Opinion
CLAIM NO. E302577
OPINION FILED FEBRUARY 24, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by TODD WILLIAMS, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by MARK MAYFIELD, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
[2] The respondent appeals a decision of the Administrative Law Judge filed on February 19, 1998. We reverse the decision of the Administrative Law Judge finding that the fusion surgery performed by Dr. Gregory Ricca on June 18, 1997, is reasonable and necessary medical treatment related to claimant's compensable injury and finding that claimant is permanently and totally disabled as a result of his injury. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof on these issues. However, we find that claimant has proven that he has sustained a 37 1/2% decrease in his wage-earning capacity.This claim has an extensive medical and procedural history. In the Fall of 1992, claimant sustained the first injury to his lower back. Claimant described that injury as occurring when a ladder he was standing on fell out from underneath him, leaving claimant hanging and suspended in the air. Claimant described his pain following the injury as sharp shooting pain that went through his buttocks and down through the calf of his right leg. In February of 1993, Dr. Gregory Ricca performed a diskectomy and laminectomy at the L4-5 level. Within six weeks after surgery claimant returned to work on light duty.
At the first hearing on these issues held on March 5, 1997, claimant testified that he was physically capable of handling all of his work after the first surgery in February of 1993. Specifically, claimant states:
I was doing all right. I had just minimal problems which I was told that was no problem, you know.
Claimant described the work he was performing at that time as preparing a ditch, carrying pipe which weighed anywhere from 100 to 200 pounds to the ditch and laying the pipe in the ditch. According to claimant's testimony, in August of 1993, after doing a "rough-end" which was grading a ditch and hauling pipe to the ditch, the pain in his buttocks, and hip, "continually worsened" and he now had pain in both legs. According to claimant's testimony after experiencing this increase in symptoms he returned to Dr. Ricca. Dr. Ricca ordered an MRI which detected a new herniation at the L4-5 level.
After discovering the new herniation, Dr. Ricca recommended a second surgical procedure. After an independent medical examination was performed by Dr. Rodney Field with the Mid-South Neurological Clinic respondent denied surgery. In his report dated September 13, 1993, Dr. Field noted:
I have reviewed the entire history with the patient. He was intimidating, demanding, arrogant, un-cooperative in giving his history.
With regard to the physical examination, Dr. Field noted:
On examination, he has a hysterical method of bending and twisting. He moves around fairly easily on and off the examining table, but when attention is directed to his back, he moves less than five degrees. He refuses to walk on his tiptoes, which he says will hurt his back and his leg. He does half heartedly walk on his heels. He has no reflex change. He constantly gives away purposefully on muscle testing so as to make me think he is weak in both feet. Straight-leg raising can be carried to 90 degrees on the left and is normal. He writhes with pain when his femur is flexed over his abdomen as if it hurt, which it does not in that position. He resists straight-leg raising at 30 degrees on the right. He sits up on the examining table with a negative straight-leg raising, although he does not complain of pain when he has an initial straight-leg raising in the sitting position.
At that time, Dr. Field diagnosed claimant with "status post lumbar disc syndrome and malingering." In his report dated September 13, 1993, Dr. Field opined that claimant was not a surgical candidate.
Following Dr. Field's examination, claimant returned to Dr. Ricca for treatment. Dr. Ricca's medical records indicate that he no longer advised of surgery and told claimant that he had nothing else to offer him. Dr. Ricca then referred claimant to the Pain Clinic in Little Rock operated by Dr. Valentine.
The parties requested an Opinion from the Administrative Law Judge with regard to whether continued treatment at the Pain Clinic was reasonable and necessary medical treatment of claimant's compensable injury. In an Opinion filed August 20, 1996, the Administrative Law Judge determined that claimant failed to prove by a preponderance of the evidence that the recommended treatment at the Pain Clinic was reasonable and necessary. Claimant did not appeal that decision.
In September of 1996, claimant requested a hearing on the issue of wage-loss disability. A hearing on this issue was held on March 5, 1997. In an Opinion filed on March 28, 1997, the Administrative Law Judge determined that claimant sustained a ten percent permanent impairment rating to the body as a whole in addition to a 50% decrease in his wage-earning capacity. Respondent appealed and claimant cross-appealed from this finding. While on appeal to the Full Commission, claimant submitted a Motion to Submit Additional Evidence regarding the compensability of his neurogenic bladder. In an Opinion filed July 16, 1997, claimant's Motion was denied. Subsequently, claimant filed a second Motion to Submit Additional Evidence regarding a second surgical procedure performed on claimant's back on June 18, 1997. In an Opinion filed September 2, 1997, the Full Commission found that the March 28, 1997 Opinion of the Administrative Law Judge awarding a 50% wage-loss disability should be vacated and this matter remanded to the Administrative Law Judge so that all issues which may have a bearing on the extent of claimant's permanent disability may be resolved at one time. Pursuant to our September 2, 1997 Order, a second hearing on the extent of claimant's permanent disability was held on December 17, 1997. Pursuant to agreement of the parties, the issues litigated at the December 1997 hearing were whether the spinal fusion performed by Dr. Ricca on June 18, 1997, was reasonable and necessary medical treatment related to claimant's compensable injury and the extent of claimant's permanent disability. In an Opinion delivered February 19, 1998, the Administrative Law Judge found that the surgical procedure performed by Dr. Ricca on June 18, 1997, was reasonable, necessary and related to claimant's compensable injury and that claimant was permanently and totally disabled. Although it is unclear from reviewing the Administrative Law Judge's decision, it appears that he relied upon the odd-lot doctrine in finding claimant permanently and totally disabled. It is from this Opinion that respondent appeals.
The first issue which we much determine is whether this claim for medical treatment and wage-loss disability is governed by Act 796 of 1993. Act 796 of 1993 applies to injuries occurring on or after July 1, 1993. If claimant sustained a new injury or aggravation after this date, Act 796 is applicable. However, if claimant's condition is merely a recurrence, then Act 796 would not apply. In Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996) the Court stated:
. . . a recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Under the general provisions of the 1993 Workers' Compensation Statute Chapter 9, Sub-chapter 1, it is provided that "the provisions of this Act shall apply only to injuries which occur after July 1, 1993. The record clearly reflects that the appellee's injury was in 1992 before the enactment of Act 796. Consequently, Act 796 does not apply to this case because appellee did not sustain an injury after July 1, 1993, but merely another period of incapacitation. Therefore, the Commission did not err in determining that the new Act did not apply.
We must determine whether claimant's symptoms in August 1993 represent a recurrence or aggravation of claimant's November 1992 injury. It is well recognized that when the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable. Id.,McDonald Equip. Comp. Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). A recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. Id. See, also, Pinkston v. General Tire and Rubber Company, 30 Ark. App. 46, 782 S.W.2d 375 (1990).
A review of claimant's testimony reveals that after his first surgery in February of 1993, he recovered to the point that he was able to return to work after only six weeks. Claimant described his physical condition during this time frame as "doing alright" with only "minimal problems." However, according to claimant, after performing strenuous physical labor in August of 1993, digging ditches and hauling 100 to 200 pound pipe to the ditches, he experienced pain even greater than the pain he had prior to surgery. According to claimant, his symptoms at that time now included the opposite leg. Based upon this evidence, we find that claimant's work in August of 1993 hauling 100 to 200 pound pipe constitutes an intervening cause resulting in a new injury with additional complaints. Therefore, we find that claimant's condition after returning to work in August of 1993, and after performing strenuous lifting and hauling is not the natural and probable result of his prior injury, but rather a new injury or aggravation. Therefore, we find that this claim for benefits is governed by Act 796 of 1993.
The next issue for our determination is whether the second surgery performed by Dr. Ricca in June of 1997 was reasonably necessary and causally related to claimant's compensable injuries.
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1996). However, injured employees have the burden of proving by a preponderance of the evidence that the medical treatment is reasonably necessary for the treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Compensation Commission Opinion filed February 17, 1989 ( D612291). 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. Deborah Jones v. Seba, Inc., Full Commission Opinion Dec. 13, 1989 ( D512553). A respondent is only responsible for medical services which are causally related to the compensable injury.
The medical records in this claim are extensive. After claimant's first injury in November of 1992, Dr. Ricca performed a diskectomy and laminectomy at the L4-5 level. It is interesting to note that in the Discharge Summary prepared by Dr. Ricca, he found it important enough to insert in this report that claimant was very insistent that Dr. Ricca provide him a prescription for sleeping pills. Even though Dr. Ricca explained to the claimant that his pain should be better following surgery, claimant still insisted upon the pills. Less than one week after surgery, claimant called Dr. Ricca's office seeking a refill on the Tylox prescription. Tylox is a narcotic pain medication. Dr. Ricca noted in an office date March 1, 1993:
He was discharged from the hospital six days ago and finished up his prescription for 40 Tylox tablets. He says that he has severe back pain.
I explained that consuming 40 Tyloxs in a six-day period is not normal. I also explained that there are differences from patient to patient, however, I feel the amount of narcotics he has consumed is not reasonable. I explained that I will not refill his prescription for Tylox even though he repeatedly asked me to do this. . . . I am concerned about drug-seeking behavior and I will try to treat this patient's symptoms judiciously and try to avoid providing excessive amounts of drugs.
One month later claimant returned to Dr. Ricca's office and reported that he had not taken any pain medication for two weeks. At that time, claimant was anxious to return to work and following a normal examination, Dr. Ricca released claimant to resume light duty. At that time, Dr. Ricca assigned claimant a 10% permanent partial impairment rating to the body as a whole. Following claimant's aggravation from work in August of 1993, claimant returned to Dr. Ricca's office with "pain similar to his pre-operative pain" in addition to "burning-type pain which involves both lower extremities." After Dr. Ricca's recommendation for a second surgical procedure was controverted, Dr. Ricca advised in his September 15, 1993 report:
As I have nothing further to offer this patient at this time, I will release him from my care.
In May of 1994, claimant underwent another independent medical evaluation. This IME was performed by Dr. Larry Mahon, an orthopedic surgeon in Jonesboro. In his report, Dr. Mahon detailed the history of claimant's injury and surgery as performed by Dr. Ricca. With regard to claimant's onset of pain following surgery, Dr. Mahon recorded the following history:
He returned to work about two months following his surgery but had gradual recurrence of pain in his back and right leg. He then began having pain in the left leg also. He returned to Dr. Ricca and underwent myelogram and post-myelographic CT studies. Additional surgery was recommended but this has not been done.
Dr. Mahon summarized his examination as follows:
In summary, this examination demonstrates no sensory deficit or muscle weakness. However, he has a very positive straight-leg raising test on the right with muscle spasm and limitation of motion of his back. Although Mr. Winslow demonstrates some symptom magnification when asked to perform voluntary motions of the spine, I feel he does warrant further treatment at this point in time. I believe he should undergo at least a period of structured physical therapy and if there is no improvement in his symptomatology, strong consideration should be given to a repeat laminectomy.
It appears from reviewing the record that claimant did undergo physical therapy in 1994, but did not complete the program.
In April of 1995, a second independent medical evaluation was performed by Dr. Mahon. After examining the claimant and obtaining a recent history of claimant's complaints, Dr. Mahon stated in his April 1995 IME report:
Although this examination is not grossly different from that of a year ago, he exhibited rather gross symptom magnification with various maneuvers of standing on his toes and heels, range of motions, etc., at this time. There was much groaning, grimacing, etc., with performance of maneuvers which do not generally cause discomfort to patients with chronic back pain. He is neurologically intact and I find no demonstrable motor weakness. As noted above, X-ray examination remains essentially unchanged from a year ago.
I have received specific questions from Kristie Hovey with Federated Insurance and, in response to those questions, I do feel Mr. Winslow has reached maximum medical improvement at this time and he does have some permanent impairment as a result of his injury. He is capable of light sedentary forms of work not involving repetitive squatting, bending, repetitive lifting, etc. I have no recommendations for any further treatment. In compliance with the Arkansas Workers' Compensation Rule Thirty-Four and utilizing the AMA Third Edition Guidelines, Mr. Winslow does have ten percent permanent partial impairment to the body as a whole. (emphasis added)
Dr. Mahon apparently received correspondence from the adjuster concerning claimant's prescription medication. In correspondence to the adjuster dated July 25, 1995, Dr. Mahon stated:
Mr. Winslow may occasionally have exacerabations of pain and muscle spasticity as indicated with his ten percent impairment rating. However, this obviously would be intermittent and should not require continuous pain medications and muscle relaxants.
In addition to claimant's lower-back complaints noted by all of claimant's treating physicians and medical examiners, by the Fall of 1995, claimant began to complain of neck pain. The Outpatient Clinic records for the University Hospital of Arkansas dated November 22, 1995 records a history of:
"Neck pain began three months ago. . . . Pt's neck pain is new (in last three months). He also has migraine H/As (with) neck pain (with) photophobia blurry vision.
Claimant reported that the neck pain causes stabbing pain between his shoulder blades and that it is not relieved with Tylenol. Claimant has never formally contended and it has never been found that this neck pain is related to claimant's compensable lower-back injuries.
On January 2, 1996, claimant was examined by Dr. Edward H. Saer. After examining the claimant, and noting claimant's history, Dr. Saer concluded:
Global neck and back pain, status post disc excision for HNP L4-5 right in February 1993. His pain is really quite diffuse and overwhelming. It's incapacitating at this point. I do not think he needs surgery. He does need to work with a pain specialist to get his pain under control. At some point he may need repeat MRI with contrast. (emphasis added)
Claimant continued to complain of lower back and neck pain and obtained narcotic medication from his treating physicians. In January of 1997, claimant was referred by his family physician, Dr. Mark Landis, to Dr. Rodney Olinger for a neurological evaluation. In his report dated January 21, 1997, Dr. Olinger stated:
I spent quite a lot of time speaking with Mr. Winslow and his wife. I explained to them that what I see on his MRI scan and myelogram do not tell me that he has a definite recurrent disc and that operating on him would make him better. He has been in constant pain over three years. He is on chronic narcotics. His pain is not localized sciatic pain. I told him that I really could not say that his pain could be made any better with any type of surgery. He tells me that Dr. Ricca had already told him that there is nothing further that he can do for him back in 1993. Mr. Winslow is quite upset on hearing that I could not give him any hope that he would get any better with surgery . . . (emphasis added)
On March 12, 1997, claimant was examined by Drs. Don Atkins and Maurice M. Smith with the Semmes-Murphey Clinic in Memphis, Tennessee. These doctors noted that claimant exhibited "dramatic pain behavior." After examining claimant, and reviewing his diagnostic and radiographic data from MRI and CT scans, they noted:
Failed back syndrome with no evidence of lumbar instability. We recommend that he follow up with his primary care physician, a psychiatrist and Dr. Ricca for any further neurosurgical evaluation. We see no indication for fusion in this patient. (emphasis added)
In May of 1997, claimant returned to the care of Dr. Ricca. After discussing claimant's condition with him at length, Dr. Ricca ordered additional MRI's of claimant's cervical, thoracic and lumbar spine both with and without contrast as well as an EMG/NCV of claimant's upper and lower extremities. At that time, Dr. Ricca stated:
If I cannot find an etiology then we will have him see a multi-disciplinary pain center.
Claimant was in agreement with Dr. Ricca's recommendations. However, after undergoing these additional tests, an etiology of claimant's symptoms was still unknown. At the request of the claimant and his wife, Dr. Ricca reluctantly agreed to perform a spinal fusion instead of referring claimant to a pain clinic. When asked about the surgery in his deposition, Dr. Ricca stated:
I believe this was a rather heroic attempt to try to help this patient.
Dr. Ricca explained his rationale for surgery as follows:
Like I say, my rationale for proceeding with his surgery was the thought that maybe he is honest. If you read my notes, you will see I had a long talk with him and his wife. And it was the hopes that I would be able to help him. In retrospect, obviously, that was not the right choice.
Dr. Ricca explained in his deposition that he performed the surgery "with hesitation and with concern that he was not valid." Dr. Ricca further explained in retrospect the spinal fusion he performed did not benefit the claimant:
. . . which would mean that he may not have needed it or probably did not, which means there wasn't a cause for it.
After analyzing the voluminous medical records concerning the development of claimant's physical condition which led up to the surgery performed by Dr. Ricca in June of 1997, we cannot find that the surgery was reasonable and necessary medical treatment related to claimant's compensable injury. Although Dr. Ricca initially believed that a re-do laminectomy and diskectomy was appropriate, it was subsequently determined by each and every physician to have examined the claimant, with the exception of following Dr. Mahon's first IME, that such a procedure was not warranted.
Initially, Dr. Mahon suggested a "redo" laminectomy in his first IME report, but this recommendation was only contingent upon claimant first completing a "structured physical therapy" program. Such a program was ordered and authorized, but voluntarily terminated by the claimant. After re-examining claimant, Dr. Mahon withdrew his surgical recommendation. Even after claimant insisted that his symptoms persisted and increased to include thoracic and neck pain, all physicians who examined the claimant, including Dr. Mahon, with the exception of Dr. Ricca, independently concluded that claimant was not a surgical candidate. Dr. Mahon first stated this in 1995, after his second IME, and it was echoed by Dr. Olinger and by the physicians at the Semmes-Murphey Clinic in Memphis as most recently as March of 1997.
Although Dr. Ricca did perform the spinal fusion, a review of his June 5, 1997 report and his deposition reveals that Dr. Ricca was not even sure that the surgery would benefit the claimant. Dr. Ricca even stated in his deposition that in retrospect the spinal fusion was not necessary since claimant did not even have a condition which it would benefit.
Claimant initially reported that he was doing better following surgery and that he could stand up straighter. However, despite these reports, Dr. Ricca noted in his August 4, 1997 report that claimant had a problem with narcotic addiction. Dr. Ricca put claimant on a Tylox taper at that time. In a report dated August 6, 1997, Dr. Ricca tried to "fire" claimant from his care. This report followed a telephone conversation wherein claimant requested additional pain medication. Dr. Ricca described the telephone conversation he overheard between claimant and his nurse as being "rather heated." Despite Dr. Ricca's recommendation that claimant find a new physician, claimant returned to Dr. Ricca on September 16, 1997. In that report, Dr. Ricca noted that claimant had reached a good quality fusion, but that claimant continued to complain of excruciating pain. At that time, Dr. Ricca encouraged claimant to continue his work-up with Dr. Valentine, a Pain Care Specialist. Effective following that examination, Dr. Ricca advised that he would no longer treat claimant.
We are not persuaded to find that the denial of surgery as recommended by Dr. Ricca in 1993 contributed to claimant's deterioration, thus necessitated the surgery in June of 1997. The overwhelming medical evidence shows that claimant was not a surgical candidate despite Dr. Ricca's initial recommendation. Moreover, a review of Dr. Ricca's report in which he agreed to perform surgery in 1997, and Dr. Ricca's deposition, conclusively prove that there was not a medical cause for surgery. The surgery was performed as a last ditch "heroic" effort on Dr. Ricca's part. However, Dr. Ricca unwisely relied upon the claimant's complaints as being valid in recommending and in performing the fusion. In finding that the denial of a "re-do" laminectomy did not cause claimant's physical condition to deteriorate, it is noted that a laminectomy and diskectomy was performed at the time of the fusion. A review of the operative report clearly shows that in addition to fusing the claimant, Dr. Ricca excised claimant's disc material which he had previously wanted to do in August of 1993. Yet, despite this, claimant continued to maintain that neither of these procedures benefitted him. Accordingly, after weighing the credible evidence of record, we find that the overwhelming weight of the evidence preponderates in favor of finding that the surgical fusion performed by Dr. Ricca on June 18, 1997, was not reasonable and necessary medical treatment related to claimant's compensable injuries.
As for claimant's claim that he is permanently and totally disabled, it is unclear from a review of the Administrative Law Judge's Opinion what evidence he relied upon in reaching this finding. Furthermore, it cannot be determined if the Administrative Law Judge relied upon the odd-lot doctrine since no odd-lot analysis was conducted. However, when we review the evidence of record, we cannot find that claimant has proven that he is permanently and totally disabled, even assuming the odd-lot doctrine applies.
We find that the evidence does not support a finding of permanent and total disability. Claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, claimant's entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, as well as other factors such as the worker's age, education, work experience, and other matters which may reasonably be expected to affect the worker's future earning capacity. Such other matters include motivation, post-injury income, credibility, and demeanor.Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961);City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). When it becomes evident that the worker's underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
In considering the factors which may affect an employee's future earning capacity, the Commission may consider the claimant's motivation to return to work, since a lack of interest or negative attitude impedes the Commission's assessment of the claimant's loss of earning capacity. City Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 1982. In addition, a worker's failure to participate in rehabilitation does not bar his claim, but the failure may impede a full assessment of his wage earning loss by the Commission.Nicholas v. Hempstead County Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983).
An employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist may be classified as totally disabled under the odd-lot doctrine.Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the worker is not altogether incapacitated from work. Id. The factors which may combine with the obvious severity of the employee's injury to place him in the odd-lot category are the employee's mental capacity, education, training and age. Id. If the claimant makes a prima facie showing that he falls in the odd-lot category, the respondent has the burden of proving that "some kind of suitable work is regularly and continuously available to the claimant." Id. Act 796 of 1993 abolished the odd-lot doctrine for injuries occurring on or after July 1, 1993.
Since we find that claimant sustained a new injury or aggravation in August of 1993, we find that the odd-lot doctrine is not applicable to claimant's claim. However, even assuming, arguendo, that claimant did not sustain a new injury or aggravation in August of 1993, but rather sustained a recurrence, we find that claimant has failed to come forward with sufficient evidence to bring him prima facie case within the odd-lot category, thus shifting the burden onto respondent. If the evidence is of such a degree of an obviously severe injury and this severe injury is coupled with other factors such as a claimant's mental capacity, education, training, or age, places a claimant prima face in the odd-lot category, the burden is on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Lewis v. Camelot Hotel, supra.
In our opinion claimant's mental capacity, education, training and age all work against claimant in meeting his burden. Claimant is relatively young and has a high school education. The record reflects that he has the training and mental capacity to study for and obtain a plumbing license. These factors by no means place claimant within the odd-lot category. Moreover, we find that claimant's physical injury is not sufficient enough to make him an odd-lot candidate. A review of the evidence reveals that claimant sustained a ten percent physical impairment rating resulting from his first compensable surgery. As explained by Dr. Mahon, this rating takes into consideration claimant's exacerbations of pain and muscle spasticity which were present after the first surgery and after claimant's 1993 aggravation (or recurrence).
Dr. Ricca assigned claimant additional 25% impairment based upon the second surgical procedure, a successful fusion, which was of no apparent benefit to claimant. Since we find that the surgery which resulted in this rating was not reasonably necessary nor related to claimant's compensable injury, we further find that claimant has failed to prove entitlement to this rating.
A review of the medical records hint to the fact that claimant's present failure to recover is due in part to his drug-seeking behavior. If claimant were to report no pain, the physicians would no longer prescribe narcotic pain medication. However, as demonstrated through virtually every physical examination of the claimant, his complaints of pain are out of proportion with his physical findings.
The record reveals that claimant has a 33% whole body impairment. This is derived from combining the 10% and 25% impairments utilizing the combined values chart of theAMA Guides. However, as previously stated, the 25% impairment is, in our opinion, not compensable since it was assigned solely for a surgical procedure which was neither reasonable, necessary, nor related to claimant's compensable injuries. Claimant complains of excessive, intractable pain, but, in light of claimant's narcotic addiction, these complaints are questionable. Throughout the medical records claimant was described as a malingerer with grossly exaggerated pain complaints. Claimant is relatively young at only 37 years of age, has a high school education, and has demonstrated the ability to study for and obtain a plumbing license. Accordingly, we find that claimant's mental capacity, education, training and age do not place claimant prima face within the odd-lot category when they are combined with his compensable injuries which only resulted in a compensable rating of 10%.
Claimant clearly lacks the motivation or desire to return to any type of employment. A videotape of claimant prepared at the time claimant was seeking additional treatment at the Pain Clinic showed claimant to be physically capable of performing chores around the house. Claimant was shown climbing up a ladder to repair a satellite dish. Moreover, claimant even initiated a fight wherein he hit and kicked another man. Claimant can drive a car, and has even driven to Kentucky several times since his injuries. These are not activities of someone who is permanently and totally disabled or even of someone with excessive wage-loss disability. Claimant can obviously perform at least sedentary to light work as evidenced by Dr. Mahon's April 1995 IME report and by claimant's own actions. However, claimant apparently lacks the motivation to return to the wage-earning segment of society. This does not mean, however, that claimant has not sustained a decrease in his wage-earning capacity as a result of his compensable injuries. When we weigh claimant's physical injury and the compensable 10% impairment rating together with his relatively young age, education, work experience, and all other factors necessary to determine wage loss, we find that claimant has sustained a 37 1/2% decrease in his wage-earning capacity. Therefore, we reverse the decision of the Administrative Law Judge finding claimant permanently and totally disabled.
Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be reversed.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority finding that the June 1997 surgery was not reasonably necessary and that claimant is not permanently and totally disabled.
In my opinion, claimant has proven by a preponderance of the evidence that the surgery performed in June 1997 was reasonably necessary for the treatment of the admittedly compensable injury sustained sometime in November 1992, and which resulted in a herniated nucleus pulposus at L4-L5. The chronology of events and claimant's progressively deteriorating behavior and symptoms are important to keep in mind.
In February 1993, Dr. Ricca chose to perform surgery almost immediately without attempting conservative measures for what he termed a very large herniated disc. Claimant was undoubtedly so highly motivated to return to work that he was allowed to do so at light duty on April 6, 1993, approximately six weeks following surgery. Dr. Ricca noted at that time that claimant had not required any pain medication for a period of two weeks. Claimant returned to his work as a licensed plumber and quickly advanced to performing his regular duties, which would certainly be classified as involving heavy manual labor. During this time, claimant did not sustain any new injuries or any particular incident which affected his condition. However, at some point, claimant's condition began to deteriorate and "continued to worsen" until claimant could no longer physically continue to work.
On July 26, 1993, an MRI scan revealed a recurrent herniation at L4-L5. On August 23, 1993, a CT scan was interpreted as suggesting "diffuse broad base disc herniating versus scar tissue" that appeared to "compromise the thecal sac and each L5 root, worse on the right." The myelogram performed on August 24, 1993 was "consistent with herniated disc L4-5 compromising each L5 root, worse on the right." Dr. Ricca testified that these diagnostic tests revealed obvious abnormalities at L4-L5 but were not entirely conclusive. However, Dr. Ricca did believe that surgery was a reasonable option to deal with claimant's condition.
Surgery was scheduled but respondent had it cancelled and sent claimant to be examined by Dr. James Rodney Field in Memphis. Dr. Field and claimant had a serious conflict from the very beginning of the examination. Harsh words were exchanged and Dr. Field's report reflects this conflict. Dr. Field opined that claimant was not a surgical candidate and should not receive any more treatment.
When claimant returned to Dr. Ricca in December 1993, he presented with diffuse pain and as a result, Dr. Ricca was concerned about symptom magnification and decided that maybe claimant was not a surgical candidate. Thereafter started a series of visits with multiple physicians, some of which claimant paid for himself. Claimant continued to present with intractable pain in his lower back, as well as pain, numbness and a burning sensation in his lower extremity. It also appears that during this process, claimant began to show addictive behavior for narcotics. Throughout the medical records the physicians are understandably concerned about claimant's intake of narcotics. However, there were no physicians who would recommend or undertake surgery because of claimant's behavior and diffuse symptoms. However, I would point out that claimant had objective findings of an abnormality, which is probably supported most by the persistent muscle spasms in his lower back and the diagnostic studies showing a possible recurrent herniation and compromise of the L5 nerve root. Because there was no clear evidence of instability in claimant's spine, as well as claimant's various symptomatology, many physicians recommended against surgery.
Claimant eventually returned to Dr. Ricca. Claimant and his wife were desperate to have anything done for his condition. An April 1997 MRI scan continued to suggest a disc rupture. Dr. Ricca's deposition testimony documents the extreme difficulty, frustration and compassion necessary for a physician in his or her attempts to treat this particular kind of patient. Finally, due to the diagnostic evidence of the recurrent disc rupture, Dr. Ricca's belief that there was probably some macroinstability present, claimant's intractable pain, claimant's desperation and Dr. Ricca's compassion, Dr. Ricca performed another discectomy and fused the disc at L4-L5 in June 1997. Dr. Ricca testified that the findings during the operation correlate with the 1993 diagnostic studies, i. e., recurrent disc fragment impinging the L5 nerve root, and he also found that the nerve root was encased in scar tissue. Dr. Ricca acknowledged that this abnormality can be extremely painful. At first, everyone was elated because claimant was much better, in particular, he could stand up straight. However, claimant's condition began to deteriorate after only a few months. Claimant returned to his narcotic seeking behavior and Dr. Ricca released him from his care with the suggestion that a multidiscipline treatment program would be the only option now available for claimant.
I believe a fair reading of Dr. Ricca's deposition reveals his ultimate opinion that claimant's need for surgery in June 1997 was reasonable (although in retrospect it did not work), and necessary as the next step in trying to treat claimant.
Although Dr. Ricca was obviously frustrated and at a loss to explain claimant's entire symptomatology, he did offer the following scenario:
Q. Okay. As far as effective treatment, whether it's surgery or conservative treatment, how important is it to get in and do that early on rather than have a patient go through a period of time where they are battling over whether the insurance company is going to let them see this doctor or that doctor and going a year, a year and a half, so forth, without getting any meaningful treatment?
A. Very important.
Q. Why is that?
A. Early on, treatment makes a big difference in recovery. That's the simple answer. The complicated answer has to do with pain, pain pathways, transmission of pain, nerves.
In people who have failed back syndrome that have been studied, people that have delayed care with longstanding pain have actual changes of their nerves. The nerves will function different physiologically. They will start sending pain impulses to the brain when there's none there.
There are some old studies that have been very good that show that people who get treatment after three months don't do as well as people who get treatment before. It was particularly done in workmen's comp cases with patients years ago.
And so there are arguments that if you have a patient who is hurting and you let them hurt for years, by the time you get to them, you are not going to be able to help them very much. And I've seen that time and time again in practice. For whatever reason, people have delayed their care, farmers or insurance companies or whatever.
But people who have a problem, particularly with nerves, nerves don't heal well, and if you let it stay longstanding, you can at time get changes with the nerves causing excessive pain impulses sent to the brain even though there's nothing bad going on in the nerve or the leg or whatever.
Q. Does that not only make it difficult to treat but difficult to diagnosis?
A. Yes.
Q. Do you think there may be some of that here as far as — I'm not asking you to blame anybody, but as far as why it was difficult for you in 1996 to diagnose and treat Mr. Winslow? Do you think you were at somewhat of a disadvantage at that point because of those things?
A. Yes, sir.
(Emphasis supplied).
Although there is certainly evidence in the record to suggest that the surgery was not reasonable and necessary, I believe the above evidence constitutes a preponderance of the evidence sufficient to meet claimant's burden of proof. Therefore, I would affirm the opinion of the Administrative Law Judge in this regard.
Concerning claimant's permanent anatomical impairment, Dr. Ricca increased claimant's rating by 25% to the body as a whole as a result of the second surgery which included a fused segment. Thus, I find that respondent is liable for additional benefits for permanent anatomical impairment in an amount equal to 25% to the body as a whole.
Claimant is 37 years old, has a high school education, as well as a license in plumbing. His work history essentially involves heavy manual labor which he can no longer perform. He has problems walking for prolonged distances, sitting or standing for prolonged periods of time, bending, sitting, and is generally quite restricted in his daily activities. He suffers from intractable pain which has led to his apparent narcotic addiction and all the resulting difficulties associated with addiction. In his testimony at the December 1997 hearing, claimant asserted that he is practically unable to do anything.
Since the greater weight of the evidence indicates that claimant's condition following his surgery in 1993 constitutes a recurrence, Act 796 does not apply. In my opinion, claimant has presented a prima facie case of total disability, thereby shifting to respondents the burden of presenting some evidence that suitable work is regularly and continuously available to claimant. Respondent has failed to meet this burden of proof. Therefore, I would affirm the opinion of the Administrative Law Judge finding that claimant is permanently and totally disabled.
PAT WEST HUMPHREY, Commissioner