CLAIM NOS. E003102, E103146 E510129
JAMES TENNER, EMPLOYEE, CLAIMANT v. SIEMENS ENERGY AUTOMATION, EMPLOYER, RESPONDENT and ZURICH INS. CO., CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 26, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT TSCHIEMER, Attorney at Law, Little Rock, Arkansas.
Respondent represented by WILLIAM FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; affirmed as modified in part and reversed in part.
[1]
OPINION AND ORDER [2] Respondent appeals from a decision of the Administrative Law Judge dated January 16, 1997 finding that the medical tests, treatments and medications prescribed for claimant’s upper gastro-intestinal problems, his right knee and his lumbosacral area, are a compensable consequence of claimant’s original injuries. [3] Based upon our de novo review of the entire record, we affirm the decision of the Administrative Law Judge in part, affirm as modified in part and reverse in part. Specifically we affirm the finding that claimant’s lower GI problems are not a compensable consequence of claimant’s compensable injury. We affirm as modified the finding that claimant’s upper GI problems are a compensable consequence of claimant’s compensable back injury for which respondent is liable. Finally, we find that claimant has failed to prove that the treatment for claimant’s right knee, and lumbosacral area rendered from 1994 through the present are reasonable and necessary medical treatment of claimant’s compensable injuries; therefore, we reverse this portion of the Administrative Law Judge’s decision. [4] It is undisputed that claimant sustained a compensable injury to his right knee in June of 1988 and to his lower back in October of 1990 and January of 1991. As a result of claimant’s knee injury, claimant came under the care of Dr. Ruth Nelson who eventually performed arthroscopic surgery on claimant’s knee. Dr. Charles Pearce was claimant’s primary treating physician for his lower back injury. Dr. Pearce diagnosed the claimant with a lumbar strain after prescribing an MRI and conducting neurological testing which revealed the claimant to be neurologically intact. The MRI performed in October of 1990 indicated narrowing at the L5-S1 disc space with mild degenerative changes. In April of 1992 Dr. Pearce released claimant from his care but advised claimant to return should he have any increase in pain. [5] The record reflects that claimant was prescribed anti-inflammatory medication which irritated claimant’s upper gastrointestinal tract for the first time in 1993. It is unclear from the record whether respondent initially accepted the medical treatment for claimant’s gastrointestinal problems as a compensable consequence of claimant’s lower back injury. However, it is clear that at the time the claimant was first diagnosed with his upper GI problems he was on anti-inflammatory medication for his lower back problems. Claimant was first seen by Dr. Alonzo Williams on or about June 16, 1993. Claimant provided Dr. Williams with complaints of severe burning, epigastric pain, and a fullness and bloating sensation as well as a history of having taken anti-inflammatory medication for a back injury. After conducting several tests on the claimant Dr. Williams authored a report in February of 1996 stating that all of claimant’s GI problems are a direct result of claimant’s back injury. However, as found by the Administrative Law Judge, we cannot agree that all of claimant’s problems with his GI tract are compensable. First, we note that claimant has not cross appealed the Administrative Law Judge’s finding that his lower GI problems are related to claimant’s hemorrhoids and not claimant’s anti-inflammatory medication. Therefore, we find that we should leave this finding of the Administrative Law Judge intact and would affirm same. [6] Secondly, while claimant’s initial GI problems in the summer of 1993 may be related to claimant’s ingestion of anti-inflammatory medication, there is no evidence to prove that once it was determined that the anti-inflammatory medication was causing claimant’s problems and claimant was taken off of anti-inflammatory medication, that any continued problems into 1994 and following are a result of claimant’s compensable injury from the early 1990’s. Claimant was unable to testify that he had actually taken anti-inflammatory medication since he was diagnosed with his problem by Dr. Williams in June of 1993, except for a limited period after sustaining a car wreck. The only anti-inflammatory medication claimant identified that he had taken since his diagnosis in 1993 was Motrin 800 which was prescribed to claimant as a result of his car wreck. The car wreck and medication prescribed as a result of the car wreck are in no way related to claimant’s compensable injury. If claimant suffered GI problems after taking anti-inflammatory medication for his car wreck, we cannot find that upper GI problems resulting from the medication after the car wreck is a compensable consequence of claimant’s compensable injury. Thus, while we find respondent is responsible for the initial treatment rendered by Dr. Williams for claimant’s upper GI problems, we cannot find that any subsequent treatment for claimant’s GI problems once the anti-inflammatory medication was isolated and claimant was removed from this medication is reasonable and necessary medical treatment of claimant’s compensable injury. After claimant quit taking anti-inflammatory medications in 1993 which were prescribed for his compensable injury, we cannot find that any subsequent treatment for upper GI problems is compensable. [7] Thirdly, with regard to claimant’s lower back problems the evidence reveals that claimant was released by Dr. Pearce in April of 1992. Claimant did not return to Dr. Pearce or any other medical care provider for over two years, when he eventually returned to Dr. Pearce in late May of 1994. At that time, claimant relayed a history to Dr. Pearce of a three day history of increased lower back pain. Diagnostic testing performed in 1994 revealed essentially the same findings as claimant demonstrated when he was released by Dr. Pearce in April of 1992. Claimant was suffering from degenerative disc disease. Dr. Pearce performed a neurological examination which revealed claimant to be neurologically intact. There was no evidence that claimant was still suffering from his compensable back strain in 1994. Rather, all of claimant’s problems in 1994 stemmed from his pre-existing underlying degenerative disc disease. It was this underlying degenerative disc disease which prompted a referral to Dr. Bruce Safman and to The Little Rock Pain Clinic. The issue is not whether he suffered from chronic pain. Rather, the issue is whether claimant’s chronic pain is a result of his compensable lower back strain or claimant’s underlying pre-existing condition. In our opinion, claimant has failed to prove that the treatment he has received for his underlying pain is a result of claimant’s compensable injury. A review of Dr. Pearce’s medical records clearly reveal that claimant’s injury in the early 1990’s did not result in any neurological damage to claimant’s lumbar spine. At most, claimant only suffered a lumbosacral strain which reached maximum medical improvement in April of 1992. There is no evidence that claimant’s problems in May of 1994 through the present are related to that strain. Therefore, we find that claimant has failed to prove that the treatment he has received for his underlying pre-existing degenerative disc disease which is currently causing claimant’s chronic pain is reasonable and necessary medical treatment of claimant’s compensable back strain. Therefore, we reverse the decision of the Administrative Law Judge on this point. [8] Finally, although the Administrative Law Judge found that any treatment for claimant’s right knee is reasonable and necessary medical treatment of claimant’s compensable injury, we find that claimant has failed to present sufficient evidence to find that claimant is in fact in need of any additional medical treatment for his right knee. Claimant testified that he was having problems walking and that his leg would sometimes lock on him. However, there is no evidence in the record that claimant in fact sought any medical treatment or is in need of additional medical treatment for his right knee problem. Therefore, we reverse the finding of the Administrative Law Judge with regard to any treatment of claimant’s right knee. While it may be that claimant is in need of additional medical treatment for his compensable right knee problem, the evidence of record does not preponderate in favor of such a finding. [9] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge should be affirmed in part, affirmed as modified in part, and reversed in part. [10] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[11] Commissioner Humphrey dissents. [12]
DISSENTING OPINION [13] I respectfully dissent from the majority opinion, and would affirm the decision of the Administrative Law Judge finding that treatment and tests rendered to date for claimant’s right knee, upper GI system, and lumbosacral area are reasonably necessary and related to his compensable injuries of June, 1988 (knee); October, 1990 (back); and January, 1991 (back). [14] I cannot agree that respondents’ liability for claimant’s upper GI difficulties should end with the latter’s mere cessation of taking anti-inflammatory medications. Such a finding is tantamount to declaring a wound healed simply because the sword is removed, and does not account for the potential permanency of any ulcer-type damage to claimant’s upper GI system. [15] With regard to claimant’s ongoing back and knee problems, I would point out the following exchange between claimant and his attorney:
Q. Okay. So the issue in this case, as far as the Judge wants to know, your condition before November of 1995, because that’s the date — the — the bills are not after that date. So tell the judge specifically about your back and your knee. What problems were you having that led you to re-seek treatment with Dr. Pearce for your back and your knee.
A. Well, I was having problems walking. At times my leg would go out on me. You know, I could be walking down the steps or something and I could fall. I step on my right leg and it just, it’s not there. Um — I was having problems sleeping. I wake up and my whole right side would be locked up, like, you know, I can’t move it. I have to get out of the bed. My wife have to help me out of the bed and try to smooth that out. You know, I was just having sharp pains at times, you know, it would go for four or five days and then it, like it would just go away, then it will come back.
[16] Claimant ultimately obtained a referral to a pain management clinic, where he received a course of injection therapy without lasting success. On October 11, 1995, Dr. Thomas Hart stated that there was no “cure” for claimant’s back difficulties and that he possessed no lesion which warranted surgery. However, Dr. Hart opined that claimant remained a “very legitimate candidate” for radiofrequency denervation. Because treatment intended to reduce or enable a claimant to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment within the meaning of Ark. Code Ann. §
11-9-508(a) (1987) (see
Billy Chronister v. Lavaca Vault, Full Workers’ Compensation Commission, Opinion Filed June 20, 1991 (Claim No.
D704562)), and given Dr. Hart’s thoughts on the need for additional efforts, I would find that treatment rendered to date for claimant’s back pain has been reasonably necessary. [17] Concerning claimant’s knee, I note that he underwent a diagnostic arthroscopy on January 25, 1990, performed by Dr. Ruth Nelson of UAMS. After a follow-up exam in March, Dr. Nelson stated that:
It is possible that the pathology report of pigmented villonodular synovitis, based on his previous arthroscopy, may be in error and that the area biopsied represented a response to previous trauma. This remains unclear. The consensus in this Ortho Dept. is that Mr. Tenner should be followed over a long term. If he continues to have recurrent effusions and problems with the right knee, a repeat arthroscopy should be done and consideration of a complete synovectomy should also be involved based on the findings at the repeat arthroscopy. (Emphasis added.)
[18] Subsequently, in a letter dated February 20, 1991, Dr. Nelson reported that:
He has been instructed in a straight leg raise exercise program with progressive resistance to keep this problem well under control. He may also require the occasional use of an anti-inflammatory medication. At this point, I feel that he has reached maximum medical treatment for this injury and no further intervention is indicated at this time. It should be kept in mind, however, that he may have residual problems with this knee in the future secondary to that injury. I have not scheduled him a return appointment to see me, but have left that open should further problems arise.
[19] In light of Dr. Nelson’s expectation that claimant might suffer additional problems as a result of his compensable injury, it should not at all be surprising that claimant continues to experience difficulties associated with his knee. I am thus persuaded that respondents should remain liable for treatment related to claimant’s right knee. [20] As set out above, I must respectfully dissent from the majority opinion. [21] PAT WEST HUMPHREY, Commissioner