BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G LINDA BECKER, Employee. GOODWILL INDUSTRIES, Employer

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G LINDA BECKER, Employee GOODWILL INDUSTRIES, Employer RISK MANAGEMENT RESOURCES, Carrier CLAIMANT RESPONDENT RESPONDENT OPINION FILED SEPTEMBER 2, 2015 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Claimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. Respondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. STATEMENT OF THE CASE On August 5, 2015, the above captioned claim came on for a hearing at Springdale, Arkansas. A pre-hearing conference was conducted on June 11, 2015, and a pre-hearing order was filed on that same date. A copy of the pre-hearing order has been marked Commission's Exhibit #1 and made a part of the record without objection. At the pre-hearing conference the parties agreed to the following stipulations: 1. The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The employee/employer relationship existed between the parties at all relevant times. 3. The claimant sustained a compensable injury to her lumbar spine on July 7, At the pre-hearing conference the parties agreed to litigate the following issues: 1. Claimant s entitlement to surgery as recommended by Dr. Blankenship. The claimant contends she is entitled to surgery as recommended by Dr. Blankenship.

2 2 The respondents contend that the surgery requested by the claimant is not reasonable and necessary in relation to her compensable injury. From a review of the record as a whole, to include medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witness and to observe her demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A : FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on June 11, 2015, and contained in a pre-hearing order filed that same date, are hereby accepted as fact. 2. Claimant has met her burden of proving by a preponderance of the evidence that she is entitled to surgery as recommended by Dr. Blankenship. FACTUAL BACKGROUND The claimant is a 58-year-old woman who began working for the respondent in March Claimant performed many duties for the respondent including operating a cash register; racking clothes; taking in donations, which might include going through books and scanning them to determine their worth and sorting items into bins; and taking out the trash. Claimant testified that on occasion her job also required her to lift heavy objects such as couches, television sets, and bins of books weighing up to 40 pounds. On July 7, 2014, the claimant was bending over to pick up a television from the ground to load for a customer when she felt pain in her low back area. Since that accident, claimant returned to work for respondent for only 45 minutes in July 2014 and has not worked for respondent or any other employer since that time. Claimant initially sought medical treatment from Daniel Briley, a physician s

3 3 assistant, on July 9, Briley diagnosed claimant s condition as acute back pain; he also prescribed medication and took claimant off work for three days. Thereafter, claimant sought medical treatment from Dr. Stinnett who treated claimant with medication and gave her work restrictions. When claimant s condition did not improve, Dr. Stinnett ordered an MRI scan which was performed on July 28, 2014, and revealed degenerative changes with a central disc protrusion at the L5-S1 level. On September 2, 2014, claimant was evaluated by Dr. Cannon who recommended injections and stated that if claimant s condition did not improve she should undergo a neurosurgical consultation. On October 27, 2014, claimant was evaluated by Dr. Shawn Moore, neurosurgeon. Dr. Moore reviewed the MRI scan and indicated that it showed degenerative disc disease and a mild central disc bulging. He stated that there was no frank herniation and recommended against any surgical intervention based upon the findings. He noted that claimant might benefit from a series of injections and he completed a form indicating that claimant could return to work on October 28, 2014, with no restrictions. Claimant apparently underwent a series of injections with no improvement and as a result Dr. Stinnett eventually referred claimant to Dr. Blankenship, neurosurgeon. Claimant s initial evaluation with Dr. Blankenship occurred on December 22, Dr. Blankenship recommended medication, an injection at the L5-S1 level, and physical therapy. When the recommended treatment did not improve claimant s condition, claimant returned to Dr. Blankenship who in a report of February 26, 2015 recommended a surgical procedure. Subsequent to that recommendation respondent sent claimant to Dr. Bruffett, neurosurgeon, who authored a report dated April 6, 2015 indicating that he did not believe surgery was appropriate and stating that claimant had reached maximum medical improvement with no further treatment indicated.

4 4 Claimant has filed this claim contending that she is entitled to additional medical treatment in the form of the surgery as recommended by Dr. Blankenship. ADJUDICATION Claimant has the burden of proving by a preponderance of the evidence that she is entitled to additional medical treatment for her compensable injury. Dalton v. Allen Engineering Company, 66 Ark. App. 201, 989 S.W. 2d 543 (1999). First, I believe it is important to address claimant s testimony regarding back complaints prior to July 7, Claimant testified at her deposition and at the hearing that she did not have any low back problems prior to July 7, Claimant acknowledges that she sought medical treatment from her family physician, Dr. Rankin, on March 17, Claimant testified that on that date she was complaining of leg cramps in both calves and that her feet were hurting. She further testified that after that visit her husband recommended that she purchase some new shoes and after she did so her problems resolved. Claimant s testimony is clearly contradicted by Dr. Rankin s report of March 17, Dr. Rankin s medical report of that date does not mention any complaints of cramps in the claimant s calves or in her feet. Instead, claimant was complaining of back pain and was there for a follow-up of her hyperthyroidism. With regard to claimant s back complaints, Dr. Rankin noted that claimant had an onset of two weeks ago, that the problem was worsening, and that it occurred intermittently. He noted that the claimant described the pain as piercing and sharp and that there had been no injury. Dr. Rankin s medical report states that for claimant s low back complaints he prescribed Meloxicam. Documentary evidence from Walgreen s indicates that claimant filled the prescription for Meloxicam on March 17, Based upon my review of this evidence, I do not find credible claimant s testimony

5 5 that she did not have any complaints of low back pain prior to July 7, Claimant did not report these prior low back complaints to any of her treating physicians; specifically, Dr. Blankenship. Based upon claimant s statements to him, Dr. Blankenship stated in his initial report of December 22, 2014: She had no prior problems with her back until she was lifting a TV on July 07, where she worked. She had the acute onset of severe lower back pain that soon translated into right buttock pain. *** Concerning the statement that was made to her that she has degenerative disk disease, she does have degenerative findings on her radiographs. She had no back pain prior to her injury, so obviously she did not suffer from any problems, so she technically would not be classified as having degenerative disk disease. She was doing just find with her disk space degeneration prior to her injury. Clearly, this opinion by Dr. Blankenship is based on an inaccurate history given to him by the claimant. This would have more relevance if the issue in this case were compensability. However, compensability is not the issue; respondent has stipulated that claimant suffered a compensable injury to her lumbar spine on July 7, The issue is whether the surgery recommended by Dr. Blankenship is reasonable and necessary medical treatment for her compensable injury. After reviewing the evidence in this case, I find that the surgery proposed by Dr. Blankenship is reasonable and necessary. Dr. Blankenship s recommendation for surgery is not based upon a belief that claimant had no lower back problems prior to July 7, 2014, but rather on her current complaints, a lack of response to treatment, and the findings on a second MRI scan which was performed on February 12, Dr. Blankenship in his report of February 26, 2015 recommends surgery and states the following:

6 6 The majority of her pain is lower back and right buttock with some anterolateral pain in the right leg and some posterior calf pain on the right. The patient s MRI demonstrates a midline disk protrusion at the lumbosacrum with proximal L5 neural foraminal narrowing and mild lateral recess stenosis. She also has mild lateral recess stenosis with a broad-based disk bulge at L4-L5. Multilevel facet arthropathy is noted, but the location of her pain is more consistent with the L4-L5 level instability, and her leg pain is consistent with the L5-S1 disk space setting and broad-based disk protrusion. Dr. Blankenship s opinion indicates that the surgery is related in large part upon the disc bulges present at the L4-L5 and L5-S1 levels. With respect to this issue, it should also be noted that there is no indication that claimant had any low back pain radiating into her extremities prior to July 7, Dr. Rankin s medical report of March 17, 2014 specifically states that there was no radiation of claimant s low back pain. In contrast to the opinion of Dr. Blankenship, respondents rely upon the opinions of Dr. Moore and Dr. Bruffett. As previously noted, claimant was evaluated by Dr. Moore on October 27, 2014 and he did not recommend surgery, but instead indicated that claimant might benefit from a series of injections. Claimant underwent those injections without relief and Dr. Moore has not seen the claimant since that time. I also note that Dr. Moore did not have the benefit of the second MRI scan which was performed on February 12, Respondent also had claimant evaluated by Dr. Bruffett, neurosurgeon, and he authored a report dated April 6, 2015 opining that surgery was not reasonable treatment. He further stated that claimant had reached maximum medical improvement with no further treatment indicated and that claimant had suffered no impairment. Dr. Bruffett s report indicates that he reviewed the claimant s MRI scan; however, it is unclear whether Dr. Bruffett reviewed the claimant s first MRI scan of July 28, 2014, or the most recent MRI scan of February 12, I find that the opinion of Dr. Blankenship is entitled to great weight. He is the claimant s authorized treating physician and is the only physician who definitely reviewed

7 7 the February 12, 2015 MRI scan. Dr. Blankenship s mistaken belief that claimant did not suffer from any prior low back complaints is not the basis for his opinion that claimant is in need of surgery. AWARD Claimant has met her burden of proving by a preponderance of the evidence that she is entitled to additional medical treatment in the form of surgery as recommended by Dr. Blankenship. Pursuant to A.C.A (a)(1)(B)(ii), attorney fees are awarded only on the amount of compensation for indemnity benefits controverted and awarded. Here, no indemnity benefits were controverted and awarded; therefore, no attorney fee has been awarded. Instead, claimant s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A (a)(4). The respondents are ordered to pay the court reporter s charges for preparing the hearing transcript in the amount of $ IT IS SO ORDERED. GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE

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