Opinion
CLAIM NO. E606182
OPINION FILED FEBRUARY 23, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondent represented by J. CHRIS BRADLEY, Attorney at Law, North Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed June 16, 1997 finding that the claimant is entitled to additional workers' compensation benefits. Specifically, the Administrative Law Judge found that the claimant was temporarily totally disabled for the period beginning February 26, 1996 and continuing through the end of his healing period, which has not yet been determined. Further, the Administrative Law Judge found that claimant was entitled to gastric bypass surgery. Based upon our de novo review of the record, we find that the claimant has failed to meet his burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge.The claimant was injured on February 2, 1996 when he slipped and fell on some ice. This injury was accepted as compensable by the respondent. The claimant injured his lower back, shoulder and wrist. The claimant was diagnosed with a torn rotator cuff of his left shoulder and carpal tunnel syndrome on the left wrist. In addition, the claimant is possibly in need of a laminectomy on his back. The claimant was able to work after the injury until February 26, 1996. It was due to breathing difficulties, and not the injury that caused the claimant to leave respondent's employ.
The claimant presently has breathing problems. These problems are complicated by the claimant's lifelong problem with his weight. The claimant currently uses oxygen 24 hours a day.
The claimant testified that he weighed around 250 pounds when he was injured in early February. He stated that once he was injured, he could not do anything but eat and that his inactivity caused his weight to increase to 410 pounds by the time Dr. Harold Chakales saw the claimant in May of 1996. The claimant additionally testified that before he was injured, he was able to keep his weight down with regular exercise which included chasing his dogs for five or six miles three days a week while rabbit hunting and deer hunting. The claimant also played basketball and baseball and worked in his yard and garden.
The claimant was able to lose weight from 410 pounds to 323 pounds from November of 1996 to May of 1997 with a carbohydrate diet. However, the claimant's cholesterol and triglycerides became increased and he had to be taken off this diet. The claimant testified that during the carbohydrate diet his breathing improved 50%.
The claimant is unable to have surgery on his back and shoulder until his weight drops to between 250 and 260 pounds. The claimant stated that during 1994 he had knee surgery and he was able to reduce his weight from 305 pound to 210 pounds by going on a liquid diet. The respondent paid for this liquid diet. After the claimant returned to work the respondents quit paying for the diet. After the claimant quit the liquid diet his weight increased to 250 or 260 pounds in six months. Presently, the claimant does not want to go on a liquid diet but wants a gastric bypass.
The claimant consulted with Dr. Robinson regarding the risks associated with the gastric bypass operation. Dr. Robinson did not give the claimant any guidance as to the risks but instead took information concerning his age and date of birth. The claimant testified that he had a lot to live for and he was willing to die on the operating table if the operation would help in stopping his severe pain. The claimant testified that his pulmonary specialist, Dr. Newan advised him to get help for his obesity at the obesity clinic but he had not gone to the clinic as of the date of the hearing.
Employers are only liable for medical treatment and services which are reasonably necessary for the treatment of employee's injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The claimant has the burden of proving by a preponderance of the credible evidence that the medical treatment is reasonable and necessary. Norma Beatty v. Ben Pearson, Inc., FC Opinion filed Feb. 17, 1989 ( D612291); B.R. Hollingshead Colson Caster, FC Opinion filed August 27, 1993 ( D703346). It is the duty of the Commission to weigh medical evidence as it does any other evidence. Resolutions of conflicts in medical evidence is a fact question for the Commission. Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 1994. What constitutes reasonable and necessary medical treatment under the Workers' Compensation Act is, likewise, a question of fact for the Commission to determine. Dept. of Corrections v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994); Wright Constr. Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, the Commission must analyze both the proposed procedure and he condition that it is sought to remedy. Deborah Jones v. Seba, Inc., FC Opinion filed December 13, 1998 ( D512553).
We find that the preponderance of the evidence fails to support a finding that the proposed gastric bypass procedure is reasonably necessary for the treatment of the claimant's compensable injury. The proposed procedure is sought to remedy the claimant's obesity. This procedure is an invasive procedure which carries with it many risks. It is an extremely costly procedure which carries with it negative health benefits unless the claimant is extremely motivated. Moreover, the procedure alone will not solve the claimant's problems. The claimant must change his lifestyle and eating habits in order for the procedure to be a success.
Claimant has failed to prove that he is motivated to permanently change his eating habits. The evidence shows that the claimant has had long-term weight problems caused by long-term overeating and he has gained weight even while under a doctor prescribed diet. In fact, the evidence shows that the claimant weighed in the neighborhood of 250 pounds when he was only 13 years old. The evidence also shows that the claimant is not receptive to any other weight loss programs. The claimant is determined to have the gastric bypass surgery performed upon him. He is not willing to try any other weight loss programs. In our opinion, the claimant sees the gastric bypass as a "cure-all" to his eating disorder. Although the claimant's medical providers have indicated that weight loss is a prerequisite for the success of further treatment for his work-related injuries, we cannot find that the gastric bypass surgery is a reasonable and necessary medical procedure.
The Court of Appeals and the Commission have previously found that gastric bypass surgery is not reasonably necessary where more conservative weight loss measures were available. See, Susan Strickland v. Corporation of the President of the Church of Jesus Christ of the Latter Day Saint, FC Opinion filed March 6, 1997 ( D907447); Shepherd v. VanOhlen Trucking, 49 Ark. App. 36, 8955 S.W.2d 945 (1995).
We find that there are other more conservative weight loss measures available to the claimant. We do not think that the gastric bypass is the only alternative with a chance of a long-term success for the claimant. The claimant has had success with other weight loss programs. These programs are not nearly as costly or invasive as the proposed gastric bypass surgery. However, the claimant should be permitted to make modifications in his lifestyle which will allow him to be successful in maintaining his weight after a successful weight loss program. However, a weight-loss program, other than gastric bypass, is reasonably necessary medical treatment.
We also find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits from February 26, 1996 to a date yet to be determined. Temporary total benefits do not, in all cases, correspond to the healing period; temporary disability is not based on the claimant's healing period, but is awarded where the claimant's injury-caused incapacity prevents him from earning the wages he was receiving at the time of the injury. County Market v. Thornton, 27 Ark. App. 235, 770 S.W.2d 156, supp. op. reh'g denied. 27 Ark. App. 241-A, 771 S.W.2d 793 (1989).
The evidence shows that the claimant is off work due to his breathing problems — not as a result of his compensable injury. The claimant was able to work even after he fell, but quit due to his breathing problems. But for the claimant's breathing problems, he would still be working for the respondent. Therefore, the claimant is not entitled to temporary total disability benefits.
Therefore, for the reasons discussed herein, we find that the claimant has failed to prove by a preponderance of the evidence that the gastric bypass surgery is reasonable and necessary medical treatment. However, we do find that the claimant is entitled to some form of weight loss program paid for by the respondent. We further find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits. Accordingly, we reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
DISSENTING OPINION
[20] I must respectfully dissent from the majority opinion finding that claimant has failed to prove that he is entitled to gastric bypass surgery or temporary total disability benefits from February 26, 1996, through a date yet to be determined.Admittedly, claimant's present condition stems largely from a pre-existing breathing difficulty complicated by a life-long problem with his weight. Prior to his compensable slip-and-fall injury of February 1, 1996, claimant had managed to control his weight with vigorous off-duty exercise in addition to his responsibilities as a patrolman. Unfortunately, claimant's injury subsequently curtailed many of these activities, though he voluntarily remained on the job owing to a shortage of available police officers. Claimant's breathing problem eventually forced him to leave work on February 26, 1996, though he had not experienced significant weight gain by that time. During the following period of inactivity, claimant's long-standing weight problem re-asserted itself and, according to claimant's testimony, his weight increased from 250 to 410 pounds "in three and a half or four months."
Claimant's physical injuries and conditions are numerous, and include (as per a June 27, 1996, letter from Dr. Harold H. Chakales) the following:
1. Torn rotator cuff of the left shoulder.
2. Carpal tunnel syndrome of the left wrist.
3. Post laminectomy syndrome with evidence of recurrent disc at L5-S1 with persistent and chronic nerve root irritation.
4. Exogenous obesity.
On July 24, 1996, Dr. Chakales stated that he felt claimant was "temporarily totally disabled" when he prepared the above-referenced diagnoses, and mentioned that claimant's obesity made him "reticent" to undertake surgical repair of claimant's shoulder and back. Accordingly, Dr. Chakales opined that gastric stapling might be an option. On October 3, 1996, Dr. Chakales further explained that "one needs to attack the problem of the obesity before any adequate form of therapeutic (sic) can be induced for him." By November 26, 1996, Dr. Chakales felt that claimant was in "limbo," and remained temporarily totally disabled. With apparent exasperation, Dr. Chakales clarified his position on May 2, 1997:
I am not sure how you confused what I was referring to, but I thought I made it rather clear that the surgery I recommended at this time is for his chronic exogenous obesity. I feel that he is a surgical candidate for this. When I said he was a nonsurgical candidate, I meant he is a nonsurgical candidate for the orthopaedic conditions at this time. If he is able to correct his chronic obesity and is able to improve his pulmonary function, he may indeed then become a candidate for orthopedic surgery. With regard to his life span, I feel that the problems with his chronic lung condition as well as his obesity are indeed the significant major problems he has as of this date. As to whether or not surgery is to be performed on Mr. Smith, I think one needs to find a surgeon who has experience in doing this type surgery. If the patient and the physician are willing to take the risk, then it should be performed. I feel that the outlook is completely dismal otherwise. As to the opinion of Dr. Newan, I am sure he is a qualified pulmonologist and internist; however, other people may have other opinions.
Dr. Michael Newan, mentioned above in Dr. Chakales' letter, had stated in his office notes of July 29, 1996, that "gastric bypass surgery could not be done for a variety of reasons, one of them is his extreme obesity." Previously, Dr. Newan had referred claimant to a Dr. Roberson for gastric bypass evaluation. Though Dr. Roberson's records are apparently absent from the exhibits, Dr. Newan's sudden change of attitude regarding gastric bypass would suggest that the evaluation was not favorable. On another occasion, Dr. Newan assessed claimant with "morbid obesity despite all medical efforts to reduce his weight . . . He has multiple medical problems that are directly or indirectly related to his obesity such as, hypertension, chronic SOB [shortness of breath], lower back herniated disk, and sleep apnea." Also, on July 29, 1996, Dr. Newan pronounced claimant "totally disabled on the basis of his lung problem as well as on the basis of his morbid obesity along with other medical problems as decided by Dr. Rankin."
While claimant's continued difficulties are largely the result of his pre-existing weight and breathing problems, I am persuaded by his credible testimony that said problems were well-managed until claimant's activity was severely curtailed in the aftermath of his compensable injury. As a result, I would find that both his weight gain and subsequent pulmonary difficulty are compensable consequences of the February 1, 1996, injury, and that his current period of disability is likewise attributable to said injury. In the alternative, I would find that even absent the breathing problem, claimant's credible testimony establishes that he could not have worked after February 26, 1996, owing to the physical effects of his injury:
No, sir. The only reason I didn't go to the doctor the day that it happened was we had two men out sick. One of them had been out for two months with a back injury from helping an ambulance crew lift up a person and hurt his back, and we had another one out with a knee operation . . . I don't think I could have, no, sir. If I had had to arrest someone and had to get into a fight, I don't think I could have made it, but I would have tried, because I couldn't bring myself to leave two men to run the city. I mean, that is 12 hours a day, 24 hours a day, seven days a week.
Claimant's medical providers have consistently indicated that substantial weight loss is a prerequisite to the success of any further treatment for the physical effects of claimant's work-related injury. Accordingly, I would find that some form of weight loss program would be reasonably necessary medical care in this claim. Given claimant's likely inability to resume strenuous physical activity in the foreseeable future, I am persuaded that the gastric bypass he desires is the only alternative with a chance for long-term success.
As set out above, I respectfully dissent from the majority opinion.
PAT WEST HUMPHREY, Commissioner