SCROGGINS v. TTC ILLINOIS, 2001 AWCC 95

CLAIM NO. E500032

NELDA SCROGGINS, EMPLOYEE, CLAIMANT v. TTC ILLINOIS, INC., EMPLOYER, RESPONDENT, GAB ROBINS NORTH AMERICA, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 18, 2001

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

Claimant represented by GREG GILES, Attorney at Law, Texarkana, Arkansas.

Respondent represented by THOMAS DIAZ, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed

OPINION AND ORDER
The Court of Appeals has remanded this claim to the Commission, to make proper findings as to the reasonableness and necessity of the suggested medical treatment of claimant’s compensable injury, total knee replacement, Synvisc injections and bracing.

At the original hearing, the parties stipulated that claimant suffered a compensable injury to her left knee on December 17, 1994. Claimant contended that she has not reached the end of her healing period, or had reentered it, and is entitled to additional temporary total disability benefits from August 13, 1998, forward and additional medical treatment, in the form of a total knee replacement, Synvisc injections and additional bracing. Respondent contended that claimant reached the end of her healing period on August 13, 1998, ending her entitlement to additional temporary total disability or medical benefits. Respondent also contended that claimant’s need for additional benefits and treatment is the result of an independent intervening cause releasing Respondent from further liability.

The Administrative Law Judge determined that claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary benefits after August 13, 1998, or that the recommended treatment of injections, bracing and total knee replacement are reasonable and necessary treatment. The Judge also found that Respondent controverted the claim. Claimant appealed the decision of the Administrative Law Judge, and the Commission affirmed and adopted the Judge’s opinion. Claimant appealed to the Court of Appeals, which remanded the claim to the Commission.

On this remand, we must address whether the recommended additional treatment (Synvisc injections, bracing and a total knee replacement) recommended by Dr. Huang is reasonable and necessary treatment of her compensable injury. We will also address the issue of additional temporary benefits.

After our de novo review of the record in this claim, we find that the additional treatment claimant seeks is not reasonable and necessary treatment of her compensable injury. We also find that claimant is not entitled to further temporary benefits.

The recommendation of a total knee replacement is contraindicated by claimant’s excessive weight and her quadriceps weakness. Dr. Huang, claimant’s treating physician, recommended in July, 1996, and in August, 1997, that claimant lose weight and strengthen her quadriceps as treatment for her knee problems. Dr. Huff, on March 18, 1996, also recommended quadriceps strengthening. Dr. Huang, in reaction to a denial of Synvisc injections by the carrier, recommended a total knee replacement on November 23, 1998, “due to failure of conservative treatment.” There is no mention in the records around this time of improvement in her weight or her quadriceps strength.

Dr. Mulhollan noted her obesity and profound weakness on January 26, 1999, and stated that the results of a total knee replacement in light of the obesity and weakness would be “catastrophic.” Dr. Mulhollan is an expert in treating knees. He sought the opinion of Dr. Sorrels, who specializes in knee replacement. Dr. Sorrels stated that he disagreed with the recommendation of a total knee replacement, citing her quadriceps weakness and obesity. He recommended strengthening and weight loss, which he felt alone could relieve her symptoms, despite the possibility that claimant could require a knee replacement at some time in the future.

We do not give weight to the opinions of Dr. Keever in his January 27, 1999, letter to claimant’s attorney, in response to information given to him by claimant. Claimant reported that “evidently heard him dictate in the form of a report” that she would have to accept that she will have to be on crutches for the rest of her life. This letter, while interesting reading, does not further our understanding of the case, although it does further our understanding of claimant’s position. Dr. Keever apparently did not have the benefit of Dr. Mulhollan’s actual report, but only that which claimant heard by eavesdropping. His letter does not address the issues of claimant’s obesity or quadriceps weakness in relation to the outcome of total knee replacement. Furthermore, claimant’s perception of what she overheard of Dr. Mulhollan’s dictation has more relevance when evaluating the fact that claimant is seeking a magic cure for her condition which does not involve diet or exercise. Dr. Mulhollan has placed responsibility for her success upon claimant’s shoulders, which she has clearly rejected.

In deposition, Dr. Mulhollan stated that claimant’s hyper-extensions and her discomfort were a result of her obesity and weakness. He noted that the outcomes of her previous surgeries were “lousy” and that he projected that the outcome of a total knee replacement would also be “lousy,” with her obesity and weakness and history of unsuccessful surgeries. Dr. Mulhollan would not recommend or even consider a total knee replacement until claimant lost her 100 pounds of excess weight. He also stated that with the weight loss, she probably would not need the surgery.

The common thread in the evidence in this case, disregarding the personalities, pride and personal conflict in this case, is that claimant is terribly overweight and has profound quadriceps weakness which must be resolved. In light of these facts, we credit the opinions of Dr. Mulhollan and Dr. Sorrells and find that a total knee replacement is unreasonable and unnecessary treatment. The medical evidence and indeed common sense show that a person who weighs at least 260 pounds needs to lose a significant amount of weight before undergoing a knee surgery designed to return claimant to weight-bearing activity with that knee, especially when that person’s quadriceps strength is so profoundly poor that she cannot lift her leg against gravity in a seated position. Because there is general agreement that at a minimum, weight loss and strengthening would improve laimant’s recovery, because there is evidence that previous surgical interventions were not successful, and because there is credible testimony that any further surgery on claimant’s knee would also be doomed, we are compelled to find that total knee replacement would be at best a waste of time and resources and at worst severely detrimental to claimant’s condition.

Dr. Huang also recommended Synvisc injections to treat claimant’s knee. Dr. Mulhollan explained that the injections (Synvisc) sought by claimant are designed to provide comfort in the joint by the injection of a very high molecular weight material which acts as a lubricant, and provides comfort for some. “Now, I don’t agree personally that Synvisc would help this patient, because I consider her problem outside the knee. That is, the problem is with the strength and the weight excess and not so much with the knee joint itself. And so, if her knee felt better, it still wouldn’t be any stronger, and she wouldn’t be any lighter. . . . . [The injections] might have a transient effect on the pain, but she still wouldn’t be able to walk around, because she is still so terribly overloaded.”

Dr. Mulhollan’s statement is the only explanation for what Synvisc injections are in the record. The Physicians’ DeskReference, 55th Edition, 2001, states that Synvisc is “an elastoviscous fluid containing hylan polymers” which is “indicated for the treatment of pain in osteoarthritis of the knee in patients who have failed to respond adequately to conservative nonpharmacologic therapy and simple analgesics. . . . . The safety and effectiveness of Synvisc in locations other than the knee and for conditions other than osteoarthritis have not been established. . . .” We find that claimant’s chronic knee pain is a result of her obesity and quadriceps weakness, causing her knee to be overloaded and unable to properly function, a fact supported by the consistent recommendations for weight loss and strengthening throughout her medical records. In light of this finding and Dr. Mulhollan’s opinion that the injections would not correct her obesity and quadriceps causing her pain and that the pain relief would be transient, as well as the absence of any opinion explaining or mentioning the benefit of the injections, we find that the Synvisc injections are not reasonable and necessary treatment. Claimant’s problem is not osteoarthritis. Her problem is the overloading of her knee due to her obesity and weakness. While pain management can be reasonable and necessary treatment, the record provides no evidence to support the use of this treatment and no evidence to show that claimant’s pain would be affected more than transiently.

Dr. Huang also recommended additional bracing to treat claimant’s knee. Dr. Mulhollan stated that crutches would help protect claimant from further hurting herself, and would relieve her discomfort, by taking the load off her knee. On March 18, 1996, Dr. Huff recommended discontinuation of the long leg brace in favor of use of two crutches. Dr. Mulhollan discussed bracing versus crutches in regard to claimant’s hyper-extension. He stated that the hyper-extension would be considered “a manifestation of the problem she has” and not another injury. He went on to state that:

She is horribly overweight and terribly weak, and so she is going to be kind of flopping around and having mishaps like this. This would be almost to be expected. . . . The discomfort inhibits strength. . . And so you have already got a terrible situation, and it could be . . made worse by that sort of mishap. This person, when I saw them, should have been using two crutches. And one of the reasons people use crutches who have problems of this magnitude is to protect their knee, to keep them from being hurt. And of course when she had that mishap, she wasn’t using crutches. . . .I think that weak patients position their extremity into hyper-extension to avoid collapsing of the mechanism. . . . And so, under a normal circumstance, you spend a lot of time bearing weight where your knee is not in full extensions, but you have got to have enough strength in your thigh muscle to withstand the load. And for example, if you got in a slightly crouched position, and I started handing you weight, at some point, you would either collapse into flexion or force your knee into hyper-extension so it wouldn’t collapse. And, so, what these people do, . . . it happens automatically as a reflex, is they force their knee into hyper-extension so they won’t collapse into flexion. And once it hits the bumper stop of complete extension, then it doesn’t go any further, but it can create pain if it goes too far or if it happened too suddenly. And so, that is what I consider a hyper-extension sprain in a patient like this. . . .But you watch them walking around and they are usually walking in a hyper-extension to keep from collapsing.

We find that claimant’s condition does not indicate the further use of bracing of her knee. In fact, in light of Dr. Mulhollan’s logical explanation of the mechanism of her hyper-extensions, and the absence of any evidence to the contrary, we find that the use of a knee brace is not reasonable and necessary treatment and in fact would be detrimental to claimant’s condition. We find that claimant should be using two crutches to protect her knee until the underlying problems of her obesity and muscle weakness are resolved.

We find that claimant’s condition has not changed since she reached her healing plateau on August 13, 1998. Claimant complained of no new symptoms or problems, and her recurring problems are endemic to the nature of her injury coupled with her out-of-control weight and her weakness. Claimant’s healing period ended on August 13, 1998, and she has not entered a new healing period at any time after that date.

Interestingly, Dr. Huang projected, on December 15, 1997, that claimant would reach maximum medical improvement six months after her patellectomy, if performed, that she would “hopefully” be able to return to full duty, and that “hopefully within three months” she would be able to return to modified duty. However, Dr. Keever stated that he doubted claimant could ever return to truck driving and that a patellectomy was out of the question if she desired to attempt such a return.

Dr. Mulhollan discussed her recovery time. He stated that her weight is going to “really influence” her recovery. In general, six months is adequate time to recover from a patellectomy. At that point, “they have what they are going to have . . . and that is when you conclude that they have got to pattern their life around that disability.” A person with no excess weight would be doing the same things they did before the patellectomy, but a person with a 100 pound weight excess “would have a great bit of difficulty.” A person with a patellectomy would not be able to climb into a truck, put a tarp on a truck, close the back door, or change a flat tire. A truck driver has “heavy obligations,” and “a person with a patellectomy and a 100 pound weight excess, wouldn’t be able to do those things.” Claimant will not be able to return to truck driving.

Dr. Huff projected that claimant would require 10 — 12 months of recovery after a patellectomy. Dr. Mulhollan on the other hand stated that claimant reached maximum medical improvement after 6 months. Dr. Huff’s 10-12 month post-patellectomy recovery time projection, made almost two years prior to claimant’s patellectomy, is not expressly inconsistent with Dr. Mulhollan’s opinion. Dr. Huff stated specifically: “I would anticipate maximum medical improvement in 6 months without any surgery, however, if she does have surgical intervention such as the patellectomy I would not anticipate MMI for 10-12 months. The reason that I think that it will take 6 months probably to recondition her is that you have to go very slowly with knees of this type.” When the six month reconditioning time is taken out, then Dr. Mulhollan and Dr. Huff agree that the healing process will take approximately 6 months. Also, Dr. Huff was projecting into the future, while Dr. Mulhollan was able to review the actual events of claimant’s history.

We note that Dr. Mulhollan stated that he did his last patellectomy in 1978. However, after reviewing his explanation in his evaluation report, we attach significance to this in terms of the wisdom of performing a patellectomy, and not to a lack of expertise on Dr. Mulhollan’s part:

In fact, I did my last patellectomy in 1978. Only recently, I had to declare that patient totally disabled. I do not intend to do any more patellectomies unless I encounter a fracture that is past repair.

It seems from this statement that Dr. Mulhollan was dissatisfied with the results obtained from such a procedure, and while still willing to perform one, would only do so as a last resort in treating an irreparable patellar fracture. Apparently, Dr. Keever agreed to some extent that a patellectomy would not be the best choice for claimant, as he recommended against that procedure if claimant intended to return to truck driving.

Claimant’s patellectomy was performed on January 7, 1998. On August 10, 1998, Dr. Huang stated:

I do not feel there is anything further we can do to help her. She will always have residual symptoms. . . Continue medications. Continue conservative treatment. Impairment is based on range of motion, patellectomy with degenerative arthritis present. She will require about 3 visits per year, occasional physical therapy with modalities and medications as above.

On August 13, 1998, Dr. Huang completed a physician’s report from the insurance carrier stating that claimant had a permanent problem with her knee resulting in permanent restrictions that she cannot push with left leg, “i.e., driving, climbing.” After Dr. Huang effectively declared claimant at maximum medical improvement, he reinstated treatment due to claimant’s hyper-extensions and continued problems.

However, Dr. Mulhollan stated that claimant had plateaued in regard to her need for treatment. He stated that he did not think her hyper-extensions extended her healing period. “I think that once she was as good as she was going to get, she is going to keep on having complaints, because . . . that is simply an expression of the gravity of the problem.” Dr. Mulhollan concluded his deposition with the following comments:

But it is my opinion that if a patient can’t extend their knee against gravity, then they need to be using two crutches . . . and my assumption has got to be that she was weak probably from the date that the patellectomy was performed. And I think that she probably never got any stronger than that. . . . But I think that she probably quit gaining any strength at some point in time. And I really still think six months is a reasonable interval. And I think at the point, you are simply have symptoms that are a manifestation of her obesity and weakness. . . . [I recommend] swimming, dieting, using two crutches, doing quadriceps exercises. I have had very poor success with physical therapy. It can be successful if it is done from the viewpoint of instruction. That is, if a therapist will try to persuade the patient to do proper exercises in a pool, to exercise correctly, to pedal the bike an adequate amount, those sort of things. But as far as going to therapy and having message [sic, massage] care and stuff that is not going to make her any better.

The record demonstrates that claimant’s problems after August 13, 1998, were the manifestation of the impact her weight and her quadriceps weakness has on her knee and that there is no improvement to be had in the condition of her knee. The record also shows that claimant will enjoy improvement in her knee if she loses weight and exercises to increase her quadriceps strength. Claimant is as far restored as the permanent nature of her injury will permit. No further improvement to her knee can be obtained. We find that claimant’s healing period ended on August 13, 1998 and that she has failed to prove that she has ever re-entered a healing period.

After a de novo review of the entire record we find that the Administrative Law Judge’s opinion should be affirmed. Claimant has not proven that the proposed additional medical treatment is reasonable or necessary, or that she was within her healing period at any time after August 13, 1998.

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner

SHELBY W. TURNER, Commissioner

I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to benefits for temporary total disability and that claimant is not entitled to Synvisc injections, knee bracing, or total knee replacement surgery.

In a report dated August 13, 1998, Dr. Huang stated that there was nothing further in the way of treatment he could offer claimant. However, claimant reported to Dr. Huang on October 5, 1998, after hyperextending her knee. Dr. Huang’s office note dated October 26, 1998 indicates that he removed claimant from work. Further, he recommended Synvisc injections. On November 23, 1998, Dr. Huang opined that claimant had not reached maximum medical improvement and needed additional treatment. Dr. Huang also noted that respondent refused to authorize the Synvisc injections. In a report dated December 10, 1998, Dr. Huang indicated that claimant has continued to be off work since August 1, 1998.

Based on Dr. Huang’s reports, I find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for temporary total disability from August 13, 1998, or no later than October 5, 1998, when she re-entered her healing period, until an undetermined future date.

In reaching this conclusion, I recognize that Dr. James Mulhollan opined that six months is the usual recuperative period following a patellectomy, and that claimant should have reached maximum medical improvement by August 13, 1998. However, he conceded that he has not performed a patellectomy since 1978. Further, Dr. Mark E. Huff, Jr. opined that it takes ten to twelve months to reach maximum medical improvement following a patellectomy. Accordingly, I find that the opinion of Dr. Mulhollan is entitled to little weight.

At the behest of respondents, claimant was examined by Dr. Mulhollan on January 26, 1999. Dr. Mulhollan testified that if claimant lost a significant amount of weight, she may not need knee replacement surgery. He added that at the time he examined claimant, she needed to use two crutches. Dr. Mulhollan conceded that he does not perform knee replacement surgery, but limits his practice to arthroscopy. According to his testimony, Dr. Mulhollan “. . . didn’t feel comfortable about concluding that she shouldn’t have [a knee replacement] since I don’t do the operation myself.” Thus, he referred claimant to Dr. R. Barry Sorrells. Based on Dr. Mulhollan’s reticence to determine the need for knee replacement surgery, which is based on the fact that he limits his practice to arthroscopic surgery, I find that his opinion is entitled to no weight.

In a letter to Dr. Mulhollan dated January 26, 1999, Dr. Sorrells recommended that claimant “. . . pursue a vigorous rehabilitative program with exercises to strengthen the muscles about this left knee and that she be on a diet with an aggressive weight loss program.” Although he stated that claimant was not currently a candidate for knee replacement surgery, Dr. Sorrells indicated this may be necessary in the future.

After consulting with Dr. Mulhollan, claimant also obtained the opinion of Dr. Jim Keever. She explained that Dr. Keever conducted an examination at the request of respondents before the patellectomy was performed. Claimant testified that Dr. Mulhollan said she would need to use crutches for the remainder of her life. In a letter to claimant’s attorney dated January 27, 1999, Dr. Keever concurred with Dr. Huang’s opinion regarding knee replacement surgery. With respect to Dr. Mulhollan’s recommendations, Dr. Keever stated:

Quite frankly, I would find it very difficult to accept as a sober intelligent opinion and recommendation that this lady simply stay on crutches for the rest of her life. This, in my opinion, is simply denying that there is a problem, or denying that there is a solution. At her age, I think the best trial of treatment would be Synisc [sic] injections, and from the insurance company’s standpoint, this might be a much more cost effective manner of treating this entity for the time being. Certainly, ultimately knee replacement is going to be required, and I’m having a little bit of difficulty deciding how much of this decision making is being driven by the insurance company’s desire to conserve funds and how much with their actual ability to accept their responsibility and provide treatment. . . .

Claimant’s attorney provided Dr. Keever with copies of reports generated by Drs. Mulhollan and Sorrells. In a report dated March 29, 1999, Dr. Keever addressed those opinions:

Frankly, I really am in disagreement with the positions taken by Drs. Mulhollan and Sorrells. This lady is basically completely physically impaired from even a reasonably sedentary lifestyle because of her knee pain. I can see nothing that will really help this short of knee replacement. I would certainly admit the chances of a successful long term result from knee replacement will be improved with weight reduction and quadriceps strengthening. On the other hand, it is my opinion that she’ll require knee replacement regardless of the amount of weight loss or the amount of strength gained in her thigh.

* * *

I would also take exception to Dr. Mulhollan’s lack of interest in pursuing Hyalgen or Synvisc injections. I would certainly agree that these are only indicated for pain relief, but that is after all the role of a physician in treating a patient in pain. On the other hand, I would agree that the long-term result — that is the need for knee replacement — will not be changed even with a successful trial of Synvisc.

Dr. Huang is claimant’s primary treating physician, and Dr. Keever has examined her on more than one occasion. These physicians agree that claimant needs additional medical treatment, including knee replacement surgery. Their opinions are entitled to more weight than Drs. Mulhollan and Sorrells, both of whom examined claimant just once.

It should be noted that claimant was overweight at the time of the compensable injury. Since the compensable injury, claimant has gained more weight. However, the employer takes the employee as he finds her. Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (1979). Claimant in the present case is much like claimant in Murphree, where the compensable injury began a “vicious cycle” by immobilizing claimant, which caused an increase in her weight, which aggravates her condition causing further pain, which kept her immobile.

In my opinion, claimant is entitled to the knee bracing, the injections, and if that fails, the total knee replacement surgery. The injections are to relieve pain. The bracing is to stabilize the knee. If the knee has less pain and is more stable, claimant would be much more likely to succeed in muscle strengthening and other exercises to increase endurance and the concomitant weight loss.

Claimant remains symptomatic and additional medical treatment is reasonably necessary for the treatment of her work-related injury.

______________________________ SHELBY W. TURNER, Commissioner