Opinion
CLAIM NO. E518255
OPINION FILED JULY 10, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FLOYD THOMAS, JR., Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE ERIC NEWKIRK, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals to the Full Workers' Compensation Commission an administrative law judge's opinion filed September 19, 2000. The administrative law judge found that the claimant failed to prove by a preponderance of the evidence that additional medical treatment, including a referral for pain management, was reasonable and necessary medical treatment in connection with the claimant's compensable injury. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that Tyrone Lewis, age 43, sustained a compensable injury to his thoracic spine in November, 1995. Mr. Lewis testified:
Q. How did you hurt yourself?
A. I was lifting, I was pulling back on a filing cabinet with the assistance of a dolly, had on a back brace. When I first pulled back on it, I
felt something in my back. I was a new employee trying to do a good job. I pulled back on the dolly and it took my breath away.
The claimant began treating with Dr. Greg Smart, who planned bed rest and prescribed medication for anti-inflammation and pain control. Dr. Smart reported on December 4, 1995 that the claimant's "extreme pain" had subsided, but there was "still discomfort of the right mid and lower thoracic paraspinal musculature." Dr. Smart assessed "Back pain — thoracic strain" and continued conservative treatment. Dr. Smart released the claimant to restricted work duty on December 11, 1995, and he reported on December 20, 1995:
Tyrone Lewis contacted the office this afternoon.
Apparently, he left work today with probable disagreement. He claims they put him back on four hour work duty — light duty. He states that he is working on a concrete floor in a cold building. He left after four hours today. . . .
At this point, he can continue light duty; no heavy lifting. Clinically, the symptoms, at this point, do not justify an obvious work reduction in hours. At time of clinic presentation, his complaints have been more severe than his condition at the time of the visits.
Dr. Smart assessed "Thoracic strain — improved" on January 8, 1996 and released the claimant to regular work duties. The claimant returned to Dr. Smart for recurrent back pain in March and April, 1996. A thoracic spine MRI was taken April 8, 1996:
Images reveal that thoracic spine disc T9-T10 is posteriorly herniated with some slight impingement on the thoracic cord. . . .
CONCLUSION: Mild posterior disc herniation with some slight impingement upon the thoracic spinal cord which is probably accounting for patient's symptoms.
Dr. Smart referred the claimant to a neurological surgeon, Dr. Robert D. Dickins, Jr., who recommended physical therapy and use of a TENS unit. The claimant told Dr. Smart in May, 1996 that "physical therapy provides some relief for an hour to 1-1/2 hours and then the symptoms recur; they are just as bad when they recur." Dr. Smart reported in June, 1996, "He states that the physical therapy really provided no relief. The medications over the past two weeks have not provided relief, either."
After the claimant complained of neck and back pain in July, 1996, Dr. Smart prescribed a TENS unit. Dr. Smart reported on August 13, 1996:
Tyrone Lewis is seen in clinic for follow-up of his back pain. This is a thoracic pain radiating to the right thoracic region. He states that the pain has not significantly improved. He did get a TENS unit that has provided no relief of the pain. The pain is still localized to the mid lower thoracic region.
Dr. Smart assessed "Back pain — thoracic — disc herniation by history." On December 4, 1996, Dr. Smart assessed "Back pain" and "Small thoracic disc herniation." Dr. Smart recommended "repeat neurosurgical referral if Mr. Lewis remains incapacitated." Dr. Dickins reported on February 5, 1997:
Since I last saw him he has continued to be under treatment with medications, therapy and the use of a TENS unit. He has not worked since
June 1996. He states that he is having tremendous" pain at this point and cannot even rake to his pain.
He described the location of his pain as being in his low back in the low to mid lumbar region particularly on the right side. He also describes the yard due bilateral leg pain radiating down his legs to the knees. This is more prominent on the right than on the left. He also notes that he has some neck pain and hears a popping sensation when he turns his head. . . .
CURRENT DIAGNOSIS: 1. Low back pain with bilateral leg pain. 2. History of thoracic disc herniation identified on MRI scan. . . .
I believe he needs a lumbar MRI which has never been done and his symptoms presented to me are primarily related to his lumbar region. In addition, an MRI scan of the thoracic spine would be appropriate to re-evaluate the previously documented disc herniation in the thoracic region. I also suggested cervical spine x-rays to evaluate the cervical symptoms that I described above.
The following impression resulted from an MRI of the thoracic spine taken February 13, 1997:
1. Very small left lateral recess disc herniations are present at T3-4 and T4-T5.
2. There is a small broad based right lateral recess/foraminal HNP at T9-T10.
In addition, an MRI of the lumbar spine was taken February 13, 1997:
1. Disc desiccation is present at T12-L1 and at L4-L5.
2. No HNP or significant bony stenosis is identified at any level.
After reviewing these diagnostic studies, Dr. Dickins reported on February 14, 1997 that he had no specific treatment recommendations. Dr. Dickins thought it unlikely that surgical treatment of the thoracic disc herniation would address any of the symptoms that the claimant was experiencing. Dr. Dickins reported on May 8, 1997:
He has a disc herniation, described as small, at two levels in the thoracic spine. A physical impairment rating of 3% as related to the whole person is estimated based on reference to the
AMA Guide on Determination of Physical Impairment;
4th Edition. This represents 2% for a disc herniation with residual symptoms at one level and an additional 1% for a second level representing a total of 3% rating.
The parties stipulated that the respondents paid permanent par tial disability benefits related to the claimant's compensable injury. Dr. Smart examined the claimant in September, 1997 and assessed back pain, neck pain, and groin pain. In January, 1998, Dr. Smart assessed "Back pain — chronic" and "Disc herniation — thoracic T-9, T-10." Dr. Smart wrote:
We have discussed treatment with Mr. Lewis.
He is considering pain management referral, but the arrangements will have to go through litigation. The insurance company has not allowed pain management referral at this point.
We are awaiting a judge's decision. Mr. Lewis has been on non-steroidal therapy, muscle spasm pills, and pain pills in the past. This clinic has indicated that we prefer he remain off the muscle spasm pills and pain medications routinely. . . .Further recommendations will follow pending the judge's decision. Long-term management, as indicated.
The claimant reported to Dr. Smart in February, 1998 that he had been in a motor vehicle accident which had led to additional "spasm" in the thoracic region. Dr. Smart's physical examination continued to reveal no spasm, and Dr. Smart assessed "Back pain — chronic — history of disc disease." Dr. Smart again referred the claimant to Dr. Dickins, who wrote on June 25, 1998:
I last saw Mr. Lewis in February 1997.
He returned for re-evaluation stating that he has been having some pain in his low to mid thoracic region associated with a sense of muscle spasm. This had an onset in May or early June without known injury. . . .
A prescription for Naproxen 500 mg. is given to him and also a prescription for Soma. No additional follow-up is scheduled here.
The record includes a note from Medical Center of South Arkansas to the claimant requesting payment for service provided October 6-7, 1998. The Medical Center Business Office told the claimant, "We have been informed no insurance payment will be made for charges relating to the claim noted above." The claimant testified:
Q. What happened on 10-6-98?
A. I had an onset from my back, I couldn't breathe, I couldn't move, and Dr. Pinkerton hospitalized me.
Q. It was related to your thoracic injury to your back?
A. Yes, sir, it was.
The claimant continued periodic follow-up visits with Dr. Smart for chronic thoracic pain. Dr. Smart reported on December 14, 1998:
Mr. Lewis has contacted our office several times over the past week. We have attempted to treat his
"chronic pain" with different kinds of medications, specifically non-steroidals, Ultram, and minimal tranquilizer muscle spasm pills. The lawyers have previously told us that we had to treat Mr. Lewis
"forever." I have indicated to Mr. Lewis that I
would not continue to call in tranquilizer muscle relaxers and pain medications on a long-term basis.
I have asked him to have the lawyers call us to make arrangements for a transfer of records to the physician of his choice. This appears to be a long-term problem. Mr. Lewis states that it is winter, and his pain usually gets worse in cold weather. We will temporarily call in a prescription for muscle spasm pills and a low dose cation. In the interim, I have asked of pain mediarrangements for transfer of records within the next two months. I'll be glad to talk to his lawyer regarding that referral since Mr. Lewis is not satisfied with our treatment. Another option is consideration of pain clinic referral for long-term management. One of the problems is that we make appointments for Mr. Lewis. He does not make the appointment; therefore, it is difficult to make further referrals. Mr. Lewis was scheduled to see the neurosurgeon within the past few months.
Apparently, he failed to make that appointment.
Nevertheless, the claimant returned to Dr. Smart on January 21, 1999:
Mr Lewis has had the persistent pain. He has had intermittent muscle spasm pills, nonsteroidal anti-inflammatory agents and occasional pain medications. Mr. Lewis is aware of the recommendations not to use the narcotic pain medications and the muscle spasm pills for chronic pain. We have addressed this issue several times and he continues to have pain, which we are attempting to treat with non-narcotic medications. . . .there is mild tenderness of the mid thoracic spine and paraspinal musculature; to lowerpoint muscle spasm, but there is tenderness of particularly the right mid to lower lumbar paraspinal musculature. . . .
At this point, Mr. Lewis would consider neurosurgery. That apparently has not been allowed ance company. My recommendations would followby the insur-up with repeat neurosurgical evaluation.
Again, for persons with chronic pain (more than six months), they need to be followed by a pain clinic; specifically, if narcotic agents are necessary.
Ultram has not provided relief. Mr. Lewis has had reactions to Flexeril and Naprosyn, and Norflex apparently caused itching. He has had no relief with Dolgic. Talacen provided no significant relief. Daypro has provided no relief. He is uncertain as to whether the Cataflam provided any relief. The only thing that has provided relief is Lorcet Plus, previously prescribed by Dr. Steve
Pinkerton, and Soma, which I have prescribed in the past for muscle spasm. Apparently, Mr. Lewis has not had epidural steroid injection trial as of yet. Demerol injections have given him relief in the past.
As previously mentioned, this chronic pain cannot be treated with chronic narcotics. I have asked
Mr. Lewis to consider changing his provider for this particular Workmen's Compensation injury if he has to have the stronger pain medications and muscle spasm pills. . . .
Hopefully, arrangements can be made to another primary caregiver, and as mentioned above, Mr.
Lewis would consider neurosurgical evaluation at this point. I'll send a copy of this report to Floyd Thomas for consideration of: 1) change to another primary care provider; 2) repeat neurosurgical evaluation and possible neurosurgical intervention; 3) consideration of referral to a pain management clinic.
The claimant testified that Dr. Smart's reason for seeking to arrange another primary caregiver was that Dr. Smart "wasn't being paid."
Dr. Smart wrote to Floyd Thomas on April 12, 1999:
Mr. Lewis has had persistent symptoms of thoracic discomfort since 1995. He has required some intermittent pain medication and muscle spasm pills. Due the chronicity of the symptoms, I believe he would best be served by a pain management clinic.
Would you please make arrangements for neurosurgical follow-up for Mr. Lewis? Please call any questions concerning this matter.
The claimant followed up with Dr. Smart on June 10, 1999, at w if there arehich time the claimant reported "chronic back pain and back spasms." Dr. Smart's physical examination did not reveal any muscle spasms. Dr. Smart assessed "Back pain — thoracic pain — disc herniation — thoracic", and he planned continued conservative management.
The record includes a collection letter to the claimant from Financial Assistance, dated November 2, 1999 regarding the services of Dr. Pinkerton. The claimant testified that Dr. Pinkerton had provided medical treatment related to his back, because "Dr. Smart wasn't seeing me at that time." On December 20, 1999, the claimant began receiving collection letters from Service Finance Corporation. The claimant testified that these debts arose from his October, 1998 hospitalization.
The record also includes two statements from Emergency Physician Group, Medical Center of South Arkansas, dated January 24, 2000 and February 2, 2000. The statements directed the claimant to pay for emergency medical services provided at the Medical Center on November 23, 1999. The claimant testified that he had presented to the emergency room on that date for back pain, "Because Dr. Smart wouldn't see me. It may have been late in the evening and that was my only course." The claimant described the emergency room treatment as "They prescribe medication and advise that I see my treating physician." In addition, Financial Corporation of America sent the claimant a collection letter on February 7, 2000, for the services rendered November 23, 1999. The claimant also presented into evidence a First Demand for Payment, dated February 18, 2000, from the creditor "Emergency Phys Group MSCA." The claimant testified that the creditor billed him for an (undated) emergency room visit.
David S. Wilson, III wrote to Floyd M. Thomas, Jr. on April 17, 2000:
This letter will confirm that I received your correspondence dated April 5, 2000, along with the accompanying medical records. However, the
Respondents decided to controvert any additional medical treatment at some point during the middle of last year. Therefore, the Respondents will not be paying the medical bills with a date of service of November 23, 1999. The older bills do not identify the services they are associated with, and I do not believe they contain a five digit code either. Accordingly, they were not properly submitted. Liberty Mutual will track down the additional information required by
Rule 30. Provided the older medical bills arise out of treatment that was reasonably necessary in connection with Claimant's compensable injury to the thoracic spine, they will be placed in line for payment. In the meantime, if you have any questions or comments, please do not hesitate to contact me.
Dr. Smart wrote on May 19, 2000:
Letter to workmens (sic) comp. Again, Mr. Lewis is recommended to proceed with pain management per pain clinic. He has been on muscle spasm pills and pain medications on a somewhat irregular basis for the past several years. Due to the chronicity of the symptoms and the severity of the symptoms,
I have asked him to follow up with pain clinic management — that has been previously recommended.
Mr. Lewis has been on Zanaflex 1-1/2 a day without relief and that will be tapered. Darvocet did not relieve the discomfort. He'll be tapered off
Zanaflex ½ tablet twice a day for one week and then discontinue. He'll be placed on a trial of Mobic
7.5 mg. 1 tablet daily. Further recommendations per pain clinic referral. He also seeks the orthopedist at the VA hospital.
On June 29, 2000, the claimant received another collection statement from Service Finance Corporation, this time representing the creditor Baptist Health Medical Center.
Mr. Lewis claimed entitlement to additional worker's compensation. The claimant contended that he suffered an injury "in the course and scope of his employment which is permanent in nature. The permanent nature of claimant's injury requires periodic medical treatment. Claimant is entitled to continuing medical treatment by Dr. Greg Smart and referral, as indicated by Dr. Smart, to pain management." The respondents contended that treatment at a pain clinic would not be reasonably necessary in connection with the claimant's injury. The respondents contended that the claimant had not benefitted "from the comprehensive array of conservative treatment he has received for his compensable injury. Finally, respondents contend that all benefits to which claimant is entitled have been paid and are being paid and have never been controverted."
According to a pre-hearing conference order filed July 10, 2000, the issues to be litigated were:
(1) Whether claimant is entitled to additional medical benefits, specifically medical treatment which has been controverted by respondent including but not limited to pain management which has been recommended by his authorized treating physician;
(2) Controversion and attorney's fees.
After a hearing before the Commission, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that the medical bills the claimant submitted into evidence were incurred as a result of receiving reasonable and necessary medical treatment related to his compensable injury. The administrative law judge also found that the claimant failed to prove that additional medical treatment, including a referral for pain management, was reasonable and necessary medical treatment in connection with the claimant's compensable injury. The administrative law judge therefore denied and dismissed the claim for additional medical treatment; claimant appeals to the Full Commission.
II. ADJUDICATION
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Supp. 1999). 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. Beatty v. Ben Pearson, Inc., Workers' Compensation Commission D612291 (Feb. 17, 1989). What constitutes reasonable and necessary medical treatment is a fact question for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
After de novo review of the entire record, the Full Commission affirms the administrative law judge's finding that the claimant failed to prove that additional medical treatment was reasonable, necessary, and related to the claimant's compensable injury. After his compensable thoracic strain in November, 1995, the claimant received medical treatment from Dr. Greg Smart. Dr. Smart released the claimant to restricted work in December, 1995, noting that "his complaints have been more severe than his condition at the time of the visits." Dr. Smart released the claimant to full work duty in January, 1996.
An MRI taken in April, 1996 showed a "mild" posterior disc herniation at T9-T10. The claimant was referred to a neurological surgeon, Dr. Dickins, who recommended conservative treatment modalities. The claimant reported "no relief" from medication, physical therapy, and application of a TENS unit. Dr. Dickins reported in February, 1997, some 15 months after the compensable thoracic strain, that the claimant's pain complaints had moved to his neck, lumbar region, and lower extremities. Dr. Dickins, a neurosurgeon, reviewed additional diagnostic studies and could offer "no specific treatment recommendations."
Dr. Dickins assigned a permanent physical impairment rating in May, 1997, accepted and paid by the respondents. Whether an employee's healing period has ended is a factual determination to be made by the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). Our de novo review in the present matter indicates that the claimant's healing period for his compensable thoracic strain ended no later than May, 1997. In September, 1997, nearly two years after the compensable thoracic injury, the claimant reported that the pain had now moved from his neck and back to his groin. Dr. Smart assessed "chronic back pain" in January, 1998. Dr. Smart wrote:
We have discussed treatment with Mr. Lewis.
He is considering pain management referral, but the arrangements will have to go through litigation. The insurance company has not allowed pain management referral at this point.
The Dissenting Opinion would find that a pain management referral would be reasonable, necessary, and related to the claimant's compensable injury. We recognize that medical treatment intended to reduce or enable an injured worker to cope with chronic pain may constitute reasonably necessary medical treatment. However, the chronic pain must be attributable to the compensable injury. See, Haskins v. TEC, Workers' Compensation Commission D704562 (June 20, 1991). Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship.Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). The determination of whether a causal connection exists is a question of fact for the Commission. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998).
In the present matter, the Full Commission affirms the administrative law judge's determination that the claimant's chronic complaints of pain are not causally related to his November, 1995 compensable injury. When Dr. Smart first suggested chronic pain management in January, 1998, he did not causally relate the claimant's need for chronic pain management to the compensable injury. We note from the record that the claimant reported new "spasm" in the thoracic region after a motor vehicle accident, although Dr. Smart found no such spasm and assessed "chronic back pain — history of disc disease." The Full Commission is not asserting that the claimant must establish his need for additional treatment with objective findings; rather, we are assessing the claimant's credibility. When Dr. Dickins again saw the claimant on June 25, 1998, he noted "an onset of May or early June without known injury."
The Full Commission also affirms the administrative law judge's finding that the claimant failed to establish that the various collection notices and dunning letters were for medical services causally related to the claimant's compensable injury. The Dissenting Opinion cites medical bills from three different providers and the claimant's testimony that these services were related to the compensable injury. Nevertheless, we find that the claimant failed to prove by a preponderance of the evidence that the services mentioned by the Dissenting Opinion and the other bills submitted by the claimant were for treatment causally related to his compensable injury. Other than the claimant's testimony, there were no accompanying medical reports detailing the scope and nature of medical treatment given the claimant by these providers. In December, 1998, over three years after the claimant's thoracic strain, Dr. Smart stated that legal counsel had informed him that he was required to treat the claimant "forever." Dr. Smart wrote, however, "I have indicated to Mr. Lewis that I would not continue to call in tranquilizer muscle relaxers and pain medications on a long-term basis." The Commission has questioned an individual's complaints of excessive, intractable pain, when shown in the light of narcotic addiction. See, Jones v. Nelms Lincoln Mercury, Workers' Compensation Commission E808178 (Oct. 5, 1999); Winslow v. D B Mechanical Contractors, Workers' Compensation Commission E302577 (Feb. 24, 1999).
Dr. Smart opined in January, 1999 that persons with "chronic pain . . . need to be followed by a pain clinic; specifically, if narcotic agents are necessary." Dr. Smart did not attempt to causally relate the claimant's chronic pain to his 1995 injury. Dr. Smart noted that the claimant had reported no relief from a plethora of narcotic medications, and Dr. Smart wished to transfer care to another physician. Finally, Dr. Smart wrote in May, 2000 that the claimant "has been on muscle spasm pills and pain medications on a somewhat irregular basis for the past several years. Due to the chronicity of the symptoms and the severity of the symptoms, I have asked him to follow up with pain clinic management." Again, Dr. Smart did not relate the claimant's long-term complaints of pain or need for pain management to the claimant's compensable injury. The decision of the administrative law judge is affirmed.
After reviewing the entire record de novo, the Full Commission affirms the administrative law judge's finding that the claimant failed to prove by a preponderance of the evidence that the medical bills he submitted were incurred as a result of receiving reasonable and necessary medical treatment related to the claimant's compensable injury. We affirm the administrative law judge's finding that the claimant failed to prove that additional medical treatment, including a referral for pain management, is reasonable, necessary, or causally connected to the claimant's compensable injury. The Full Commission denies and dismisses this claim.
IT IS SO ORDERED.
____________________________________ ELDON F. COFFMAN, Chairman
____________________________________ MIKE WILSON, Commissioner
____________________________________ SHELBY W. TURNER, Commissioner
I must respectfully dissent from the Majority Opinion in this case. I find, upon de novo review of the entire record herein, that claimant is entitled to treatment at a pain management clinic and to payment of past medical expenses. Accordingly, I would reverse the administrative law judge's decision and award such benefits.
Claimant suffered an admittedly compensable back injury in 1995 while employed for respondent-employer and has since then suffered chronic pain to his thoracic spine.
Claimant contends, and I agree, that he is entitled to benefits for services previously rendered and that respondents consistently and deliberately fail to make timely payments and controvert legitimate claims. He also contends that he is entitled to additional reasonable and necessary medical treatment, including but not limited to, pain management that was recommended by Dr. Greg Smart, his primary care physician.
The Majority Opinion holds that claimant failed to establish a causal relationship between his compensable injury and his chronic complaints of pain.
The law is extremely clear on the issue of causal relationship — when the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for any natural consequence that flows from that injury. Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). While medical evidence is not required to show a causal connection, claimant must show proof by a preponderance of the evidence. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
The Majority Opinion notes that its finding of a lack of causal relationship is based on claimant's credibility — or in this case lack thereof. In support of this argument, the Majority Opinion points out that claimant's report of a "new spasm," for which Dr. Smart apparently found no objective evidence, diminishes the claimant's credibility and defeats the establishment of a causal relationship by a preponderance of the evidence. I find that the insinuation that claimant was untruthful about the existence of such spasms unfairly deprives claimant of benefits to which he is entitled.
Since I find that a causal relationship does exist between claimant's chronic pain and his compensable injury, I would further find that treatment by a pain management clinic is reasonable and necessary in relation to claimant's compensable injury.
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a). 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. Ark. Code Ann. § 11-9-705(a)(3) (repl. 1996); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).
Claimant seeks treatment at a pain clinic for management of his chronic pain symptoms. Medical records indicate that claimant has taken various pain medications, but continues to feel pain from his back injury.
Dr. Smart referred claimant to Dr. Dickens, a neurosurgeon, and claimant underwent a functional capacity evaluation. While claimant does suffer from a herniated disc, he did not undergo surgery because there was no spinal cord compression.
Dr. Smart noted on April 12, 1999:
My recommendation, at this time, is for follow-up neurosurgical evaluation. Apparently, nerve conduction EMG studies were considered at one time; these were never performed. In addition, as previously recommended, I do believe that pain clinic management is needed.
Mr. Lewis has persistent symptoms of thoracic discomfort since 1995. He has required some intermittent pain medication and muscle spasm pills. Due to the chronicity of the symptoms, I believe he would best be served by a pain management clinic. (emphasis added).
(Claimant's Ex. 1, p. 54). Dr. Smart noted on June 10, 1999, that claimant continued to experience pain and stated that surgical intervention may be necessary. On May 19, 2000, Dr. Smart again recommended that claimant treat with a pain management facility:
Mr. Lewis has been followed in this clinic for years for back pain. He continues to have thoracic discomfort and requires intermittent pain and muscle spasm medications. These have been prescribed in very restricted quantities, but due to the chronicity and severity of complaints, Mr. Lewis needs pain clinic referral as previously recommended.
(Claimant's Ex. 1, p. 58)
"Reasonably necessary medical services" have been defined as those services which are necessitated by or connected with the compensable injury and have a reasonable expectation of accomplishing the purpose or goal for which they were intended. These potential purposes or goals are varied and are not limited to those medical services actually intended to improve or resolve the physical damage produced by the compensable injury.
"Reasonably necessary medical services" may also include those services required to accurately diagnose the nature and extent of the compensable injury, to merely reduce or alleviate the symptoms resulting from the compensable injury, to merely reduce or alleviate the symptoms resulting from the compensable injury, to maintain the level of healing achieved or to prevent further deterioration of the damage produced by the compensable injury.
Dr. Smart recommends that claimant be treated by a chronic pain management clinic. He noted that claimant's pain seems to respond positively only to narcotic pain therapy and recommends that pain management is claimant's best course of action to treat his compensable injury. (Claimant's Ex. 1, p. 52). While theMajority Opinion states that Dr. Smart failed to attribute claimant's pain to his compensable injury, Dr. Smart specifically opines, "Mr. Lewis has persistent symptoms of thoracic discomfort since 1995 [the date of claimant's compensable injury]. Due to the chronicity of the symptoms, I believe he would best be served by a pain management clinic."
Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Tina Haskins v. TEC, Full Compensation Opinion, Filed June 20, 1991 ( D704562). An employer may also remain liable for medical treatment reasonably necessary to maintain a claimant's condition after the healing period ends. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
Claimant has suffered from chronic thoracic pain since his compensable injury in November of 1995. Claimant's pain has failed to respond to previous drug treatments and Dr. Dickerson opines that claimant is not a surgical candidate. This leaves as the only course of medical action some sort of chronic pain management — which has been recommended by Dr. Smart. I find referral to a pain management clinic to be reasonable and necessary in light of claimant's medical condition and the fact that his pain has been unresponsive to previous treatment. See Haskins, supra.
Additionally, I find that claimant did establish that his past medical expenses are causally related to his compensable injury. Claimant testified at the hearing that he owes for medical treatment for his compensable injury, further stating that respondents have failed to pay for bills now referred to collection agencies.
In support of this, claimant submitted the following medical bills: Medical Center of South Arkansas — $50, $86.25 and $1,078.90; Dr. Pinkerton — $132; and Emergency Physicians Group — $40. He testified that each of these bills were for services rendered to treat his compensable injury. I find that claimant has met his burden and proved that respondents are liable for these medical costs.
Specifically, I find that claimant proved by a preponderance of the evidence his entitlement to past medical services and for additional medical services, to include but not limited to, pain management services. Accordingly, I would reverse the Administrative Law Judge and award benefits.
For the foregoing reasons, I must respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner