Opinion
CLAIM NO. F102699
OPINION FILED MARCH 17, 2008
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Honorable Steven R. McNeely, Attorney at Law, Little Rock, Arkansas.
Respondent represented by Honorable Susan M. Fowler, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal a decision of the Administrative Law Judge filed on June 15, 2007, finding that the claimant proved by a preponderance of the evidence that she is entitled to additional medical treatment. Claimant asserts in her brief that she filed a timely notice of cross-appeal on the issue of permanent partial disability benefits. However, a thorough review of the file, as well as, an inquiry to the clerk's offices reveals that the claimant did not file, timely or otherwise, a notice of cross appeal. Accordingly, the permanent partial disability issue is not presently before us on appeal. After conducting a de novo review of the entire record, and without giving the benefit of the doubt to either party, we find that the claimant has failed to prove by a preponderance of the evidence that additional medical treatment is reasonable and necessary in connection with her compensable injury. Therefore, we find that the decision of the Administrative Law Judge should be and hereby is reversed.
The claimant sustained an admittedly compensable injury to her right ankle on March 6, 2001, when she fell from a ladder. The claimant was admitted to the hospital and underwent emergent irrigation and debridement of the open ankle by Dr. D.G. Newbern. After following the claimant's treatment for ten months, Dr. Newbern assessed the claimant with a 12% permanent impairment to the right lower extremity. In regards to the claimant's prognosis, Dr. Newbern wrote in his January 4, 2002, report:
I have explained to her that she could possible develop arthritic changes on down the road with this trauma to her ankle joint and that she should have annual follow up to make sure that her problem is not worsening and that she is doing well. We will have her return in 12 months time or sooner if she having any difficulties. In the meantime, for her aches and pains, I have prescribed Aleve p.r.n.
The claimant was released to return to work without restrictions and has continued to work for respondent-employer in the same capacity. The claimant described her full duty job as requiring her to be on her feet most of the day. The claimant also testified that she often walks to and from work.
With the regard to her present condition, the claimant testified that her regular family physician prescribes Celebrex for her which helps with her ankle, but also with her general aches, pains, and joint pains. When asked if her condition has changed since she was assessed an impairment rating, the claimant explained that it has not changed at all, and that she is still having the same trouble that she had back in 2002.
The respondents sent the claimant to Dr. Ruth Thomas in October of 2003 for an independent medical evaluation. Dr. Thomas assessed the claimant with (1) eighteen months status post open dislocation right ankle; (2) residual stiffness right ankle secondary to significant injury; and (3) early degenerative changes right hind foot secondary to dislocation. Dr. Thomas recommended a solid ankle AFO brace, and a possible triple arthosisis if her pain complaints were to increase. Although the claimant obtained the AFO brace, she does not wear it.
The claimant returned to Dr. Newbern on February 16, 2004. The claimant continued to complain of pain. X-rays taken on that date revealed well maintained joint space of the ankle joint with no significant spurring of the ankle joint. The talonavicular joint, as well as, the astragalum in the posterior subtalar joint, did reveal spurring and a plantar asteophyte was noted. Dr. Newbern noted that these diagnostic studies did not detect any "significant development of radiographic post traumatic arthritis." Dr. Newbern did not prescribe any additional treatment, but advised the claimant to "return to see me or Dr. Thomas within a year to keep her file open as an ongoing case with Worker's Compensation."
The claimant again returned to Dr. Newbern's office on December 3, 2004. The claimant's complaints continued to remain the same of "some pain and stiffness in the right ankle." Dr. Newbern ordered new x-rays, which he compared to her previous x-rays and noted "no obvious differences." Again, Dr. Newbern did not prescribe any additional treatment and only recommended that the claimant return to see him on an annual basis.
Approximately 12 months later, on November 28, 2005, the claimant returned to Dr. Newbern for an annual checkup. No additional symptoms were noted nor were any changes noted in diagnostic films. Dr. Newbern did not offer any treatment, nor recommendations for treatment at that time.
On March 8, 2006, respondents sent the claimant to Dr. Newbern's partner, Dr. William Blankenship to determine, what, if any, treatment the claimant required as a result of her compensable injury. Upon examination of the claimant, Dr. Blankenship noted that the claimant walked without any braces, corsets or other assistive devises and that clinically, there was no medical or lateral instability of the claimant's right foot or ankle. After examining the multiple x-rays the claimant brought with her to her examination, Dr. Blankenship opined that "the ankle mortise is well maintained with no degenerative changes seen in the ankle or subtalar joint." Dr. Blankenship answered specific questions regarding treatment as follows:
1. At this point there appears to be no objective basis for any additional treatment for the injury this lady received on March 6, 2001.
2. There is no objective basis at this time that this individual needs any additional treatment for the complaints for the March 6, 2001, injury.
Claimant's last follow-up visit with Dr. Newbern on December 8, 2006, yielded the same complaints and findings as all previous visits. X-rays taken at that time revealed, "AP and mortis views show well maintained joint spaces with no gross abnormality. The center of the lateral view is centered about 3 inches above the ankle join, but the ankle joint appears within normal limits. The subtalar joint still demonstrates joint space present." After examining the claimant and reviewing her diagnostic films, Dr. Newbern's assessment remained the same as it did when he first released her from her healing period — the possibility for degenerative changes may develop in the future. Dr. Newbern did not offer any treatment but simply recommended annual follow-up examinations.
Ark. Code Ann. § 11-9-508(a) (Supp. 2005) provides that an employer shall provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). However, employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of the employee's injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary for the treatment of the compensable injury. Wal-Mart, supra; GEO Specialty Chemical v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000); Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001); White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000); Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996).
Further, when the primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for any natural consequence that flows from that injury. Wackenhut, supra. The basic test is whether there is causal connection between the two episodes.Id. When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Gardner v. Area Agency on Aging, Full Commission Opinion, January 4, 2006 (Claim No. F302438); Jones v. Seba, Inc., Full Commission Opinion, December 13, 1989 (Claim No. D512553).
The claimant has reached maximum medical improvement. She has been released to return to work and has not required any medical maintenance treatment to keep her at her present level of healing. Admittedly, the claimant continues to have pain and discomfort, but this is to be expected given the fact that she received a compensable injury which resulted in a permanent impairment rating. The claimant has received more than reasonable and necessary medical treatment for her compensable ankle injury. Not only has the claimant's treating surgeon failed to recommend any additional treatment since he instituted the claimant's annual follow-up appointments, Dr. Blankenship, opined following his independent medical examination of the claimant, that the claimant does not need nor does she require any additional medical treatment. Dr. Newbern merely wants to see the claimant on an annual basis on the off chance the claimant develops degenerative problems in the future.
The issue is not whether the claimant is entitled to visit her treating surgeon on an annual basis, but rather whether annual visits, when no treatment has been recommended nor have any physical changes been detected, are reasonable and necessary medical treatment. Clearly the claimant is entitled to reasonable and necessary medical treatment.
Claimant's injury occurred in March of 2001. As of her latest medical examination in December of 2006, the claimant has not developed degenerative changes in her right foot and ankle. Dr. Newbern has not offered or recommended any additional treatment for the claimant's compensable injury since he released her in 2002. It is patently clear that the only reason Dr. Newbern has continued to recommend annual follow-up visits is to "keep her file open as an ongoing case with Worker's Compensation." The claimant does not have a prosthesis which requires monitoring; she is not receiving medication or physical therapy from Dr. Newbern; and she has not developed any degenerative or arthritic changes in the past five years. Thus, the claimant seeks additional medical treatment for no other reason than to toll the statute of limitations. This reason alone, without any treatment being rendered, is not sufficient to find annual doctor visits are reasonable and necessary medical treatment. Driggers v. Driggers Painting Contractors, Full Commission Opinion filed September 26, 2006 ( E712328). Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to additional medical treatment at this time. Accordingly, we find that the decision of the Administrative Law Judge awarding additional medical treatment must be reversed.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
DISSENTING OPINION
The majority has found that certain medical treatment being sought by the claimant is not reasonable or necessary. For the reasons set out below, I respectfully dissent from that decision.
As the majority has outlined above, this claimant sustained an extremely serious ankle dislocation, in an admittedly job-related injury, on March 6, 2001. The ankle dislocation was so severe that the skin on the claimant's ankle was torn open so that the ankle bones were visible. The claimant's primary treating physician for this injury was Dr. Gordon Newbern, a Little Rock orthopedist. Technically, Dr. Newbern was able to reset the claimant's ankle without surgery because he was able to manipulate the joint through the tear in the claimant's skin. The claimant recovered from this injury to the extent that she was able to return to work, and remained employed by the respondent through the date of the hearing.
The respondent, having accepted the claim as compensable, paid all appropriate medical and disability benefits due the claimant, including permanent partial disability benefits based upon an impairment rating assessed by Dr. Newbern. The dispute in this case arose when the respondent controverted the claimant's entitlement to further medical treatment from Dr. Newbern or Dr. Ruth Thomas, an orthopedist at UAMS which the claimant saw at the respondent's direction. The respondent's rational in controverting this medical treatment was that the claimant's condition had become stable and that continuing to see Dr. Newbern was merely for the purpose of continuing the statute of limitation and not for any current medical need.
The Administrative Law Judge who heard this case found that the medical treatment in question was reasonable and necessary and was the liability of the respondent. In reaching that conclusion, the Judge noted that the claimant's condition was symptomatic, requiring her to walk with a limp, and occasionally use support devices; that two separate physicians had advised her that a surgical fusion of her ankle may become necessary in the future; and that she should have it checked periodically with x-rays to monitor the progression of her arthritic condition, which the same two doctors had associated with the effects of her compensable injury.
The majority is reversing that decision and finding the treatment is not reasonable or necessary. The primary rationale for the majority in so doing is set out in their statement:
Thus, the claimant seeks additional medical treatment for no other reason than to toll the statute of limitation. This reason alone, without any treatment being rendered, is not sufficient to find annual doctor visits are reasonable and necessary medical treatment.
I disagree with that statement, not only because it is factually incorrect, but because the majority has confused the respondent's liability for providing appropriate medical treatment with the running of the statute of limitations. The majority's attempt to conflate those two issues into one argument results in the application of an incorrect standard.
In order to resolve this issue, I believe that we must determine whether the treatment is for a consequence of a compensable injury and whether it is likely to result in any improvement in that condition or avoid further deterioration. It appears to me that the medical reports from Drs. Newbern and Thomas unequivocally establish that the claimant has met this standard. In his report of January 4, 2002, Dr. Newbern stated that ten months had passed since the claimant's ankle dislocation. He goes on to set out his plan for the claimant's future treatment:
I have explained to her that she could possibly develop arthritic changes on down the road with this trauma to her ankle joint and that she should have annual follow up to make sure that her problem is not worsening and that she is doing well. We will have her return in 12 months time or sooner if she is having any difficulties.
Dr. Newbern again addressed this question in a letter dated April 16, 2003. The letter is addressed to the respondent's third party administrator and appeared to be in response to a telephone conversation he had with the adjuster or some other person acting on behalf of the respondent. After discussing the claimant's condition, Dr. Newbern stated as follows:
As I understand, the care for injuries sustained in the workplace when there is any injury that has ongoing symptoms and objective reasons for the patient to have potential further problems with an injury, these cases are maintained open to monitor this situation and to provide for care of this injury over time. I do attest to the fact that with a greater than 50% degree of medical certainty that Ms. Huckabee is at a real potential for further problems with her ankle down the road and that this case does need to be monitored over time so that if a problem does arise it can be addressed.
Later, at the request of the respondent, the claimant saw Dr. Ruth Thomas. In a report dated October 8, 2003, Dr. Thomas noted that she was seeing the claimant 18 months after her ankle injury and she noted the presence of early degenerative changes in her right foot secondary to dislocation. She then stated that since the post injury film did not demonstrate any degenerative changes in the claimant's ankle: "This strongly suggests that these changes have occurred as a direct result of the open dislocation occurred in March 2001." Dr. Thomas also discussed the worsening of the claimant's ankle, and the possibility of undergoing an arthrodesis (ankle fusion) in the future. In this regard, Dr. Thomas stated as follows:
DISCUSSION
Based on my examination today, I believe the present degenerative changes, stiffness and pain the right ankle are secondary to the injury incurred March 2001. I say this with medical certainty of at lease 51%. I anticipate that the pain will continue in the right ankle and hind foot and may increase as the degenerative changes become more significant. I recommend that the patient obtain a solid ankle AFO brace to help her with her painful days now and it should be recognized that she may require surgical fusion of the hind foot or the hind foot and ankle at some point in the future.
While it is true that Dr. Newbern alluded to the importance of not allowing the statute of limitation to run out on the claimant's case as one of the reasons to continue seeing her, the point of his doing so was that the claimant was going to need further medical treatment because of her injury. Both he and Dr. Thomas make this point very clear in their report. Also, it is significant that both doctors note that the claimant's symptoms are worsening with time. In fact, in her report of October 8, 2003, Dr. Thomas specifically stated that recent x-rays demonstrated changes in the claimant's ankle and foot and prescribed a brace for her to wear. Dr. Newbern made similar conclusions in his reports. These findings refute the statements of the Majority that the claimant's condition was stable and unchanged. Clearly, the arthritic process both doctors discussed was ongoing and the claimant's ankle problems would continue to increase. With that in mind, it is readily apparent to me that monitoring of this condition is not just reasonable, but essential.
The respondent devotes much of its brief to arguing that the claimant's purpose in going to see Dr. Newbern is merely to "keep her case open." They make this argument as if not allowing the statute of limitation to act as a bar to the claimant's claim is somehow to unfair to them. The majority has apparently accepted this argument and endorsed the view that the running of the statute of limitations is a right enjoyed by the respondent. I find that the majority has confused the purpose of the statute of limitations. The statute is in place so that a party cannot file a claim for benefits on an injury that may have happened at some remote time in the past where evidence refuting the claim might no longer be available. In order to avoid this problem, the legislature saw fit to create time limit in which a claimant must pursue benefits. This type of limitation is certainly appropriate and is common in almost all types of civil and criminal actions. However, the Workers' Compensation Act provides that one of the primary purposes of the legislation is to see that claimants receive appropriate medical treatment. Nowhere does it state that the respondents have a right to ensure the statute of limitation acts as a bar to an otherwise valid claim.
I also note that, in the past, the Arkansas Supreme Court and this Commission has held that treatment almost identical to what the claimant was seeking in this case, was reasonable and necessary medical treatment which tolled the statute of limitation. In Plante v. Tyson Foods, 319 Ark. 126, 890 S.W.2d 253 (1994), the Arkansas Supreme Court was faced with a situation nearly identical as the one here. In that case, the claimant had sustained a job-related knee injury which required surgical treatment. Subsequently, his doctor scheduled regular follow-up visits to monitor the ongoing degenerative process in his knee. Eventually the claimant's doctor determined that the knee had deteriorated to the point where additional surgery was necessary. The respondent controverted the case, arguing the statute of limitation had run, in that, they had not provided the claimant any reasonable and necessary medical treatment within the previous year. This Commission and the Court of Appeals held that the treatment the claimant received was not sufficient to toll the running of the statute of limitations. That decision was reversed by the Supreme Court which held that these types of follow-up visits was medical treatment which had been provided by the respondent, even though the doctor had not specifically billed the respondent for it. I find that the decision of the Plante case is exactly on point with the situation here and clearly establishes that the type of medical treatment the claimant was receiving in this case can be reasonable and necessary. See also,Diane Jack v. Around the World Travel, Full Commission Opinion, D916900 (1995).
I find that the medical evidence unquestionably shows that the claimant has an ongoing degenerative condition which is the result of a job-related injury. As Dr. Newbern makes it clear, the claimant will need further treatment of this condition and it is important that her workers' compensation benefits be available to provide this treatment. Because I find that the claimant has a right to this treatment, I must respectfully dissent from the majority's opinion.
______________________________ PHILIP A. HOOD, Commissioner