CLAIM NOS. E907915 and E907916
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 2, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by the HONORABLE FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
The claimant appeals and the respondents cross-appeal an administrative law judge’s opinion filed November 13, 2000. The administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on January 27, 1999, but that the claimant proved that she sustained a compensable back injury on June 10, 1999. The administrative law judge found that the claimant was entitled to reasonable and necessary medical treatment from June 10, 1999 through September 28, 1999. The administrative law judge also found that the claimant proved that she was entitled to temporary total disability compensation from June 11, 1999 through September 28, 1999. After reviewing the entire record de novo, the Full Workers’ Compensation Commission affirms the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that Linda K. White, age 51, was employed with Remington Arms Company, Inc. on February 27, 1999. Ms. White testified that she felt a severe pain in her lower back on that date and “couldn’t straighten all the way up” after squatting to use a dust pan. The claimant was treated at Baptist Memorial Medical Center on February 27, 1999:
After admission to the emergency room, the patient was examined. X-rays of the lumbosacral spine revealed narrowing at L5-S1 with some osteoarthritis spurs off the vertebra. It was felt that the patient had acute lumbosacral strain. It is doubtful that she has a herniated disk.
The emergency room physician diagnosed “acute lumbosacral strain” and treated the claimant conservatively. The claimant testified that she was absent from work from February 28, 1999 through March 13, 1999, which included one week that the claimant had the flu, and that she received a regular paycheck during this time period. The claimant said she was placed on light duty upon returning to work.
The claimant testified that she “felt that burning again” at work on June 10, 1999, after bending over to pick up a bundle of cardboard cases. The claimant said that she immediately reported the incident and was treated conservatively at the nurse’s station. The claimant did not return to work after June 10, 1999.
The claimant visited Dr. Michael J. Weber, an orthopaedist, on June 14, 1999; Dr. Weber arranged a lumbar MRI. The following findings resulted from an MRI of the lumbar spine taken June 16, 1999:
There is multi-level disc desiccation, not unusual for age. There is very minimal annular bulge at
T11-12. At L2-3, there is minimal annular bulge associated with disc space narrowing. AT L3-4,
there is mild diffuse annular bulge. At L4-5,
there is mild diffuse annular bulge. There may be a small inferior central annular tear as seen in image 7 of series 3. There is minimal sac effacement. At L5-S1, there is a moderate central disc bulge associated with mild sac effacement.
There is mild facet arthritis at this level which does not cause significant canal narrowing. There is minimal spondylosis at this level also.
IMPRESSION:
1. Multi-level annular bulges. There is probably a small central annular tear at L4-5.
2. No HNP is identified.
Dr. Weber referred the claimant to a pain clinician, Dr. Annette P. Meador, who reported on June 23, 1999:
Mrs. White is a 49-year-old employee of Remington who injured her back on February 27, 1999. . . .when she injured her back she was sweeping the floor and bent over to move the dust pan. She felt immediate pain as she raised up and found it difficult to straighten out. She then re-injured her back this month while at work on light duty, picking up boxes. She felt a burning sensation as she raised up. . . .On myofascial exam, she has spasm of the right quadratus lumborum, right gluteus medius and over the right psoas. The piriformis is involved to a lesser extent.
IMPRESSION:
1. Lumbar radiculopathy secondary to annular tear at L4-5.
2. Associated myofascial pain.
Dr. Meador began a series of conservative treatment modalities, which included lumbar epidural steroid injections. A physical therapist reported continuing “spasm” in July, 1999.
The claimant eventually began treating with Dr. Robert G. Valentine, Jr., a physician who limits his practice to treatment of chronic pain problems. Dr. Valentine performed a four-level lumbar discogram on August 31, 1999 and reported:
The L2-3, L4-5, and L5-S1 discs all revealed internal disruption, with the L4-5 disc being obviously the most painful on injection, with the L5-S1 disc the second most painful. It is noted that it was not possible to pressurize the L5-S1 disc past 25 PSI, possibly skewing the results when comparing the levels of pain at pressurization.
Dr. Valentine diagnosed “Lumbar discogenic pain/internal disc disruption.” However, a post-diskogram CT scan of the lumbar spine was taken August 31, 1999 and included the following findings:
L4-L5: The contrast is diffusely scattered throughout the disc space extending peripherally to the annulus. There is a small collection of gas seen posteriorly within the disc at this level and could represent a vacuum disc phenomenon, although potentially could also represent air that was introduced into the disc space at the time of the injection. This is quite focal. There is no extension beyond the annulus to suggest an annular tear and no focal HNP is identified. There is no foraminal narrowing or canal stenosis. The appearance of the contrast within the disc is consistent with disc degeneration. . . .
IMPRESSION:
1. There is disc degeneration in decreasing order of severity at the L5-S1, L4-L5 and L2-L3 levels.
2. Normal diskogram at the L3-L4 level.
3. There is no extravasation of contrast at any level to suggest an annular tear and no discrete HNP is seen at any level. There is also no evidence of any bony spinal canal stenosis or foraminal narrowing.
Dr. Valentine saw the claimant on September 15, 1999 and recommended “a two-level IDET procedure at L4-5 and L5-S1. If needed, we can always return and treat the L2-3 level. I’d certainly prefer not to treat three levels and give her about four months or so before deciding whether to treat the L2-3 level.” Dr. Valentine testified regarding IDET, that is, Intradiscal Electrothermal Annuplasty:
A. Well, the IDET was developed at Stanford over the last half of the 90’s. It’s a procedure designed specifically to treat painful discs. The premise is that in the outer disc, the layers of the annulus and the collagen molecules are bound with heat-sensitive bonds.
If you heat the annulus of the disc to a high enough degree for a long period of time, those heat-sensitive bonds will break and it allows the collagen to shrink, to shorten and thicken, in effect, doing that to that portion of the disc.
To increase the structural integrity of the disc and shrink, mechanically, that area, the idea behind it is two-fold. One is to mechanically seal tears. Secondly, the heat itself may act to de-nature or knock out the pain receptors within the outer portion of the disc.
On September 28, 1999, Dr. Valentine performed an “Intradiscal electrothermal annuloplasty, ONE level, L4-5 (L5-S1 attempted unsuccessfully).”
Dr. Valentine reported on October 27, 1999:
Linda returns today one month status post IDET
procedure at L4-5. We are unable to acceptably replace the catheter within the L5-S1 disc without involving the nerve root at that level. She is roughly about the same as before the procedure, however she notices that her urinary incontinence is much better and the numbness she was feeling in her leg is significantly improved.
Dr. Valentine planned “post-IDET stretching” and pain medication, and wrote:
I will see her back in the next 4-6 weeks. If she’s not improved at that point, I think we can go ahead and think about the L2-3 disc. I would probably also consider new attempt at treating the
L5-S1 disc. It is extremely disrupted but, again, a slightly different approach could conceivably allow adequate catheter placement. It’s unlikely but the possibility exists and I don’t want to deny her acceptable treatment if it’s possible to do it. In the interim, I’m going to continue her off work until I see her again.
The respondent-employer terminated the claimant’s employment on December 9, 1999. “You have a six-month period to go back to work,” she testified, “and I was not released from a doctor and they terminated me.” The respondents wrote to the claimant on December 9, 1999:
As per our recent conversation, your 26 weeks of short term disability which began on June 11,
1999, will end on Thursday, December 9, 1999.
In accordance with plant practice, you will be taken off the active roles at this time, your termination date being December 9th. Medical and dental coverage as an active employee will continue through December 31, 1999.
Dr. Valentine wrote to the claimant’s attorney on February 8, 2000:
Ms. White underwent a two-level intradiscal annuloplasty procedure on January 25, 2000 at the L2-3 and L5-S1 levels for painful internal disc disruption.
Currently, Ms. White is still in the healing period and has not yet reached MMI. It is therefore impossible for me to determine the extent of any permanent impairment at this time.
It is my opinion that Ms. White did undergo gradual degeneration and injuries to her back, aggravating or resulting in degenerative disc disease. This is compatible with the type of work she did. It is my opinion further that the major cause of her current problems were the injuries of February 27, 1999 and June 10,
1999. It is not possible to determine which was the greater contributor to her problem.
The fact that she had not had previous symptomatic problems with her back certainly points very much toward the specific injuries noted as being the major cause of her current problem and impairment.
This lady will have some degree of permanent impairment, but it is not possible at this time to determine exactly how much, nor is it possible to determine whether further treatment will be required since she is still in the postoperative period.
Dr. Jim J. Moore, a neurological surgeon, evaluated the claimant for the respondents on February 16, 2000:
I have been provided medical records which have been reviewed and also some radiographs which include a lumbar MRI, a lumbar diskogram and a
CT diskogram and I have obtained a history from the patient who indicates to me that her problems developed on or about 2-27-99 when while at work at Remington where she has worked about, I believe, 28 years or so, she was sweeping. She bent over and could not stand erect on attempt to. Her normal work is pushing and maneuvering barrels. The patient has seen a number of physicians. She saw orthopedically initially Dr. John Wilson being referred by Dr. Shuman (sic), her family practitioner. Dr. Wilson saw her on several occasions and recommended some conservative maneuvers including exercises and medication. Apparently he last saw her on 5-20. Then the next note is evaluation by Dr. Weber on 6-14. He outlined an MRI to be done which is available for review and does show evidence of some disk degeneration and some bulging at the L4/5 level. Appropriately he indicated that this was not causing a neurologic deficit. He did suggest that possibly some lumbar epidural steroid injections might benefit her and so he sent her on to see Dr. Meador who did three lumbar epidural steroid injection and two trigger blocks, none of which gave her any benefit. Dr. Meador then sent her on to see Dr. Valentine who carried out lumbar diskography and then with recommendations for intradiskal coagulation therapy. The initial procedure was done 9-28-99 and I have an operative report for this which indicates that the L4/5 level was accomplished but that coagulation could not be achieved at the L5/S1 level. The patient then returned for a second injection therapy on 1-10-00, this at the L2/3 level according to her and also a successful placement of the electrode at the L5/S1 level. I do not have anything to refer to as far as an operative note. The patient states her complaints are that of low back pain and a feeling of numbness and distress in the right lateral thigh at about the mid. She has had this symptom all along. She indicates that she has not as yet achieved any relief from the various maneuvers directed at her treatment. She does state that she thinks maybe her back up higher is a little better after the L4/5 injection. . . .
I have reviewed the additional studies on this patient. I have already commented on the MRI. I
would agree with Dr. Harder’s assessment that there is no evidence of a disk herniation. I am not sure that I see anything in the way of an anular (sic) tear at the L4/5 level that he was considering as a possibility. The diskogram and CT diskogram are also available for review. There is no evidence on the diskogram to suggest an anular tear or disk herniation. There is evidence of some disk degeneration at L5/S1, L4/5 and L2/3. Nothing unusual at L3/4. This would be confirmatory on the lumbar diskogram CT following the diskogram.
At this particular point, I am not at all comfortable in suggesting that intradiskal thermocoagulation is an appropriate procedure. Although it is being done with increasing frequency, it is a surgical procedure that it seems has obtained a following among pain management physicians but to a lesser extent neurosurgery and orthopedic surgery. There are no studies of which I am aware that would put IDET to an appropriate clinical test.
It is felt that the patient did have an on job injury but it would seem to be more in the realm of musculoligamentous sprain and strain rather than degenerative disk disease which would likely have pre-existed the injury. I do not agree that there is evidence of significant internal disk disruption. At the present time the patient is obviously deconditioned and would probably best be served by some strengthening program to the musculoligamentous structures in the lumbar area.
I am not of the opinion that the patient would probably be considered a candidate for anything such a (sic) spinal cord implant or morphine pump implant. She has never had a TENS unit. If such is tried and effective, then there would be no need for an internal implant. If a TENS unit is tried and is ineffective, then an implant in my judgment is going to be ineffective. One additional point I would like to make is that on reviewing the lumbar spine film sequence, there is quite a bit of degenerative spurring especially anterior in the vertebral bodies which would further suggest degenerative and aging processes. I believe that one of Dr. Valentine’s notes suggested the possibility that the maneuvers carried out might construe thoughts of a fusion. The only indication for a fusion is instability and there does not appear to be any evidence that such is a factor in this patient’s situation.
Ms. White filed a claim for workers’ compensation. The claimant contended that she had sustained a compensable injury, for which she was entitled to medical treatment. The claimant contended that she was entitled to temporary total disability compensation from February 28, 1999 through March 13, 1999, and from June 11, 1999 until a date yet to be determined. The respondents controverted the claim.
After a hearing before the Commission, the administrative law judge found that the preponderance of evidence did not reflect that the claimant sustained a compensable injury “on January 27, 1999.” The administrative law judge found that the claimant did sustain a compensable back injury on June 10, 1999. The administrative law judge awarded reasonable and necessary medical treatment from June 10, 1999 through September 28, 1999. The administrative law judge awarded temporary total disability compensation from June 11, 1999 through September 28, 1999, “during which time claimant remained in a healing period and totally incapacitated from earning wages, as a result of the compensable sprain-strain injury.” The claimant appeals to the Full Commission; the respondents cross-appeal.
II. ADJUDICATION A. Whether the claimant sustained a compensable injury
A claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-PacificCorp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that the accidental injury caused physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v.Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, the administrative law judge noted that the Commission was to adjudicate whether the claimant sustained compensable injuries on February 27, 1999 and June 10, 1999. The administrative law judge found, however, that the claimant failed to prove that she sustained a compensable injury on January 27, 1999. The administrative law judge discussed that the claimant contended that she sustained accidental injuries on February 27, 1999 and June 10, 1999. It is therefore apparent that the administrative law judge simply wrote the incorrect date in finding that the claimant failed to prove that she sustained a compensable injury on January 27, 1999.
In any event, the Full Commission affirms the administrative law judge’s implicit finding that the claimant failed to prove that she sustained a compensable injury on February 27, 1999. The claimant reported a severe pain in her lower back at work on February 27, 1999, after squatting to use a dust pan. A physician diagnosed “acute lumbosacral strain” on February 27, 1999, but there were no objective findings of injury. X-rays of the lumbosacral spine taken February 27, 1999 showed degenerative narrowing at L5-S1, along with osteoarthritis spurs off the vertebra. The record does not indicate that these degenerative conditions were the result of the February 29, 1999 specific incident.
The Full Commission affirms the administrative law judge’s finding that the claimant proved by a preponderance of the evidence that she sustained a compensable back injury on June 10, 1999. The claimant testified that she “felt that burning again” at work on June 10, 1999, after bending over to pick up a bundle of cardboard cases. The claimant immediately reported the specific incident. Dr. Meador examined the claimant on June 23, 1999 and reported “spasm of the right quadratus lumborum, right gluteus medius and over the right psoas.” A physical therapist likewise reported “spasm” over a subsequent series of visits. Muscle spasms can constitute objective findings as required by Ark. Code Ann. § 11-9-102(16). See, Continental Express, Inc. v.Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999).
We disagree with the assertion of Commissioner Wilson’sConcurring and Dissenting Opinion that the claimant did not sustain a compensable injury on June 10, 1999, and that “the claimant’s problems are all degenerative.” The claimant credibly testified that she felt a burning in her back after picking up a bundle of cardboard cases at work, and she immediately reported the incident. There are numerous reports of muscle spasm, and Dr. Moore credibly opined that the claimant sustained a work-related injury.
B. Reasonable and necessary medical treatment
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Supp. 1999). Injured employees have the burden of proving, by a preponderance of the evidence, that medical treatment is reasonably necessary for treatment of the compensable injury. Beatty v. Ben Pearson, Inc., Workers’ Compensation Commission D612291 (Feb. 17, 1989). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, the Commission analyzes both the proposed procedure and the condition it is sought to remedy.Jones v. Seba, Inc., Workers’ Compensation Commission D511255
(Dec. 13, 1989). What constitutes reasonable and necessary medical treatment is a fact question for the Commission. Ganskyv. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996).
In the present matter, the administrative law judge found that the claimant was entitled to reasonable and necessary medical treatment from June 10, 1999, the date of the compensable injury, through September 28, 1999, the date of the first IDET procedure. The Full Commission affirms this finding. Following the claimant’s June 10, 1999 compensable injury, she began treating with Dr. Valentine in August, 1999. Pointing to the deposition testimony of Dr. Valentine, Commissioner Turner’s Concurring andDissenting Opinion declares its belief that the claimant suffered from “annular tears of internal disc disruptions.” Dr. Valentine indeed testified regarding the diskogram he performed on August 31, 1999 and opined that “she had three levels of painful internal disruption of the lumbar discs at L2-3 and L4-5 and L5/S1.” Dr. Valentine stated that “internal disc disruption” was synonymous with “annular tear.” Dr. Valentine testified:
Q. In Linda’s case, doctor, did a MRI suggest an annular tear?
A. The L-4, 5 disc shows what the radiologist described as a possible tear. You can actually see nuclear material in the outer annulus there.
At L5/S1, all you can really see is the bulge. On the diskogram, you can actually see the contrast in that same segment, however.
Dr. Valentine testified that there were “multi-level” annular tears in the claimant’s low back. However, the Commission attaches greater weight to the findings of Dr. Jim Moore, a neurological surgeon learned in the techniques of discography, CT discography, and myelograms. Dr. Moore credibly stated that he saw no “annular tears” on the claimant’s diagnostic film. Dr. Moore testified:
Q. Do you believe the things that Dr. Valentine is characterizing as “tears” either caused Ms.
White’s pain in the past or is causing whatever pain she is having now?
A. I think Ms. White had an injury and I think it was primarily soft tissue. I believe Dr. Valentine is over-emphasizing the degenerative changes that are in the MRI, and unfortunately, further investigation did not include a myelogram, a contrasted CT, which in my mind is still the gold standard as far as the diagnostic study. MRI’s are excellent; I’m not arguing that point. . . .
Q. Were the discs in Ms. White’s back degenerated?
A. There was evidence of disc degeneration, yes, on the MRI and on the diskogram.
THE JUDGE: In every level, did you say?
A. More at 5-1, a little less at 4-5, a bit more at 2-3, and really not a great deal, if any, at 3-4.
Dr. Moore opined that the claimant was not given “the full benefit of a conservative course of care,” which would include medication, lumbar neurosurgery injections, strengthening exercises, and transcutaneous electrical nerve stimulation (TENS). Dr. Moore further testified:
Q. Do you send your patients for IDET procedures?
A. No.
Q. And why do you not do that?
A. I am not convinced of its effectiveness or of the basic philosophy.
Q. Is the IDET procedure a minor procedure in your —
A. No, it is not.
Q. And why is that?
A. Well, it’s an invasive procedure. It’s a surgical procedure, admittedly a small surgery, but it is surgical and it does require instrumentation with use of the fluoroscope, radiologic assistance in that, and the heating element can be damaging, as Dr. Valentine mentioned when he was unable to position the catheter at 5-1 and she developed the burning sensation in, I think it was, the foot and he discontinued the procedure. When these procedures continue, individuals can develop cauda equina syndrome, have major paralysis of bladder and bowel and all this. I mean, it is not an innoculent (sic) procedure.
The administrative law judge found that the preponderance of evidence did not show that the claimant had sustained an annular tear in any disks of the lumbar spine. After reviewing the entire record de novo, the Full Commission affirms this finding. We recognize that a “probable” annular tear at L4-5 was reported in June, 1999. Dr. Valentine reported and testified that there indeed was such an abnormality at L4-5. Nevertheless, the impression from a post-diskogram CT scan taken August 31, 1999 was “no extravasion of contrast at any level to suggest an annular tear and no discrete HNP is seen at any level.” Likewise, Dr. Moore independently evaluated the claimant and found “no evidence” to suggest an annular tear or disk herniation. The Full Commission finds that the administrative law judge properly assigned greater weight to the opinions of Dr. Moore than to those of Dr. Valentine.
We therefore affirm the administrative law judge’s finding that the claimant has shown by a preponderance of the evidence that she is entitled to reasonable and necessary medical treatment for her compensable soft tissue injury which occurred June 10, 1999. The Full Commission also affirms the administrative law judge’s determination that the IDET procedures starting September 28, 1999 do not constitute reasonable and necessary medical treatment. Specifically, we affirm the administrative law judge’s finding that the claimant sustained a sprain-strain injury, and that the IDET measures employed by Dr. Valentine are not reasonably necessary to treat such injury. Therefore, the claimant has failed to prove by a preponderance of the credible evidence that she is entitled to medical treatment after September 28, 1999, the date of the first IDET procedure.
The claimant cites three published cases dealing with IDET:Galloway v. White Consolidated Industries, Workers’ Compensation Commission D908862 E706902 (Aug. 3, 2000); Daniels v. DallasCounty Hospital, Workers’ Compensation Commission E803608 E813869 (Sept. 27, 2000); Durham v. Aegon Insurance Company, E911422 (Sept. 27, 2000). The claimant specifically asserts that the facts of Daniels and Durham are substantially similar to the present matter. Nevertheless, the Commission finds these cited cases to be readily distinguishable from the present matter.
In Galloway, supra, the Full Commission found that intradiscal electrothermal therapy (IDET) was reasonably necessary treatment in connection with the claimant’s compensable back injury. The claimant in Galloway submitted the opinions of two treating physicians who opined that the claimant was “a viable candidate” for IDET. Unlike the present matter, there were no conflicting medical opinions in Galloway disputing the claimant’s entitlement to IDET. In Daniels, supra, the Full Commission found that the claimant proved that a proposed IDET procedure was reasonably necessary to treat a compensable injury. The Full Commission minimized the findings of a physician who we determined had insufficient knowledge regarding IDET. In the present matter, Dr. Moore was keenly and thoroughly aware of IDET procedures, although he was not convinced of the effectiveness of same. Finally, the Commission also approved intradiscal electrothermal therapy in Durham, supra. The Commission found from the record inDurham that the opinion of Dr. Valentine was more persuasive than the opinions of Dr. Moore and Dr. Cathey as to whether IDET was appropriate in that particular case.
The claimant bears the burden of proving by a preponderance of the evidence that she is entitled to medical treatment. Daltonv. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). After de novo review of the entire record in the present matter, the Full Commission affirms the administrative law judge’s finding that the claimant is entitled to an award of reasonable and necessary medical treatment from June 10, 1999, the date of the compensable injury, through September 28, 1999, the date of the first IDET procedure.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on February 27, 1999, but that the claimant proved that she sustained a compensable back injury on June 10, 1999. We find that the claimant proved that she was entitled to reasonable and necessary medical treatment from June 10, 1999 through September 28, 1999. We also find that the claimant proved that she was entitled to temporary total disability compensation from June 11, 1999 through September 28, 1999. The Full Commission therefore affirms in its entirety the opinion of the administrative law judge.
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. 1996).
For prevailing in part 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
Commissioner Wilson concurs in part and dissents in part.
I respectfully concur in part and dissent in part from the principal opinion. Specifically, I concur in the principal’s finding that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on February 27, 1999, and that the respondents are not liable for the IDET procedure that the claimant underwent in September of 1999. However, I must respectfully dissent from the principal opinion finding that the claimant sustained a compensable back injury on June 10, 1999. In my opinion, the claimant has failed to meet her burden of proof.
The medical evidence indicates that the problems that the claimant is suffering from are degenerative. The August 31, 1999, diskogram makes it clear that the claimant’s problems are all degenerative. Therefore, I cannot find that the claimant sustained a compensable injury on June 10, 1999. Accordingly, I dissent from the principal opinion awarding benefits for medical as well as temporary total disability benefits during this time period from June 10, 1999, through September 28, 1999.
Commission Turner concurs in part and dissents in part.
I concur with the findings in the principal opinion that claimant has proven by a preponderance of the evidence that she sustained a compensable back injury on June 10, 1999, and that claimant is entitled to benefits for medical treatment and temporary total disability from June 10, 1999 until at least September 28, 1999, the date of the first IDET procedure. However, I must respectfully dissent from the findings that claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on February 27, 1999; that the IDET procedures performed by Dr. Robert G. Valentine were not reasonable and necessary; that claimant is not entitled to benefits for temporary total disability subsequent to September 28, 1999; and that claimant is not entitled to any additional medical treatment for her compensable back injury.
The issues in this case boil down to a serious disagreement between Dr. Jim J. Moore and Dr. Valentine concerning whether claimant was suffering from annular tears in multiple levels of her spine and whether the IDET procedures were appropriate treatment for her condition. In my opinion, claimant has proven by a preponderance of the evidence that she suffered from a condition for which IDET would be reasonable and necessary treatment.
Dr. Valentine described claimant’s condition in the following manner:
Q. Okay. And so then, suddenly, we have two incidents, and, Doctor, what was your diagnosis of this lady’s problem or injuries?
A. She had discogenic pain, internal disruption of the lumbar discs.
Q. Okay. Is internal disruption of a lumbar disc used synonymously with the word “annular tear” or the relationship there?
A. Well, they’re not completely synonymous. Internal disruption, in common usage, indicates a more extensive tearing rather than one simple discrete (sic) tear, but, in actuality, they are the same.
Q. Okay. Would you tell us a little bit, where the Judge will understand as well as us, a little bit more about what you mean by the internal disc disruption and the annular tear. Just describe that for us a little bit here in Linda’s case.
A. Well, the disc, or intervertebral disc, is an organ that’s situated between the vertebral bodies in the spine. It acts as a shock absorber, essentially. It is structurally similar to a jelly doughnut, which is what I use as an analogy for patients, if the outer portion fo the doughnut were made out of Kevlar or something extremely tough. The disc has, basically, two components: the nucleus or the center portion, which would be the jelly; and the outer portion or the annulus. The common thing that people talk about or are familiar with is a herniated or, in common terms, ruptured disc in which the nucleus or the jelly material will actually protrude out through the annular wall. With an annular tear or with an internal disruption, you don’t have a complete herniation of the nuclear material, but there’s an internal tearing or fissuring or cracking of the actual annulus or the doughnut portion of the disc.
Q. So you have some leakage, then?
A. Leakage to varying degrees to the outer portion of the disc, which is particularly important because the nerve supply to the disc itself is in the outer one-third of the annulus in most people. The nucleus contains enzymes which were never meant to come in contact with nerve tissue.
It is common knowledge that diagnostic tests are less than perfect, as are the physicians and other health care providers who must interpret the tests. However, I believe a preponderance of the evidence supports a finding that claimant suffered from annular tears or internal disc disruptions, for which the IDET procedure would be indicated. Dr. Scott Harter, with Radiology Consultants, interpreted the MRI scan as showing “probably a small central annular tear at L4-5.” Dr. Annette P. Meador believed claimant suffered from annular tears and asked Dr. Valentine to evaluate claimant’s condition. Dr. Valentine likewise opined that the MRI scan showed annular tears and performed a discogram for confirmation. Dr. Valentine interpreted the discogram as positive and as corresponding with claimant’s symptoms. More importantly, claimant’s condition improved considerably following IDET procedures at L4-5 and L2-3. Based on this evidence, I find that claimant has proven by a preponderance of the evidence that the IDET procedures were reasonable and necessary treatment in connection with her compensable back injury.
Finally, I disagree with the principal opinion’s finding that claimant is not entitled to any additional treatment for the compensable injury. Even Dr. Moore opined that claimant is in need of additional conservative treatment for her condition.
Accordingly, I must concur in part and dissent in part from the principal opinion in this case.