Opinion
CLAIM NO. E805267
OPINION FILED FEBRUARY 16, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.
Respondents represented by ANGELA DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals an opinion and order filed by the administrative law judge on August 3, 2000. In that opinion and order, the administrative law judge determined that claimant's vasospastic disorder is not a compensable injury. Claimant's request for additional medical treatment subsequent to September 21, 1999, was denied. Based on our de novo review of the entire record, we find that the vasospastic disorder is a compensable consequence of claimant's work-related injury. Moreover, we find that claimant proved entitlement to additional medical benefits after September 21, 1999. Therefore, the administrative law judge's decision must be reversed.
Claimant's employment for respondents has spanned sixteen years. She works as a Department Manager in housewares. On November 28, 1997, she tripped and fell, landing on her hands. Respondents accepted claimant's injury as compensable.
The record showed that claimant was initially treated on December 1, 1997, by the company physician, Dr. Michael Westbrook. Following a bone scan and radiographs, he diagnosed a post carpal navicular fracture. Claimant failed to improve, and on February 2, 1998, Dr. Westbrook referred her to an orthopedist, Dr. Michael Wolfe. Before Dr. Wolfe's examination, Dr. Westbrook scheduled claimant for electrodiagnostic studies. Those tests, performed on February 10, 1998, proved normal. Claimant consulted Dr. Wolfe on February 23, 1998, and he formed the following impression:
1. Healing distal radius or carpal fracture.
2. Mild carpal tunnel syndrome.
3. Saddle joint arthrosis.
Dr. Wolfe treated claimant conservatively, injecting the carpal canal with Decadron. An addendum to his chart note suggests that Dr. Wolfe was unaware of the results of claimant's electrodiagnostic studies until after completing his examination. Nevertheless, he did not alter his carpal tunnel syndrome diagnosis. Claimant's symptoms persisted, and she was referred to Dr. Jeffrey K. Evans, for a surgical consultation.
Dr. Evans evaluated claimant on April 14, 1998. He noted that x-ray films of her left wrist revealed "a well healed fracture in anatomic alignment, otherwise normal." After conducting a clinical examination, Dr. Evans determined that surgical intervention was appropriate. On approximately April 24, 1998, he performed a carpal tunnel release. The operative report was not introduced by the parties.
Initial postoperative chart notes were somewhat encouraging. However, on November 24, 1998, Dr. Evans documented claimant's report of numbness while holding objects. She also advised him of nocturnal numbness. According to his chart note, the numbness radiated "up her left arm to just past her elbow." Dr. Evans stated that "I have never seen the median nerve flare up like this after a carpal tunnel has been released and this far out from surgery. We may need to have her evaluated by neurology with another nerve conduction study to evaluate that." Dr. Evans ordered new electrodiagnostic studies. Those tests, conducted on December 22, 1998, were normal.
Subsequently, Dr. Evans recommended an arteriogram. Although his recommendation was made on December 29, 1998, the test was not performed until May 5, 1999. Dr. James L. Builteman interpreted the test, offering the following impression:
1. Vasospasm involving the distal arteries of the upper extremity and hand, showing some response to vasodilators. Findings likely reflect primary or secondary vasospastic disorder (Reynaud's).
2. Persistent nonvisualization of the proximal ulnar artery, probably due to severe vasospasm but thrombosis of the proximal segment cannot be excluded. Evaluation with magnetic resonance angiography may be helpful in determining if the artery is patent.
On May 10, 1999, Dr. Evans diagnosed "vasospastic disorder of the left wrist, probably secondary to trauma." Based on this diagnosis, he referred claimant to Dr. Lane Wilson. According to a chart note from the Cooper Clinic, claimant reported that respondent carrier refused to approve this treatment.
On June 16, 1999, respondents scheduled an IME with Dr. Reginald Rutherford. On clinical examination, he detected a "partially frozen left shoulder." Dr. Rutherford stated that there was no evidence of reflex sympathetic dystrophy (RSD). He noted that the arteriogram of claimant's left upper extremity was abnormal, and recommended repeating the study in order to determine the nature of the abnormality. Dr. Rutherford also suggested performing "a total body bone scan with triphase imaging of the upper extremities." He stated that this would provide comparative data with respect to claimant's asymptomatic right extremity.
On July 13, 1999, claimant had a bone scan of the upper extremities and a second arteriogram (on claimant's symptomatic arm and hand). The bone scan revealed:
FINDINGS:
ON IMMEDIATE SCANS, AN ARTIFACT OF INCREASED UPTAKE IS PRESENT AT THE TRACER INJECTION SITE IN THE RIGHT HAND. IN THE SYMPTOMATIC LEFT SIDE, NO FOCAL AREAS OF HYPEMIA ARE IDENTIFIED. ON DELAYED SCANS ONLY, INCREASED UPTAKE IS PRESENT IN THE CARPAL BONES IN THE REGION OF THE SCAPHOID AND POSSIBLY THE CAPITATE ON THE LEFT. BONE SCAN FINDINGS ARE CONSISTENT WITH REMOTE TRAUMA. MILD DIFFUSELY INCREASED UPTAKE IS ALSO INCIDENTALLY NOTED ABOUT THE REPORTEDLY ASYMPTOMATIC RIGHT CARPUS. SCANS INCLUDE THE HUMERI WHICH ARE UNREMARKABLE.
IMPRESSION:
1. NO EVIDENCE OF A FOCAL BLOOD POOL ABNORMALITY ABOUT THE SYMPTOMATIC LEFT WRIST.
2. MILDLY INCREASED UPTAKE IN THE SCAPHOID AND CAPITATE ON THE LEFT. THIS MAY BE A REFLECTION OF REMOTE TRAUMA.
3. MILDLY DIFFUSELY INCREASED UPTAKE IN THE CARPAL BONES ON THE RIGHT OF DOUBTFUL SIGNIFICANCE IN LIGHT OF LACK OF REPORTED SYMPTOMS.
The report of the arteriogram indicated that claimant also complained of "discoloration and coolness of the fingers." The findings with respect to claimant's left hand were abnormal, and Dr. Richard Satre offered the following interpretation: ". . .THESE FINDINGS WOULD SUGGEST THAT THE PATIENT INDEED DOES HAVE A COMPONENT OF VASOSPASM RESTRICTING FLOW TO HER DIGITS . . . "
In a chart note dated July 29, 1999, Dr. Rutherford confirmed the presence of vasospasm. However, he opined that in the absence of an arteriogram on claimant's asymptomatic arm, it was impossible to determine whether the disease was the result of trauma.
Claimant has declined an arteriorgram on her asymptomatic arm. She testified that she is concerned about the risks associated with the procedure. Moreover, claimant stated that she had a very negative experience with Dr. Rutherford, and the hospital where the tests he ordered were conducted. In this regard, claimant stated that Dr. Rutherford was unprofessional. With respect to the testing facility, claimant offered the following testimony:
. . .They admitted me under an eye doctor. They took me to have a sleep study, which I wasn't supposed to have. They left me in the hall for four to five hours with nothing but a sheet on me. I finally had the test done. Then I laid there for six hours, because I couldn't move after I had it done.
* * *
I had a bone scan done and was left out in the hall again, but then when I left Little Rock and came home, I had to go to the Ozark Hospital because my leg swelled up double.
In response to an inquiry from respondents, Dr. Rutherford authored a letter dated September 21, 1999, which stated in part:
. . . The only means to ascertain [causation] with absolute certainty would be to perform an angiographic study of the asymptomatic arm. My concern in doing this would be that it would not lend itself to treatment in Ms. Yates' case and thus does pose a potential ethical dilema [sic]. However, from a strictly legalistic standpoint pertaining to potential etiology and compensability of the abnormality as identified in the left arm, this is the only measure with which I am aware which could answer your question with certainty. I would thus pose to Ms. Yates the following, based upon all available information at present it is not possible to assign causation to her work injury with greater than 50% certainty at this juncture, the only means by which this may be further clarified being repeat study of the asymptomatic arm, the principal cautionary note in this regard being that this is an evasive [sic] procedure with attentive risk which would not serve to address or treat the complaints or symptoms she has [in her] left upper extremity.
Dr. Rutherford's letter is problematic. He misinterpreted the law with respect to medical opinions addressing causation, theorizing that absolute certainty is required. This is not an accurate characterization of the law. Ark. Code Ann. § 11-9-102 (16) (B) (Supp. 1999) provides that "[m]edical opinions addressing compensability . . . must be stated within a reasonable degree of medical certainty." Moreover, Dr. Rutherford offered an opinion on major cause. However, as we understand claimant's theory of compensability, the vasospastic disorder is a compensable consequence of her traumatic injury (fracture). Under these facts, claimant need not satisfy the major cause requirement. Finally, even Dr. Rutherford concedes that subjecting claimant to another arteriorgram raises ethical concerns.
Although Dr. Rutherford used incorrect legal standards, the administrative law judge relied on his conclusions to support a finding that claimant failed to prove the requisite causal connection. Indeed, his opinion was outcome-determinative. Based on the problems previously enumerated, we find that Dr. Rutherford's opinion is entitled to no weight.
In our view, Dr. Evans' opinion is entitled to great weight. In reaching our decision, we specifically find that his opinion is stated within a reasonable degree of medical certainty, and establishes causation. In this regard, Dr. Evans indicated that claimant's vasospastic disorder was "probably secondary to trauma." In our opinion, the word "probably" may be distinguished from qualifying words like may, possibly, could, which the Supreme Court determined lacked definiteness. See, Frances v. Gaylord Container Corporation, 341, Ark. 527, 20 S.W.3d 280 (2000).
Claimant testified that she never experienced any problems with her left hand until after the work-related accident. Although the medical evidence showed that claimant's left wrist fracture healed, her health was not restored. Ultimately, a diagnosis of carpal tunnel syndrome was made. However, surgical intervention failed to eliminate claimant's symptoms. After repeat electrodiagnostic testing was normal, an arteriogram was ordered. This test revealed the presence of a vasospastic disorder. Based on claimant's credible testimony, and the opinion of Dr. Evans, we find that claimant proved a causal connection between the vasospastic disorder and her original work-related injury.
Claimant has requested additional medical care for the treatment of her vasospastic disorder. Respondents are liable for all reasonably necessary medical treatment in connection with work-related injuries. Ark. Code Ann. § 11-9-508 (a) (Repl. 1996).
The evidence showed that although claimant's authorized physician recommended treatment for her vasospastic disorder, respondents refused to furnish additional medical care after September 21, 1999, which is the date of Dr. Rutherford's causation thesis. Indeed, respondents contend that claimant is unable to show the requisite causal connection.
Claimant testified that she continues to experience left-hand pain. However, she canceled an appointment with Dr. Evans after respondents refused authorization. Dr. Rutherford's clinic note dated July 29, 1999, indicated that claimant had yet to reach maximum medical improvement. Based on a preponderance of the evidence, we find that additional medical treatment is reasonably necessary.
As a final matter, we note that after identifying the issues, the administrative law judge's opinion stated that ". . . claimant contends that she is entitled to a change of physician as well as statutory attorney's fees." Our review of the transcript in this cause reflected that the change of physician issue was withdrawn prior to trial. Thus, we did not consider this issue on appeal.
Accordingly, based on our de novo review of the entire record, and for the reasons stated herein, we find that claimant has proved that the vasospastic disorder is a compensable consequence of her original work-related injury. Moreover, we find that claimant is entitled to additional medical treatment for this condition.
All accrued benefits shall be paid in a lump sum without a discount 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 in accordance with Ark. Code Ann. § 11-9-715 (b) (Repl. 1996).
IT IS SO ORDERED.
_______________________________________ SHELBY W. TURNER, Commissioner
_______________________________________
MIKE WILSON, Commissioner
The relevant facts in this case are not in dispute. The relevant causation issue appears to turn on whether or not the claimant can establish by a preponderance of the evidence in the record that her diagnosed vasospasm condition in her left arm was caused by trauma where, as here, the claimant has refused to undergo a controversial arteriogram procedure to her asymptomaticright arm, solely for purposes of establishing that the claimant does not have a similar, but asymptomatic, condition in her right arm. For the reasons discussed below, I concur that the claimant has met her burden of proof.
The claimant sustained an admittedly compensable left wrist fracture due to trauma. In addition to a cast for the fracture and a release for a diagnosed carpal tunnel syndrome, the claimant also underwent an arteriogram of the left arm, with attendant risks, which Dr. Evans interpreted as indicating vasospasm in the left arm probably secondary to trauma.
The respondent then sent the claimant to Dr. Reginald Rutherford for a second opinion. Dr. Rutherford was apparently not satisfied with the quality of the first arteriogram, and was not satisfied that the first arteriogram indicated vasospasm. Therefore, Dr. Rutherford proposed that the claimant undergo a second arteriogram of the left arm and a bone scan to confirm the diagnosis. The respondent and the claimant both agreed that the claimant would undergo the additional tests proposed by Dr. Rutherford.
After obtaining the results of the second arteriorgram and the bone scan, Dr. Rutherford concurred that the claimant, in fact, has vasospasm in the left arm. Therefore, Dr. Rutherford's subsequent diagnostic tests confirmed Dr. Evans' vasospasm diagnosis. However, the respondent later asked Dr. Rutherford to render an opinion on the cause of the vasospasm condition in the claimant's left arm. As I interpret Dr. Rutherford's response to that inquiry, Dr. Rutherford essentially indicated that (1) he could not render an opinion on causation without performing a new arteriogram procedure on the claimant's asymptomatic right arm to ensure that the right arm does not contain a similar but asymptomatic abnormality, but that (2) an arteriorgram on the claimant's asymptomatic right arm would pose an ethical dilemma since the procedure is invasive with attendant risk which would serve to answer a causation question but would not serve to address or treat the claimant's complaints and symptoms in her left arm.
Despite Dr. Rutherford's ethical concerns, the respondent requested that the claimant undergo an arteriogram of her asymptomatic right arm to answer the causation question. The claimant declined to undergo the respondent's proposed third arteriogram, this time to her asymptomatic right arm.
The evidence of record which proves by a preponderance of the evidence that the claimant's claim that her left arm vasospasm is causally related to the trauma from her work-related injury includes (1) the evidence that the claimant sustained left wrist trauma in the accident at work (2) the lack of any evidence that the claimant sustained any other left wrist trauma (3) Dr. Evans' (correct) interpretation of the claimant's first arteriogram diagnosing vasospasm probably secondary to trauma (5) the claimant's development of symptoms in her left arm (6) the lack of any symptoms in the claimant's right arm (7) the fact that Dr. Rutherford's repeat left arteriogram confirmed Dr. Evans' diagnosis of left arm vasospasm, and (8) the fact that Dr. Rutherford's bone scan did not confirm or refute the presence of vasospasm in the claimant's right arm.
Giving Dr. Rutherford's assessments their greatest possible weight, I understand Dr. Rutherford as concluding that there exists at least some degree of medical possibility or probability that the claimant actually had a pre-existing asymptomatic vasospasm abnormality in both arms, and that it was a mere coincidence that the claimant developed a symptomatic vasospasm condition following trauma to her left arm at work. The only medical means available to persuade Dr. Rutherford with "absolute certainty" that the claimant's left arm vasospasm condition was not due to a pre-existing asymptomatic abnormality would require performing an arteriogram study on the claimant's asymptomatic right arm. However, as discussed, even Dr. Rutherford, who postulated the controversial third arteriogram procedure, acknowledged the ethical medical considerations in even proposing such a procedure solely to address a causation question posed by the employer.
Notably, this Commission has on numerous occasions stated that an employer has the right to have an injured worker examined by a physician of the employer's choosing. See Robert Brazil v. Peterson Industries, Full Workers' Compensation Commission, April 27, 1993 (W.C.C. No. E103721); Wayne Owens v. Whitfield Construction, Full Workers' Compensation Commission, October 9, 1992 (W.C.C. No. E119453); Judy Kay Alsup v. Baptist Medical System, Full Workers' Compensation Commission, September 18, 1990 (W.C.C. No. D802879); James E. Wilson v. Crown Home Center, Full Workers' Compensation Commission, January 27, 1987 (W.C.C. No. D514739). In the present case, the claimant clearly initially cooperated with the respondent's request to have the claimant examined by Dr. Rutherford, and the claimant also complied with Dr. Rutherford's request that the claimant undergo a second arteriogram procedure, with attendant risks, to her symptomatic left arm for purposes of confirming that her left arm symptoms were, in fact, the vasospasm previously diagnosed by Dr. Evans, her authorized treating. However, even where the Commission considers requests for an independent medical evaluation, it must be established that the independent medical evaluation would be reasonable and necessary. See Ark. Code Ann. § 11-9-511(a); See also Virginia King v. Willow Oaks Acres, Full Workers' Compensation Commission, January 25, 2001 (W.C.C. No. E903202). In the present case, however, the claimant's refusal to undergo yet a third arteriogram, this time on her asymptomatic right arm, would appear to be justified not only by her own negative experience in undergoing the second arteriogram (as well documented in the principal opinion), but also by Dr. Rutherford's own ethical concerns in suggesting an arteriogram, with attendant risks, to an admittedly asymptomatic arm solely for purposes of possibly answering the respondent's causation concerns with "absolute certainty."
For my part, I am somewhat taken aback at the respondent's apparent suggestion to the claimant at some point that she undergo an arteriogram to her asymptomatic right arm, particularly when the respondent's own physician raised ethical concerns in such a course of action. Moreover, I am not aware of, nor has the respondents referred to, any authority under either Ark. Code Ann. § 11-9-511(a) or under Ark.R.Civ.P. 3.5 which would intimate that a litigant need risk the potential loss of use of a healthy limb in order to receive compensation for a dysfunctional limb. In my opinion, no such obligation exists. At any rate, however, I also note that the respondent has not petitioned the Commission pursuant to Ark. Code Ann. § 11-9-511(a) for an order to require the claimant to undergo the ethically questionable third arteriogram that the claimant has declined to undergo. Therefore, we need not make findings on the issue of whether such a procedure would be "reasonable and necessary" had the respondent petitioned the Commission for such an order.
In short, I understand that Dr. Rutherford did not consider it possible for him to render an opinion with "absolute certainty" or "with greater than 50% certainty" that the claimant's left arm vasospasm was due to trauma without first obtaining an arteriogram of the claimant's asymptomatic right arm. However, in light of the acknowledged lack of any treatment value of a right arm arteriogram, the acknowledged risks of a right arm arteriogram, and the claimant's unfortunate experience while attempting to undergo her second left arm arteriogram under Dr. Rutherford's evaluations, I find that the claimant was wholly justified in refusing to undergo the respondent's proposed third arteriogram on her right arm solely for the purposes of permitting Dr. Rutherford to render an additional opinion on the causation issue concerning the injury to her left arm. More importantly, I also note that the respondents never petitioned the Commission for an order under Ark. Code Ann. § 11-9-511(a) to require a third arteriogram, so that potential issue is not before us. Based on Dr. Evans' opinion establishing a causal connection based on evidence which is in the record, I concur that the claimant has met her burden of proof by a preponderance of the evidence in the record.
Since I understand that Dr. Rutherford has essentially declined to render a medical opinion based on the medical evidence presently available to him, I also disagree with the suggestion that the issues in the case turn on interpretations of the decisions of the Supreme Court or the Court of Appeals in Crudup v. Regal Ware, Inc., 342 Ark. ___, 20 S.W.2d 900 (2000); Wal-Mart v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Freeman v. Con-Agra Frozen Foods, 70 Ark. App. 306, ___ S.W.3d ___ (2000) orFrances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000).
____________________________ ELDON F. COFFMAN, Chairman
I respectfully dissent from the majority opinion finding that the claimant's vasospastic disorder is causally related to the claimant's compensable injury. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
Medical evidence is not ordinarily required to prove causation, i.e., a connection between an injury and the claimant's employment WalMart v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999), but if an unnecessary medical opinion is offered on that issue, the opinion must be stated within a reasonable degree of medical certainty. Qualifying words such as "could," "may," "possibly," and "likely" will cause the opinion to lack the requisite certainty and will defeat the claimant's claim. The Court of Appeals found in Freeman v. Con-Agra Frozen Foods, 70 Ark. App. 306 ___ S.W.3d ___ (2000) that "consistent with" her injuries, does not meet the requisite definiteness to prove a causal connection between the injury and the work. When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary total disability benefits. Ark. Code Ann. § 11-9-102(5)(F)(i)
(Supp. 1999).
In Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), The Court of Appeals stated:
[E]xpert opinions based upon "could," "may," or "possibly" lack the definiteness required to meet the claimant's burden to prove causation. [Emphasis added.] Accordingly, we modify and overrule the Court of Appeals' decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), to the extent that it may be read to permit expert opinion evidence under § 11-9-102(16)(B) to be satisfied by the use of terms such as "can," "could," "may," or "possibly."
We also note that although Atwood seemingly rejects an expert's use of the word "could" when stating an opinion within a reasonable medical certainty, it validates an expert's use of the word "can." Given this inherent contradiction, . . . we apply our limited overruling of Atwood retroactively.
The Supreme Court in Crudup v. Regal Ware, Inc., 342 Ark. ___, 20 S.W.3d 900 (2000) reversed the Court of Appeals in Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.3d 567 (2000), wherein the Court held that the following physician's opinion on causal connection had been stated within a reasonable degree of medical certainty:
I cannot definitively state that the work her performs at Regal Ware is a primary cause of carpal tunnel syndrome, however . . . it is likely this activity could precipitate, or aggravate, his symptoms.
In reversing the Court of Appeals, the Supreme Court stated that this physician's opinion was nothing more than a statement oftheoretical possibility and therefore lacked the requisite definiteness. (Emphasis added.)
In my opinion, the majority's characterization of Dr. Rutherford's letter dated September 21, 1999, is misplaced. The majority states that Dr. Rutherford misinterpreted the law, theorizing that absolute certainty was required with respect to the requirements of Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999). Although Dr. Rutherford's letter states "absolute certainty", his letter goes on to say "greater than 50% certainty." This characterization without a doubt meets the requirement of reasonable degree of medical certainty. Moreover, Dr. Rutherford was not looking for "absolute certainty". Rather he had already concluded that " based upon all of the available information it is not possible to assign causation to the work injury with greater than 50% certainty".
The majority also talks about the testing facility where the claimant underwent the tests in Little Rock under the supervision of Dr. Rutherford and her negative experience. The claimant argues in her brief that the law judge erred in according Dr. Rutherford's opinion greater weight than that of Dr. Evans, because Dr. Rutherford had seen the claimant "only a couple of times, and during such visits, demonstrated his competency by erroneously putting her through sleep test, and exposing her to the humiliation of lying in a gurney for hours at a time with nothing but a sheet on". Dr. Rutherford is certainly not the one demonstrating incompetence in this case. In fact, there is nothing in the record to suggest that Dr. Rutherford was at the hospital when the claimant underwent the bone scan and arteriogram. Nor is there any evidence that when the claimant presented to Dr. Rutherford she was placed on a gurney with nothing but a sheet over her. Nor does the record reflect that the claimant was subjected to a sleep test. To the contrary, while the claimant testified at the hearing that "they took me to have a sleep study", she did not testify that it was actually conducted. In direct response to her attorney's inquiry: "Did you have the arteriogram done or the sleep test done?", the claimant clearly replied: "No. I had the arteriogram done."
The claimant argues that Dr. Rutherford "has once again recommended an invasive procedure with known risks on an a symptamitic [sic] limb for purposes of reaching absolute medical certainty". This allegation is simply without truth. Dr. Rutherford neither recommended nor encouraged the procedure. In fact, he mentioned the availability of this test only in response to an inquiry from the respondent's adjuster and only from the perspective that
from a strictly legalistic standpoint pertaining to potential etiology and compensability of the abnormality as identified in the left arm, this is the only measure with which I am aware which could answer your question with certainty.
(Emphasis added)
Dr. Rutherford specifically pointed out his concern that the procedure would not lend itself to treatment and thus would pose an ethical dilemma. This is hardly a demonstration of medical unprofessionalism.
It is obvious that the claimant does not like the opinion Dr. Rutherford has rendered. Indeed, Dr. Rutherford has proven to be very capable and very thorough in his assessments. The claimant had the opportunity to obtain an equally comprehensive review of his evaluation through an expert of her own, but she chose not to do so. The claimant has been given great latitude in the payment of benefits for treatment in this claim, which treatment has not all been supported by objective medical findings, specifically and primarily her "left carpal tunnel syndrome", and she was offered the opportunity to take her assessment one step further, at the respondent's expense, to establish causation. It is neither the fault of Dr. Rutherford nor the respondent that the claimant came up short on her proof.
Although the majority gives no weight to the opinion of Dr. Rutherford, I find that Dr. Rutherford's opinion is entitled to great weight. The Commission has the authority to resolve conflicting evidence and this extends to medical testimony. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). Although the Commission is not bound by medical testimony, it may not arbitrarily disregard any witnesses's testimony. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight of the opinion.
Therefore, for the reasons set forth herein, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner