Opinion
CLAIM NO. E911074
OPINION FILED AUGUST 28, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE LAURA ANDRESS, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal to the Full Workers' Compensation Commission an Administrative Law Judge's amended opinion filed November 13, 2001. The Administrative Law Judge found that additional testing recommended by Dr. William Kendrick, in the form of a myelogram with an accompanying enhanced CT scan, represented reasonably necessary medical services within the meaning of Ark. Code Ann. § 11-9-508. The Administrative Law Judge also found that the doctrine of res judicata did not bar the claimant's entitlement to these additional medical services.
After reviewing the entire record de novo, the Full Commission finds that the doctrine of res judicata bars the claimant's entitlement to the additional testing recommended by Dr. Kendrick. However, even if res judicata did not bar the claimant's entitlement to this medical treatment, the claimant has failed to prove by a preponderance of the evidence that a myelogram/CT scan is reasonably necessary to treat her compensable injury. The Full Commission therefore reverses the opinion of the Administrative Law Judge.
I. HISTORY
A. Background
The parties stipulated that Roylene Miller, age 59, sustained a compensable injury to her low back on June 13, 1999. Ms. Miller, a certified nurse's assistant, said that she caught her left foot in a bed alarm wire while attempting to leave a patient's room. "I just fell flat on my back, my butt," she testified. An x-ray taken June 16, 1999 showed narrowing at L5-S1 and "moderate facet arthritis." An internal medicine specialist, Dr. R. W. Miles, saw the claimant on June 16, 1999 and assessed "acute lumbar strain/facet syndrome."
Dr. Carl M. Kendrick, an orthopaedist, wrote to the respondents on July 7, 1999:
Ms. Miller is seen today. She slipped at the hospital where she works as a nurse's aide and fell flat on her buttocks. She is having a great deal of low back discomfort. She has had no significant relief related to this. She is a big woman. She has a limited range of motion of her back. Neurologically, she is intact.
Her x-rays show that she has a degenerative disc at L5 but this certainly predates her injury.
It is my opinion that she has a lumbosacral strain. I am going to keep her off work for a couple of weeks. She badly needs to do a good rehab program of which I am working on. I will follow her for a while. I think after two weeks, I will be able to let her go back to light duty.
Dr. Kendrick reported after an examination on July 21, 1999:
She asked to not return to work until August 2, and I think that is fairly reasonable. We gave her a note stating that she could go to work on August 2. I will see her back in a month. I would expect her to fully clear from this if she will continue to comply with her exercises.
The following impression resulted from an MRI of the lumbar spine taken September 3, 1999:
DEGENERATIVE CHANGES ARE PRESENT AT L4-5 AND MORE PROMINENTLY AT THE L5-S1 LEVEL.
IN ADDITION TO SOME POSTERIOR END PLATE OSTEOPHYTE FORMATION, FINDINGS SUGGEST THE PRESENCE OF A MODERATE TO LARGE CENTRAL DISC PROTRUSION AT THE L5-S1 LEVEL.
THERE IS NO DEMONSTRABLE BONY STENOSIS OF THE CENTRAL CANAL OR OF THE NEURAL EXIT FORAMINA.
THE VISUALIZED OSSEOUS STRUCTURES DEMONSTRATE NORMAL MARROW SIGNAL INTENSITY.
THERE IS NO SPONDYLOLISTHESIS OR VERTEBRAL BODY COMPRESSION DEFORMITY.
THE CONUS MEDULLARIS IS OF NORMAL CONTOUR AND SIGNAL INTENSITY.
THERE ARE GENERALIZED POSTERIOR FACET DEGENERATIVE JOINT CHANGES, MORE PROMINENT CAUDALLY.
Dr. Miles provided the following assessment on September 23, 1999:
Continuing acute exacerbation of pre-existing degenerative disc disease with evidence of radiculopathy on the left, perhaps for the first time.
PLAN: I only have a report that the MRI shows degenerative disc disease and should be included in this record. Dr. Raben's consultation noted and his recommendations to be carried out.
Dr. Vincent B. Runnels, a neurosurgeon, examined the claimant and wrote to the carrier on November 30, 1999:
On neurologic exam, on motion exam, she could bend forward only to touch her knees. By bending her knees, she could not increase the range of motion, which is a hysterical or malingering sign. Extension was also limited and painful at 20 degrees. The neurologic exam was totally intact. Straight leg raising was normal, and hip tests were negative. If someone can straight leg raise to 90 degrees, they should be able to touch farther than their knees in flexion if they are giving full effort.
She has a slight midline bulge at 5-1 and some mild degeneration at 4-5 but nothing of any sort of surgical significance, and I suspect that she has had this narrow disc all along.
She is really in for a lot of trouble down the road if she is not able to get on a major weight-losing effort. In the meantime, I have put her on some back exercises, posture correction to keep the back out of extension, and some hydrocodone and Vioxx. I advised her to see Dr. Miles to see if he could help her lose weight.
The back machine advocated by Dr. Raben and the chiropractor is a strictly a "Blue Cross" procedure and has no value. I certainly do not think that this is indicated. Her discs are not "out of place by the fall," but she has simple degenerative disc disease. Perhaps, she has suffered a facet strain, as I imagine if her weight falls on these facets, they certainly could be aggravated for a while. Within a month, she should be able to return to work with reasonable motivation on her part. There should be no permanent disability other than that related to her degenerative disc disease and her rather massive obesity. I strongly urged her to see one of the sleep doctors to evaluate her for sleep apnea.
Dr. Runnels administered an intramuscular cortisone shot in January 2000. Dr. Runnels wrote on February 3, 2000:
The patient had gotten much better for about four days. It was down to a dull ache and then recurred. . . .
This lady's problem is mainly degenerative disc disease, greatly aggravated by her weight. She should be over any aggravation caused by the fall within six weeks if she watches herself and does her exercises and heat. I have given her some Tylox and Arthrotec. If there was light duty such as passing pills, she could do that now.
On exam today, she could bend forward and touch only to her knees. By bending her knees, she could not increase the range. This is either because she is not trying or frankly malingering. Extension was limited and painful at 20 degrees. Neurologically, she was intact.
Basically, I think she would like to be just disabled, and she is rationalizing her weight problem. I have strongly suggested that she talk with Dr. Tubb to see if he can give her some advice on how to lose weight.
Dr. Runnels released the claimant from his care on March 2, 2000:
The fault is that she has degenerative disc disease. She did suffer a facet strain, but she should have been over that a long time ago, if it were not for motivational problems and perhaps frank malingering as evidenced above.
Ms. Miller claimed entitlement to additional worker's compensation. The claimant requested a second medical opinion "and does not want to be treated by Dr. Runnels." The claimant requested additional temporary total disability compensation and medical expenses. The respondents contended that the claimant's condition was preexisting, and that "she should have recuperated fully from this strain as of today's date." The respondents contended that further medical treatment was not reasonably necessary and that "any further medical treatment is not caused by this work related injury but by her pre-existing condition."
The parties agreed to litigate the following issues:
1. The claimant's entitlement to a change of physicians.
2. The claimant's entitlement to additional medical treatment at the respondents' expense.
3. The claimant's entitlement to additional temporary total disability compensation from January 21, 2000 through a date yet to be determined.
4. Appropriate attorney's fees.
After a hearing before the Commission, the Administrative Law Judge filed an opinion on June 28, 2000. The Administrative Law Judge found that the claimant failed to prove that she was entitled to any temporary total disability compensation after January 21, 2000:
The greater weight of the credible medical evidence establishes that the claimant's compensable back injury took the form of a facet strain or sprain. This evidence further reveals that the claimant has received extensive and prolonged conservative care for this injury. This conservative care consisted of a lengthy period of physical therapy, multiple programs of medication, and prolonged rest.
Weight loss has also been repeatedly recommended. However, the claimant has made little or no effort to pursue this treatment modality. It is apparent from the medical record that no surgical intervention has been recommended and none appears medically appropriate. Clearly, it would be reasonably expected that the physical damage resulting from a relatively minor musculoskeletal injury, such as that sustained by the claimant, would have resolved or at least stabilized with over six months of rest and medical care. The medical evidence supports such a conclusion. There is no objective evidence of any continued physical damage or abnormalities after January 21, 2000. It is simply my opinion that the claimant has not proven that her "healing period" continued beyond that date.
The Administrative Law Judge also found that the claimant failed to prove that she was entitled to treatment "with a DRS machine by an unnamed chiropractor." The Administrative Law Judge noted that Dr. Runnels did not believe this treatment to be reasonably necessary, and "His opinion is certainly entitled to substantial weight."
Finally, the Administrative Law Judge determined from Ark. Code Ann. § 11-9-514 that the claimant proved that she was entitled to a one-time change of physician:
Dr. William Kendrick is a family practitioner in Springdale, Arkansas, and is certified by several managed care organizations approved by this Commission. It is my opinion that he is competent and appropriate to provide the claimant with any future medical services she may require. Therefore, the claimant is hereby granted a change of physicians from Dr. Vincent B. Runnels and any and all of her other various treating physicians to Dr. Kendrick and he becomes her only currently authorized treating physician. Any reasonably necessary medical services provided to the claimant for her compensable injury by or at the direction of Dr. Kendrick will be the liability of the respondents herein. However, this does not give Dr. Kendrick carte blanche authority. Nor does it obligate the respondents for any and all expenses which may be incurred as the result of her services. These services must still be "reasonably necessary" for the claimant's compensable injury, as required by the Act.
The Administrative Law Judge therefore ordered that the claimant was granted a change of physicians from Dr. Runnels and all of her previous treating physicians to Dr. William Kendrick. "Any reasonably necessary medical services hereinafter provided to the claimant for her compensable injury by or at the direction of this physician is at the expense of the respondents herein, subject to the fee schedule established by this Commission." The Administrative Law Judge also denied additional temporary total disability, and he denied use of a "DRS machine" at the respondents' expense.
Neither party appealed the decision of the Administrative Law Judge. The parties stipulated that "The prior Opinion of June 28, 2000, has become final and is res judicata of all issues resolved therein."
The final medical evidence of record consists of a report from Dr. William C. Kendrick dated September 18, 2000:
We discussed that she does have changes on her MRI that were pre-existing, but the moderate to large central disc protrusion at L5-S1 could easily have been from the accident.
Dr. Kendrick assessed low back pain, "herniated nucleus pulposus" of the lumbar spine, "documented on the MRI, without evident nerve root impingement," degenerative joint disease of the lumbar spine, and degenerative disc disease of the lumbosacral spine. Dr. Kendrick entered the following plan:
I have reviewed the case and the situation with this patient. She does have a ruptured disc that is moderate to large. This would not seem to be pre-existing, especially with her report of no prior pain and the fact that a rupture could easily be acute. This disc does not seem to impinge on any nerves on the MRI, but her back pain seems severe, as if were (sic). I think we should consider a further workup, since she seems so very limitted (sic) by her pain. A myelogram with a CT done at that time might should be considered as a part of the workup, considering that her back pain is bad enough to warrant a surgery, if one were indicated.
Ms. Miller again claimed entitlement to additional worker's compensation. The claimant contended that "she needs an authorized treating doctor and secondly, she maintains that the requested treatment is reasonable and necessary." The respondents contended:
Claimant litigated her entitlement to continued medical for this injury once before. The Commission found that she was at the end of her healing period and that no surgery was warranted. The Commission also found that further medical treatment would be maintenance only and that the treatment must have an expectation of accomplishing goals related to the injury. . . .Entitlement to further work up and testing has been litigated and the Commission's prior finding is res judicata regarding this issue.
The parties agreed to litigate the following issues:
1. The claimant's entitlement to further testing by Dr. Kendrick, particularly in the form of a myelogram.
2. Attorney's fee.
Another hearing was held before the Commission on March 12, 2001. At that time, the claimant asserted that the constant and severe back pain she experienced prevented her from working, walking, or even standing. "Laying down really makes it better than anything," she testified.
The Administrative Law Judge filed another opinion on April 18, 2001. The Administrative Law Judge found it "apparent that it is Dr. Kendrick's expert opinion that further testing, in the form of a myelogram with an accompanying enhanced CT scan, is medically appropriate to accurately ascertain the nature and extent of the claimant's compensable back injury in order to provide the appropriate treatment modalities. Dr. Kendrick, although a general practitioner, is a highly competent medical specialist. His opinion is entitled to substantial weight." The Administrative Law Judge thus found, in pertinent part:
4. The additional testing recommended by Dr. William Kendrick, in the form of a myelogram with an accompanying enhanced CT scan, represents "reasonably necessary medical services" within the meaning of Ark. Code Ann. § 11-9-508. Specifically, this testing has a purpose or goal that is connected with the claimant's compensable lumbar spine injury of June 13, 1999, and has a reasonable expectation of accomplishing the purpose or goal for which it is intended. Under the provisions of Ark. Code Ann. § 11-9-508, the respondents are liable for the expense of such testing, subject to the medical fee schedule established by this Commission.
The Administrative Law Judge ordered that "The respondents shall be liable for the expense incurred by the claimant as a result of the testing recommended by Dr. William Kendrick, in the form of a lumbar myelogram with an accompanying enhanced CT scan." The respondents appealed to the Full Commission.
B. Remand
In an Order filed September 10, 2001, the Full Commission vacated the Administrative Law Judge's decision and remanded to the Administrative Law Judge:
We fail to see where the Administrative Law Judge's April 18, 2001 opinion and order addresses the res judicata issue timely raised by the respondents. We remand this case to the Administrative Law Judge for additional findings in light of the res judicata issue presented in this case.
The Administrative Law Judge filed an amended opinion on November 13, 2001 and found, in pertinent part:
I find that the doctrine of res judicata does not apply to the additional medical services awarded in the Opinion of April 18, 2001. . . .With this additional finding, I reaffirm and incorporate herein my prior Opinion of April 18, 2001. For the reasons set out in this previous opinion, I once again find the respondent is liable for the services recommended by Dr. William Kendrick, in the form of a myelogram with an accompanying enhanced CT scan.
The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Res judicata
Res judicata applies where there has been a final adjudication on the merits of an issue by a court of competent jurisdiction on all matters litigated and those matters necessarily within the issue which might have been litigated. Perry v. Leisure Lodges, 19 Ark. App. 143, 718 S.W.2d 114 (1986). The doctrine of res judicata bars the reopening of matters once judicially determined by competent authority. Gwin v. R.D. Hall Tank Co., 10 Ark. App. 12, 660 S.W.2d 947 (1983). Res judicata applies to decisions of the Workers' Compensation Commission. Perry, supra. The rationale underlying the doctrine of res judicata is to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy. Mohawk Tire and Rubber Co. v. Brider., 259 Ark. 728, 536 S.W.2d 126 (1976).
In the present matter, the Full Commission finds that the claimant's entitlement to a myelogram/CT scan at the respondents' expense is res judicata. The Dissenting Opinion states that the Administrative Law Judge entered one finding on June 28, 2000, that the claimant was not entitled to use of a "DRS machine." However, the express language of the Administrative Law Judge's June 28, 2000 included the following findings: (1) the claimant's compensable back injury took the form of a facet strain or sprain; (2) there was no evidence of any continuing physical damage or abnormalities after January 21, 2000; (3) the claimant failed to prove that her healing period continued beyond January 21, 2000; (4) radiographic studies of the claimant's lumbar spine indicated only degenerative changes, with no evidence of physical damage resulting from the compensable injury; (5) the magnitude of the claimant's described symptoms was far out of proportion to any physical damage that would have reasonably resulted from the type of injuries sustained by the claimant; and (6) the medical evidence of record supported a conclusion that the claimant did not have a surgical lesion and that surgical treatment would not be appropriate. The claimant did not appeal these findings, including the findings that the claimant had a degenerative condition but not have a surgical lesion, and the parties in fact stipulated that the Administrative Law Judge's June 28, 2000 opinion was final and " res judicata of all issues resolved therein."
In his amended opinion, the Administrative Law Judge asserts that in his June 28, 2000 opinion "there is wording to indicate that, based upon the evidence in the record at that time, the claimant's compensable injury took the form of a lumbar strain or sprain." Actually, the express language of the Administrative Law Judge's June 28, 2000 opinion states, "The greater weight of the credible medical evidence establishes that the claimant's compensable back injury took the form of a facet strain or sprain." Further, the Administrative Law Judge's finding that the claimant had sustained a facet strain or sprain, that is, a non-disk injury, was not obiter dictum. On the contrary, the Administrative Law Judge's determination that the claimant had sustained a facet strain or sprain was the primary factual finding for which additional temporary total disability was denied.
In his opinion filed April 18, 2001 and amended opinion filed November 13, 2001, the Administrative Law Judge disregarded the doctrine of res judicata, in that (1) the Administrative Law Judge previously found that the claimant's compensable back injury took the form of a facet strain or sprain (not a lumbar injury or herniated disk), and (2) that the claimant's diagnostic imaging studies showed preexisting degenerative disc disease, not an acute injury. Therefore, the Full Commission finds that the doctrine of res judicata bars the claimant's entitlement to additional diagnostic testing as recommended by Dr. Kendrick and awarded by the Administrative Law Judge.
B. Additional medical treatment
An employer must promptly provide for an injured employee such medical services as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Ark. Dept. of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994). Even if res judicata does not bar the claimant's entitlement to the additional diagnostic tests awarded by the Administrative Law Judge, the Full Commission reverses the Administrative Law Judge's finding that the claimant is entitled to a myelogram/CT scan at the respondents' expense. Based on our de novo review of the entire record, we find that this additional diagnostic testing is not reasonably necessary in connection with the claimant's compensable injury.
The parties stipulated that the claimant sustained a compensable injury to her low back on June 13, 1999. The claimant testified that she tripped and "just fell flat on my back, my butt." An x-ray taken subsequent to the accidental injury showed narrowing and degeneration at L5-S1. Dr. Miles, an internal medicine specialist, assessed "acute lumbar strain/facet syndrome."
Dr. Carl Kendrick, an orthopaedist, examined the claimant and wrote in July 1999, "x-rays show that she has a degenerative disc at L5 but this certainly predates her injury." Dr. Carl Kendrick expected the claimant's condition "to fully clear if she will continue to comply with her exercises." An MRI administered in September 1999 showed "degenerative changes are present at L4-5 and more prominently at the L5-S1 level." There was also "a moderate to large central disc protrusion at the L5-S1 level." Dr. Miles subsequently assessed "continuing acute exacerbation of pre-existing degenerative disc disease."
The claimant came under the treatment of Dr. Runnels, a neurosurgeon, in November 1999. Dr. Runnels found "a slight midline bulge at 5-1 and some mild degeneration at 4-5 but nothing of any sort of surgical significance, and I suspect that she has had this narrow disc all along." Dr. Runnels further found, "Her discs are not `out of place by the fall,' but she has simple degenerative disc disease." Dr. Runnels treated the claimant conservatively, and he released the claimant from his care on March 2, 2000:
The fault is that she has degenerative disc disease. She did suffer a facet strain, but she should have been over that a long time ago, if it were not for motivational problems and perhaps frank malingering as evidenced above.
The Dissenting Opinion relies on Dr. William C.
Kendrick's belief in September 2000 that the claimant had an L5-S1 disc protrusion which Dr. Kendrick stated "could easily have" resulted from the claimant's compensable injury. The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 [ 999 S.W.2d 695] (1999). The present claimant was treated after her injury by two orthopaedists, an internal medicine specialist, and a neurosurgeon. Not one of these treating physicians diagnosed an acute disc which required surgery. The Full Commission must therefore assign minimal weight to the subsequent suggestion of Dr. William Kendrick, a general practitioner, that the claimant had an L5-S1 disc protrusion which "could have" resulted from her accident.
Moreover, after the claimant first contended that she was entitled to additional benefits, the Administrative Law Judge filed an opinion on June 28, 2000. The Administrative Law Judge found that the claimant had reached the end of her healing period the previous January. The Administrative Law Judge detailed the claimant's extensive conservative care, and he noted that no surgical modalities had been recommended. The Administrative Law Judge determined that "The greater weight of the credible medical evidence establishes that the claimant's compensable back injury took the form of a facet strain or sprain. . . .Clearly, it would be reasonably expected that the physical damage resulting from a relatively minor musculoskeletal injury, such as that sustained by the claimant, would have resolved or at least stabilized with over six months of rest and medical care. The medical evidence supports such a conclusion." The parties have agreed that the Administrative Law Judge's findings are res judicata.
We are unable to find from a preponderance of the evidence that a CT scan and accompanying myelogram would be reasonably necessary to treat the claimant's "facet strain" of June 13, 1999. The Full Commission therefore reverses the Administrative Law Judge's finding that a myelogram with accompanying CT scan constitutes reasonably necessary medical treatment pursuant to Ark. Code Ann. § 11-9-508.
Based on our de novo review of the entire record, the Full Commission finds that the doctrine of res judicata bars the claimant's entitlement to a myelogram/CT scan at the respondents' expense. We further find that even if res judicata did not bar the claimant's entitlement to a myelogram/CT Scan, this additional diagnostic testing would not be reasonably necessary to treat the claimant's June 13, 1999 compensable injury, pursuant to Ark. Code Ann. § 11-9-508(a). The Full Commission thus reverses in its entirety the Administrative Law Judge's November 13, 2001 amended opinion. The claim for a myelogram/CT scan at the respondents' expense is denied and dismissed.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion reversing the Administrative Law Judge's decision to award claimant additional testing for her compensable work-related injury. This is an extremely difficult case, but I find that claimant is entitled to additional testing to treat her injury. I agree with the Administrative Law Judge that his April 18, 2001 opinion to award such benefits is not barred by res judicata.
The majority opinion finds the doctrine of res judicata a bar to claimant's entitlement to the myelogram/CT scan she requests and that, even if the doctrine of res judicata were inapplicable, claimant failed to prove that this test is reasonably necessary to treat her compensable injury. In my view, this finding basically prevents claimant from ever receiving further medical treatment for her compensable injury, particularly since claimant's treating physician believes this testing necessary to properly treat her compensable injury. I believe this to be contrary to the intent of our workers' compensation system.
A review of claimant's history reveals considerable medical reviews, treatment and testing for an acute lumbar strain/facet syndrome compensable injury claimant sustained on June 13, 1999.
An April 18, 2000 prehearing order identified as the issues to be litigated:
Claimant's entitlement to a change of physician;
Claimant's entitlement to additional medical treatment at respondents' expense;
Claimant's entitlement to additional temporary total disability from January 21, 2000 through a date to be determined; and
Attorney's fees.
All other issues were reserved for future determination. In his June 28, 2000 order, the Administrative Law Judge allowed claimant to change her physician from Dr. Runnels to Dr. Kendrick, but ruled that claimant was not entitled to temporary total disability benefits after January 21, 2000, and that claimant was not entitled to treatment "with a DRS machine by an unnamed chiropractor." He further stated, "Any reasonably necessary medical services hereinafter provided to the claimant for her compensable injuries by or at the direction of this physician is at the expense of the respondents herein, subject to the fee schedule established by this Commission."
The majority opinion concludes that the doctrine of res judicata precludes the Administrative Law Judge from his April 18, 2001 order allowing claimant additional testing as recommended by Dr. Kendrick. The Administrative Law Judge found the myelogram/CT scan recommended by claimant's treating physician to be reasonably necessary treatment of her compensable injury:
In the present case, it is apparent that it is Dr. Kendrick's expert opinion that further testing, in the form of a myelogram with an accompanying enhanced CT scan, is medically appropriate to accurately ascertain the nature and extent of the claimant's compensable back injury in order to provide the appropriate treatment modalities. Dr. Kendrick, although a general practitioner, is a highly competent medical specialist. His opinion is entitled to substantial weight.
The tests recommended by Dr. Kendrick are of a type commonly employed by the general medical community in order to ascertain the nature and extent of lumbar spine injuries, such as that experienced by the claimant. Although the claimant has previously had substantial testing for this purpose, including an MRI study, the myelogram and enhanced CT scan recommended by Dr. Kendrick is still the most accurate of the available tests when dealing with spinal injuries, particularly those involving possible neurological components. The necessity of the further testing recommended by Dr. Kendrick would appear to be logical in light of the claimant's continued extensive complaints and her lack of response to the various conservative treatment modalities offered.
The majority opinion holds this decision to be barred by res judicata based on the Administrative Law Judge's earlier opinion disallowing claimant additional temporary total disability benefits. However, I find this not to be the case. In his June 28, 2000 order, the Administrative Law Judge allowed claimant to change her physician and specifically stated that all future reasonably necessary treatment would be paid by respondents (who did not appeal this order). It does not follow that the Administrative Law Judge would have even allowed claimant a change of physician if he were going to disallow any future medical treatment, especially since Dr. Runnels (claimant's former treating physician) was of the opinion that claimant just needed to "put forth more effort."
In his November 13, 2001 order, the Administrative Law Judge ruled that the doctrine of res judicata did not apply in this case because at the time of claimant's prior hearing she was asserting entitlement to a specific chiropractic treatment utilizing a DRS machine recommended by Dr. Raben. The June 28, 2000 opinion merely found that claimant was not entitled to that particular treatment. This opinion did not find that claimant was never to be entitled to any additional medical treatment. The claimant is always entitled to reasonably necessary medical treatment of her compensable injuries pursuant to Ark. Code Ann. § 11-9-508, which states that employers must promptly provide services which are reasonably necessary for the treatment of compensable injuries. However, injured employees must prove that medical services are reasonably necessary by a preponderance of the evidence. Ark. Code Ann. § 11-9-705 (a)(3) (Repl. 2002); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).
Claimant contends that she still suffers from pain and discomfort relating to her compensable June 13, 1999 injury.
As noted in the majority opinion, the final medical evidence of record consists of Dr. Kendrick's September 18, 2000 report (quoted in part):
We discussed that she does have changes on her MRI that were pre-existing, but the moderate to large central disc protrusion at L5-S1c could easily have been from the accident.
She does have a ruptured disc that is moderate to large. This would not seem to be pre-existing, especially with her report of no prior pain and the fact that a rupture could easily be acute. This disc does not seem to impinge on any nerves on the MRI, but her back pain seems severe, as if (sic) were. I think we should consider a further workup, since she seems so very limited by her pain. A myelogram with a CT done at that time might should be considered as a part of the workup, considering that her back pain is bad enough to warrant a surgery, if one were indicated. (Emphasis added).
Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Tina Haskins v. TEC, Full Workers' Compensation Commission, Opinio, filed July 14, 1993 ( E107391); Billy Chronister v. Lavaca Vault, Full Workers' Compensation Commission, Opinion filed June 20, 1991 ( D704562). An employer may also remain liable for medical treatment reasonably necessary to maintain a claimant's condition after the healing period ends. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
"Reasonably necessary medical services" have been defined as those services which are necessitated by or connected with the compensable injury and have a reasonable expectation of accomplishing the purpose or goal for which they are intended. See Alman v. Good Samaritan Nursing Home, Full Workers' Compensation Commission, Opinion filed September 3, 1996 ( D916588); Willhite v. Klein Tools, Full Workers' Compensation Commission, Opinion filed September 18, 1998 ( E609024). These potential purposes or goals are varied and are not limited to those medical services actually intended to improve or resolve the actual physical damage produced by the compensable injury. In Haskins, supra, the Commission specifically rejected respondents' argument that pain management was not reasonably necessary because it did not attempt to treat the underlying condition. See also Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999); Haney v. Smith, Doyle Winters, 46 Ark. App. 212, 878 S.W.2d 775 (1994).
"Reasonably necessary medical services" may also include those services required to accurately diagnose the nature and extent of the compensable injury, to merely reduce or alleviate symptoms resulting from the compensable injury; to maintain the level of healing achieved or to prevent further deterioration of the damage produced by the compensable injury. See Artex, supra.
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. Jeter v. B.R. . McGinty Mech, 62 Ark. App. 53, 968 S.W.2d 645 (1998).
It is apparent from Dr. Kendrick's annotations that he feels claimant's condition may warrant surgery, but that additional testing is necessary to ascertain the best course of medical action for the claimant. Based on Dr. Kendrick's expert medical opinion, I find that even if the doctrine of res judicata did apply (which I find does not), a myelogram/CT scan is reasonably necessary medical treatment of claimant's compensable injury. Accordingly, I would affirm the Administrative Law Judge's decision and award claimant the additional testing she requires for her compensable injury.
For the reasons stated herein, I respectfully dissent from the majority opinion.
_______________________________ SHELBY W. TURNER, Commissioner