Opinion
CLAIM NO. E813005
OPINION FILED MARCH 23, 2000
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ERROL N. FRIEDMAN, Attorney at Law, Texarkana, Texas.
Respondents represented by J. MATTHEW MAULDIN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal a decision of the Administrative Law Judge filed on October 5, 1999, finding that claimant is entitled to an open-ended award of temporary total disability benefits, and additional medical benefits. Moreover, the Administrative Law Judge held that the medical treatment claimant received at the direction of Dr. Contreras (including surgical intervention) was reasonable, necessary, and related to compensable injury. Based upon our de novo review of the record, we find that claimant proved entitlement to an open-ended award of temporary total disability benefits, and medical benefits. With respect to the medical benefits, we find that the medical treatment directed by Dr. Contreras was reasonable, necessary, and related to claimant's compensable injury. Accordingly, we affirm the decision of the Administrative Law Judge.
Claimant's employment with respondents commenced in 1992. He worked as a heavy equipment operator. On October 13, 1998, he was operating a sweeper machine on County Road 24. He stated that he was rear-ended by a motor vehicle, and the impact propelled the sweeper machine forward. Claimant stated that he was knocked over the controls and onto the machine's core. He explained that the core is the machine part that sweeps the road. He testified that he fell off of the core, landing on the ground. When claimant attempted to rise to ascertain whether the driver of the car was injured, he discovered that his right leg was not functioning properly, and he fell to the ground.
Two motorists, Gary McAdams and his son, Randy McAdams, stopped at the scene. Their deposition testimony was introduced into evidence by claimant. Apparently, they just missed the collision for the driver of the car was standing outside of her vehicle, and claimant was still on the ground. According to the testimony of Randy McAdams, claimant was unable to get off of the ground. McAdams testified that it was clear that claimant had been knocked off of the sweeper machine. The testimony of Gary McAdams substantiated that of Randy McAdams.
Claimant was transported to the emergency room by ambulance. He was released after treatment, and advised to obtain follow-up treatment from Dr. Contreras.
The medical evidence in this case included chart notes, IME reports, and the deposition testimony of Dr. Freddie Contreras, neurosurgeon. Claimant has a pre-existing back condition, which developed gradually. On February 9, 1998, he received treatment from Dr. Contreras for back pain. According to the chart note, claimant's pain began in 1997, but had increased in intensity during the three-month period prior to the consultation. Following the performance of diagnostic testing, Dr. Contreras placed the following addendum in claimant's chart:
[Claimant's] lumbar myelogram was unremarkable. I ran the dye up to about T2 or T3 and I never saw any abnormality. The follow-up CT scan of the thoracic spine revealed a bit of scoliosis and then a good bulge of the disc at L5-S1. There was no obvious focal disc rupture. . . .
The addendum also reflected that Dr. Contreras recommended conservative treatment in the form of an epidural steroid injection. In July of 1998, Dr. Contreras again recommended an epidural steroid injection for claimant.
Claimant returned to Dr. Contreras on August 11, 1998, reporting increased back pain. He also, had right hip and right knee pain. Concerned about the existence of a serious abnormality, such as a tumor, Dr. Contreras ordered a second MRI with Gadolinium. According to Dorland's Illustrated Medical Dictionary, Edition 28, this is a contrasting agent used in imaging studies. The test failed to demonstrate a tumor, and Dr. Contreras determined that surgical intervention was not warranted. He diagnosed low back pain.
On November 5, 1998, claimant returned to Dr. Contreras, and informed him of the work-related accident. According to a chart note, claimant complained of severe pain in his right hip, right leg, and low back. Interestingly, the chart note characterized claimant's medical history as "pretty unremarkable." Dr. Contreras testified that claimant's condition changed following the accident. During the examination he performed on November 5, 1998, he detected neurological deficits in the form of an absent right ankle reflex, and a positive straight leg raising test. Dr. Contreras testified that claimant's symptoms were compatible with a frank disc rupture at L5-S1. He explained that "the ankle jerk is specific to the S1 nerve root, and that's the nerve root that would get pinched by a disk rupture at L5-S1, so that was a very localizing sign." Dr. Contreras testified that claimant's low back MRI was also significant. That test showed a right paracentral disc rupture. He testified that "his MR fit more consistently than they ever had before with the problem of the bottom disk, so we offered him the option of surgery." On December 21, 1998, Dr. Contreras performed a laminectomy at the L5-S1 level.
Dr. Contreras discussed the operation, findings, noting that his interpretation of the test results were confirmed during surgery. He testified that he observed a right paracentral disc rupture as well as the disc compressing the thecal sac. He stated that the disc was clearly ruptured, although it was contained within the thecal sac. Dr. Contreras testified that claimant's new symptoms were entirely consistent with his surgical findings.
With respect to the effects of the October 13, 1998, accident upon claimant's pre-existing condition, Dr. Contreras testified:
. . . I had always thought before that he was having a bulging disk and that it would flare up, cause him some pain, and he would be able to get over it without surgery. I think that the disk bulge actually turned into a disk rupture, and you would temporarily relate that to the wreck — or I mean, to the accident, and then I think once the disk had actually had a focal rupture it made it much harder for him to get over it. And clearly, based on his examination, the nerve root was under more pressure because his exam in my opinion had changed to where he had now an absent ankle reflex.
Based upon the credible medical evidence, we specifically find that the work-related accident which occurred on October 13, 1998, aggravated claimant's preexisting back condition. Under Act 796, the presence of a preexisting condition does not disqualify a claim for benefits. St. Vincent Infirmary Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). However, claimant must satisfy all of the requirements of a compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). That is, claimant must demonstrate that he sustained an accidental injury; that it caused external or internal physical bodily injury; that the injury arose out of and in the course of employment; and that medical services were required. Id.
In our opinion, claimant has satisfied each element of compensability. Claimant's accident occurred as a result of a specific incident. At the time of the collision, claimant was engaged in employment services. The disc herniation and thecal sac compression Dr. Contreras discovered during surgery satisfy the objective findings requirement. Finally, claimant established the requisite causal connection. The medical evidence showed that it was only after accident that Dr. Contreras detected any neurological deficits. The testimony of Dr. Contreras supports a finding of an acute injury, which he related to the accident. Further, claimant's ability to work was compromised as a result of the injury. He testified that prior to October 13, 1998, he only missed a few days' work as a result of back pain. However, he was never disciplined for attendance problems. Claimant testified that he has been unable to work since the accident.
In reaching this conclusion, we recognize that Drs. Russell and Moore opined that claimant's condition did not change objectively following the work-related accident. The resolution of conflicting medical evidence is a fact question for this Commission. Johnson v. Democrat Printing Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997). In our opinion, Dr. Contreras' vantage point is superior. He provided both pre-injury and post-injury treatment to claimant. Moreover, Dr. Contreras had the opportunity to observe the disc herniation, and thecal sac compression during surgery. On the other hand, Dr. Moore never examined claimant, but based his conclusions on the medical records. Thus, we find Dr. Contreras' opinion most persuasive.
Claimant also contends that he is entitled to reasonable and necessary medical care, including surgical intervention. Respondents argue that claimant failed to prove that treatment rendered by Dr. Contreras, including surgical intervention, was reasonable, necessary, and related to his injury of October 13, 1998. Employers are only liable for medical treatment and services that are reasonable and necessary for the treatment of work-related injuries. DeBoard v. Colson, 20 Ark. App. 166, 725 S.W.2d 857 (1987). The determination of the reasonableness and necessity of medical treatment is a fact question for the Commission. Arkansas Dep't. Of Corrections v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994).
The evidence showed that claimant was treated conservatively for a disc bulge. He testified that the epidural steroid injections he received were beneficial. Dr. Contreras did not consider claimant a surgical candidate until after the collision occurred. Following the accident, he discovered neurological deficits. Dr. Contreras suspected a disc herniation and compression, and these findings were confirmed during surgery. He opined that the accident caused the disc herniation. We find that the treatment claimant received at the direction of Dr. Contreras, including surgery, was reasonable, necessary, and related to his compensable injury.
Claimant contends that he is entitled to an open-ended award of temporary total disability benefits commencing on October 14, 1998. Entitlement to temporary total disability benefits requires claimant to satisfy a two-prong test: (1) claimant must be within her healing period; and (2) completely incapacitated from earning wages. Arkansas Highway Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for healing the injury, which continues until claimant is as far restored as the permanent nature of the injury will allow. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). In the event that the underlying condition has stabilized and there is no additional treatment that will improve claimant's condition, the healing period has ended. Id. This question is one of fact for the Commission to resolve.
Temporary total disability is awarded when claimant is incapacitated because of injury to earn the wages she was receiving at the time of the injury. Johnson v. Rapid Die Molding, 46 Ark. App. 244, 878 S.W.2d 790 (1994).
The evidence showed that claimant received emergency room treatment on the date of the accident. According to the Emergency Room Record authored by Dr. Mark McCrary, claimant was diagnosed with an "acute lumbar muscle strain." Dr. McCrary presribed narcotic pain medication and muscle relaxants. Also, he advised claimant to follow up with Dr. Contreras within two-three days. Claimant testified that he has been unable to work since the accident. At deposition, Dr. Contreras confirmed this. Based on claimant's testimony, and the opinion of Dr. Contreras, we find that claimant has proved entitlement to an open-ended award of temporary total disability benefits commencing on October 13, 1998.
Based on our de novo review of the entire record, and for the reasons stated herein, we find that claimant proved by a preponderance of the credible evidence that he is entitled to an open-ended award of temporary total disability benefits commencing on October 15, 1998. We further find that all treatment directed by Dr. Contreras is reasonable, necessary, and related to claimant's compensable injury. Claimant's attorney is entitled to the maximum statutory attorney's fee on benefits awarded herein in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996). 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 on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
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PAT WEST HUMPHREY, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant proved by a preponderance of the evidence that he is entitled to medical benefits and an open-ended award of temporary total disability benefits, and that the medical treatment by Dr. Contreras was reasonable and necessary treatment of claimant's compensable injury.
It is my opinion that claimant has failed to prove that the December 21, 1998 surgery and resultant treatment provided by Dr. Contreras was reasonable and necessary treatment of a work-related injury, or that claimant's ruptured annulus was caused by the accident on October 13, 1998. Claimant suffered from degenerative changes, including a ruptured annulus, prior to the October 13, 1998 incident, and as early as February 1998. While Dr. Contreras attempted to correlate the incident and the need for surgery, he admitted that his only justification was claimant's complaints of increased pain. However, the objective findings from before and after the incident were unchanged. This was the opinion of Dr. Russell in his second opinion examination, of Dr. Moore in his independent evaluation, and even of Dr. Contreras in a sworn deposition.
In fact, claimant's condition remains essentially unchanged, in that the hemilaminectomy failed to improve his condition more than 10% according to claimant. Furthermore, Dr. Russell's opinion that claimant's condition would not be helped by the proposed surgery was borne out by the fact that claimant only experienced brief relief from some of his complaints and continues to suffer low back and right leg and hip pain significant enough to keep him off work. Dr. Moore also agreed with Dr. Russell that surgery was not indicated. For these reasons, I find that the surgery performed by Dr. Contreras and the resulting treatment was not reasonable and necessary treatment of claimant's October 13, 1998 injury, and that the healing period and incapacitation from work resulting from the surgery was not causally connected to the accident. Claimant is not entitled to medical benefits or temporary total disability benefits arising out of the December 21, 1998 surgery.
For the foregoing reasons, I must respectfully dissent from the majority opinion, as I would reverse the decision of the Administrative Law Judge in its entirety and enter an opinion denying claimant medical benefits and temporary total disability benefits arising out of the December 21, 1998 surgery.
________________________________ MIKE WILSON, Commissioner