ROBINSON v. A. TENENBAUM COMPANY, INC., 1998 AWCC 194

CLAIM NO. E610263

LARRY ROBINSON, EMPLOYEE, CLAIMANT v. A. TENENBAUM COMPANY, INC., EMPLOYER, RESPONDENT and INSURISK, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 29, 1998

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

Claimant represented by the HONORABLE DEWEY FITZHUGH, Attorney at Law, Little Rock, Arkansas.

Respondent represented by the HONORABLE CHRISTOPHER PARKER, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an administrative law judge’s opinion filed October 8, 1997. The administrative law judge found that claimant has failed to prove that a proposed surgical procedure by Dr. Adametz, anterior cervical fusion and diskectomy, arises out of the compensable injury. The administrative law judge also found that the claimant has failed to prove that he is entitled to additional temporary total disability benefits. After reviewing the entire record de novo, we affirm the decision of the administrative law judge. [3] The parties stipulated that the claimant, age 41, sustained a compensable injury on January 26, 1996. A metal pan fell from a ceiling heater and struck the claimant on the back of the head and neck. The blow caused the claimant to fall “a little bit forward” and caused some pain in the shoulder area. The claimant said his vision was lightly blurred and he was “slightly disoriented, but that was all.” The claimant presented to Southwest Hospital three days later, January 29, 1996. The claimant testified that he sought medical treatment, because he had soreness and pain in his shoulder and neck area following the workplace incident. The claimant contended that he had never before experienced problems with his neck or shoulder. A MRI of the cervical spine was taken, and the radiology report gave the following impression:

At C5-6, there is mild narrowing and degeneration of the discs. There is a small but broad based disc herniation with accompanying vertebral spur that extends to both sides of the midline but which is larger on the left. These changes along with uncal vertebral spurring encroach somewhat upon the foramina bilaterally.

[4] Dr. Dannetta Grisham of Southwest Hospital referred the claimant to a neurosurgeon, Dr. James Adametz. Dr. Adametz saw the claimant on January 30, 1996, and he assessed a “fairly mild broad-based disc herniation.” Dr. Adametz initiated conservative treatment, with continued medication and physical therapy. Dr. Adametz revisited the claimant on February 27, 1996. Dr. Adametz reported that the claimant was a little better after physical therapy. The claimant now had intermittent pain in his left arm, but he was able to work. Dr. Adametz continued conservative treatment and anticipated releasing the claimant in about one month, if he continued to improve. [5] On March 20, 1996, Dr. Adametz wrote that the major cause of the claimant’s herniation at C5-6 was the accident of January 26, 1996. Dr. Adametz said that this condition could be treated with surgery, but he planned to continue with conservative treatment. On March 26, 1996, Dr. Adametz reported that the claimant was getting some muscle spasms. Dr. Adametz would continue to treat the claimant “symptomatically unless I get forced into operating on him.” In April, 1996, Dr. Adametz wrote:

Mr. Robinson came back to the office on April 23, 1996. He says that he is doing fairly well. He is managing to work. He does get an occasional cramp in his left arm and a little pain with it and he gets some occasional tingling in his left arm, but he does not have any persistent sensory loss and his strength is good today. At this point I went over his options with him and he is doing well enough, I think, with conservative treatment that I do not really think that I have to do anything else major to him at this time. I am going to let him just come back to me as needed.

[6] However, the claimant returned to Dr. Adametz in June, 1996 and said that his condition had suddenly worsened again. The claimant had a lot of pain, numbness, and tingling in his left arm and hand. Dr. Adametz placed the claimant on light duty and continued conservative treatment, which seemed to help. In July, 1996, the claimant told Dr. Adametz that he had exacerbated his neck condition while lifting a heavy object at work. On July 16, 1996, Dr. Adametz opined that “there is a reasonable chance he could be helped with surgical intervention.” On July 26, 1996, Dr. Adametz wrote:

Mr. Larry Robinson came back to the office on July 26, 1996. He has made some progress although continues to hurt in his left shoulder and left arm particularly down around the area of the forearm. He also has some intermittent numbness in the left hand. He has gotten somewhat better since the last time I saw him but he is to the point now that he is fairly tired of this and was interested in pursuing surgical intervention. I think because it has been about six months since his MRI scan was done and because his symptoms have changed two or three times I need a new study. I really think this is going to be somewhat of a borderline case and so I believe a myelogram would be more beneficial than just repeating an MRI scan. If the myelogram shows a clear cut nerve root impingement at C5-6 on the left as I suspect it will then I will probably offer Mr. Robinson surgical intervention.

[7] Dr. Adametz reviewed the cervical myelogram and found that the most significant abnormality was at C5-6. Dr. Adametz did not indicate whether or not the myelogram showed “a clear cut nerve root impingement.” There was a minor abnormality and some stenosis at C6-7, but Dr. Adametz did not see a disc herniation there. On August 19, 1996, Dr. Adametz recommended an anterior cervical fusion and diskectomy at C5-6. On August 27, 1996, Dr. Adametz again opined, “within a reasonable degree of medical certainty that the disc abnormality is related to his injury of January 26, 1996.” [8] The respondents sought a second opinion from another neurosurgeon, Dr. Scott Schlesinger, who examined the claimant on September 13, 1996:

I believe he does have evidence of cervical spondylosis at the C5-6 level. I see no evidence of an acute disc herniation. He does seem to have mild foraminal narrowing bilaterally. I see no evidence of cord compression but there is evidence, on the myelo-CT scan, of bilateral nerve root cut-offs at the C5-6 and C6-7 levels. I believe the cervical spondylosis and foraminal narrowing seen on the myelo-CT scan and MRI are probably the responsible agents for the pain in his left arm associated with certain neck positions. . . . In regard to the work related injury, I expect he had exacerbation of an underlying cervical spondylosis as there is no evidence of disc herniation. This probably made the underlying spondylosis become symptomatic. Nevertheless, I think this could be treated conservatively and would reserve surgical recommendations until we see how he does with a series of epidural steroid injections and wrist splinting. . . . I would be happy to assist further in any way I can, but otherwise, I believe he is going to follow up with Dr. Adametz.

[9] Dr. Adametz corresponded with Dr. Grisham on October 8, 1996:

As you know, I had planned to operate on Mr. Robinson, but his employer was related to Dr. Schlesinger and requested another opinion by Dr. Schlesinger. Dr. Schlesinger apparently saw him and it is my understanding that he recommended trying some epidural steroid injections before considering surgery. He did not actually set Mr. Robinson up for this. Mr. Robinson came back to the office on October 7, 1996, and brought a note with him saying his employer requested he comply with Dr. Schlesinger’s recommendations. I am not sure exactly where I am supposed to fit in on the care at this point, but Mr. Robinson tells me that he prefers to stay under my care. I would be happy to set him up for some epidural steroid injections with the anesthesiologist here at the hospital and give that a try as I do not think it is a bad idea. Whether he is supposed to return to me or Dr. Schlesinger I am still unsure about as is Mr. Robinson. I will clarify this through his insurance company, but in the meantime I will try to do whatever I can to help Mr. Robinson.

[10] In October, 1996, correspondence with respondents, Dr. Schlesinger opined that the claimant had not yet reached maximal medical healing, because he did not know how the claimant had done since his epidural steroid injection. If the claimant’s pain had resolved since the injection, “then perhaps he has reached maximal medical healing.” In November, 1996, Dr. Adametz advised that two steroid injections had not significantly relieved the claimant’s pain. Dr. Adamtez still thought there was a “reasonable chance” that anterior cervical diskectomy and fusion at C5-6 would help the claimant. Respondents sent the claimant back to Dr. Schlesinger, who then ordered EMG/nerve conduction tests to “sort out” the claimant’s complaints. Electromyography was performed in December, 1996, with the impression of normal electromyography and nerve conduction studies of the left arm and associated cervical paraspinous muscles. There was no evidence of myopathy, peripheral nerve entrapment, or cervical root entrapment. Dr. Schlesinger again opined that the claimant was not a surgical candidate, but he suggested a consultation for pain service or rehabilitation service. [11] On January 20, 1997, Dr. Schlesinger stated:

Mr. Larry Robinson was injured on the job on 1/19/96. As you know from previous letters, I have not found anything that I would feel is surgically treatable. I do think that he has probably reached maximal medical healing at this time. From my standpoint, he certainly could return to work but he might need to undergo a functional capacity evaluation to sort this out. Perhaps he could return to work under light duty and progress, as tolerated. If this is not feasible then a functional capacity evaluation would be indicated.
It is very difficult to answer your question #3, regarding the patient’s objective and measurable physical findings. Certainly, he has significant degenerative disc changes which were not related to the accident but his symptoms were brought on by the accident. Therefore, to rule on the side of the patient, I would give him a permanent partial disability rating in accordance with the American Medical Association guidelines of 6%. I do not feel that surgery would be of any benefit to him at this time, given the lack of any clear objective findings and cervical spondylosis present on his MRI.

[12] Dr. Adametz responded on February 4, 1997:

I received a request for additional information on Mr. Larry Robinson and apparently Dr. Schlesinger has taken over his care and has decided that he does not need any surgery and has given him a 6% anatomical impairment rating to the body as a whole. I think that is a reasonable impairment rating. I did feel that Mr. Robinson’s arm pain was coming from his neck and that there was a reasonable chance that he could be helped by surgery, although Dr. Schlesinger apparently does not. I do not really have anything else to offer this gentleman under these circumstances. I do think the impairment rating is reasonable.

[13] Respondents paid the impairment rating. The claimant returned to Dr. Adametz in July, 1997. The claimant told Dr. Adametz that his pain had gotten much worse. Dr. Adametz thought that resuming medication and physical therapy would benefit the claimant. Dr. Adametz aimed to reduce the claimant’s pain to a tolerable level so that he could return to work. On August 18, 1997, Dr. Adametz stated that the claimant was significantly better after medication and physical therapy. Dr. Adametz thought the claimant probably could return to work, although he still felt pain in his neck and left arm. [14] Counsel deposed Dr. Schlesinger on August 28, 1997. Dr. Schlesinger testified that the claimant had cervical spondylosis. Dr. Schlesinger saw nothing to suggest an acute herniated disc; rather, he said the claimant’s condition was a case of wear-and-tear type changes in the cervical spine, present at both sides, on both levels. Dr. Schlesinger opined that the claimant had more of a stretch injury to the cervical nerve roots, or more of a contusive injury, rather than an acute disc herniation. Dr. Schlesinger found that nothing could be done to the claimant’s neck that was not there before the injury, but he did think that the workplace accident was the major cause of the claimant’s clinical problems. Dr. Schlesinger did not want to perform surgery until the claimant had gone through “the next line of conservative care.” [15] On September 2, 1997, Dr. Adametz completed a series of questions submitted to him by claimant’s counsel. Dr. Adametz opined that the job-related injury was the major cause of the claimant’s impairment. Dr. Adametz stated the claimant has a combination of bone spur (degenerative) and a disc protrusion (traumatic), primarily at C5-6. Dr. Adametz thought the claimant could return to work at any time. Dr. Adametz maintained that there was still a “reasonable chance” that surgery would decrease the claimant’s pain. [16] A hearing was held on September 16, 1997. The administrative law judge found that the claimant failed to prove that Dr. Adametz’s proposed surgical procedure arises out of the claimant’s injury. The administrative law judge also found that, even if the claimant’s cervical condition was a result of the compensable injury, surgical intervention is not reasonable and necessary medical treatment. After de novo review, we affirm the findings of the administrative law judge. [17] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1997). 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. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (D612291). What constitutes reasonable and necessary medical treatment under Ark. Code Ann. § 11-9-508(a) is a question of fact for this Commission.Georgia Pacific Corp. v. Laurin Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997). In assessing whether a given medical procedure is reasonably necessary for treatment of a compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (D511255). [18] We find that the claimant failed to prove, by a preponderance of the evidence, that operative treatment as proposed by Dr. Adametz is reasonably necessary for treatment of his compensable injury. The claimant sustained a compensable injury in January, 1996. A MRI showed mild narrowing and degeneration of the discs at C5-6. There was accompanying vertebral spur that extended to both sides of the midline. In September, 1997, on a form provided by claimant’s counsel, Dr. Adametz opined that the claimant sustained a traumatic disc protrusion at C5-6. However, in a comprehensive and lengthy deposition, Dr. Schlesinger credibly contradicted Dr. Adametz’ assertion. Dr. Schlesinger opined that no acute injury could have caused the findings that he saw. Dr. Schlesinger stated that the “spurs” noted in the January, 1996 radiographic studies indicated long-standing, degenerative changes. We place significant weight on Dr. Schlesinger’s finding that the claimant’s degenerative condition does not warrant surgical intervention. Nor has the claimant sufficiently shown that anterior cervical fusion and diskectomy will improve his condition. [19] Dr. Schlesinger conceded that the workplace incident aggravated a preexisting condition. However, Dr. Adametz essentially released the claimant from treatment in April, 1996. In July, 1996, Dr. Adametz admitted that this is a “borderline case.” In January, 1997, Dr. Schlesinger opined that the claimant had reached maximal medical improvement from his injury. Dr. Adametz again released the claimant in January, 1997. We affirm the decision of the administrative law judge, that the claimant is not entitled to operative treatment as proposed by Dr. Adametz. [20] Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Ark. Code Ann. §11-9-102(13) (Repl. 1997) defines “healing period” as the period necessary for the healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. Moreover, persistent pain does not suffice to extend the claimant’s healing period or to find that he is totally incapacitated from earning wages. Mad Butcher, Inc. v.Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [21] In the within matter, the respondents paid temporary total disability benefits from January 29, 1996 to February 1, 1996, and from September 12, 1996 through January 20, 1997. At hearing, the claimant asserted that he was entitled to additional TTD from January 20, 1997 to a date yet to be determined. The administrative law judge found that the claimant is not entitled to any additional TTD benefits. On appeal, the claimant contends that his healing period has not ended, and he was not released by Dr. Adametz to return to work until September 7, 1997. We disagree. [22] On January 20, 1997, Dr. Schlesinger opined that the claimant has probably reached maximal medical healing. He found that perhaps the claimant could work at light duty and progress as tolerated. In February, 1997, Dr. Adametz stated that he had nothing further to offer the claimant. The record does not indicate that either physician took the claimant off work after January 20, 1997. The claimant testified that he had not physically been able to work since July, 1996, but that he was now willing to try to go back to work. However, the claimant also testified that he had been terminated in approximately April, 1997. In August, 1997, Dr. Adametz opined that the claimant could return to work. However, Dr. Schlesinger opined that the claimant had reached maximal medical healing on January 20, 1997, and the claimant was never taken off work after that point. We find that the claimant simply failed to prove that he was within his healing period and totally incapacitated to earn wages after January 20, 1997. [23] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has failed to prove that anterior cervical fusion and diskectomy is reasonably necessary to treat his compensable injury. We further find that the claimant has failed to prove that he is entitled to additional temporary disability benefits. We thus affirm the decision of the administrative law judge and respectfully dismiss this claim. [24] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[25] Commissioner Humphrey dissents.