WOODS v. FOOTE’S GROCERY, INC., 1995 AWCC 141

CLAIM NO. E314822

DEBBIE J. WOODS, EMPLOYEE, CLAIMANT v. FOOTE’S GROCERY, INC., EMPLOYER, RESPONDENT and WAUSAU INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 10, 1995

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

Claimant represented by the HONORABLE FLOYD A. HEALY, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.

Decision of Administrative Law Judge: Reversed

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on January 31, 1995. In that opinion and order, the administrative law judge found that the claimant is entitled to additional temporary total disability compensation and that surgery recommended by Dr. Don W. Irby is reasonably necessary for treatment of her compensable injury. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation, and we find that the claimant failed to prove by a preponderance of the evidence that the surgery recommended by Dr. Irby is reasonably necessary for treatment of her compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed.

[3] The claimant was employed by the respondent employer as a cashier, and her duties included cashing checks, obtaining change from the bank, making deposits, and operating the cash register. On August 24, 1993, she was stooping to get the prices off of the bottom of a shelf, and, as she straightened up, she experienced a severe pain in her low back and right leg. She had previously injured her low back while employed by Comet Rice Mill in Greenville, Mississippi, and she underwent a right L5-S1 discectomy on August 8, 1989, for that injury. She was off for approximately one and one-half (1 1/2) years as a result of this previous injury, and, although she does not remember receiving an impairment rating, she received a lump sum settlement for $11,000.00. However, she testified that she was completely asymptomatic when she began working for the respondent employer in 1991.

[4] The respondents accepted the compensability of the claimant’s August 21, 1993, injury, and she was sent to Dr. R. D. Rankin and Dr. Fred Burt, general practitioners, for treatment. After treating the claimant conservatively, Dr. Rankin and Dr. Burt referred the claimant to Dr. Don Irby, a neurosurgeon. Dr. Irby first examined the claimant on September 13, 1993, and his report indicates that his clinical examination revealed findings consistent with a right L4-5 disc syndrome. A MRI ordered by Dr. Irby showed postoperative changes at L5-S1, with no recurrent herniation or stenosis demonstrated and a “[m]inor appearing disc protrusion at L4-5.” When the claimant returned to Dr. Irby on November 2, 1993, she indicated that her symptoms had not improved, and she complained of “unrelenting right sciatica.” In addition, Dr. Irby’s clinical examination on that date was unchanged from his previous examination. Consequently, Dr. Irby admitted the claimant to the hospital for a myelogram and post-myelogram CT scan, and he indicated that a total laminectomy at L4-5 with exploration of the site of the previous L5-S1 surgery was likely. Dr. Irby determined that the myelogram and post-myelogram CT scan revealed postoperative changes at L5-S1 with a lateral disk protrusion at L4-5 which was “commensurate with the patient’s neurological findings.” However, Dr. Irby was unable to obtain authorization to operate at that time.

[5] The respondents subsequently scheduled an independent medical evaluation with Dr. P. B. Simpson, Jr., a neurosurgeon. Dr. Simpson’s February 15, 1994, report indicates that his physical examination revealed only minimal findings, and, contrary to Dr. Irby’s findings, Dr. Simpson’s report indicates that his physical examination did not reveal any motor or sensory deficits. Moreover, Dr. Simpson reviewed the previous diagnostic studies performed on the claimant, including the myelogram, post-myelogram CT scan, MRI, and CT scan, and he reached the following conclusions:

None of these studies really showed any evidence of significant disc protrusion. She has some postoperative changes at L5-S1 on the right side but nothing else is seen. I have reviewed the films myself and see absolutely no indication that she has any disc herniation or nerve root displacement on any of the studies that have been performed, including the myelogram, post myelogram CT and MRI.

[6] Dr. Simpson ultimately reached the following conclusions:

It is my impression that she has back pain. She describes some radiculopathy but I am unable from the studies that have been presented to me to find any cause for her pain. I feel the chance of her benefiting from surgery would be very small.

[7] Dr. Simpson did recommend an epidural steroid injection.

[8] An independent medical examination was also performed by Dr. J. K. Smelz, an assistant professor in the Department of Physical Medicine and Rehabilitation at the University of Arkansas for Medical Sciences. Dr. Smelz noted that her physical examination revealed “give way weakness” in a number of areas, but she also noted that further testing generally revealed full strength in these areas. In addition, Dr. Smelz noted that her “[s]ensory examination showed patchy decreases on the left which did not appear to correspond to any known dermatomal or peripheral nerve distribution.” Dr. Smelz’s clinical examination revealed a right sacroiliac dysfunction and a right piriformis syndrome, but, otherwise, only minimal findings were revealed. Other than the right sacroiliac dysfunction and right piriformis syndrome, Dr. Smelz concluded that the claimant suffered from a “[m]yofascial pain syndrome involving the lumbosacral paraspinals and hip girdle musculature” and a “[c]hronic pain syndrome with probable habituation to narcotic medications.” However, like Dr. Simpson, Dr. Smelz also disagreed with Dr. Irby’s conclusions. In this regard, Dr. Smelz made the following comments:

I do not feel that the findings on MRI of a bulging disc at the L4-5 level are the etiology of the signs and symptoms. There is no evidence of nerve or cord compression on these studies, and objective findings on physical examination are myofascial rather than neurogenic. A second spinal surgery on a relatively young patient with no findings of neurological deficit is contraindicated.

[9] Dr. Smelz has also opined that the claimant’s healing period ended on September 13, 1993, when she was first examined by Dr. Irby, and Dr. Smelz has opined that the claimant “would not benefit from and does not need any further medical treatment or surgery.”

[10] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (Cumm. Supp. 1993). However, 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. Norma Beatty v. Ben Pearson. Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No. D511255).

[11] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that the surgery recommended by Dr. Irby is reasonably necessary for treatment of her injury. Although Dr. Irby opined that the diagnostic tests showed a “marked” protrusion of the L4-5 disc with nerve involvement, his interpretation of these tests is not consistent with the opinion of any other physician to review these tests. Dr. Mike Barraza, a radiologist, interpreted the September 21, 1993, MRI to show only “[m]inor appearing disc protrusion at L4-5,” with “no significant herniations apparent.” Likewise, interpreting the myelogram, Dr. L. G. Barraza, a radiologist, opined that “[t]here may be very slight flattening between L4 and L5 on the right side.” While Dr. Barraza also noted that “[d]isc herniation may be responsible,” he deferred making a final determination until the results of the post-myelogram CT scan were obtained. However, Dr. S. Folse, a radiologist, interpreted the post-myelogram CT scan to show only “mild posterior bulging of disc material at 4-5” with “no focal disc herniation.” Likewise, as discussed, both Dr. Simpson and Dr. Smelz concluded that these studies revealed no evidence of disc herniation or nerve root involvement whatsoever. Furthermore, neither Dr. Simpson nor Dr. Smelz obtained any clinical findings suggesting any disc herniation or nerve root involvement.

[12] In short, Dr. Irby’s recommendation for surgery is based on his conclusion that the claimant’s symptoms are caused by a significant bulging disc at L4-5 with nerve root involvement at L5. However, Dr. Irby’s conclusion that the diagnostic studies performed on the claimant show this defect is inconsistent with the interpretation of all of the other physicians who reviewed these studies. Consequently, we find that the opinions of Dr. Simpson and Dr. Smelz that surgery is not indicated should be given more weight than Dr. Irby’s opinion. Moreover, other than Dr. Irby’s opinion, there is no other evidence suggesting that surgery is indicated. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that the surgery recommended by Dr. Irby is reasonably necessary for treatment of the compensable injury.

[13] We also find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation. Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. §11-9-102 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

[14] In the present claim, the respondents paid temporary total disability compensation through July 7, 1994. However, after examining the claimant on May 2, 1994, Dr. Smelz indicated that she had no further treatment to offer the claimant, and Dr. Smelz has opined that the claimant’s healing period ended on September 13, 1993, when the claimant was first examined by Dr. Irby. Likewise, after examining the claimant on May 4, 1994, Dr. Simpson indicated that he had no additional treatment to offer the claimant. Notably, both Dr. Simpson and Dr. Smelz appear to question the genuineness of the claimant’s subjective complaints. Finally, in a report dated July 6, 1994, the case manager assigned to this claim indicated that claimant did not want to see any of the physicians who had treated her in the past.

[15] Consequently, we find that the claimant’s underlying condition became stable and that there was nothing further that would improve that condition at least by July 7, 1994. Thus, we find that the claimant’s healing period ended by that date and, therefore, that she is not entitled to temporary total disability compensation beyond that date.

[16] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that the surgery recommended by Dr. Irby is reasonably necessary for treatment of the compensable injury, and we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed. In reaching our decision, we recognize that the provisions of Act 796 of 1993 apply to this claim. However, this claim would have been decided the same even under the law in effect prior to the effective date of Act 796. This claim is denied and dismissed.

[17] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[18] Commissioner Humphrey dissents.