PILCHER v. COFFMAN INVESTMENT CO., INC

The respondents appeal an opinion and order filed by the administrative law judge on June 26, 1995. In that opinion and order, the administrative law judge found that the claimant was not entitled to additional temporary total disability compensation. However, the administrative law judge found that surgery proposed by Dr. Edward Saer is reasonably necessary for treatment of the claimant's compensable injury. After conducting a de novo review of the entire record, we find that the claimant failed to show by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. However, we find that the claimant failed to prove by a preponderance of the evidence that the surgery proposed by Dr. Saer is reasonably necessary for treatment of the claimant's compensable injury. Therefore, we find that the administrative law judge's decision in this regard must be reversed.

The claimant was employed by the respondent employer as a maintenance man for an apartment complex. He sustained an admittedly compensable injury on May 6, 1992, when he experienced a stinging sensation and pressure in his low back as he was carrying a paint sprayer up some stairs. After taking a brief break, he returned to work. However, he later reported the incident to the apartment manager, and she suggested that he see a chiropractor.

The claimant did seek treatment from Dr. Samuel S. Haley, a chiropractic physician, on May 19, 1992, and Dr. Haley diagnosed a subluxation complex of the lumbar and thoracic spine. Although the claimant continued to work, he received almost daily chiropractic treatment from Dr. Haley through July 20, 1992. However, due to the claimant's continued complaints, Dr. Haley received authorization for a MRI. Although this MRI was negative except for some degenerative changes, Dr. Haley referred the claimant to Dr. Thomas Fletcher, a neurosurgeon.

Dr. Fletcher examined the claimant on July 30, 1992. He noted that the MRI revealed degenerative changes at L4-5 and L5-S1, but he also noted that "there was no disc herniation, rupture or spinal stenosis and no evidence of nerve root compression." Although there was evidence of a minimal bulge at L4-5, Dr. Fletcher noted that this did not indicate a significant disc protrusion. Dr. Fletcher's clinical findings were negative, including no evidence of muscle spasm and good range of motion of the lower back. Based on these findings, Dr. Fletcher diagnosed a musculoligamentous sprain, and he concluded that there was no evidence of any permanent residual impairment. He released the claimant to return to regular duty work on August 3, 1992.

The claimant did return to work for the respondent employer after his release by Dr. Fletcher, and he continued to work for the respondent employer until August 26, 1992, when he began working for Camelot Inn. However, he testified that he continued to experience back problems which affected his ability to work, and, in November of 1992, Dr. Haley referred him to Dr. Edward Saer, an orthopedic specialist. Dr. Saer's November 17, 1992, report indicates that the claimant was primarily complaining of pain in his low back, although he was also complaining of some pain in his right lower extremity to his knee. Dr. Saer's clinical findings were essentially negative. He described these findings as follows:

He is a thin well developed man. His gait is relatively normal. He can heel and toe walk easily. He does have what feels like a small step off at about the L4-5 level but minimal tenderness there. Back motion is fairly good with minimal guarding and no spasm. He has symmetric reflexes in the extremity and normal motor function. Sensation is variable and somewhat nondermatomal. Straight leg raising maneuvers are negative bilaterally.

Dr. Saer also noted that the MRI had showed "early degeneration at L5, S1." Dr. Saer recommended a "nonoperative stabilization and reconditioning exercise program. . . ."

The claimant testified that he quit working for Camelot Inn after 4 to 6 months due to the back problems he continued to experience. According to his testimony, he experienced continuous pain during this time which limited his ability to sleep. However, he did not seek any further medical treatment until October 25, 1993, when he returned to Dr. Saer. Dr. Saer's report indicates that the claimant's symptoms and his clinical findings were essentially the same as his symptoms and findings on November 17, 1992, and he described the clinical findings as follows:

On exam he moves around well. He has no localized tenderness but does again appear to have a step off palpable at the lumbosacral level. He has good motion and does reverse his lordosis with forward bending. He complains of pain with bending past 50%. Lower extremity functions intact and straight leg raising maneuvers are negative.

Dr. Saer treated the claimant conservatively with epidural steroid injections, but the claimant received only short-term relief from these injections.

The claimant next returned to Dr. Saer on January 13, 1994. Again, Dr. Saer's report indicates that his clinical examination revealed essentially negative findings, and he described his findings as follows:

On exam he does not have any spasm. He does not have any trigger points. Back motion is guarded though and very limited. He appears to be intact neurologically.

However, because the claimant remained symptomatic, Dr. Saer ordered a bone scan and a discogram. These studies indicated that L4-5 and L5-S1 were abnormal and symptomatic. Based on these findings, Dr. Saer concluded that the claimant was suffering from degenerative disc disease which was symptomatic. His report and deposition testimony indicates that the claimant was insistent on having "something done." Dr. Saer advised him a fusion at L4-5 and at L5-S1 was all that he could offer.

Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (1987). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers' Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers' Compensation Commission, Dec. 13, 1989 (Claim No. D511255).

In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that the surgery offered by Dr. Saer is reasonably necessary for the treatment of his compensable injury. Although the claimant may be experiencing some pain, the medical records indicate that he sustained a relatively minor injury. For the most part, the medical records indicate that his range of motion has remained good, and there is no evidence of radicular symptoms. Dr. Saer testified that he has offered this surgery strictly as an elective option based on the claimant's insistence that something be done to totally relieve his pain. Likewise, the claimant testified that his request for approval of the surgery is based solely on his desire "to get rid of the pain, because it's very hard to deal with." However, according to Dr. Saer's testimony, there is no guarantee that the proposed surgery will totally alleviate the claimant's pain, and he indicated that the claimant could only hope for a reduction in the pain he experiences. In fact, according to Dr. Saer's testimony, the surgery would result in substantial physical restrictions and limitations being placed on the claimant, and the surgery would increase the anatomical impairment sustained by the claimant. Furthermore, the claimant has returned to work since he last saw Dr. Saer, and Dr. Saer opined that, "if he can work in a restricted capacity and his pain is not too bad, then he doesn't need an operation."

Consequently, we find that the preponderance of the evidence does not show that the nature and severity of the claimant's condition warrants the proposed surgery. Therefore, we find that the administrative law judge's decision in this regard must be reversed.

We note that the claimant has not appealed the administrative law judge's finding that he is not entitled to additional temporary total disability compensation. However, we find that he failed to prove by a preponderance of the evidence that he is entitled to any temporary disability benefits. Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury.Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

In the present claim, we find that the claimant's healing period ended when Dr. Fletcher released him to return to work on August 3, 1993. As discussed, the medical evidence indicates that his symptoms have remained essentially the same since that time, and the medical findings have likewise remained essentially unchanged. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary disability compensation.

Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that the surgery proposed by Dr. Saer is reasonably necessary for treatment of the compensable injury. Therefore, we find that the administrative law judge's decision in this regard must be reversed. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary disability compensation. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. This claim is hereby denied and dismissed.

IT IS SO ORDERED.