SANSON v. DREW COUNTY, 2002 AWCC 176

CLAIM NO. F007072

DAVID SANSON, EMPLOYEE, CLAIMANT v. DREW COUNTY, EMPLOYER, RESPONDENT, AAC RISK MANAGEMENT SERVICES, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 2, 2002

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

Claimant represented by HONORABLE WILLIAM K. MOUSER, Attorney at Law, Pine Bluff, Arkansas.

Respondents represented by HONORABLE GAIL O. MATTHEWS, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed.

OPINION AND ORDER
Claimant appeals an opinion and order of the Administrative Law Judge filed December 17, 2001 finding that claimant failed to prove by a preponderance of the evidence that the March 2001 surgery was causally related to the compensable injury.

Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). Based on our de novo
review of the entire record, we find that claimant has met his burden of proof and, accordingly, the opinion of the Administrative Law Judge is reversed.

Claimant had sustained a nonwork-related back injury as a result of a motor vehicle accident in 1997. Dr. P. B. Simpson, Jr., a neurosurgeon, was claimant’s physician for this injury. Dr. Simpson performed surgery for a herniated nucleus pulposus at L5/S1 on the left in 1998. The greater weight of the evidence indicates that claimant had no residual back problems after being released from the 1998 surgery. Dr. Simpson described claimant’s recovery as “an unqualified success,” because very few of his patients failed to return for treatment within two years of surgery. The testimony of co-workers, John Hammock and Wolodja Namenek, as well as claimant’s wife, corroborated the lack of lower back problems following the 1998 surgery.

The parties stipulated that claimant sustained a compensable back injury in June 2000. Part of claimant’s job duties was to follow behind a wood chipper machine feeding limbs and brush into it. On June 13, 2000, claimant experienced leg pain after stepping in a hole. Thereafter, claimant was feeding limbs from along the roadside into the chipper machine. One of the limbs hit him in the back and dragged him toward the chipper machine. Respondent accepted the claim as compensable and directed claimant to its designated physician, who eventually referred claimant to Dr. Simpson.

In his deposition, Dr. Simpson discussed claimant’s objective findings of decreased reflexes and the difficulty with trying to accurately diagnose claimant’s problem.

Q (By Mr. Mouser) Tell us then about your visits and treatment of Mr. Sanson subsequent to that first visit you told us about on — I believe that was August 21st of 2000. What was his course of treatment —

A Well —

Q — and what kind of workup did you do on him?

A I think the next thing we did with him — obviously, we repeated his MRI, I believe. And it showed that he had some — had a rather prominent nerve root seen on a couple of the images. And we knew that he had a conjoined nerve root, had some scarrings.
It’s really — it’s hard, even with MRI, even with the contrasted studies, to really tell what’s going on once you have had surgery. It’s hard to differentiate between scar and discs. The radiologist and I miss them about half the time, I think. It’s not an exact science with that.
So we thought we saw a little something. We weren’t sure. I think we arranged for him to have an — may have had an epidural steroid injection. I think that was done in October of 2000. I had the radiologist do that. And then I think I saw him — I’m sure I saw him back after that, and he said that he had had the epidural steroid injection, which was unsuccessful. And then it was done again. He stated that the first time — the first day or so, he still had some pain, but when I saw him back, that he was fairly asymptomatic at that time.
And then I told him since he had been off work since June, that I thought he had reached maximum medical benefit. And I told him if he couldn’t work at this time, maybe he ought to consider trying to find something that was a little bit less strenuous on him.
And then I think I saw him back on the 6th of November. Still complaining of pain in his back and left leg. And I told him I would do a myelogram. The MRI was really not diagnostic. And told him — I said, Well, we will do another study and see what that shows.
Q Doctor, in that report or note from November the 6th, you mention a left Achilles of decreased sensation and also talk about that conjoined nerve root. What’s the significant [sic] of his having a decreased —
A Well, I mean, I’m just looking to see if — if his reflex is completely gone away, then I can say, Well, he had a reflex before; it’s completely gone away. But it wasn’t completely gone away, and I was unsure. So I’m doing another study.

Q Okay.

A And I want to find out. The myelogram was not that impressive, but the post-myelogram CT showed prominent soft tissue density anterior to the left of the thecal sac — that’s the sac the nerves are contained in — at the L-5, S-1 area. This is where we had done the surgery before. And Dr. William Lim said this could represent fibrosis or recurrent disc.
Again, we are both agreeing. We don’t know what it is. The MRI really didn’t help us. Unfortunately, the myelogram, post-myelogram CT is not 100 percent also. So I think at that time I told him if he didn’t get better, I would explore him, see what happened. I wanted to give him every chance to get better.
And then as I — I think he went by and saw another physician in the meantime maybe.
Q Your note indicated that he reported having seen Dr. Jim Moore at the carrier’s request.
A Yeah. Yeah. I think so. And Dr. Moore agreed that maybe he ought to consider surgical intervention.
Then I saw him back on the 8th of December, and I went over this with him and told him — said, Look, I want you to think about it another month. I don’t think — you know how bad you’re hurting, but I’m not positive you have got a recurrent disc or not. May just be scar. And you have got this conjoined root, makes it a little bit more tedious and a little bit more risk to doing the surgery. So I wanted him to think about all the complications of everything before he rushed in to have surgery.
And I think he didn’t get any better, and we, apparently, took a while to get around to him, I think. But we finally did him — what? In March of 01?
Q That appears to be in your March 9th of 2001 operative report.
A Yes. I think we did him back on March the 9th of 2001. And I think my pre-op diagnosis was recurrent herniated disc L-5, S-1 on the left side. My post-operative diagnosis, I say, is lumbar radiculopathy, left side, secondary to scar tissue. So I really didn’t find a big disc. . . .

Dr. Simpson added that the June 2000 work-related injury “probably” aggravated claimant’s preexisting condition.

The only issue on appeal appears to be whether the surgery performed by Dr. Simpson was causally related to the compensable injury. Respondent concedes that claimant “needed the surgery.”

First, based on the evidence that claimant was asymptomatic prior to the work-related accident, that claimant was experiencing radiculopathy after the accident, and Dr. Simpson’s opinion noted above, we find that the compensable injury aggravated claimant’s preexisting lumbar condition. Therefore, even if the surgery revealed that claimant’s problems resulted from scar tissue rather than a herniated disc, the surgery would still be causally related to the compensable injury.

Second, the facts of this case are quite similar to those in Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). In Estridge, claimant was involved in a work-related accident, had objective findings to support the injury, was diagnosed as suffering from herniated discs, but surgery revealed degenerative disc disease rather than herniated discs. The Arkansas Supreme Court found that the accidental injury at work either caused or precipitated the treatment and in particular the surgery. Therefore, the diagnosis, although wrong, that he had herniated disc caused surgery to be performed. Thus, a causal connection existed between the incident at work and the findings during surgery.

In the present case, claimant was involved in an admittedly compensable work-related accident, had objective findings of injury, and had a pre-operative diagnosis of a herniated disc, but surgery revealed that his problems resulted most likely from scar tissue. As was the case i Estridge, supra, the compensable injury caused claimant’s need for surgery and respondents are, therefore, liable for these expenses.

We also note that claimant was encouraged by respondent to have this surgery. Claimant testified that he would not have had the surgery if respondent had not approved it or if he had known there was a possibility that respondent would decide not to pay for it. Ms. Cox, a nurse assistant representing respondent, repeatedly encouraged claimant to have the surgery. Even more important, respondent had claimant evaluated by Dr. Moore for a second opinion regarding surgery, and Dr. Moore opined that surgery was indicated. However, we decline to address the estoppel argument. Claimant has met his burden of proof by a preponderance of the evidence that the surgery was reasonably necessary and causally related to the compensable injury.

For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that claimant failed to prove by a preponderance of the evidence that the surgery was reasonably necessary and causally related to the compensable injury. Respondent is liable for the expenses, and any period of temporary total disability, associated with the surgery. Claimant’s attorney is entitled to the maximum statutory attorney’s fee based on respondent’s controversion of this claim for additional benefits, one-half of which is to be paid by claimant and one-half to be paid by respondent in accordance with Ark. Code Ann. § 11-9-715
(Repl. 2002), Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345
(1990), and Chamness v. Superior Industries, Full Commission Opinion filed March 4, 1992 (E019760). 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. 2002). 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 (Repl. 1996).

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner

Commissioner Yates dissents.

DISSENTING OPINION

JOE E. YATES, Commissioner

I respectfully dissent from the majority opinion finding that the claimant’s surgery was reasonable and necessary medical treatment. Based upon my de novo review, I would affirm the decision of the Administrative Law Judge.

My review of the medical records indicates that the back surgery Dr. Simpson performed on March 9, 2001, was not reasonably necessary for the claimant’s compensable injury, nor was it related to the compensable injury. The surgery itself proved that there was no connection between it and any injury. Scar tissue from the previous surgery was all that was found. Even though Dr. Simpson related the claimant’s symptoms to the June 13 injury, it was not reasonable to do so without objective findings on the diagnostic tests. Basically, the diagnostic tests after the June 13th injury showed nothing more than post surgical changes. Dr. Simpson candidly testified that the surgery was exploratory:

. . . So I think at that time I told him if he didn’t get better, I would explore him, see what happened. I wanted to give him every chance to get better.

He further testified that trauma would have caused an extruded disc fragment — not the scar to shift and impinge on the nerve.

It should also be noted that the claimant testified that the surgery did not help and that his condition was the same:

Q. What specifically was bothering you before the surgery? What were you hoping to accomplish by having the surgery?
A. To get better, to where I could actually do my job. As it stands right now, I’m restricted on doing anything, and I can’t advance at work. I wanted to make some more money.
Q. Are you better, worse, or the same in terms of both your physical abilities and/or your pain since you had the surgery?
A. Since I’ve had the surgery, I’m the same. It ain’t changed nothing.
JUDGE CURDIE: Has anybody give you an opinion as to why it hasn’t changed?

THE WITNESS: No, sir.

JUDGE CURDIE: What did Simpson tell you?

THE WITNESS: Doctor Simpson, all I know, see Doctor Simpson told me that before, prior, before I had the surgery that there was no guarantee that this surgery would actually do any good, and the only reason why I did the surgery and everything was because I wanted to get better and everything where I could do my job. I’m tired of this pain. It’s about to kill me and everything, and I wanted to go back to like I used to be, you know, where I could just basically do what I was normally used to be doing.
JUDGE CURDIE: Did he tell you before the surgery that you might expect what you’re now experiencing afterwards?
THE WITNESS: No, he just said it was going to stay the same. He just said that there was no guarantee that this surgery —

JUDGE CURDIE: And it has stayed the same?

THE WITNESS: Right, well, what I mean, he told me that there was no guarantee if I had the surgery or didn’t have the surgery, it wouldn’t accomplish anything.

JUDGE CURDIE: Because of the tight —

THE WITNESS: Right, tight spot, because he really didn’t want to do the surgery.

JUDGE CURDIE: Why not?

THE WITNESS: Because of it being so close together and everything since I’ve already had one back surgery, and what was wrong with my back, he didn’t want to actually go in there, but he would do it if I agreed to go ahead and try to correct my problem.

Therefore, after I consider the evidence, I cannot find that the surgery was reasonable and necessary medical treatment. Accordingly, I must respectfully dissent from the majority opinion.

_______________________________ JOE E. YATES, Commissioner