Opinion
CLAIM NO. D814477
OPINION FILED OCTOBER 5, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by JAMES BAKER, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] Respondents appeal an opinion and order filed by the Administrative Law Judge on November 14, 1997. In that opinion and order, the Administrative Law Judge held that claimant established a causal relationship between his original compensable injury and subsequent recurrent disc herniation, that claimant is entitled to temporary total disability benefits from November 13, 1996, through March 4, 1997, and that medical care rendered by and at the direction of Drs. Daniel and Landherr on and after November 1, 1996, represents reasonably necessary treatment. After conducting a de novo review of the whole record, we find that claimant has proven, by a preponderance of the credible evidence, that his present condition is a recurrence of his original compensable injury, and that he is entitled to temporary total disability benefits from November 13, 1996, through March 4, 1997. We further find that medical treatment rendered by and at the direction of Drs. Daniel and Landherr beginning November 1, 1996, was reasonable and necessary. Therefore, we find that the decision of the Administrative Law Judge must be affirmed.In 1982, claimant suffered a herniated disc at L4-5, on the left, which was nonwork-related. Surgery was performed on July 12, 1982. He sustained a work-related back injury in 1988. At that time, he was diagnosed with a herniated disc at L4-5, on the right. Again, surgery was performed.
In 1996, claimant experienced a period of severe low back pain as well as numbness and tingling down into his left leg. He testified that an Administrative Law Judge appointed Dr. Daniel as his authorized treating physician. Dr. Borklund, a physician with whom Dr. Daniel practices, examined claimant. Dr. Daniel also treated claimant. Dr. Borklund's chart note for November 13, 1996, reveals that claimant was admitted to the hospital in Booneville for pain control and traction. By November 19, 1996, claimant had been released from the hospital. On that date, Dr. Borklund administered trigger point injections during an office visit. On November 25, 1996, claimant was referred to Dr. Landherr. Claimant recalled that he went directly to Sparks Regional Medical Center, rather than going to Dr. Landherr's office. It was at the hospital that Dr. Landherr first examined claimant. He ordered a MRI which revealed "some thickening, scarring, and possible arachnoidits (sic) at L4 and L5 with also some possible disc fragments." A report from the ambulatory surgery department reflects that on November 27, 1996, claimant received a steroid injection. On December 4, 1996, Dr. Landherr performed a repeat laminectomy and removal of recurrent herniated disc at L4-5, on the left.
Dr. Landherr, a board certified neurosurgeon, was deposed on October 8, 1997, and that deposition has been made a part of the record. He testified that claimant's problems in 1996 which led to surgical intervention were not precipitated by trauma. He stated that on a patient information form, claimant attributed his symptoms to his 1988 injury.
Counsel for respondents asked Dr. Landherr to offer an opinion with respect to causation. The following exchange took place between counsel for respondents and Dr. Landherr:
Q. And if it's a recurrent disc from the previous injuries at the same level, is it possible to say to a reasonable degree of medical probability that it's `88 and not `82 or `82 and not `88 or can that question even be answered?
A. I don't think you can answer that with, quotes, medical degree of certainty.
Claimant asserts that he is entitled to benefits for the consequences of an injury that occurred in 1988. Act 796 of 1993 is inapplicable to recurrences of injuries which originally occurred prior to the effective date of Act 796. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). Hence, Dr. Landherr's refusal to offer an opinion within a reasonable degree of medical certainty is not fatal since no such requirement existed prior to the enactment of Act 796.
Claimant's counsel advised Dr. Landherr that claimant had been under the active care of Dr. Daniel for several years following the 1988 surgery. He explained that a previous opinion of an Administrative Law Judge determined that there was a causal connection between claimant's surgery in 1988 and the treatment claimant received after January 19, 1995. Accordingly, respondents were held liable for the treatment. Conversely, claimant's counsel explained, claimant had no problems after the surgery performed in 1982. With this additional information, Dr. Landherr agreed that the 1988 surgery was a "more significant episode" than what transpired in 1982. The following exchange took place between claimant's counsel and Dr. Landherr:
Q. With that history, Doctor, and with — and if there is medical evidence that he continued to have medical treatment and has had hospitalizations and that the judge has determined that his continued problems are related to the 1988 injury, why is it that you are unable to say that the surgery that you did is most likely related to the 1988 injury?
A. I can say most likely, but I can't say with a medical probability.
Q. Okay. What's the difference between most likely and medical probability?
A. Medical probability to me — maybe I'm wrong, but to me that means, well, you know, it's probable that you lost your arm because it was cut off by a saw.
In our opinion, Dr. Landherr deemed medical probability to be synonymous with medical certainty, and as previously stated, this standard has no application to this case. Additionally, Dr. Landherr testified that he is able to state within a reasonable degree of medical certainty that the 1988 injury was a contributing factor with respect to claimant's need for surgery. Finally, it is significant that Dr. Landherr testified that he could not attribute claimant's 1996 surgery to his 1982 injury because claimant experienced no problems following the first surgical repair. The appropriate analytical framework for deciding this case is found in Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). In that case, the Court of Appeals held that where the second medical complication is determined to be a natural and probable consequence of the first injury, respondents remain liable. Liability is only affected where the second episode has resulted from an independent intervening cause. In other words, the basic test is whether there exists a causal connection between the two episodes. A subsequent period of incapacitation due to a previous injury is a recurrence and not a new injury.Pinkston v. General Tire Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990).
We specifically find that claimant has established the requisite causal connection between his original injury and subsequent medical complication. Dr. Landherr testified that there is "most likely" a causal connection between claimant's 1988 injury and his need for surgery in 1996. The fact that he is unable to offer an opinion within a reasonable degree of medical certainty is not dispositive of this claim. Moreover, Dr. Landherr characterized claimant's 1988 injury as a "contributing factor" with respect to his need for surgery in 1996. The medical evidence reveals that although claimant had no problems following his surgery in 1982, he had chronic complaints after the `88 surgery. Indeed, Dr. Landherr agreed that the 1988 incident was of greater significance than the 1982 event. Finally, there is no independent intervening cause to absolve respondents of liability in this case.
Claimant contends that the medical treatment rendered by and at the direction of Drs. Daniel and Landherr for his recurrent disc herniation was reasonably necessary. We agree. The evidence demonstrates that claimant's symptoms intensified in the fall of 1996. He testified that a three week period of severe pain, in addition to numbness and tingling in his left leg, culminated in an office visit with Dr. Borklund on November 13, 1996. However, conservative measures were unsuccessful, and Dr. Landherr performed surgery on December 4, 1996. It is Dr. Landherr's testimony that claimant's symptoms were attributable to the loose disc fragments at L4-5 on the left discovered during surgery. We specifically find that the medical treatment administered by and at the direction of Drs. Daniel and Landherr is reasonably necessary for the treatment of claimant's compensable recurrence.
The final issue is claimant's entitlement to additional temporary total disability benefits. Entitlement to temporary total disability benefits requires claimant to satisfy a two-prong test: (1) claimant must be within his healing period; and (2) totally incapacitated from earning wages. Arkansas Highway Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for healing the injury, which continues until claimant is as far restored as the permanent nature of the injury will allow. Nix v.Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). In the event that the underlying condition has stabilized and there is no additional treatment that will improve claimant's condition, the healing period has ended. Id. Whether the healing period has ended is a question of fact for the to resolve. Ketcher Roofing Co. V. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).
In this case, claimant entered an additional healing period on November 13, 1996, as a result of the recurrent disc herniation. A report authored by an IntraCorp nurse dated March 4, 1997, stated that Dr. Landherr opined that claimant had reached maximum medical improvement. The record does not contain a report from Dr. Landherr on this issue, and this matter was not addressed during his deposition. Accordingly, we find that claimant is entitled temporary total disability benefits from November 13, 1996, through March 4, 1997.
Accordingly, based on our de novo review of the entire record, and for the foregoing reasons, we find that claimant has sustained a recurrence of his compensable 1988 injury, that he is entitled to temporary total disability benefits for the period beginning November 13, 1996, and ending March 4, 1997, and that medical care rendered by and at the direction of Drs. Daniel and Landherr is reasonably necessary for the treatment of claimant's compensable injury. All accrued benefits shall be paid in a lump sum without discount and 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 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
[18] I must respectfully dissent from the majority opinion finding that claimant's recurrent disc herniation at L4-5 which was first detected in November of 1996 is causally related to claimant's compensable injury of September 9, 1988 and finding that claimant is entitled to additional temporary total disability benefits in relation to the recurrent disc herniation. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof.It is undisputed that claimant suffered from a herniated disc at L4-5 on the left in 1982 which preceded his compensable injury. Claimant's 1988 compensable injury resulted in a herniated disc at this same level on the right. Claimant's subsequent complication which is the subject matter of this litigation was determined to be a herniated disc at this same level, again to the left. Although claimant continued to experience pain and difficulties following his 1988 surgery for his compensable injury, Dr. Edwin Landherr who performed the surgery on claimant to repair claimant's most recent herniated disc clearly explained that he performed surgery on the claimant because claimant's pain in November of 1996 was different than the pain claimant had been experiencing since undergoing surgery in 1988. Dr. Landherr described a telephone conversation he had with Dr. Daniel, claimant's primary care physician, regarding claimant's condition. Specifically, Dr. Landherr stated:
What he told me was, you know, `look, I hate to send this guy to you, but there is something different doing on.' . . .'his pain's different now than it was before.' . . .' and I think there is something else going on.' And indeed he was right. You know, he had a recurrent disc herniation.
When asked if it was reasonable to conclude that claimant's condition for which Dr. Landherr performed surgery was a continuation of what Dr. Daniel had been treating claimant for, Dr. Landherr stated "No, it wasn't a continuation because, you know, it was like he told me, something's different." A complete and thorough review of Dr. Landherr's deposition leaves one with the conclusion that it is truly unknown whether claimant's 1996 recurrent disc is a natural and probable result of claimant's 1988 compensable injury. As Dr. Landherr first explained in his deposition "I don't have any idea, you know, how he got this thing." During his deposition, Dr. Landherr was specifically asked:
Q. That was going to be my next approach, Doctor. If after his 1982 surgery he was able to return to work and he worked for several years, but after his 1988 surgery he was not able to return to work, does that give you any assistance in determining whether or not his current condition is more likely due to his `88 injury as opposed to his `82 injury, assuming those facts to be true?
A. Yeah, but I guess we're into kind of imponderable here. My opinion on the thing is, you know, once you have a ruptured disc, then, by golly, you've got — depends on how you look at it. What is the recurrence rate?
Well, if you look at published series, you know, that varies anywhere from, you know, five percent as high as — the highest I've ever seen was 30 percent change of having another disc herniation. And whether that is related to working, not working — I mean, you know, commons sense tells one that, you know, if you're engaged in manual labor, that that percentage — that recurrence rate is probably going to be higher than if you were doing sedentary work. I don't know of any studies that prove that, but I mean, common sense, to me, tells you that.
You know, as much as I'd like to be able to give you a nice, clear-cut answer and say, well, yes, obviously it's related to the 1988 thing, I can't do it. You can try every approach you want.
Q. I understand the difficulty, Doctor, but let me —
A. And I'm not trying to be obstreperous.
Later on in his deposition, Dr. Landherr did agree that the 1988 injury was a contributing factor to claimant's present condition, however, when this testimony is reviewed in its entirety it is clear that Dr. Landherr would not, and could not state that claimant's 1988 injury caused claimant's need for surgery in 1996. As explained by Dr. Landherr, "any time you have a ruptured disc, you are more likely to have further trouble in the future." Thus, Dr. Landherr did state that claimant's 1982 rupture disc and 1988 injury both played a factor in claimant's "further trouble in the future." Finally, Dr. Landherr agreed that he was unable to chose between the 1988 or 1982 surgery as to what ultimately caused claimant's need for surgery in 1996. Dr. Landherr's deposition, in its entirety, leaves only one impression. Dr. Landherr cannot state or explain the cause of claimant's 1996 herniated disc for which he performed surgery. Dr. Landherr simply does not know whether claimant's 1996 herniated disc is related to claimant's compensable injury, the 1982 herniated disc, or if it was simply an unprecipitated event.
The majority opinion states that Dr. Landherr's refusal to offer an opinion within either a reasonable degree of medical certainty or medical probability is not fatal to claimant's claim. I agree. In this claim it is not his refusal to offer an opinion which is fatal, but rather the opinion which is offered which I find to be detrimental to claimant's claim. It is Dr. Landherr's opinion that either the 1982 or 1988 injury caused the current herniated disc. As previously stated, when Dr. Landherr's deposition is considered as a whole and not in a vacuum it is my opinion that one cannot find that claimant's complaints in 1995 were the natural and probable consequence of claimant's 1988 compensable injury. To paraphrase Dr. Landherr, something's obviously different.
In reviewing the record as a whole, without giving the benefit of the doubt to either party, I find that claimant has failed to prove by a preponderance of the credible evidence that his herniated disc in 1996 is a compensable consequence of his September, 1988 injury. As I interpret Dr. Landherr's deposition, Dr. Landherr's only basis for stating that claimant's 1988 compensable injury is a contributing factor to claimant's 1996 herniated disc is the fact that claimant suffered this previous herniated disc in 1988 and such a disc is likely to cause "further trouble in the future." In my opinion, relying on Dr. Landherr's statement of a causal connection based solely upon this fact would require one to engage in speculation and conjecture since claimant's 1988 compensable injury was not his first herniated disc at this particular level. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991).Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). When the evidence is weighed impartially, I find that it is just as likely that the 1982 incident is the cause of claimant's 1995 herniated disc or that it arose on its own as "something's different." Therefore, I find that claimant has failed to prove a causal connection by a preponderance of the evidence.
Accordingly, for those reasons set forth herein, I find that the decision of the Administrative Law Judge should be reversed. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner