FORD v. DEPENDABLE AIR CONDITIONING CO

The claimant appeals a decision by the Administrative Law Judge finding that the claimant failed to prove by a preponderance of the evidence that he was entitled to the surgery performed in March, 1999, and finding that the claimant failed to prove by the preponderance of the evidence that he was entitled to temporary total disability benefits from February 23, 1999, through August 2, 1999. Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge.

The claimant sustained admittedly compensable injuries on May 2, 1996, and April 15, 1998. On May 2, 1996, the claimant injured his left shoulder while lifting a compressor. The claimant was treated by numerous physicians including Dr. Teeter, Dr. Bruce Brown, an orthopedic surgeon, Dr. Joe Crow, an orthopedist, Dr. David Collins, an orthopedist, Dr. Anthony Russell, a neurosurgeon, and Dr. Patricia Knott, a pain specialist. The claimant was released by Dr. Knott on November 5, 1997, as having reached maximum medical improvement. The respondents accepted the shoulder injury as compensable and paid all appropriate benefits.

On April 15, 1998, the claimant was driving a van for the respondent when he was rear-ended. The claimant was diagnosed with a cervical strain and a compression fracture of the spine at T-8. X-rays revealed mild to moderate degenerative osteoarthritic changes of the lower cervical spine. The claimant consulted with other physicians who confirmed the diagnosis of a T-8 compression fracture. Because of his continuing complaints of pain, the claimant underwent a myelogram with CT to rule out the possibility of a herniated disc or nerve impingement on June 29, 1998. The tests showed that the claimant had a Schmorl's node at T-8 and a diffused disc bulge at L4-5, but not definite neural compression; facelal and ligamentous hypertrophy at L4-5; and, mild disc bulge at L5-S1, but not definite neural compression. The claimant was referred to Dr. Valley of the Russellville Surgery Center, who saw the claimant on July 13, 1998. Dr. Valley's report states:

Imaging studies: Bone scan shows mild increased activity involving vertebral body of T8 compatible with acute or subacute compression fracture. Increased activity in left parietal bone unknown cause. Plain views — facet and ligamentous hypertrophy L4/5. Mild disc bulge L5 S1.

CT myelogram shows mild disc bulge at L4/5. MRI shows degenerative disc disease.

Dr. Valley performed a selected epidural block on the claimant.

In August of 1998, the claimant sought treatment from Dr. Anthony Russell. Dr. Russell's report of August 3, 1998, states:

MRI scan of the thoracic spine shows compression fractures at T8 and T9 with no evidence of retropulsed bone and no evidence of disc herniation or canal stenosis associated. In the lower lumber (sic) region at L4-L5, there is a significantly deteriorated disc, ligamentum flavum thickening, a relative stenosis and a left-sided 4-5 extradural lesion consistent with a disc herniation. The pain has been going on now for over three months. It has not responded to conservative measures. My plan would be to consider resecting the disc at L4-L5 to see if that would afford him any relief in his left lower extremity pain.

On November 20, 1998, at Dr. Russell's request, another MRI was performed on claimant's lumbar spine. The results are as follows:

Impression:

1) The patient has a moderate acquired central canal stenosis at the L4-5 level related to the diffuse annular disc bulge accompanied by hypertrophy of the facets and ligament flava.

2) On the axial images, the posterior disc margin appears slightly more pronounced in a left lateral to far lateral distribution in this patient with slightly greater left leg symptoms.

Dr. Russell's note of November 20, 1998, states:

Mr. Ford returns today with his MRI scan, but unfortunately was unable to be still for the entire exam. The results that are available indicate the presence of a fairly significant lumber (sic) canal stenosis at L4-L5. However, I see no evidence of ongoing herniation or nerve root compression other than that caused by the stenosis itself.

Dr. Russell was asked by respondent insurance carrier whether the stenosis was related to the automobile accident. His letter of December 16, 1998, stated:

This is a reply to your correspondence of 12-10-98 regarding Thomas Ford. The stenosis from which Mr. Ford suffers is most likely a chronic process that was merely exacerbated by the automobile accident. Therefore, the surgery itself would actually be for stenosis rather than for an acute event secondary to the accident.

On March 12, 1999, claimant began seeing Dr. Allison of the Arkansas Orthopaedic Institute in Russellville. At the initial office visit, Dr. Allison's assessment was as follows:

1) spinal stenosis vs. herniated disc in the lumbar spine.

2) cervical degenerative disc.

Dr. Allison sent him for another MRI, which was done, and on March 17, 1999, claimant returned. Dr. Allison's report of March 17, 1999, stated:

Mr. Ford returns today with lots of questions and we have tried to answer most of them for him. His MRIs are with him

. . .

MRIs show severe stenosis at the L3-4 and 4-5 level with bulging of the disc and hypertrophy of the ligament . . .

Assessment: Spinal Stenosis L3-4 and 4-5.

Dr. Allison recommended surgery, and on March 29, 1999, claimant was admitted to Saint Mary's Regional Medical Center for the surgery. The report of that date stated:

Pre-operative diagnosis: Spinal stenosis L3 L4 and L5

Post operative diagnosis: Same

On May 18, 1999, Dr. Allison wrote the claimant's attorney:

Mr. Ford is a patient of ours who is a 52 year old male . . . An MRI of his lumbar spine was ordered which determined spinal stenosis at the L3-4 and L4-5 level. He was taken for a decompressive laminectomy . . . Since that time, he has done extremely well.

Besides the lumbar spinal stenosis, the patient has cervical degenerative disc disease which may required [sic] treatment in the future.

It is unlikely that his spinal stenosis is completely due to his accident. It is more likely that it was aggravated by the accident.

Spinal Stenosis is a degenerative disease as evidenced by the degeneration in his cervical spine as well.

Dr. Allison wrote again on September 15, 1999:

His final diagnosis is spinal stenosis, his prognosis is continued back pain with no leg pain. I do not have a rating on him, if his injury was related to his T8 compression fracture it was not a part of his operative course or part of the area which I was addressing. His spinal stenosis was probably aggravated by his automobile accident but was probably present years before this occurred . . . I am not in a position to give him a rating at this time over his spinal stenosis, since he does not have a neurological deficit and he has good motor strength. I would normally refer someone with subjective complaints of pain to a pain medicine specialist for a rating on their level of pain.

Dr. Allison's last letter is dated May 7, 1999. He refers to the claimant's back as being a "decompensating condition" and predicts future surgeries:

I saw Thomas Ford in the office today. He has been a patient of ours with severe spinal stenosis of the L3, 4 and 5 levels. He is now six weeks status-post decompression for the stenosis. He is much improved, however, his back is in a decompensating condition and he will remain having some pain and be unable to do difficult labor. He will probably require more surgeries in the future because of the instability of the spine and the weakness of the right leg. He is applying for disability, and I feel this is reasonable in his state.

And finally, Dr. Russell wrote another letter in response to the claimant's counsel on April 27, 1999, which stated:

This letter is in response of your inquiry of 4-16-99 regarding Thomas Ford. Mr. Ford has actually been seen in this office for two separate entities. My initial evaluation of this gentleman was for a long thoracic nerve injury that was present prior to an automobile accident that occurred in April 1998. When Mr. Ford returned here in July 1998, he complained of upper thoracic back pain, as well as low back pain and left lower extremity pain. MRI scan confirmed the presence of a T8-T9 compression fracture. It should be noted, however, that at least one radiologist felt that this represented a "Schmorl's" node. This finding did appear to be acute based on the fact that a bone scan performed in April was positive in that area. Thoracic compression fractures, however, unless accompanied by marked subluxation, is considered to be a stable injury. I, myself, have two thoracic compression fractures and these have been treated symptomatically only and I believe that this is appropriate in Mr. Ford's case as well. In addition to the thoracic compression fractures, he also has a lumbar canal stenosis present at L4-L5. The lumbar canal stenosis, however, is considered to be a chronic problem that has evolved over several months rather than due to an acute injury. The injury may have exacerbated the pain associated with the stenosis, but is certainly not responsible for the stenosis itself. Generally, in a case like this, the stenosis is considered to be the major part of the problem. Mr. Ford's prognosis in regard to the thoracic injury is excellent . . . In regard to the stenosis, I do believe that this will need to be addressed surgically at some point. It certainly will not spontaneously improve and the natural history of the disease is to continue to deteriorate.

The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary.Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 ( D7033346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees' injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In workers' compensation cases, the burden rests upon the claimant to establish his claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). 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).

The evidence fails to support a finding that the surgery that the claimant underwent in March of 1999 to relieve his spinal stenosis was causally related to his compensable injuries. The claimant has degenerative disc disease and two doctors have opined that the stenosis was not caused by the automobile accident. As far back as 1997, an MRI shows that the claimant had chronic changes in his back which were not due to a specific injury. Further, Dr. Russell noted that the stenosis was not due to an acute injury, but that the injury may have exacerbated the pain associated with the stenosis, but it was not responsible for the stenosis itself. Further, Dr. Allison stated that the claimant would probably require more surgeries in the future because his back was in a "decompensating condition."

All of the evidence strongly indicates that the claimant's surgery and resulting disability are related to his pre-existing stenosis and not to the automobile accident. Although the medical records do refer to the automobile accident, the records make it clear that while the accident may have exacerbated the pain associated with the stenosis, the accident was not responsible for the stenosis. Accordingly, we find that the claimant has failed to meet his burden of proof. Therefore, we hereby affirm the decision of the Administrative Law Judge. This claim is denied and dismissed.

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman

_______________________________ MIKE WILSON, Commissioner

SHELBY W. TURNER, Commissioner dissents.

I must dissent from the majority opinion in this case. Upon my de novo review of this case, I find that claimant did prove by a preponderance of the evidence that he was entitled to the March 29, 1999, surgery and temporary total disability benefits from February 23, 1999, through August 2, 1999.

Claimant began work for the respondent in 1972. On May 2, 1996, he injured his left shoulder while changing a heavy air conditioning compressor. Then, on April 15, 1998, claimant was injured in a motor vehicle accident when he was struck from the rear at a railroad crossing. Claimant suffered from acute compression fractures in his thoracic spine, bulging discs in his lumbar and cervical spines, degenerative disc disease and thickening of the ligamentum flavum. He also suffered injuries to his neck, left shoulder and mid-back. Claimant had decompression surgery on his lumbar spine in March of 1999, and requested medical expenses and temporary total disability benefits for his periods of incapacitation.

It is undisputed that claimant suffered compensable injuries in 1996 and in 1998 while employed by the respondent. At issue is whether claimant should receive benefits for his back surgery of March 29, 1999, and temporary total benefits from February 23, 1999, through August 2, 1999.

The majority contends that claimant suffered from pre-existing stenosis, a degenerative disease, and therefore, the surgery was neither necessary nor reasonable in relation to claimant's compensable injuries. However, where it was undisputed that appellee had been diagnosed with a degenerative disc disease by the treating physician who also opined that appellee's degenerative disease had been aggravated by his job-related injury, the appellate court held that the physician's notes constituted substantial evidence in support of the Commission's finding that continued treatments were reasonable and necessary. General Electric Railcar Repair Service v. Ace Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998). In that case, Dr. Alkire wrote, "[M]ost workers' compensation injuries, particularly those in the cervical and lumbar spines, are always related to some degenerative process — regardless of the type of injury a patient may have. I'm currently treating Mr. Hardin for his on-the-job injury that just happens to involve some degenerative changes in his cervical spine."

This Commission has held that where a preponderance of the evidence indicated that claimant's need for knee replacement surgery was accelerated by a compensable injury, the surgery was reasonable and necessary for treatment of the compensable injury. Geneva Jones v. Wackenhut Corporation, Full Commission Opinion, filed May 15, 2000 ( E901848).

A pre-existing disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Id., citing Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962); Conway Convalescent Center v. Murphree, 266 Ark. App. 985, 585 S.W.2d 462 (1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).

As is commonly stated, the employer takes the employee as he finds him. Murphree, supra. In such cases, the test is not whether the injury causes the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition. However, although a disabling symptom of a pre-existing condition may be compensable if it is brought on by an accident arising out of and in the course of employment, the employee's entitlement to compensation ends when his condition is restored to the condition that existed before the injury unless the injury contributes to the condition by accelerating or combining with the pre-existing condition.

I would find that claimant's injury did contribute to his condition, causing the claimant to need surgery to treat his symptoms of extreme pain. This surgery constituted the medical treatment necessary to restore claimant to the condition he enjoyed before his compensable injury.

Based on the foregoing, I must respectfully dissent.

______________________________ SHELBY W. TURNER, Commissioner