CLAIM NO. E511825
SAMUEL STILL, EMPLOYEE, CLAIMANT v. CLARIDGE PRODUCTS, EMPLOYER, RESPONDENT and LIBERTY MUTUAL INSURANCE CO., CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 18, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by JAMES A. ARNOLD, II, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed September 3, 1996 finding that claimant has failed to prove by a preponderance of the evidence entitlement to additional medical treatment, additional temporary total disability benefits, and finding that claimant is solely responsible for the treatment of Dr. Cyril Raben, an unauthorized physician. Based upon our denovo review of the entire record, we find that claimant has failed to meet his burden of proof on all issues.
[3] Although claimant’s Notice of Appeal only states that he is appealing the decision alleging that it is contrary to the facts and the law, in his brief claimant argues that the Administrative Law Judge abused her discretion in declining to address claimant’s Motion to Recuse. It is noted that the Administrative Law Judge’s opinion was filed on September 3, 1996. It is also noted that claimant’s Motion to Recuse was filed with the Commission on September 3, 1996. Claimant’s motion was filed more than two months subsequent to the hearing and one month subsequent to being advised that the transcript had been received and the case was now on the Administrative Law Judge’s desk for submission. In our opinion, claimant’s lack of initiative and failure to file the Motion to Recuse prior to the opinion being rendered, is inexcusable. We can find no error or abuse of discretion in the Administrative Law Judge’s failure to address claimant’s Motion to Recuse once the opinion had been rendered. [4] Moreover, we find that claimant has failed to prove sufficient grounds justifying his recusal motion. Claimant argues that the Administrative Law Judge “created an appearance of impropriety when, under the circumstances, she felt it necessary to admonish the claimant’s counsel that he should familiarize himself with the contempt statute of our workers’ compensation law.” It is apparent from reviewing the record that claimant’s attorney was, to say the least, displeased with the Administrative Law Judge’s ruling on several evidentiary issues. Claimant’s attorney’s outburst shown by his attempt to make a record on the Judge’s rulings makes it clear that if any comment was made to claimant’s attorney regarding contempt, such comment was warranted. It is noted that the Administrative Law Judge did not cite claimant’s attorney for contempt during the hearing nor after the hearing. She merely advised claimant’s attorney to familiarize himself with the contempt statute. We see nothing improper with the Law Judge’s conduct in light of claimant’s attorney’s outburst and total disregard for the Law Judge’s attempts to control the hearing and her courtroom. Furthermore, we can find no evidence in the record itself that the Administrative Law Judge engaged in any action whatsoever which was improper. Claimant’s allegations of impropriety are not supported by the record. The record merely shows that the Administrative Law Judge ruled adversely to claimant on two evidentiary issues and that the Administrative Law Judge advised claimant’s counsel to take a seat on several occasions. Clearly, there is nothing improper in such actions. Accordingly, we find that the Administrative Law Judge did not abuse her discretion when she declined to address the Motion to Recuse once the opinion was rendered. Moreover, we find that even if the Motion to Recuse had been timely filed, there is no basis in the record to support the motion. [5] With regard to the substantive issues in this case, it is our opinion that claimant has failed to prove by a preponderance of the evidence entitlement to additional benefits. Claimant sustained an admittedly compensable injury on August 9, 1995, just six days after beginning work with respondent. Medical benefits and temporary total disability benefits were paid through October 18, 1995, when respondent determined that claimant had a pre-existing congenital deformity in his back in the form of spina bifida occult and other degenerative conditions in his spine which were not causally related to claimant’s compensable injury. [6] The medical opinions in this case are numerous and varied. Claimant’s original treating physician, Dr. Tom Langston, a family physician, first identified claimant’s congenital deformity. Based upon his findings, Dr. Langston referred claimant to Dr. Burt Parks, a neurosurgeon. Dr. Parks opined that claimant suffered from spondylolisthesis, which was traumatic in origin. However, Dr. Langston questioned Dr. Parks’ conclusion. Dr. Langston explained that claimant’s congenital deformity, spina bifida occult, is occasionally associated with spondylolisthesis. With this in mind, Dr. Langston was unable to agree or support Dr. Parks’ conclusion that the spondylolisthesis was caused by claimant’s injury. [7] There is no evidence that the spondylolisthesis was, in fact, caused by claimant’s injury. Moreover, Dr. Parks’ opinion regarding the spondylolisthesis is not stated within a reasonable degree of medical certainty. Dr. Parks merely states that claimant’s work injury may “indeed” account for the spondylolisthesis. Such ambiguity and lack of certainty in this statement renders the statement almost meaningless. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict.McClain v. Texaco, Inc.,
29 Ark. App. 218,
780 S.W.2d 34 (1989). [8] After Dr. Parks recommended surgery, claimant requested a second opinion and was seen and evaluated by Dr. Vincent Runnels, a neurosurgeon. Dr. Runnels disagreed with Dr. Parks’ diagnosis of spondylolisthesis. Based upon his examination of the claimant, there is no evidence that claimant, in fact, suffered from this condition. Dr. Runnels reviewed the MRI films himself and stated:
I do not see any spondylolisthesis but see degenerative disc disease at 4-5 and 5-1 with some minor midline bulging and a desiccated disc at 2-3, but nothing that I would call a herniated disc and there is no slip at 4-5.
[9] After examining the claimant and the films, Dr. Runnels stated:
I do not feel the patient should have surgery as I do not find any evidence of a spondylolisthesis and do not find any evidence of a herniated disc. I feel the patient is suffering from degenerative disc disease with a facet strain . . . I do not think he suffered these discs at his job but only strained his facets and that should respond to medical management. I do not think he will have permanent disability . . .
[10] In December of 1995, claimant’s attorney referred claimant to Dr. Cyril Raben, an orthopaedic surgeon. Dr. Raben diagnosed claimant with “low back pain without clear cut signs of radiculopathy and question of possible neurogenic claudication secondary to disc herniation and/or internal disc derangement, L4/5 and L5/S1 greater than L2/3.” Dr. Raben was of the opinion that claimant may need a fusion procedure sometime in the future. [11] Although the opinions in this case vary, the medical records clearly indicate that claimant suffered from a pre-existing nonwork-related condition of spina bifida occult. The medical records do not reflect the existence of muscle spasms, abnormal nerve conduction studies, reflex abnormality, or other findings which are clearly objective in nature. There is no medical evidence that claimant’s condition subsequent to October 18, 1995 was related to his work-related incident and not his pre-existing condition. [12] Interestingly, of the four physicians who have examined the claimant, the ultimate opinions from the four physicians are inconsistent. In our opinion, Dr. Runnels’ opinion is entitled to the greatest weight. Dr. Runnels’ opinion fully explains the basis for his opinion and sets forth his basis for discounting Dr. Parks’ opinion. Given the minor findings of mild bulging disc which is consistent among the physicians, it is our opinion that Dr. Runnels’ opinion is the one most consistent with the objective findings. Dr. Raben failed to arrive at an ultimate conclusion but merely recommended additional testing. Moreover, it is unclear from Dr. Raben’s opinion whether the possible fusion surgery which he has recommended is related to claimant’s spina bifida occult and other pre-existing conditions. Accordingly, the only medical opinion of record which is thorough with regards to its basis and its findings is that of Dr. Runnels. Accordingly, we place greater weight on Dr. Runnels’ opinion. [13] In line with Dr. Runnels’ opinion, it is our finding that claimant has failed to prove by a preponderance of the evidence that after October 18, 1995, he suffered from any condition other than his pre-existing condition associated with his compensable injury. All treatment subsequent to October 18, 1995 was solely for claimant’s pre-existing congenital deformity. Therefore, it is our opinion that claimant has failed to prove entitlement to any medical treatment subsequent to October 18, 1995. Likewise, since claimant’s condition subsequent to October 18, 1995 is solely related to his pre-existing condition, we find that claimant has failed to prove that he remained within his healing period for his compensable injury and totally incapacitated from earning wages subsequent to that date. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence entitlement to additional temporary total disability. [14] Finally, we find that claimant has failed to prove that Dr. Raben was an authorized treating physician. The record clearly reveals that claimant sought Dr. Raben’s treatment on his own accord, outside the change of physician requirements. Therefore, we find that claimant is solely responsible for all medical treatment rendered by Dr. Raben. [15] Accordingly, based upon our de novo review of the entire record, and for those reasons stated herein, we affirm the decision of the Administrative Law Judge. [16] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[17] Commissioner Humphrey concurs in part and dissents in part.
[18] CONCURRING AND DISSENTING OPINION
[19] While I concur in that part of the majority’s opinion concerning the Motion to Recuse, I must respectfully dissent from the majority’s affirmance of the decision of the Administrative Law Judge finding that the claimant failed to prove entitlement to additional medical treatment and additional temporary total disability benefits. Based on my review of the medical records and evidence presented in this case, I believe that the claimant proved by a preponderance of the evidence that he was entitled to additional temporary total disability benefits as well as continued medical treatment.
[20] I believe that the claimant presented credible medical evidence which supports his claim for additional temporary total disability benefits and medical benefits. I believe that Dr. Bert E. Park’s letter of August 23, 1995, and his report of August 22, 1995, are entitled to greater weight. Dr. Park opined that the claimant was suffering from spondylolisthesis which was traumatic in origin. Dr. Park also recommended lumbar fusion as treatment for the claimant’s condition, this based on the MRI scan which is clearly an objective finding as defined in Ark. Code Ann. §
11-9-102 (16) (Repl. 1996). [21] Although I reluctantly agree that Dr. Cyril Raben was not an authorized physician, this does not mean that he cannot give his opinion as to what the claimant’s condition is and what treatment he would recommend. Dr. Raben opined in his letter of December 4, 1995, that the claimant’s injury was caused by “lifting/twisting,” and not as a result of a pre-existing condition. Dr. Raben went on to state that the claimant would need a fusion procedure, as the aggressive conservative treatment had failed. Dr. Raben stated that the claimant needed physical therapy, hydrotherapy, water aerobics, and other treatment to help with his admittedly compensable injury. I believe that Dr. Park’s and Dr. Raben’s opinions corroborate one another and are consistent in their analysis of what further treatment the claimant needed. Therefore, I would resolve the conflicting medical evidence in favor of these two doctors, and I would find that the claimant was entitled to the recommended treatment. See Foxx v. American Transp.,
54 Ark. 115,
924 S.W.2d 814 (1996). Accordingly, I would find that the claimant was entitled to additional medical treatment, and that he remained within his healing period as the claimant was in need of further medical treatment to restore him as far as possible. See Carroll Gen. Hosp. v.Green,
54 Ark. App. 102,
923 S.W.2d 878 (1996). Both doctors were recommending either surgery or further conservative “treatment,” and I would find that the claimant’s healing period had not ended in light of these doctors’ opinions. See, Id. Therefore, I would reverse this portion of the Administrative Law Judge’s decision on these issues. [22] Based on the foregoing, I concur in part and respectfully dissent in part from the majority opinion. [23] PAT WEST HUMPHREY, Commissioner