normal. Dr. Davis thought it possible that the claimant’s problem was musculoskeletal in nature, perhaps from a shoulder arthropathy. [9] The respondents ceased paying all benefits on September 15, 1997, and the record shows that the claimant was discharged from Northwest Arkansas Physical Therapy on September 16, 1997. On September 17, 1997, Dr. Knox stated that he would not recommend any surgical endeavors, and that the claimant should follow up with Dr. Sites. Dr. Knox recommended closing the workers’ compensation case when Dr. Sites had nothing further to offer. As the administrative law judge stated in his opinion, though, Dr. Sites “did have something further to offer.” On or about September 18, 1997, Dr. Sites referred the claimant back to Northwest Arkansas Physical Therapy. Dr. Sites also referred the claimant to a vascular surgeon, Dr. John Kendrick, for the possibility of thoracic outlet syndrome and surgical options. On October 14, 1997, Dr. Kendrick wrote that thoracic outlet syndrome should be considered, but that “we can not (sic) promise relief of all her symptoms with removal of the first rib.” On October 22, 1997, Dr. Sites proceeded with a right shoulder arthroscopy for diagnostic and therapeutic purposes. Dr. Sites opined that, were it not for the injury she sustained on May 6, 1997, the claimant would not have her current symptoms. The claimant testified that Dr. Sites’ surgery completely eliminated her pain symptoms, except for occasional elbow and neck pain, and bilateral numbness in her fingers. [10] The claimant filed a claim for additional temporary total disability and additional medical treatment. The respondents contended that the claimant had been paid all benefits to which she was entitled. The respondents contended that any additional medical treatment was unreasonable and unnecessary, and that the claim for additional benefits did not arise out of the compensable injury. Following the pre-hearing conference, counsel deposed Dr. Sites on May 19, 1998. Dr. Sites testified that, when he operated on the claimant, he observed rotator cuff tendinitis, along with a partial thickness rotator cuff tear on the articular side, midsubstance and fraying about the biceps tendon and the glenoid or socket attachment site. Dr. Sites opined that the pathology observed in surgery was related to the claimant’s work. Dr. Sites testified that the claimant was still within her healing period, and that he had not released the claimant from his care. The doctor was not convinced that the claimant had thoracic outlet syndrome, but he did not rule out surgery for same. Dr. Sites deferred to Dr. Kendrick on the necessity for thoracic outlet surgery. [11] The administrative law judge found that the claimant proved that the treatment she received from Dr. Sites, Dr. Kendrick, and Northwest Arkansas Physical Therapy is reasonable, necessary, and causally related to the compensable injury. The administrative law judge stated that he based his opinion primarily on Dr. Sites’ deposition testimony, and the administrative law judge found that the claimant’s thoracic outlet symptoms were a natural consequence of the injury to her shoulder. The administrative law judge found that the claimant remained within her healing period and totally incapacitated from earning wages from September 15, 1997, through February 1, 1998. Respondents appeal. [12] When an injury arises out of and in the course of employment, the employer is responsible for every natural consequence that flows from the injury. Bearden Lumber Co.v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). When subsequent complications are the natural and probable result of the original injury, the employer remains liable; however, the claimant must show, by a preponderance of the evidence, that there is a causal relationship between the compensable injury and subsequent complications. Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1997). Injured employees bear 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. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (D612291). What constitutes reasonable and necessary treatment is a question of fact for this Commission. Georgia-Pacific Corp. v.Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997). [13] The respondents stipulated that the claimant sustained a compensable injury to her right shoulder on May 6, 1997. Dr. Brooks subsequently thought that the claimant had sustained a muscular tear or ligamentous injury with lifting. However, the claimant did not experience significant relief of her pain symptoms until Dr. Sites performed surgery in October, 1997. Dr. Sites opined that, were it not for the claimant’s work-related shoulder injury, she would not have experienced pain symptoms in her shoulder. The claimant’s pain has now essentially gone, except for persistent nagging symptoms on the right side of her neck and right elbow. The claimant still experiences numbness in several of her fingers bilaterally. After de novoSmall asymmetric disc and endplate ridge protrusions at C4-5, C5-6, and C6-7 are present as described above; but none of these findings appear very likely to be associated with neural impingement, particularly right-sided neural impingement. Clinical correlation necessary. Otherwise, negative studies.
Disc degeneration at C5-6 and C6-7. No pathologic motion observed.
review, we find that the claimant has proved entitlement to Dr. Sites’ treatment and his referrals for physical therapy. [14] However, we must reverse the administrative law judge’s finding that the claimant is entitled to treatment from Dr. Kendrick for a suggested thoracic outlet syndrome condition. First, we note that the respondents did not stipulate that the claimant has such a condition, only that the claimant had injured her shoulder. The claimant must establish the nature and extent of her work-related injury by objective medical findings.Chamber Door Industries v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). There are no objective findings in this record to support a diagnosis of thoracic outlet syndrome. Further, Dr. Kendrick has proposed treatment in the form of a thoracotomy; however, we find that the claimant has failed to show the work-relatedness of such a procedure in addition to the lack of objective findings. Dr. Sites’ deposition testimony in this regard is instructive:
In terms of relating her thoracic outlet syndrome or symptoms to a single injury event is a little more difficult for me to do, but only with the understanding that thoracic outlet syndrome is not an easy diagnosis to make.
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[15] Finally, the administrative law judge found that the claimant is entitled to additional temporary total disability benefits from September 15, 1997 and continuing through February 1, 1998. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Departmentv. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). In the present matter, Dr. Sites testified that the claimant remained in her healing period as of May 19, 1998. Yet, the record indicates that the claimant was able to earn wages in the area of child care as of February 1, 1998. Therefore, we affirm the ALJ’s finding that the claimant is entitled to additional temporary total disability benefits from September 15, 1997 through February 1, 1998. [16] Based on our de novo review of the entire record, and for the reasons discussed herein, we affirm the administrative law judge’s finding that the claimant has proven that treatment she received from Dr. Sites and Northwest Arkansas Physical Therapy is reasonable, necessary, and causally related to her compensable injury. We reverse the finding that the claimant was likewise entitled to medical treatment from Dr. Kendrick. We affirm the finding that the claimant has proven entitlement to additional temporary total disability benefits from September 15, 1997 and continuing through February 1, 1998. We thus affirm the administrative law judge in part and reverse in part. [17] IT IS SO ORDERED.And the way I would put it in context with her is that I don’t feel that the bucket of water directly caused her to have thoracic outlet.
_______________________________
ELDON F. COFFMAN, Chairman
[20] I find that I must concur in part and dissent in part from the majority opinion. I concur with the majority holding that claimant proved by a preponderance of the evidence that she is entitled to additional temporary total disability benefits for her compensable shoulder injury for the period from September 15, 1997 through February 1, 1998. I also concur with the finding that the treatment the claimant received from Dr. Sites and Northwest Arkansas Physical Therapy was reasonable, necessary and related to her compensable shoulder injury. I must however dissent from the finding that claimant has failed to establish that she has sustained a compensable thoracic outlet syndrome injury and therefore respondent is not liable for Dr. Kendrick’s treatment. [21] I find that the evidence before us indicates that the thoracic outlet syndrome diagnosed by Dr. Sites is a natural consequence of claimant’s compensable injury and therefore its treatment is the obligation of the respondent. Dr. Sites testified that the diagnosis of thoracic outlet syndrome was attributable “to the ongoing problems that she has in recovering from her shoulder” and “the overall injury complex”. Because treatment of the diagnosed thoracic outlet syndrome is a natural consequence that flows from the original injury it is respondent’s obligation to provide that treatment. Once the existence of the initial injury is established by objective evidence there is no requirement that the need for any particular method of treatment be established by objective evidence. [22] Accordingly, I would affirm the opinion of the Administrative Law Judge in its entirety.
_______________________________ PAT WEST HUMPHREY, Commissioner
[23] Commissioner Wilson concurs in part and dissents in part. [24] CONCURRING DISSENTING OPINION[25] I must concur in part and dissent in part from the majority opinion. I dissent from the majority opinion finding that the treatment the claimant received from Dr. Sites and Northwest Arkansas Physical Therapy was reasonable, necessary, and related to her compensable shoulder injury, and finding that the claimant proved by a preponderance of the evidence that she is entitled to additional temporary total disability benefits for the period of September 15, 1997 through February 1, 1998. However, I concur in the majority’s finding that the claimant has failed to establish that she has sustained a compensable thoracic outlet syndrome injury. Accordingly, I would reverse the opinion of the Administrative Law Judge in its entirety.
_______________________________ MIKE WILSON, Commissioner