CLAIM NO. D907447
SUSAN STRICKLAND, EMPLOYEE, CLAIMANT v. CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF THE LATTER DAY SAINTS, EMPLOYER, RESPONDENT, and AMERICAN MOTORISTS INSURANCE CO., CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 6, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY M. DRAPER, Attorney at Law, Crossett, Arkansas.
Respondent represented by MICHAEL R. MAYTON, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed February 20, 1996 finding that the recommended bariatrics gastroplasty (stomach stapling) is reasonable and necessary medical treatment for the claimant’s compensable injury. Based upon our de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the evidence that an invasive surgical procedure for the purpose of weight loss is reasonable and necessary.
[3] The claimant sustained an admittedly compensable injury on April 14, 1989 during the course and scope of her employment when she turned a corner and her right leg went out from under her causing her to fall to the floor. The claimant’s injury was accepted as compensable. The claimant has undergone three surgical procedures to remove disc material from her back and continues to draw temporary total disability benefits. Despite the substantial medical treatment the claimant has received thus far, the claimant allegedly continues to experience back pain. The claimant’s treating physicians agree that further surgical intervention to the claimant’s spine is not necessary. However, the physicians have concluded that the claimant’s efforts to rehabilitate her back would be furthered if the claimant lost weight. On April 23, 1993, the claimant was placed on a modified Medifast diet at the request of her treating physician, Dr. Hochschuler. The Medifast diet was administered by Dr. Barry Thompson, and was paid for by respondent. [4] A review of the medical records indicate that at the time of the claimant’s accident she weighed between 180 and 200 pounds. Following the accident, the claimant’s weight increased to a maximum of 251 pounds as of April 29, 1993. In his initial medical evaluation of the claimant, Dr. Thompson stated that although the claimant’s ideal weight would be 133 pounds, he felt a more realistic weight goal would be between 180 and 200 pounds which would be an approximate weight loss of 50 to 70 pounds. While under Dr. Thompson’s supervision the claimant was placed on a modified Medifast diet. The claimant was not placed on the standard Medifast diet given her previous experience on Medifast diets when they first came out. Dr. Thompson explained to the claimant that the Medifast diet has been altered since its original inception but the claimant was leery of a strict Medifast diet. The claimant’s modified diet allowed the claimant to eat one protein meal and a salad a day. The claimant testified in her deposition that while on the modified Medifast diet her protein meal routinely included shrimp, steak or chicken. [5] The claimant continued on this modified Medifast diet for approximately seven months. At the end of December 1993, the claimant voluntarily took herself off of the modified Medifast diet. However, while on the diet the claimant reduced her weight at one point to 214 pounds, representing a weight loss of 37 pounds. After unplanned eating over the Christmas holidays, the claimant’s weight increased to 222 pounds. It was at this time that claimant voluntarily quit the modified Medifast diet. The claimant alleges in her deposition that Dr. Thompson took the claimant off of the diet because respondent would no longer pay for it. However, the claimant’s assertions are unsubstantiated in the record. Dr. Thompson indicated that when the claimant got off the Medifast diet, he wanted to place the claimant on a maintenance plan and to introduce the claimant gradually to a diet of solid foods. Had Dr. Thompson taken the claimant off the diet, a maintenance plan would have been implemented, yet this clearly was not done. Ten months after taking herself off of the modified Medifast diet the claimant’s treating physicians recommended that the claimant undergo bariatrics gastroplasty (stomach stapling) as a means of weight reduction. [6] Employers are only liable for medical treatment and services which are reasonably necessary for the treatment of employee’s injuries. DeBoard v. Colson Co.,
20 Ark. App. 166,
725 S.W.2d 857 (1987). Claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary.Norma Beatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (
D612291); B.R.Hollingshead v. Colson Caster, Full Workers’ Compensation Commission, Aug. 27, 1993 (
D703346). It is the duty of the Commission to weigh medical evidence as it does any other evidence. “Resolutions of conflicts in medical evidence is a fact question for the Commission.” Bartlett v. MeadContainer Board,
47 Ark. App. 181,
888 S.W.2d 314 (1994). What constitutes reasonable and necessary medical treatment under the Workers’ Compensation Act is likewise, a question of fact for the Commission to determine. Dept. ofCorrections v. Holybee,
46 Ark. App. 232,
878 S.W.2d 420 (1994); Wright Contr. Co. v. Randale,
12 Ark. App. 358,
676 S.W.2d 750 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, the Commission must analyze both the proposed procedure and the condition it is sought to remedy. DebraJones v. Seba, Inc., FC Opinion 12/13/89 (
D512553). [7] We find that the preponderance of the evidence fails to show that the stomach stapling procedure is reasonably necessary for the treatment of the claimant’s compensable injury. The proposed procedure is sought to remedy the claimant’s obesity. This procedure is an invasive procedure which carries with it concomitant risks. It is an extremely costly program which carries with it negative health benefits unless the claimant is extremely motivated. Moreover, as acknowledged by the claimant in her deposition, the procedure alone will not solve her problem. The claimant must change her lifestyle and her eating habits in order for the procedure to be a success. In this case, the claimant has failed to prove that she is motivated to carefully and permanently change her eating habits. [8] While the claimant has shown success in significant weight loss using more conservative weight loss programs based upon dietary modifications, the claimant has failed to show a commitment to a change in lifestyle and eating habits to maintain her weight loss. While on the modified Medifast diet, the claimant would lose weight, however, she would backslide and cheat on her diet. For example, the claimant testified that at her daughter’s wedding in June of 1993, she ate a “huge piece of cake”. As the claimant explained, “I didn’t just eat a piece of wedding cake . . .” Moreover, the claimant testified in her deposition that she would “fess up” each week when she saw Dr. Thompson. Specifically, the claimant stated, “You’d talk to him and you’d tell him, well, I kinda slipped here a little bit or I went to a church dinner . . .” [9] The claimant has simply failed to demonstrate an ability to keep her weight off after successfully losing weight on conservative weight loss programs. The claimant testified in her deposition that she lost 40 pounds in the early 1980’s on a high potassium diet. The claimant further testified that at the time of her injury she was on a modified version of this high potassium diet and lost between 20 and 25 pounds. The claimant has, likewise, succeeded in losing weight on diet pills, a Topeka diet, heart diet, and the standard Medifast diet. However, following each of these diet plans the claimant would slide back into her normal eating habits and gain back all of the weight, plus a little more. It is significant to note that after quitting the modified Medifast diet in December of 1993 the claimant gained back all of the weight she had lost within just six months. As acknowledged by the claimant, if she does not permanently change her eating habits, even the stomach stapling procedure will fail. Stomach stapling is an invasive procedure accompanied by significant risks which should only be performed after conservative measures repeatedly failed to produce results. In the present case, the evidence establishes that the claimant’s weight problems are responsive to more conservative measures. We find a more appropriate method to address the claimant’s weight problem is to continue with such conservative weight loss programs. Accordingly, we find that the bariatrics gastroplasty is not reasonable and necessary for the treatment of the claimant’s compensable injury. Therefore, we reverse the decision of the Administrative Law Judge. [10] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[11] Commissioner Humphrey dissents.